I think that disposes of the ground upon which the learned judge found these debentures invalid, and on the question of fraudulent preference I agree with what has been already said and with what the learned judge himself said. There is no preferring of these creditors of the company to other creditors of the company. Seligman was no doubt a creditor of Prince's, but he was not a creditor of the company and he was not, in that capacity, preferred to any other creditors of the company, if indeed there were other creditors of the company, which must have been to a very small amount, the company having been formed on the 18th, the agreement sealed on the 28th of November, and this resolution of the 4th of December passed so short a time afterwards. At that time I do not think that any person contemplated the winding up of the company. It was only that it was found impracticable to raise further cash, and that at once would show that the company was not in a position to pay off Seligman and the other Seligman or Warner otherwise than in some such way as they did.

I agree that the appeal ought to be allowed, and that the order of Lindley, L.J., is right in this case. Appeal allowed.

Solicitors for the appellant, Warner & Seligman. Solicitors for the company, Thomson, Brooks, & Danby.

In re J. H. JONES. (a) Solicitor Agreement with client as to costs-Payment -Work done before magistrates and quarter sessions in respect of a criminal charge―Jurisdiction to set aside--Solicitors and Attorneys Act, 1870 (33 & 34 Vict. c. 28), 88. 4, 8, 10.

A person, the subject of a charge of a criminal nature pending before a stipendiary magistrate, retained a solicitor to defend him, and paid him £25 down, and signed a document by which he agreed to pay for costs a lump sum of £75 in addition to the £25 already paid. He subsequently was committed for trial at quarter sessions, and was there acquitted.

Held, that although the above-mentioned document was not signed by the solicitor, yet that it was an agreement within the meaning of the Attorneys and Solicitors Act, 1870.

Held, further, that the High Court has jurisdiction to set aside such an agreement, and to order delivery of a bill of costs, and taxation.

This was a summons by a client against his solicitor asking for the delivery and taxation of a bill of costs.

The facts are stated in the judgment of Stirling, J.

Ashton Cross, for the applicant.

Dunham, for the respondent, took the preliminary objection that there had been an agreement between the solicitor and client as to these costs, and that this court had no jurisdiction to set that agreement aside and order delivery or taxation of a bill in respect of work done at quarter sessions.

(a.) Reported by WM. SCOTT THOMPSON, Esq., Barrister-at-Law.

HIGH COURT.

Ashton Cross.-Under the statute, 2 Geo. 2, c. 23, the Court of King's Bench had power to tax such bills: Clarke v. Donovan, 1 Esp. 137; Ex parte Williams, Sylvester v. Webster, 9 Bing. 388. The jurisdiction has now been transferred to the High Court: In re Howell Thomas, 41 W. R. 524, [1893] 1 Q. B. 670. Was the business done in a court." Can any distinction be drawn between contentious business and criminal business. In re Andrews, 2 W. R. 46, 17 Beav. 510, shows that a revising barristers' court is a court for this purpose: Rees v. Williams, 23 W. R. 550, L. R. 10 Exch. 200; Midland Railway Co. v. Guardians of Edmonton, 43 W. R. 309, [1895] 1 Q. B. 357. Further, the Act of 1881, having by section 2 given power to make a general order, "in respect of other business not being business in an action or transacted in any court or in the chambers of any judge or master, and not being otherwise contentious business," and as no such order has been made the old practice continues. As the agreement here is not signed by both parties it is not within the Act of 1870: In re Lewis, Ex parte Munro, 24 W. R. 1017, 1 Q. B. D. 724; In re Russell, Son, & Scott, 33 W. R. 815, 30 Ch. D. 114; In re West, King, & Adams, 40 W. R. 644, [1892] 2 Q. B. 102; In re Frape, 41 W. R. 417; [1893] 2 Ch. 284. The case of In re Thompson, 42 W. K. 462, [1894] 1 Q. B. 462, is inconsistent with every reported case. There is nothing in the Act of 1870 to exclude the inherent jurisdiction of the court to tax a solicitor's bill: Storer v. Johnson, 38 W. R. 756, 15 App. Cas. 203. The preliminary objection goes merely to taxation : Duffett v. McEvoy, 10 App. Cas. 300, 33 W. R. Dig.

