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COMPANIES ACTS, 1862 TO 1890.

GENERAL RULES MADE PURSUANT TO THE COMPANIES ACTs, 1862 TO 1890, AND THE SUPREME COURT OF JUDICATURE ACT, 1891.

1. Where any action is transferred to the Judge who for the time being exercises the jurisdiction of the High Court to wind up Companies, the Registrar under the Companies Winding-up Rules may, subject to the general or special directions of the Judge, hear, determine, and deal with any application, matter, or proceeding which, if the action had not been transferred, would have been determined in Chambers.

2. In every cause or matter within the jurisdiction of the Judge, whether by virtue of the Act or by transfer or otherwise, the Registrar shall, in addition to his powers and duties under the Companies Winding-up Rules, 1890 and 1892, have all the powers and duties of a Master, Registrar, Chief Clerk, or Taxing Master.

3. In the Companies Winding-up Rules, 1890 and 1892, and these Rules, the words "Winding-up matter" shall, in relation to the High Court, where the winding-up of a Company is proceeding before the Judge, include any action brought by or against that Company which has been or shall be transferred to the Judge.

4. These Rules may be cited as the Companies (Winding-up) Rules, August 1892, and shall come into operation on the 1st day of October next.

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The summary proceeding for submitting any question for decision to the High Court of Justice under the twenty-ninth section of the Local Government Act, 1888, shall be by special case to be agreed upon by the parties, or in default of such agreement to be settled by an arbitrator agreed upon by the parties or (if necessary) appointed by a Judge at Chambers, or to be settled by a Judge at Chambers.

The special case, when settled, shall be filed at the Crown Office Department, at the Central Office of the Supreme Court, by the Chairman of Quarter Sessions, the County Council, or the local authority concerned, within eight days from the settlement thereof, and shall be put into the Crown paper for argument as if it were a case stated by Justices under 20 & 21 Vict. c. 43.

This Rule shall come into operation on the 1st of October, 1892.

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ORDER IN LUNACY.

ORDER AS TO THE FEES AND PERCENTAGES, under SECTION 148 OF THE LUNACY ACT, 1860, WHICH ARE REQUIRED TO BE TAKEN FOR LUNACY PROCEEDINGS IN THE HIgh Court of JUSTICE AND COURT OF APPEAL BY MEANS OF STAMPS.

Whereas, by section 3 of the Public Offices Fees Act, 1879, it is provided that the Treasury may from time to time make, and when made, revoke, alter, and add to regulations for all or any of the following purposes respecting fees in any public office; that is to say :

(1.) Regulating the manner in which the fees taken in money are to be taken, accounted for, and paid over.

(2.) Determining the use of impressed or adhesive stamps, and the mode of cancellation of adhesive stamps.

(3.) Regulating the use of stamps and prescribing the application thereof to documents from time to time in use, and requiring documents to be used for the purpose of such stamps.

Provided that any such regulations which may relate to the office of any Court of law shall be made with the consent of the Lord Chancellor.

Now we, the undersigned, being two of the Lords of Her Majesty's Treasury, do, with the concurrence of the Lord Chancellor, hereby give notice, and order and direct

That, from and after the date of this Order, in lieu of any regulations on the subject heretofore in force, the whole of the fees and per-centages imposed by the Rules made under section 148 of the Lunacy Act, 1890, shall be taken in stamps, and that the stamps employed for the purpose shall, in all cases, except for the fees payable for copies of documents, be impressed. The stamps for denoting the fees payable for copies of documents shall be either impressed or adhesive.

The impressed stamps herein referred to shall be of such a character as the Commissioners of Inland Revenue may, from time to time, adopt for the purpose, whilst the adhesive stamps shall be of the description used for judicature fees generally, such adhesive stamps to be cancelled by the various Court or other officers, either by perforation or in such manner as the said Commissioners may from time to time direct.

The official forms, with impressed or adhesive stamps (as the case may be), required in any proceedings under the said Act shall be sold at the Inland Revenue Office, Royal Courts of Justice.

And we do further direct that this Order shall be binding on all Courts, officers, and persons whom it may in any way affect.

