COUNTY COURTS CHRONICLE. does not reflect much credit upon persons who by the erroneous decision of the judge? The WEDNESDAY, NOVEMBER 1, 1854. THE EVIDENCE TAKEN BEFORE THE COUNTY COURT COMMISSIONERS. THE Commissioners for the improvement of the County Courts have not been idle. Some few months ago they issued circulars to the different members of the Profession containing a variety of questions which were calculated to draw the attention of the experienced to the deficiences of the present practice. Since then a new plan of operations has been adopted, and several of the County Court judges have been personally examined by the Commission. Several judges have given evidence; but the evidence of one only of those has been published. How Mr. Willmore's evidence came to be published separately, and before that of any of the other gentlemen examined, is more than we can say. It may be, that greatness was thrust upon him, as was his original appointment as judge; "the place was offered to me by the Lord Chancellor, about this time last year." Our business, however, is not with the reason of publication, but with the substance of what has been published. The first question put to Mr. Willmore is, whether it would be convenient that a plaintiff suing in a Superior Court in an action of tort, and recovering less than 20%., should be deprived of costs, unless the judge certifies that the case is fit to be tried in the Superior Courts. To which the learned judge answers in the affirmative; and the reason he gives for his opinion is, that he has not been able to establish any rational ground of distinction between the cases of tort and contract. We think, however, that the distinction is obvious, as in actions on contract the amount which the plaintiff is entitled to recover is more or less a matter of evidence and calculation, while in actions for torts the damages recovered are in many cases arbitrary. In actions on contract the plaintiff can ascertain beforehand with some degree of certainty what amount he is entitled to recover in the action, whereas in many actions for tort, neither he nor his counsel can predict anything with certainty as to the amount of the verdict. Who can tell, in an action for a battery or for false imprisonment, whether the verdict of a jury will be for 107. or 501. Either sum would be substantial damages; and the jury have only their own feelings and their notions as to the value of money to guide them in fixing the amount. If a man's ear is cut off by his adversary, a jury of small farmers may think 57. an ample compensation, whilst a London common jury would perhaps award 501. damages, and a special jury three times that amount. A plaintiff in such case often has as good chance to obtain a verdict for 1001. as for 101.; and is he to be compelled to sue in the County Court for 501., at the peril of having no costs unless he obtains a verdict for 201. in the Superior Court? ought to be so conversant with the existing poor would be at the mercy of the judge. In the cases referred to the judge is to have a discretion to grant leave to remove the plaint if he thinks proper. But, in ejectment by a landlord against his tenant, even this discretion is proposed to be taken away. Wherever the relationship of landlord and tenant exists, there is to be an unlimited jurisdiction, and that without appeal; for in Mr. Willmore's "district" there is no desire to have any limit, people would like to have the power of doing it (eject) in all cases where an obstinate tenant insists upon remaining." Alas for the poor tenant! Who will purchase leasehold premises after Mr. Willmore's suggestions have We have always maintained that the esta- become law? For, let it be observed by blishment of the County Courts has been of all those who expend their money upon the the greatest benefit to the community. They freeholds of others, under the security of offer an easy method for the recovery of small leases, and subject to the usual covenants, debts, and of settling the thousand petty dis- that the County Courts are in future to have putes that are of constant occurrence. They an unlimited jurisdiction in cases of forfeiture. are beneficial so long as they are confined to With sixty independent tribunals from which the class of litigation to which they are suited. there is to be no appeal in such cases, what Once, however, let them have a compulsory security of title may we not expect? The jurisdiction in cases of importance and diffi-County Court judges are not only to determine culty, their usefulness as courts for the cheap where a forfeiture has taken place, but also to and speedy administration of justice to the grant or refuse relief according to the prinpoor will cease, and they will in time degene- ciples of a Court of Equity. rate into corrupt, inefficient, and expensive local tribunals. Force the business into the County Courts and the Superior Courts will become useless. Let them become useless and they will soon cease to exist. What then will become of the spotless administration of justice which has for ages been the glory of this country? Local tribunals without efficient control are always corrupt. To strengthen his opinion, Mr. Willmore brings his own experience in aid. In an action for an assault, Mr. Willmore's client had, in the old pleading days, pleaded as a