188 Superior Courts: V. C. Stuart.-V. C. Wood.-Queen's Bench. enforce the agreement, that the agreement | incidental to the subject-matter of a suit. In conferred no lien on the sum to be recover the present case the Court knew nothing of the ed, but only a legal right. conduct of the litigant parties, and no order Quære, whether the agreement savours of would therefore be made. champerty? Vice-Chancellor Wood. Christie v. Cameron. Dec. 20, 1854. Entering appeaRANCE FOR DEFENDANT. -SUBSTITUTING SERVICE ON SOLICITOR. Order for leave to enter an appearance for the defendant, who was keeping out of the way, and whose address could not be ascertained, and to substitute service of all future proceedings on his solicitor, who had admitted he knew where the defendant could be met with. Ir appeared that the plaintiffs had advertised for the next of kin of one Martin Hammond who died in 1794 at Calcutta, and that the defendant answered the advertisement and stated his willingness to allow them one-half of the sum to be recovered for their trouble, and an agreement was accordingly executed in February, 1854, whereby the defendant agreed to allow the plaintiffs one-half of the amount in consideration of their bearing all the costs of prosecuting his claim. The defendant was proved to be next of kin, and gave a power of attorney to the Calcutta agents of the plaintiffs' solicitor to receive the moneys, which were re-pearance for the defendant in this suit, who mitted to this country by a bill on the Agra Banking Company. This suit was now instituted, on the defendant refusing to carry out the above agreement, to obtain a declaration that the plaintiffs were entitled to a moiety of the sum recovered and for an injunction to restrain the defendant from obtaining possession of the bill. Bacon and Erskine appeared for the defendant, in support of a demurrer for want of equity; Malins and Bilton, contrà. The Vice-Chancellor said, that without deciding on the question, whether the agreement savoured of champerty, it did not give the plaintiffs any lien on the sum to be recovered, but a purely legal right. The demurrer would therefore be allowed,-no order as to costs. Andrews v. Morgan. Dec. 21, 1854. ORDER AS TO COSTS, WHERE REFERENCE TO ARBITRATION OF PARTNERSHIP ACCOUNTS. In a suit between partners for an account, an order was obtained before answer for an injunction to restrain any dealing with the partnership property, and referring the accounts to arbitration, the defendant paying a sum into the bank pending the reference: Held, that the Court would make an order as to costs, although the award was in the plaintiff's favour. It appeared in this suit, which was instituted between partners for an account, that the plaintiff had, before the defendant had answered, moved for an injunction to restrain any dealing with the partnership estate, and obtained an order referring the accounts to arbitration, and for the defendant to pay a sum of money into the bank pending such reference. Law now appeared in support of this petition, asking for the costs of the reference and of the award, upon the award being in the plaintiff's favour. The Vice-Chancellor (without calling on W. W. Cooper for the defendant, contrà) said, that the question of costs was for the discretion of the Court, and could only be dealt with where THIS was a motion for leave to enter an ap was keeping out of the way and whose address could not be ascertained, and to substitute service of all future proceedings on his solicitor. Bowring in support on an affidavit that the solicitor had admitted he knew where the defendant could be met with. The Vice-Chancellor made the order as asked. Court of Queen's Bench. ACTION AGAINST INFANT FOR NECESSARIES. ACKNOWLEDGMENT.-STATUTE OF LIMI. TATIONS. To an action for goods sold and delivered, the defendant set up the Statute of Limitations, and on the plaintiff replying a promise to pay within six years, the defendant alleged by rejoinder that he was an infant when the same was made. The surrejoinder set up that the defendant was an infant, both when the goods were delivered and when the promise was made: Held, that as for the purposes of a demurrer to this sur rejoinder, the goods must be taken to be necessaries, the plaintiff was entitled to recover. THIS was an action for goods sold and delivered, to which the Statute of Limitations was pleaded, and the plaintiff replied, that the defendant had promised to pay within six years before action commenced. The defendant rejoined, that at the time of making such acknowledgment he was an infant. The case now came on for demurrer to the surrejoinder, that the defendant was an infant both when the goods were delivered and when the acknowledgment was made. R. Malcolm Kerr in support. The Court (without calling on Fisher for the plaintiff, contrà) said, that for the purposes of the demurrer the debt must be taken to be for necessaries. As, therefore, he was in a condition to make the original contract he was of sufficient capacity to acknowledge the contract, and the plaintiff was entitled to judgment. The Legal Observer, AND' SOLICITORS' JOURNAL. Still attorneyed at your service.”