Revocability of Assignment for Benefit of Creditors before its Execution is Communicated to the latter.-There is a long chain of authorities supporting the decision Garrad v. Lauderdale,12 which lay down the rule that it is essential in order to make a deed of assignment for the benefit of creditors irrevocable that its execution should be communicated to creditors. The very recent case of Ellis & Co. v. Cross,13 affords a curious illustration of the application of it. A debtor executed a deed of assignment of all his property to a trustee for his creditors and the deed was itself handed to the solicitors for the trustee. Afterwards and on the same day a judgment creditor of the debtor delivered a writ of fi-fa. to the Sheriff. At this time the fact that the deed of assignment had been executed had not been communicated. to any creditors. The trustee was not himself a creditor. The Sheriff levied on the goods of the debtor on the following day but not before the trustee had taken possession of the goods. On interpleader the Divisional Courts held that the execution prevailed over the claim of the trustee for creditors, under the above circumstances. Shearman, J., says (p. 659) : "On behalf of the claimant it has been argued that, although the execution of the deed of assignment was not communicated to any creditor, yet, being executed in pursuance of the prior resolutions passed at the meeting. of creditors, it was irrevocable although the execution was not communicated to creditors. In my opinion there is no warrant for such a contention. Ever since the decision in Garrad v. Lauderdale it has been clearly established that a deed of assignment for the benefit of creditors is a voluntary revocable instrument until its execution has been communicated to creditors, and that until communication to and acceptance by creditors the trustee is only a trustee for the debtor. An exception has been grafted on that rule by the decision in Siggers v. Evans, 13 where the trustee was himself a beneficiary under the deed, and for that reason the deed was held not to be revocable although its execution had not been communicated to other creditors." 14 Stranger in room with Jury Invalidity of Verdict.— Goby v. Wetherill, is a decision of a Divisional Court upon the neat point that if a stranger, whether an officer of the Court or not (in this case it was the town serjeant, in whose charge the jury were) is present for a substantial time during the deliberations of a jury, the verdict is vitiated. Tramway-Passenger ejected from car by conductor.— In Wolverhampton New Water Works Co. v. Hawkesford,15 Willes, J., specified the three classes of cases in which a liability may be established founded upon a statute: (1) “One is where there was a liability existing at common law, and that liability is affirmed by a statute which gives a special and peculiar form of remedy different from the remedy which existed at common law: there, unless the statute contains words which expressly or by necessary implication exclude the common law remedy, the party sueing has his election to pursue, either that or the statutory remedy; the second class of cases is where the statute gives the right to sue merely, but provides no particular form of remedy: there, the party can only proceed by action at common law. But there is a third class, namely, where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it." The recent case of Whittaker v. London County Council,16 comes exactly within the first of the three classes thus specified by Willes, J. The English Tramway Act, 1870, sec. 52, provides that any officer or servant of a tramway company may seize and detain a passenger discovered trying to avoid payment of his fare, or wilfully proceeding beyond his proper destination, whose name or residence is unknown to such officer or servant, until such person can be taken before a justice of the peace. What happened in the case was that the plaintiff having entered one of the defendants' tramcars, and travelled some distance, was ejected by the conductor upon the grounds, as found by the jury, that the conductor mistakenly thought that he was endeavouring to travel beyond the point to which his ticket allowed him to travel; that is to say, the conductor thought that the plaintiff was attempting to commit a trespass by remaining in the 14 [1915] 2 K. B. 674. 186 C. B. (N.S.) 336, at p. 356. car without having paid, and without being ready to pay, his fare, and on that account the conductor ejected him. A Divisional Court held that the plaintiff was entitled to judgment, the defendants being liable for the wrongful act of their servant. The way in which the Court met the argument that the tramway company could not have delegated to the conductor the power to eject the plaintiff, because it had no such power itself, and that therefore the conductor's act was beyond the scope of his authority and employment is well shewn by the following extract from the judgment of Bailhache, J. (p. 682): "Section 51, it is true, makes the act which the plaintiff was wrongly suspected of doing an offence punishable by a penalty of 40s.; and sec. 52 says that when a tramway authority desires to treat the act as an offence, the offender may be detained by the authority's officer or servant until his name and address are ascertained for the purpose of knowing whom it has to prosecute under sec. 51. But it is not said that that is to be the only remedy which the authority shall have; it appears to me that that is to be in addition to the other remedies which the authority would possess if sec. 52 were not in the Act. One of the most obvious of the other remedies the authority must have is the common law right to treat a person who insists upon remaining in or on a tramcar without paying his fare as a trespasser, and one of the ways in which a trespasser may be dealt with is to eject him, using no more force than may be necessary. The defendants as the tramway authority have a perfect right to do that; and they are not bound to act under sec. 52 and take the trespasser's name and address. If they eject him they do not want his name and address." 