justification that he had removed the plaintiff and certain other persons unknown, because they misbehaved themselves, &c. At the trial it was proved that the parties were known, whereupon an objection was raised by an astute pleader on the other side that the plea was not proved, which objection, after a great deal of argument, and probably good fees, was finally decided in Mr. Willmore's favour. Such an instance may be amusing, but it has no possible bearing upon the question, since all technicalities of the nature referred to have been swept away by the first Common Law Procedure Act. There is some inaccuracy in the language used both by the Commissioners and by Mr. Willmore, in treating of this subject, which To this end all Mr. Willmore's recommendations tend. In all actions for claims not exceeding 507., he proposes to make it compulsory upon the plaintiff to sue in the County Court, and in all other cases he recommends that the plaintiff should have an option to sue in the County Court if he likes. Claims to any amount may now, by consent of parties, be tried in the County Courts, but parties do not avail themselves of that power to a sufficient extent; and it is so essential to the welfare of the community that important cases should be tried in the County Court, that it is proposed to extend the jurisdiction indefinitely in regard to amount, and to give the defendant the power of removing the plaint whenever the amount sought to be recovered exceeds 50l. In this way "you would put the acting part upon the defendant, and in very many cases the same man who would refuse to consent that a thing should be done, would, nevertheless, abstain from himself acting in order to prevent it." As the law now stands, questions of title to land and other hereditaments are expressly excluded from the jurisdiction of the County Court; but Mr. Willmore proposes, instead of this exclusion, to give to the County Court judges a more absolute jurisdiction over land than was ever possessed by any single judge of any court in this country before. Of course the learned gentleman assumes "that you have a judge competent to the discharge of his duties." But, nevertheless, the authority is extensive even to confer upon Mr. Willmore himself. There is to be no limit in point of value, and the judge is to have a discretion to allow the proceedings to be removed, or his decision to be appealed against. If the judge is clearly wrong, and is, nevertheless, persuaded that he is right, the defeated party may be dissatisfied, but he can have no redress. The judge has no doubt of the correctness of his judgment, and will therefore, to prevent further litigation, refuse to allow an appeal. Even suppose the judge has doubts, and therefore allows an appeal or removal, still the defeated party must be in a position to give security for costs, and he must proceed with his appeal without delay, otherwise his right of appeal or removal is gone for ever. What is to become of the poor litigant, whose only possession was the tenement of which he has been deprived The Commissioners seek to carry out the object of their appointment by increasing the efficiency of the County Court, and thereby rendering that tribunal worthy of the affection of the people. To attain this object, they ought, we humbly subinit, to turn their attention to improving the practice of the court, and endeavour, by suitable regulations, to prevent the recurrence of those inconveniences that have from time to time been felt. Improved procedure, and not an extended jurisdiction, is what the public and the Profession look forward to as the result of the deliberations of the Commission. Let the fees of court be reduced and a more liberal scale of costs be allowed to professional men; let the practice in interpleader be entirely remodelled; let the officers be paid by salaries, and let the parties be at liberty to serve their own processes as in the Superior Courts, and the Commission will not have sat in vain. The County Court system wants perfection, and not extension. And he who points out defects to be remedied and deficiencies to be supplied will render to the Commissioners more real assistance than the inventor of the most perfect theory of an indefinitely extended jurisdiction. INTERPLEADER. IT has been erroneously thought by many the interpleader jurisdiction of the County Court is extremely narrow and circumscribed. On the other hand, the powers given to the Superior Courts by the 1 & 2 Will. 4, c. 58, s. 1, are general and extensive, for, by the 1st section, it is enacted, that, "upon application made by or on behalf of any defendant sued in any of his Majesty's Courts of Law at Westminster, or in the Court of Common Pleas of the county palatine of Lancaster, or in the Court of Common Pleas of the county palatine of Durham, in any action of assumpsit, debt, detinue, or trover, such application being made after declaration, and before plea, by affidavit or otherwise, showing that such defendant does not claim any interest in the subject-matter of the suit, but that the right thereto is claimed or supposed to belong to some third party who has sued or is expected to sue for the same, and that such defendant does not in any manner collude with such third party, but is ready to bring into court or pay or dispose of the subject-matter of