—Shakespeare. SATURDAY, JANUARY 13, 1855. JOINT-STOCK EXECUTOR AND TRUSTEE COMPANY. PRIVATE BILL FOR INCORPORATING THE LATING TO TRUSTEES. its shareholders, but by amending the Law relating to Executors and Trustees generally,-whether such executors or trustees are few or many,-whether three or four in number or more,-or a numerous body of shareholders in a Joint-Stock Company, or the Directors who represent the Company. THE promoters of the Joint-Stock Exe- If the proposed Executor and Trustee Socutor and Trustee Company have again ciety, by its "executive council" of twelve, brought forward their project in the form are to be entitled to receive a commission of a Private Bill in the House of Com- on the trust property, whether on the gross mons. We hear nothing of the South Sea value of the whole estate, or the annual Company Trust Bill, and presume, there- proceeds, why should not the Directors of fore, that its Directors have determined to the several Insurance Societies be equally wind up their own affairs without further entitled to similar emoluments, such as the delay. The South Sea Directors, including Law Life, the Legal and General, the Law the Honourable Mr. Bouverie, were an in- Fire, the London and Provincial, and other fluential body, and the large capital they well-known institutions, who, having an proposed to reserve as a guarantee fund established office of business, governed by was calculated to attract a considerable Barristers and Solicitors as proposed in the share of public confidence. The money new Society, are able to conduct the trust was already in hand, and might be readily affairs (if proper to be delegated to a public transferred to the proposed trustees. The board) with facility and advantage? Again, objections to the plan were, however, if public companies are to have the benefit deemed insuperable, although the promo- of a change in the law, why should not ters offered to modify their Bill in every bankers and solicitors, many of whom fill possible way to satisfy the Select Commit- the offices of executors and trustees? tee of the House of Lords. For these reasons, it seems manifest that so important an alteration in the law as that proposed, should not take place under colour of a private Bill, but should be submitted to Parliament with the safeguards which attach to a public Act,-the various stages of which must again and again appear in the votes and proceedings of both The first objection to all measures of this kind rests upon legislative grounds, entirely independent of the utility or "merits" of the case. Admitting, even for the sake of argument, that the powers sought for are necessary or useful to the public, still the matter should be introduced to Parliament in the form of a Public Bill, because, in Houses. order to confer such powers, the present These private Bills are not sent even to state of the general law must be altered. the members of Parliament, as are all public Moreover, if it be just or expedient to alter Bills, and may therefore pass through their the law in any respect, the object should several stages without due attention, for it be effected, not in favour of this peculiar may reasonably be supposed that such priCompany for the pecuniary advantage of vate Bills relate only to private rights and VOL. XLIX. No. 1,401. M 190 Joint-Stock Executor and Trustee Company. interests, and that the law officers of the powers proposed to be conferred on this House will take care that there is no in- joint-stock company, and the consequences fringement of private or individual rights. which may result both to the Public and It is no part of the duty of those officers to the Profession, if the law be altered as protake objections to the measure on public posed. grounds. They, of course, leave to the patriotic spirit of our representatives the discovery of any public objections, and the duty of bringing them forward to the notice of Parliament. We have reason to believe that the sense of Parliament will be taken on the preliminary question of proceeding (if at all) by a public instead of a private Bill. The grounds on which the efforts of last Session were successfully resisted, will, however, equally apply, whether the course to be taken be in the form of a public or private Bill, and we shall take an early opportunity of recalling the attention of our readers to the several objections which were then urged against intrusting a board of directors, committee of management, or "executive council," of a joint-stock company with the administration of family trusts or the management of co-partnership affairs arising on the decease of bankers and mer chants. It may not be improper to notice that the proposed governing body named in the present Bill is much diminished in importance and strength when compared with that of last