238.

Dunham.-The Act of 1843 is altogether superseded by the Act of 1881. Here the business was done in part before the magistrates' court and in part before quarter sessions, and therefore its jurisdiction is altogether excluded by section 15, and if the court resorts to its inherent jurisdiction the effect will be to violate the spirit of that section.

July 27. STIRLING, J.-Certain preliminary objections were raised, with which I have now to deal. It appears that the applicant was in October, 1893, along with certain other persons brought before the stipendiary magistrate at Cardiff on the criminal charge of being concerned in the theft of certain timber. He was committed for trial to quarter sessions, which was held on the 11th of November, and retained the solicitor to defend him. On the 19th of October he paid the solicitor £25 on account of costs, and on the 21st he signed a document stipulating that the costs would be a lump sum of £75 in addition to that already paid. He was tried and acquitted and subsequently paid the £75, and now, being discontented, he has taken out this

summons.

The first preliminary objection was that the document which he signed not being signed by the solicitor was not an agreement within the Attorney and Solicitors Act, 1870, that it related to business done, and could not, having regard to section 8 of that Act, be set aside. Section 4 of the Act is as follows:

"An attorney or solicitor may make an agreement in writing with his client respecting the amount and manner of payment for the whole or any part of any past or future services, fees, charges, or disbursements in respect of business done or to be done by such attorney or solicitor, whether as an attorney or solicitor or as an advocate or conveyancer, either by a gross sum or by commission or percentage, or by a salary or otherwise, and either at the same or at a greater or at a less rate as or than the rate at which he

HIGH COURT.

are those who have power to deal with them. It appears to me that a like meaning must attach throughout the Act to the words "court or judge,' and that courts of quarter sessions, therefore, were not in contemplation, and are not such a court.

Being of this opinion, it seems to me that the same conclusion must be arrived at as regards the magistrates. The power to appoint stipendiary borough magistrates is conferred by 26 & 27 Vict. c. 97, and it is evident from the preamble and clause 5 of that Act that when appointed they simply perform the duties of justices to the peace. I come, therefore, to the conclusion that the objections must be removed, and the summons restored to the paper.

Solicitors, Vallance & Vallance; Riddell, Vaisey, & Smith, agents for J. H. Jones, Cardiff.

Building society-Withdrawing member-Repayment of advances Priorities Instrument of dissolution · Building Societies Act, 1874, ss. 18, 32. The priorities, under the rules of a building society, of the withdrawing members over those who have given no notice of withdrawal cannot be varied by an instrument of dissolution executed under the Building Societies Act, 1874, unless such variation has been previously sanctioned by a special meeting of the society summoned and held in accordance with the rules of the society and the terms of section 18 of the Act.

This was a motion by the plaintiff, a member of the above society, the object whereof was to have it determined whether the right as to priory of repayment given to withdrawing members under the rules of the society were liable to be overridden by the provisions of an instrument of dissolution executed under section 32 of the Building Societies Act of 1874.

The plaintiff also sought an injunction to restrain the defendants from paying away the moneys of the society except to the plaintiff and to such withdrawing members of the society as still remained unpaid in accordance with their priority, and from in any manner dealing with the moneys of the society contrary to rule 5 of the society's rules, which was as follows:

"Upon giving one month's notice in writing of his intention so to do, any member may withdraw his investments at any monthly meeting of the society the amount to be repaid out of the moneys received from members in repayment of advances on the night for withdrawal, but should the repayments not be sufficient, the balance shall be paid from the same fund on the next or following monthly night. If several members shall give notice to withdraw within any one month they shall be paid pro rata.”

The directors, however, were to have power upon a resolution of the board to use the monthly subscriptions to assist in repaying withdrawals. The other rules of the society relevant to the present case were to the effect that the society was to be dissolved, if its funds should not be sufficient to meet the claims made upon them, or if any other cause rendered dissolution absolutely necessary, and that the rules of the society should only be altered, rescinded, or repealed by a general meeting properly convened,

(a.) Reported by ARTHUR MORTON, Esq., Barristerat-Law.