the action, in such manner as the court or any judge thereof may order or direct, it shall be lawful for the court or any judge thereof to make rules and orders calling upon such third party to appear and to state the nature and particulars of his claim, and maintain or relinquish his claim, and, upon such rule or order, to hear the allegations as well of such third party as of the plaintiff, and in the meantime to stay proceedings in such action; and, finally, to order such third party to make himself defendant in the same or some other action, or to proceed to trial on one or more feigned issues; and also to direct which of the parties shall be plaintiff or defendant on such trial, or, with the consent of the plaintiff and such third party, their counsel or attorneys, to dispose of the merits of their claims, and determine the same in a summary manner, and to make such other rules and orders therein, as to costs and all other matters, as may appear to be just and reasonable," The preamble of this statute reciting that "it often happens that a person sued at law for the recovery of money or goods wherein he has no interest, and which are also claimed of him by some third party, has no means of relieving himself from such adverse claims but by a suit in equity," is still applicable to all persons sued in the County Court. The application under the statute of William the Fourth can only be made by or on behalf of a defendant sued in a Superior Court, and there is no provision in the County Court Acts which meet the defect. If a mere stakeholder be sued in a Superior Court, he can bring the parties together to fight their own battle and exonerate himself; but, if he is sued in the County Court by adverse claimants, he must defend himself against both with probably a certainty of being defeated in one or other of the actions, and it may be of paying his own costs and possibly those of one of his adversaries also. What is a defendant so circumstanced to do? If he, on the one hand, allows judgment to go by default, he takes the responsibility of determining the rights of the adverse claimants; and if, on the other hand, he defends the action, he may be defeated and be made responsible for the costs. He cannot apply to a Superior Court because he is not a defendant in an action therein, and the County Court judge cannot assist him. Even if he be in luck, and the adverse claimants sue him in a Superior Court, the benefit is doubtful. He may then, it is true, make the plaintiff in the County Court a party to the interpleader in the Superior Court; but it is difficult to see how that is to protect him from the effect of the proceedings in the County Court. The judge can only stay the proceedings in the action in the Superior Court; and the fact of the plaintiff in the action in the County Court being made a party to the interpleader does not deprive the County Court judge of his jurisdiction to proceed with the plaint. To crown all, the decision in the Superior Court may be in favour of one claimant, and that in the County Court in favour of the other claimant, and the unfor CASES AFFECTING THE JURISDICTION AND PRACTICE OF COUNTY COURTS. Decided in Superior Courts since Publication of “Sixth Edition of Cox and Lloyd's County Court Practice." (Continued from p. 221.) By the 90th section of the 9 & 10 Vict. c. 95, it is enacted that no plaint entered in any County Court shall be removed or removable from the said Court into any of her Majesty's Superior Courts of Record by any writ or process, unless the debt or damage claimed shall exceed five pounds. circumstances there would be no opportunity of moving for a prohibition before judgment; and unless the motion was allowed after judgment the excess of jurisdiction would be without redress." REPORTS. Superior Courts of Law and Equity. HOUSE OF LORDS. Thursday, July 20. ABERDEEN RAILWAY COMPANY v. BLAIKIE BROTHERS. Railway-Director contracting with company-Illegality of contract in equity-Pleading-Companies Clauses Act, 8 & 9 Vict. c. 16. The bailiff of a County Court entered two for 51. as a fine under the 9 & 10 Vict. c. 95, s. 114, A plaints, one for 5l. for an assault, and the other the asssault complained of being the same in both for assaulting him in the execution of his duty, cases. The defendant afterwards obtained a certiorari to remove both plaints into the Court of Exchequer; upon which the plaintiff in his turn applied to quash the certiorari and for a procedendo. The affidavit upon which the certiorari was obtained stated that "the two actions are brought against the defendant to recover the fine imposed by the 9 & 10 Vict. c. 95, s. 114, and also damages for assaulting the plaintiff, one of the bailiffs of the court, whilst in the execution of his duty, as alleged by the said plaintiff, in the parish of Spedhurst in Kent, on the 22nd Oct. 1853; that he has a good defence to the said actions, and that on the trial of the said causes, certain important points of law are likely to arise under the provisions of the said Act of Parliament." The court, after argument, made the rule absolute, Parke, B. saying: "Our opinion is, that this rule should be absolute, as the causes cannot be removed by certiorari. There are two plaints for 5l. each, and not one for 101. as was contended, and the removal is therefore prohibited by the 