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Husband and Wife-Separate Property of Married Woman-Action upon Contract of Married Woman-Application under Order XIV.-Money paid into Court as Condition of Leave to defend-Judgment against Married Woman-Right of Plaintiff to Money in Court-Married Women's Property Act, 1882 (45 & 46 Vict. c. 75), 8. 1, sub-ss. 2 and 3.

Where, upon an application under Order XIV. for leave to sign final judgment in an action against a woman for money due upon a contract to bind her separate estate made by her during coverture, leave to defend is given upon payment of money into Court, the plaintiff, if he recovers judgment in the action, is entitled to have the money in Court paid out to him forthwith in satisfaction of the amount of the judgment.

Appeal from an order of Charles, J., at the trial of the action without a jury.

The action was brought against the defendant, a widow, upon a covenant to pay 500. entered into by her during coverture. The defence was that the and

* Coram Lord Esher, M.R., Fry, L.J., Lopes, L.J.

VOL. 61.-Q.B.

defendant was induced to enter into the covenant by fraud, and also that at the time the covenant was entered into she had no separate estate.

Upon an application by the plaintiff under Rules of the Supreme Court, 1883, Order XIV. rule 1, for leave to sign final defendant leave to defend upon payment judgment, an order was made giving the

of 500l. into Court.

At the trial of the action the plaintiff gave evidence that, at the time the covenant was entered into, the defendant had separate estate not subject to restraint on anticipation, and, the defence of fraud. being abandoned, Charles, J., gave judgment for the plaintiff in the form settled in Scott v. Morley (1); but he refused an application on behalf of the plaintiff for payment out of Court to him of the 5007., and directed an enquiry as to whether the defendant had at the date of the judgment any and what separate estate, and of what it consisted, and from what it had arisen, and whether the same was subject to any restraint on anticipation, and he ordered that the 500l. should remain in Court pending the enquiry.

The plaintiff appealed against so much of the judgment as refused to direct the

(1) 57 Law J. Rep. Q.B. 43, at p. 45; Law Rep. 20 Q.B. D. 120, at p. 132.

B

Bird v. Barston, App.

payment of the 5001. out of Court to him Stogdon v. Lee (6), and Draycott v. Harriforthwith. son (7).]

McCall, Q.C. (Guiry with him), for the plaintiff. It is submitted that the 5007. was paid into Court under the order made upon the application under Order XIV. rule 1, not merely to abide the order of the Court, but upon the terms that the plaintiff if he succeeded in the action should be entitled to the money. It is immaterial from what source the 500l. arose. Once it was paid into Court it was there to abide the event of the action-to be paid out to the plaintiff if he succeeded. [He cited Culverhouse v. Wickens (2) and Ex parte Tate; in re Keyworth (3).]

[The form of bond (Chitty's Forms, 12th ed. p. 117) to secure payment when security is ordered upon an application under Order XIV. was referred to.]

Godefroi, for the defendant. The money in Court is not earmarked as the defendant's property liable to answer the plaintiff's judgment. The judgment, therefore, cannot be worked out without an enquiry. There is no presumption that the money in Court is the defendant's separate property, or is free from restraint on anticipation. An enquiry, therefore, is necessary before the money can be paid out of Court.

[FRY, L.J.-Surely the object of the order for payment into Court was to secure to the plaintiff 5007. absolutely in case he succeeded. Your contention would make that security illusory.]

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McCall, Q.C., did not reply.

LORD ESHER, M.R.-In this case, upon the defendant being sued, an application was made at chambers for leave to sign final judgment. Upon that application an order was made giving the plaintiff leave to sign judgment unless the defendant within a specified time paid 5007. into Court. That was an indulgence given to the defendant. The order in effect said: "If you pay 500l. into Court, you shall have leave to defend the action," and the object of requiring the money to be paid into Court was to give a security to the plaintiff, in case he succeeded in the action, that he should obtain the fruits of his success. The defendant accepted the order and the condition in it, and that condition, as it seems to me, was that the 5001. was to be the plaintiff's, so far as it might go to satisfy the judgment he might obtain. It was to be his money. The defendant accordingly paid the money into Court. Whose money is

it? It was accepted by the Court as trustee for the plaintiff to secure him in case he should obtain a judgment, and on his obtaining a judgment it was to be paid out to him. But the defendant now comes forward and says: "It is true I have failed in the action, and it is true I gave the money to be a security to the plaintiff'; but it is no security, because I can now shew that it was money which I had no right to deal with." In my opinion she cannot be allowed now to say that. The Court can and will enquire no further, and the money must be paid out to the plaintiff. We must, therefore, disagree with Mr. Justice Charles's refusal to make an order for payment of the money out of Court, and say that the order ought to have been made. Our decision in this case does not touch the decision in Pelton v. Harrison (4).