HIGH COUrt.

and no such alterations or repeals should be properly made except with the concurrence of three-fourths of the members then present.

The society was established in 1865 under the statute 6 & 7 Will. 4. c. 32, and in 1887 was incorporated under the Building Societies Act, 1874. The plaintiff was the owner of five fully paid-up shares of £50 each in the society, and on the 20th of January, 1891, he gave notice of withdrawal of his investments under rule 5 aforesaid. This notice of withdrawal became effective one month after the date thereof, that is to say, on the 20th of February, 1891, but the plaintiff had never been able to recover the sums of money due to him in respect of his said five shares. An application had been made by the plaintiff to the court to enforce his rights, and the Court of Appeal had decided that, under the said notice of withdrawal and according to the interpretation which the court put upon the society's rules, the plaintiff was entitled to be repaid his investments out of all moneys received from members in repayment of advances on and subsequent to the 20th of February, 1891, subject to the claims of all members who had given notices which became effective before that date, which became effective on that date, and in priority and pari passu with members who had given notices to members who had given notices which became effective subsequently.

Immediately after this decision of the Court of Appeal, by an instrument of dissolution executed on the 13th of February, 1895, under section 32 of the Building Societies Act, 1874, it was decided to wind up the society, and it was provided (inter alia) by the said instrument that, after payment of the claims of the depositors and other creditors, the funds and property of the society should, subject to the prior payment of costs and expenses, be divided among the members in proportion to the amounts standing to their credit in the books, and further, that the word "member" should include all members, whether they had or had not given notice of withdrawal, and that those members who had given such notice of withdrawal were not to take priority over those who had not, but all were to rank pari passu.

As soon as the plaintiff became aware of the execution of the instrument of dissolution aforesaid, and learnt its provisions, he gave notice of this motion.

The real question for the decision of the court was whether the plaintiff's rights under the rules in respect of his notice of withdrawal, as declared by the Court of Appeal, were extinguished by the said instrument of dissolution.

Hastings, Q.C., and C. E. Bovill, for the motion.The rights of members of the society under the rules cannot be altered by an instrument of dissolution. The case of Kemp v. Wright, [1894] 2 Ch. 462, 43 W. R. 213, cannot be relied on, having regard to the remarks of Herschell, L.C., in the appeal on the same case. The fact that the appeal was on another point does not affect the cogency of the remarks.

Buckley, Q.C., and Montagu Lush, for the respondents. The decision in the Court of Appeal in Kemp v. Wright does not apply here, but the decision of the judge in the court below is exactly in point.

Hastings, Q.C., replied.

STIRLING, J., stated the facts as above set out, and

continued:-From the balance-sheet of the society published in the years 1891 and 1892 it appears that there are, or at any rate ought to be, funds in the coffers of the society applicable to the satisfaction of the plaintiff's claim, and if the society had been ordered to be wound up the plaintiff's right

to have those funds so applied would not have been affected by any such order: Walton v. Edge, 33 W. R. 417, 10 App. Cas. 33; In re Alliance Society, 28 Ch. D. 559, 33 W. R. Dig. 48.

It was contended, however, by the defendants at the hearing of the motion that the plaintiff's rights were put an end to by the instrument of dissolution, and in support of that view they relied on the case of Kemp v. Wright.

The judgment of the learned judge in the court below in that case seems to me to be based on these two propositions: (1) that what was done in Kemp v. Wright could have been validly done by an alteration in the rules; and (2) that, that being so, it could be done with equal efficacy by an instrument of dissolution under section 32 of the Building Societies Act of 1874. In principle these propositions cover the present case; but it is said that the second one is inconsistent with what was laid down by the Lord Chancellor on appeal in the same case (43 W. R. 213, [1895] 1 Ch. 121).

Now I have carefully considered the Lord Chancellor's judgment, and I am of opinion that it expresses a different view of the effect of an instrument of dissolution from that taken by Kekewich, J., in the court below. Consequently, the second proposition cannot be relied on.