Session. The following distinguished persons appear to have withdrawn, at least, from the direction :-Earl Zetland; Mr. Headlam, M.P.; Mr. M. C. Chase; Mr. Charles Clark, the Barrister; Mr. J. Constable; Mr. J. P. Macdougall; Mr. H. Morris; Mr. J. Carnac Morris; and Sir Sir Sibbald D. Scott, Bart. Whilst the only substituted name is that of Mr. Thomas Norton.1 In the first prospectus of the company, we believe, the honoured name of Sir John Patteson appeared as one of the trustees or directors; it was not, however, included in the Bill, but he was examined as a witness in support of the measure. These alterations in the proposed governing body are significant of doubts and difficulties in carrying the plan into effect. Seeing that copies of the Bill can only be obtained through favour of the promoters, we deem it expedient to set forth the clauses in extenso for the information of our readers, many of whom would otherwise have no opportunity of considering the CONSTITUTION OF THE COMPANY. THE preamble recites that it is desirable that a corporate body should be established for the security and management of testamentary and ally done without the aid of Parliament. It is trust property, but the same cannot be effectutherefore proposed to enact as follows: 1. James Burchell, Montagu Chambers, John Chevallier Cobbold, Oliver Hargreave, James Peard Ley, George Norton, Thomas Norton, Charles Gipps Prowett, Philip Twells, Henry Ward, and Josiah Wilkinson, and all other persons and corporations who have alto the undertaking hereby authorised, and ready subscribed or shall hereafter subscribe their executors, administrators, successors, and assigns respectively, shall be united into a society or company for the objects herein provided for, and such society or company shall be incorporated by the name of "The Executor and Trustee Corporation," and by that name shall be a body corporate with a shall have power to hold lands devised, conperpetual succession and a common seal, and veyed to, or vested in them for the purposes of this Act. 2. In citing this Act in other Acts of Parliament, and in legal instruments and pleadings, it shall be sufficient to use the expression "The Executor and Trustee Corporation Act, 1855." 3. In the construction and for the purposes of this Act The term "real property "shall include all freehold, copyhold, customary and other hereditaments and heritable property, whether corporeal or incorporeal, and any estate and interest other than a chattel interest therein; The term "personal property "shall include all property not comprised in the preceding definition of real property; The term "property "alone shall include real property and personal property; The word "administrator shall mean any person to whom administration of the personal property of a deceased person shall have been committed by any Court of competent jurisdiction, with or without a will annexed; The term "settlor" shall mean any person creating a trust or receivership of property; The term "settlement shall mean any instrument creating a trust or receivership of property; The term "trust" shall include executorships, administratorships, and receiverships. 4. The provisions of "The Companies' Clauses' Consolidation Act, 1845," (except the clauses with respect to the borrowing of money by the company on mortgage or bond,) shall 'The remaining names will be found at be incorporated with and form part of this Act; and the term "the Directors," whenever p. 191, post. Joint-Stock Executor and Trustee Company. 191 it is used in "The Companies' Clauses' Con- copyhold lands, or where the company shall solidation Act, 1845," shall mean the "Exe-purchase copyhold lands in pursuance of the cutive Council" as constituted by this Act. 5. The capital of the company shall be one million pounds. 6. The said capital shall be divided into fifty thousand shares, and the amount of each share shall be 201. powers hereby given, the lord of the manor of which such lands are held shall admit the nominee of the company as tenant in respect of such lands, and such admission shall enure to the nominee of the company for the time being, and such fines and heriots shall be there7. Two pounds per share shall be the great-upon paid and rendered and such services perest amount of any one call which the company formed as in the case of an admisson of ormay make on the shareholders, and three dinary trustees. months at least shall be the interval between successive calls. EXECUTIVE COUNCIL. 8. The number of members of the executive council shall be eleven, and the qualification of a member thereof shall be the possession in his own right of one hundred shares in the undertaking. 9. It shall be lawful for the company to increase the number of the executive council, provided the increased number shall not be more than twenty-four. 10. James Burchell, Montagu Chambers, John Chevallier Cobbold, Oliver Hargreave, James Peard Ley, George Norton, Thomas Charles Gipps Prowett, Philip Twells, Henry Ward, and Josiah Wilkinson shall be the first members of the executive council of the company to direct and manage the affairs thereof. 