FRY, L.J.-I am of the same opinion. It appears to me that in substance the money was paid into Court to abide the (6) 60 Law J. Rep. Q.B. 669; Law Rep. (1891) 1 Q.B. 661.

(7) Law Rep. 17 Q.B. D. 147.

Bird v. Barstow, App. event of the action, and we cannot now listen to the argument that, notwithstanding the event which has happened, the plaintiff is not entitled to it. The defendant purchased the right to defend on condition of paying the money into Court, and she cannot be heard to say that that money is not available to satisfy the judgment which the plaintiff has obtained.

LOPES, L.J., concurred.

Appeal allowed; order that the 5001. in Court be paid out to plaintiff.

Solicitors-Taylor, Stileman & Underwood, for plaintiff; Valpy, Chaplin & Peckham, for defendant.

[IN THE QUEEN'S BENCH DIVISION AND IN THE COURT OF APPEAL.] 1891. May 27, 28. June 17. July 28.

THE QUEEN v. THE REGIS-
TRAR OF JOINT-STOCK COM-
*
PANIES.

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Company Registration Company constituted by Deed for the purpose of being Registered and immediately Wound UpCompanies Act, 1862 (25 & 26 Vict. c. 89), part 7, 8. 180.

A company formed by agreement of the members, not to carry on any business, but for the purpose only of being registered in order to be wound up, is not a company "duly constituted by law" within section 180 of the Companies Act, 1862, and cannot be registered under that section.

Decision of the Queen's Bench Division reversed.

Quære (per FRY, L.J., and LOPES, L.J.), whether the syction applies at all to commonlaw companies constituted by the mere agreement of their members.

A rule nisi had been granted, calling upon the Registrar of Joint-Stock Companies to shew cause why a mandamus should not issue, commanding him to register a company. Seven persons, partners in the old-established firm of W. H. Allen &

*Coram Lindley, L.J., Fry, L.J., and Lopes, L.J.

Co., booksellers and publishers, sold the business to a company, which was registered, with limited liability, under the Companies Acts. The consideration for the sale was twenty thousand shares in the company of 51. each, issued as fully paid. Shortly afterwards, on the 13th of March, 1891, the partners executed a deed, reciting, in addition to the above facts, that the said shares were then the only assets of the partnership, and that the partners were desirous of defining the terms of the existing co-partnership, with the modifications thereinafter appearing, with a view to the registration of such co-partnership as an unlimited company, under part 7 of the Companies Act, 1862. The deed contained mutual covenants "that the partners, and the several other persons (if any) who become members of the company hereby constituted, shall, whilst holding shares in the capital of such company, be and continue, until dissolved under the provisions in that behalf hereinafter contained, a company under the name hereinafter specified, and that such company shall be subject to the regulations following." The following were the material regulations: "The name of the company is Johnston, Heathcote, Randall, Danby, Parr, Hill, and Jebb" (these being the names of the seven partners). "Until after the registration of the company, there shall not at any time be more than twenty members." "The objects for which the company is established are to continue and carry on the co-partnership hitherto existing between the partners, and to realise and get in the assets of the co-partnership, and to satisfy its liabilities, and to do all such other things as are incidental or conducive to the attainment of the above objects." capital of the company shall be 7707, divided into 77 shares of 107. each," to be apportioned among the seven partners in the manner there specified. "The said 20,000 shares of W. H. Allen and Co. (Limited) shall be brought into the company by the partners. The number of directors of the company shall not be more than seven or less than three. The partners shall be the first directors of the company. The provisions contained in Table A in the first schedule in the Companies Act, 1862 (ex

"The

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