90th section." And Martin, B. said: "The only ground that the certiorari would be upheld, would be that the two plaints were one; but that is not so. One is for a personal assault, and the other is for a fine imposed under the 114th section of the County Courts Act, and is exclusively within the jurisdiction of the County Court. It is an oversight in the statute that this should be so; and it is to be hoped it will be altered. It is a scandal that the cause should be tried in that County Court; and I regret that the plaintiff will not consent to remove it elsewhere:" (Re Box v. Green, 23 L. J. 219, Ex.) ex contract made by a director of a railway company, or by a firm of which he is a member, with the company, while he is such director, is bad on general principles; but these principles are enforceable only in a court of equity, and are not recognised in a court of common law. Hence, though Foster v. Oxford, W., and Wolverhampton Railway Company, 13 C. B. 200, may have been rightly decided in the C. P., it is no authority in a court of equity, for the Companies Clauses Act does not make valid such a contract which is otherwise bad on general principles. B., a director of the A. Railway, and a member of the firm of B. brothers, while he was such director, entered into a contract with the company to supply a large quantity of iron chairs at a certain price. The company, after accepting delivery of part, refused to receive the rest of the chairs, whereupon B. instituted a suit in the Court of Session, which is a court both of law and equity, praying that the company might be decreed either to specifically perform the contract or pay damages for the breach of contract. The company pleaded that, "under the Companies Clauses Act any such contract, to which the plaintiff B. was a party while he remained a director of the company, was illegal and cannot be enforced." Held, reversing the decision of the "Court of Session, that this plea sufficiently raised the general question, whether such a contract is illegal, and that it merely assigned a wrong reason for such illegality, viz., the provisions of the Companies Clauses Act. Held, also, that such a contract was bad in equity, and as the court below was a court of both law and equity, it ought to have decided in favour of the validity of the plea. This was an appeal from a decision of the Court o Session in Scotland. In Marsden v. Wardle, 23 L.J. 263, Q. B., an attempt was made to set aside a prohibition, on the ground that it was issued after judgment and after execution had issued, the want of jurisdiction not appearing on the face of the proceedings, The respondents, Messrs. Blaikie Brothers, ironand there being no objection taken to the juris- founders and engineers in Aberdeen, brought an action diction at the trial. But the rule for setting against the Aberdeen Railway Company, the appelaside the prohibition was discharged, and Cole-lants. This action, owing to the Court of Session ridge, J. in delivering the judgment of the being a court both of law and equity, partook of the court said: "In this case, upon a rule for setting aside an order for prohibition, the nature of a bill in equity, as well as an action at law be granted to a County Court for an question was whether a prohibition should in this country-being at once a bill for specific performance of a contract to deliver and accept iron cess of jurisdiction not appearing on the pro- chairs, and an action of damages for breach of conceedings, although the writ was moved for after tract in not accepting part of the chairs, the plaintiff's judgment in that court. And we answer this in the affirmative. There is reason for refusing the praying in the alternative either for specific performwrit after judgment in the courts when the pro-ance, or for damages for the breach of contract. The ceedings set forth the detail of the matter, and plaintiffs, Messrs. Blaikie, in their summons (equivathe party has the opportunity of moving before lent both to a bill and a declaration) set forth the judgment; then, if he chooses to wait and take grounds of action and relief in substance as follows:the chance of judgment in his favour, he may be That Alex. Gibb, civil engineer, Aberdeen, acting diction, if judgment is against him. There is, held incompetent to complain of excess of jurisas resident engineer for and on behalf of the Aberdeen however, good reason for departing from this principle where the defect is apparent on the face of the proceedings below, because the complaint in that case does not rest on the evidence of the complainant; and, if such a defective record were allowed to remain and to support a judgment, it might become a precedent, and that which was in truth an excess of jurisdiction might be considered to have been held to be legal. But this principle has no application to the County Courts. any formal way; the excess of jurisdiction may The proceedings there do not show the matter in depend only on the defence set up orally by the defendant, and may only appear in the course of the trial, and judgment may follow almost as soon as the defence is understood. Under such Railway Company, the defendants, having prepared a specification of chairs required for the permanent road of the line of defendants' railway, and having, on or about the 19th Jan. 1846, being the date of said specification, communicated the same to John Blaikie the youngest, one of the partners of the firm of Blaikie Brothers, as acting for and on account of the plaintiffs, with a view to the plaintiffs contracting for the manufacture and supply of the said chairs, the said John 1846, addressed an offer to the said Alex. Gibb, to furBlaikie, the youngest, acting as aforesaid, on 6th Feb. nish the permanent chairs for the defendants' railway, agreeably to the plan and specifications, to be delivered in Aberdeen at the price of 8%. 