11. The first ordinary meeting of the company shall be held within six months after the passing of this Act. 12. The quorum of a meeting of the executive council shall be five. 13. The number of members of which committees appointed by the executive council shall consist shall not be less than three nor more than five, and the quorum of each committee shall be three. POWERS OF THE COMPANY. 14. It shall be lawful for the company, and it is hereby empowered, to accept, manage, and execute trusts of any property vested in or transferred or conveyed to them under settlements, wills, or other instruments, and to accept and execute the office of executor under wills, and of administrator of the personal estates of intestates, and of receiver of any property, and for any of those purposes, to accept, take, and hold real property: provided always, that nothing herein contained shall prejudice or affect the rights of the Crown in such real property upon any escheat of the beneficial interest therein. 17. Any Court or Judge having the grant of probate and of letters of administration in any of her Majesty's dominions may, if the company or the official executor thereof shall be named as executor in any will, grant the probate of such will either to the company or to the official executor appointed for, and resident within, the jurisdiction of the Court making such grant; and such Court or Judge may, on the application of the person or persons entitled by law to take out letters of administration to any person dying intestate, or who having left a will has omitted to appoint executors, or whose appointed executors have died or renounced probate, grant administration, general or special, of the personal property of such person to the company or its official executor; and the company may therupon give any bond usual on the grant of administration for the due administration of the property of such intestate, which any such Court may accept without surety; on any such grant of probate or administration to, the official executor of the company the personal property of the testator or intestate shall vest in the company, and the company shall be liable for the administration of such property, and all actions and suits in reference to such property, or the administration thereof, shall be brought against the company as if it were the executor or administrator of such testator or intestate. 18. Any Court or Judge in any of her Maor hereafter having jesty's dominions, now jurisdiction in that behalf, may appoint the company to be the committee or receiver of any property, in order to the same being managed by the company under the direction of such Court or Judge. 19. Where the person to whom any property shall have been devised, bequeathed, transferred, or conveyed upon any trust shall die, or refuse or decline, or be incapable, to accept the same, or having accepted the same shall die intestate or become incapable of acting therein, or be removed, and in all cases in which any Court or Judge in any of her Majesty's do15. The executive council may from time to minions now has, or hereafter may have, juristime appoint any person or persons to act as diction to appoint a new trustee, such Court or official executor on behalf of the company in Judge, on an application to be made by petition any of her Majesty's dominions, and may at in a summary manner by any person beneficipleasure remove the person or persons so ap-ally interested, may appoint the company to be pointed, and appoint another person or persons in his or their place, and the rights or powers of any such person or persons shall on his removal absolutely cease. 16. When any property comprised in any trust accepted by the company shall consist of trustee of such property, whereupon the same shall vest in the company, upon the trusts to which the same is then liable. 20. It shall and may be lawful for all trustees, executors, administrators, and receivers, unless the instruments from which they derive M 2 192 Joint-Stock Executor and Trustee Company. 25. The company shall keep distinct accounts in their books as to each trust undertaken by them, and each such account shall be accessible only to the executive council and the auditors and officers of the company, to the parties interested therein, and to any committee appointed by the shareholders of the company at a general meeting: provided always, that the company may lend money belonging to two or more trusts on the same real security in Great Britain or Ireland, but shall on each such loan execute a deed poll signifying the proportion of the money so lent which belongs to each trust. their powers shall expressly direct otherwise, trust by it committed or loss of property to it with the assent of the company, and either with confided, in the same manner and to the same the assent of the parties beneficially