By section 18 of the Act of 1874, which is the statutory enactment as to the alteration of rules, it is provided that an alteration is to be made only with the sanction of a meeting of which notice must be given in the manner provided by the rules. Now no such meeting has been held in this case. It is further to be noticed that an instrument of dissolution might be duly executed in accordance with section 32 without any meeting being called at all. Now the courts have always attached importance to the due observance of rules relating to general meetings, at which any shareholder affected may, if he be so inclined, express his views, and if there is one case more than another in which such rules ought to be rigidly followed it seems to me to be where vested rights of a shareholder or class of shareholders are sought to be taken away by the alteration of an existing rule. In such a case I think alterations in rules can only be held binding where they are made modâ et forma as prescribed by the Legislature.

If the defendants are right, then in a case where a small number of members have given notice of withdrawals, and these have exhausted the funds of the society, it would be possible for the remaining members, without even hearing their fellow shareholders, to deprive them of the advantage they have gained, and of the fruits of their diligence.

I cannot think that that was intended, and I am of opinion that the plaintiff is entitled to the injunction for which he asks.

Solicitors, Skipper & Tucker; Piesse & Son.

July 31.-The judgment of the Court (Lord RusSELL of Killowen, C.J., and CHARLES, J.) was read by

Lord RUSSELL, of Killowen, C.J.-This was an information against the executors of Arthur Ellis to recover account stamp duty in respect of certain railway stocks standing at the time of his death in the joint names of his wife and himself. No part of these stocks had been bought solely with money belonging to Arthur Ellis; all of them had, in fact, been bought with moneys contributed in equal shares by him and his wife out of her separate estate. These investments were made from time to time in pursuance of a verbal arrangement that they should, on the decease of such one of the parties as should first die, belong to the survivor absolutely. Arthur Ellis died on the 11th of February, 1891. By his will he devised and bequeathed his residuary estate for the benefit of his wife during widowhood and afterwards for his children. The will then declared that his wife and himself had from time to time invested moneys partly belonging to him and partly to her in various railway stocks and shares, which were registered in their joint names "such investments having been made on the express agreement that the survivor of them should be entitled by right of survivorship to the stocks and shares so bought," and proceeded to direct that the income of the residuary estate should be enjoyed by her on condition of her transferring all such stocks and shares to his executors and trustees to be by them held on the same trusts as the rest of his residuary estate. In fulfilment of this condition the various stocks and shares were duly transferred into the names of the defendants, the executors and trustees of Arthur Ellis. It was now sought to charge account stamp duty on so much of the stocks and shares as had been bought by Arthur Ellis out of his own moneys. The defendants refused to pay the duty claimed, on the ground that the investment of the moneys by Arthur Ellis was made in pursuance of a contract for value, and not 46 voluntarily " within the meaning of the Customs and Inland Revenue Acts, 1881 and 1889, and this was the question to be determined.

By the Customs and Inland Revenue Act, 1881, s. 38, sub-section 1, it is enacted as follows:-" Stamp duties at the like rates as are by this Act charged on affidavits and inventories shall be charged and paid on accounts delivered of the personal or movable property to be included therein according to the value thereof." Sub-section 2, "The personal or

HIGH COURT.

66

HIGH COURT.

66

movable property to be included in an account shall be" [amongst other property] of the following description :-(b) Any property which a person dying on or after the 1st of June, 1881, 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.' By the Customs and Inland Revenue Act, 1889, s. 11, it is enacted that the description of property marked (b) in the Customs and Inland Revenue Act, 1881, s. 38, "shall be construed as if the expression 'to be transferred to or vested in himself and any other person' included also any purchase or investment effected by the person who was absolutely entitled to the property, either by himself alone or in concert or by arrangement with any other person." It was contended on behalf of the Crown that the act of Arthur Ellis was 66 voluntarily done, inasmuch as it had not been done in pursuance of any obligation previously incurred, either by common law, statute, or contract. Had Arthur Ellis acted alone, it was pointed out, there could not have been any doubt that the transfer would have been voluntarily effected, and it was urged that, even under the words of the earlier statute, the circumstance that the wife brought in equivalent sums could make no difference. She, too, was not acting under any precedent obligation.

Further, it was said that the amending statute made the matter perfectly clear.