10s. per ton. That, on the same day, the said A. Gibb, acting for and on behalf of the defendants, and as authorised by them, addressed to the said John Blaikie, the youngest, on behalf of the plaintiffs, the following acceptance of the said offer:-"As authorised by the directors of the Aberdeen Railway Company, I hereby accept of your offer for supplying of the chairs for the permanent road of the Aberdeen Railway, at the rate of 87. 10s. per ton, delivered at Aberdeen, the chairs to be supplied in every respect of the quality and dimensions stated in the specifications of date 19th Jan. last, signed by me, and the quantity to be performed, and to which this acceptance is meant to refer, is also stated in this specification, and the period of delivery." That the quantity of chairs stated in the said specification was 78,131 joint chairs, and 312,531 intermediate chairs; or, when reduced to weight, the whole quantity to be supplied amounted to 4150 tons of chairs. That, before any of the said chairs had been supplied to the defendants, or required by them to be delivered, the defendants had requested the plaintiffs to adopt Messrs. Ransome and May's patent mode of casting the chairs, which request the plaintiff's had agreed to comply with. That the plaintiffs had already implemented their part of the said contract to the extent of furnishing and delivering to the defendants at such times and in such quantities as they required for the construction of the permanent road of their line of railway, with reference to the state and progress of their works, 2710 tons of chairs, manufactured in terms of the foresaid specification and subsequent agreement as to the patent mode of casting. That the plaintiffs are able and willing further to implement the said contract by furnishing and delivering to the defendants the remaining quantity of chairs contracted for, to wit, 1440 tons of chairs, at such times, and in such quantities, &c.; but the defendants refuse to implement the said contract by re trustee and his cestui que trust is all but entirely prohibited. It is true that it has been the habit of courts of equity, in the first instance, to direct an inquiry as to whether the relation of trustee and cestui que trust had ceased before the contract was made, and whether there had been acquiescence on the part of the cestui que trust: (Ex parte Lacey, 6 Ves. 625; Ex parte James, 8 Ves. 337; Fox v. M'Greth, 2 Bro. Ch. C. 226; Murphy v. O'Shea, 2 Jon. & L. 422.) But it is obvious such inquiries only tend to fritter away the rule; for it can never be satisfactorily ascertained by the machinery of any court how far the trustee may have taken advantage of his position to gain an advantage to himself. It would be much better to adhere to the general rule and permit no exceptions as Lord Eldon seemed inclined to do in Ex parte Lacy. There was a leading case in the law of Scotland decided by the House in 1794 to the same effect: (York Building Company v. Mackenzie, 8 Bro. P. C. 42.) The present case clearly comes within the same principle. A director of a railway company is in the and I see nothing whatever to prevent its application here. I observe that Lord Fullerton seemed to doubt whether the rule would apply, where the party, whose act or contract is called in question, is only one of a body of directors, not a sole trustee or manager. But with all deference, this appears to me to make no difference. It was Mr. Blaikie's duty to give to his codirectors, and through them to the company, the full benefit of all the knowledge and skill which he could bring to bear on the subject. He was bound to assist them in getting the articles contracted for at the cheapest possible rate. As far as related to the advice he should give them, he put his interest in conflict with his duty. And whether he was the sole director, or only one of many, can make no difference in principle. The same observation applies to the fact, that he was not the sole person trading with the company. He was one of the firm of Blaikie Brothers, with whom the contract was made, and so interested in driving as hard a bargain with the company as he could induce them to make. It cannot be contended that the rule to which I have referred is one confined to the English law, and that it does not apply to Scotland. It so happens that one of the The defendants pleaded, first, that Mr. Gill had no leading authorities on the subject is a decision of this authority to bind the defendants; secondly, that they House on an appeal from Scotland. I refer to the never contracted in manner and form as alleged; case of the York Building Company v. Mackenzie, 8 thirdly, that at the time when the said agreement Bro. P. C. 42, decided by your Lordships in 1795. was entered into, viz., on 19th Jan. and 6th Feb There