99 17 Contract for Use of Dock-Exemption Clause in General Words.-Pyman Steamship Company v. Hull,17a the defendants were the owners of a graving dock which the plaintiffs' ship used under a contract for reward. By the terms of the "Our Ontario Railway Act (R. S. O. 1914, ch. 185, sec. 148), expressly enacts that "every passenger on entering the car or other conveyance, and every passenger who refuses to pay his fare may, by the conductor of the train and the train servants of the company, be expelled from and put out of the train with his baggage, at any usual stopping place or near any dwelling house, as the conductor elects, the conductor first stopping the train and using no unnecessary force." 178 '[1915] 2 K. B. 729; 84 L. J. K. B. 1235. VOL. XXXV. C.L.T.-51 contract the defendants supplied the necessary blocks for supporting the vessel while in the docks. The contract also provided that The owner of a vessel using the graving dock must do so at his own risk, it being hereby expressly provided that the company are not to be responsible for accidents or damage to vessel whilst in a graving dock, whatever may be the nature of such accident or damage or howsoever arising.' Owing to the negligence of the defendants the blocks upon which the keel of the plaintiffs' ship rested were uneven in height, whereby she suffered damage, and the owners brought this action. It was contended on behalf of the plaintiffs that although the words of the exemption clause were general words of wide import they should not be construed in this case so as to exclude the liability of the dock owner for damage, because the damage arose in consequence of a neglect of the defendants to provide proper block caps, and that ought to have been done before the vessel entered the dock, and that there was a fundamental obligation, an obligation which went to the whole root of the contract, to provide block caps in proper position on which the vessel could safely take the ground. The Court of Appeal, however, unanimously held that the defendants were exempt from liability under the above clause. Lord Reading, C.J., expresses the view of the whole Court, when he says at pp. 733-4: "The argument addressed to us was that this obligation to provide block caps was, in the language that has been used for the purpose of the discussion in the cases, a fundamental obligation of the contract. Sometimes it is said it is a primary object of the contract, or it is one of the initial obligations of the contract. I do not propose in deciding this case to discuss the exact meaning to be given to those expressions because it does not arise in this case for our decision. It seems to me that, assuming, as I will for the purpose of the argument, that this obligation to provide blocks and block caps is a fundamental or initial obligation of the contract, the language used in clause 9 is such that we must read it as covering failure to perform any such obligation and covering negligence arising from a want of care in the performance of such obligation." Misrepresentation in prospectus of company-Liability of directors. The (Imperial) Companies Consolidation Act 1908, sec. 84 provides, (as do the Company Acts of Ontario, Nova Scotia, British Columbia, Saskatchewan, Alberta, and the Yukon) that- Where a prospectus invites persons to subscribe for shares in . a company, every director at the time of the issue of the prospectus shall be liable . . to all persons who subscribe on the faith of the prospectus for the loss . . they may have sustained by reason of any untrue statement therein . unless it is proved-(a) with respect to every untrue statement not purporting to be made on the authority of an expert, or of a public official document or statement, that he had reasonable ground to believe, and did up to the time of the allotment of the shares .. believe, that the statement was true. . . Adams v. Thrift,18 is a decision of the Court of Appeal that the uncorroborated statements of the vendor to and promoter of the company afford by themselves no reasonable ground' for believing those statements to be true within the meaning of the above section; neither is the fact that the other directors, after making enquiries, had signed the prospectus before the defendant. Restraint of trade-Employer and servant.-In our April number, supra, p. 334, we noted a case of Herbert Morris Ltd. v. Saxelby in which Sarjant, J., refused to enforce by injunction a clause in a contract of employment whereby it was sought to restrain an employee for a period of seven years after the termination of his employment from using in competition with the employer the experience and skill which he had acquired during his employment, although he stated that as between a vendor and a purchaser he would have felt compelled to give effect to the contract; for he held that in dealing with the defence of undue restraint of trade it was necessary not only to determine whether the restraint is reasonably necessary for the protection of the master in his business, but to take into account, also, the oppressiveness of the restriction on the servant, particularly from the point of view of the damage done to the public interest by his energies being unduly fettered. This judgment of Sarjant, J., has now been affirmed by the Court of Appeal,10 Phillimore, L.J., dissenting. |