Arthur Ellis had done the very thing contemplated; he had effected a purchase "in concert or by arrangement with" his wife of securities the beneficial interest in which accrued by survivorship to her on his death; and that it by no means followed that, because there might have been consideration between the parties, the acts could not properly be considered to have been voluntarily" done within the meaning of the Act: see Crossman v. The Queen, 35 W. R. 303, 18 Q. B. D. 256. The respondent, on the other hand, contended that "voluntarily meant "gratuitously," or "without consideration," and that here the transfer was not gratuitous, but for valuable consideration. The funds were contributed in consideration of mutual promises. The husband and wife had contracted with each other for value, and, except in so far as every contract is in one sense voluntary, as being the result of an exercise of the will, the act of neither was 'voluntarily " done: see In re New University Club, 35 W. R. 774, 18 Q. B. D. 720. We are, however, of opinion that in the section under consideration the word 66 voluntarily" is not used in the sense of "without consideration," but in its ordinary sense of freely,' "without compulsion," and "not under any obligation": see Churchwardens of Birmingham v. Shaw, 10 Q. B. 868; Art Union v. Savoy, 42 W. R. 690, [1894] 2 Q. B. 609. We think that this is

66

not only the true construction, but that it is that best calculated to carry out the object of the Act, which was to fix with liability to duty all dispositions "which, while preserving to a man the enjoyment of personal property to the day of his death, make the same property pass on his death to some one else, and so become substitutes for wills" Attorney-General v. Gosling, 40 W. R. 366, [1892] 1 Q. B. 545. It is, moreover, a construction which makes it possible to put a reasonable interpretation on the amending Act, section 11 relating to property marked (b), whereas if "voluntarily" means" without consideration" it is difficult to give effect to the words in the last-mentioned section, "in concert or by arrangement with " -words which would appear to point to the existence

PALMER v. DAY & SONS. (a.) Bankruptcy-Sale of goods of bankrupt by auctioneer— Auctioneer's lien-" Giving of credit' "Mutual dealings "Section 38 of the Bankruptcy Act, 1883 (46 & 47 Vict. c. 52).

One L. instructed a firm of auctioneers to sell certain property, and a sum of money became due to them in respect of their charges in connection with such sale. Subsequently L. delivered to them certain goods as bailees with authority to sell them. L. became bankrupt, without having revoked the authority.

Held, that the credit given by the auctioneers to L. in respect of their charges, and the credit given by L. to the auctioneers in respect of the goods to be sold and the money to be realized by such sale, was a giving of credit to the auctioneers, and constituted "mutual dealings between them and L. within the meaning of section 38 of the Bankruptcy Act, 1883.

The facts of the case as set out in the judgment are as follows.

The plaintiff in this case, as trustee of one D. W. Langton, a bankrupt, sought to recover a sum of £31 10s. 9d. from the defendants, a firm of auctioneers, under the following circumstances.

On the 29th of September, 1894, Langton gave instructions to the defendants to sell the furniture of his freehold house, and he also gave him instructions to sell the house itself.

of October. The furniture sale took place on the 15th and 19th

The house was put up for sale on the 8th of November, but no sale was effected.

The furniture sale account showed a balance due to the auctioneers of £7 48. 9d. Their charges, in respect of the abortive sale of the house amounted to £24 6s., these two sums amounting to the sum now in question-viz., £31 10s. 9d.

Between the date of the furniture sale and the unsuccessful attempt to sell the house, some pictures, which had been at the house of Langton and had been bought in at the furniture sale, were sent by him to the defendants' premises for the purpose of their being sold by the defendant. It was thought that there was a better chance of selling them, if sent there, than if left at Langton's house, but although they were thus sent, there was no absolute right in the auctioneers to sell them without the approval of Langton as to price.

On the 15th of November a receiving order was made against Langton.

The plaintiff was appointed trustee on the 1st of January, 1895, and on the 2nd of January Langton was adjudicated bankrupt.

On the 30th of January the trustee wrote to the defendants requesting them to remove some furniture,

(a.) Reported by T. MATHEW, Esq., Barrister-at

Law,