interested, extent and under the same circumstances as if they should be all sui juris, or with the con- any individual trustee or trustees, but no sent of any Court or Judge aforesaid having further or otherwise. jurisdiction in that behalf, on an application by petition to be made in a summary manner by any such trustee, executor, administrator, or receiver, or any cestui que trust, to convey and transfer to the company by deed duly stamped all the property held by them, to be held by the company on the trusts then subsisting therein; and upon such conveyance or transfer being executed, the appointment and duties of such trustees, executors, administrators, and receivers, shall wholly cease and determine, and the company shall become and be trustee, executor, administrator, or receiver in their stead; and such trustees, executors, administrators, and receivers shall thenceforth be indemnified against any claim in respect of the future management and administration of the property 26. It shall not be lawful for the company so conveyed and transferred: provided always, to undertake any trusts until they shall have that any proceedings pending by or against any satisfied the Lords Commissioners of her Masuch trustees, executors, administrators, or re-jesty's Treasury that the subscribed capital of ceivers shall not abate by reason of any such the company amounts to 500,000, and that transfer or conveyance; but the company may (exclusive of any other property of the combe made a party to such proceedings, on application to the Court in which they are pending: Provided also, that the company shall not on such conveyance or transfer become responsible for any breach of trust or devastavit theretofore committed by any such trustees, executors, administrators, or receivers. GUARANTEE FUND. pany) the company has transferred in the books of the Governor and Company of the Bank of England into the joint names of the said Commissioners and of the company, or have deposited or caused to be deposited in such joint names, Parliamentary Stocks or Funds or Government securities to the amount 21. In all cases in which such transfer as of 200,000l.; and such stocks, funds, or seaforesaid shall be made by executors or admi-curities shall be called "The Guarantee Fund " nistrators, notice thereof shall be given by the company to the registrar of the Court by which such probate has been granted, or such letters of administration issued, and the registrar shall endorse a certificate of the same upou such probate or letters of administration, and shall register the same in the register of such Court; and such certificate, purporting to be signed by such registrar, shall be evidence for and against the company in any proceeding in any Court. 22. In all cases wherein the company may be party to or interested in any proceeding in any such Court as aforesaid, the Court where in the same may be pending may make such order as to the payment of the costs of and incident to such proceeding out of the property affected by such order, or otherwise, as it may think just and proper. 23. The executive council shall have full power in their discretion either to accept or to refuse any trust which may be offered to the company for execution, and may on any such refusal disclaim the trust or renounce probate of the will creating it. 24. Upon the acceptance of any trust by the company, the whole funds belonging to the company, not held by them upon any trust, and the whole amount of their subscribed capital, shall be liable for the due performance of such trust; and the company shall be liable to be sued for and in respect of any breach of of the company; and the said fund, and all other the property and effects of the company, and the amount of subscribed capital not paid up, shall be subject and be in all respects liable for the due performance of all trusts undertaken by the company, and shall and may at all times be subject to be applied by the company for the purpose of paying or discharging any money or liabilities which the company may have become liable to, or any trust, act, matter or thing undertaken by the company, or transacted, done, or omitted to be done with respect to any such trust, or otherwise under the provisions of this Act. GOVERNMENT INSPECTOR. 27. After the said Commissioners of the Treasury shall have been satisfied of the investment as aforesaid of the Guarantee Fund, it shall be lawful for the said Commissioners from time to time to appoint a person to act as inspector, to be called "the Official Inspector," and such person shall have access to all the accounts, officers, and servants of the company, for the purpose of ascertaining the dealings with the trust funds, and the invest ment thereof, as well as the dealings with and investment of the property beneficially possess ed by the company; and the said official inspector shall make such reports and furnish such accounts to the said Commissioners as they shall from time to time direct, and he |