the respondent Mackenzie, while he filled the 1846, Thomas Blaikie, one of the plaintiffs, and office of common agent in the sale of the estates of partner in the firm of Blaikie Brothers, was a director the appellants who had become insolvent, purchased and chairman of the defendants' company, and so a portion of them at a judicial auction; and though continued to hold these offices until 25th Feb. 1846, he had remained in possession for above eleven years when the said Thomas Blaikie resigned, on the ground after the purchase, and had entirely freed himself that a firm with which he was connected had accepted from all imputation of fraud, yet this House held employment, and was performing work for the rail-that, filling as he did an office which made it his duty way; that “under the Companies Clauses Act, any such contract or agreement, to which the plaintiff Thomas Blaikie was a party while he remained a director of the company, was illegal, and cannot be enforced." ceiving delivery of the same. The plaintiffs then prayed that the defendants might be ordered either to specifically perform the said contract by accepting delivery, or to make payment to the plaintiffs of 70002, or such other sum as shall be ascertained to be the amount of the loss and damage sustained by the plaintiffs. With regard to the first and second pleas, the Court of Session, according to the practice of the court, directed an issue to be tried by a jury, which it is immaterial further to notice. The principal question arose on the third plea, in a form analogous to a demurrer in this country. The Court of Session pronounced the following order: -"Find, that the circumstance of Mr. Thomas Blaikie, one of the plaintiffs, having been a director of the Aberdeen Railway Company for some months before and on the 6th Feb. 1846, and having thereafter continued to act as such, and not having resigned the said office of director till on or about the 25th Feb. 1846, is not fatal to the validity of the contract." From this order the defendants now appealed. The case was argued in May 1853. The Solicitor-General (Bethell) and E. Gordon (Advocate), for the appellants.-The law of England is the same as that of Scotland on this subject, with this exception, that the law of Scotland is not so fully developed. It is the law of both countries that a trustee cannot be permitted to put his interest in conflict with his duty; and a contract between a both to the insolvents and their creditors to obtain the highest price, he could not put himself in the position of purchaser, and so make it his interest that the price paid should be as low as possible. This was a very strong case, because there had been acquiescence for above eleven years. The charges of fraud were not supported-the purchase was made at a sale by auction. Lord Eldon and Sir W. Grant were counsel for the respondent; and, no doubt, everything was urged which their learning and experience could suggest in favour of the respondent. But this House considered the general principle one of such importance, and of such universal application, that they reversed the decree of the court of Session, and set aside the sale. The principle, it may be added, is found in, if not adopted from, the civil law. In the Digest is the following passage:-" Tutor rem pupilli emere non potest; idemque porrigendum est ad similia, id est, ad curatores, procuratores, et qui negotia aliena gerunt." In truth, the doctrine rests on such obvious principles of good sense, that it is difficult to suppose that there can be any system of law in which it would not be found. It was argued that here the contract ultimately acted on was not entered into while Mr. Blaikie was director; for that though a contract had been entered into in February, yet that contract was afterwards abandoned, and new terms agreed on in the following month of June. This, how ever, is not a true representation of the facts. The contract of February was, it is true, afterwards modified by arrangement between the parties, but this cannot vary the case. If, indeed, the contracting parties had in June unconditionally put an end to the original contract so as to release each other from all obligation, the one to purchase and the other to sell at a stipu|lated price, the case would have assumed a different aspect. But this was not done. The contract of June was not a contract entered into between parties on the footing of there being no obligation then binding on them, but an agreement to substitute one contract for another supposed to be binding. Messrs. Blaikie did not say to the directors in June, we have no binding contract with you, but we are now willing to contract. What they said amounted in fact to this we have a contract which was entered into in February, but we are ready if you desire to modify it. To hold that this in any manner cured the invalidity of the original contract, would be to open a wide door for enabling all persons to make the rule in question of no force. It was further contended that, whatever may be the general principle applicable to questions of this nature, the Legislature has, in cases of corporate bodies like this, modified the rule. The statute, that is, the Companies Clauses Act, it was argued, has impliedly, if not expressly, recognised the validity of the contract by enacting that its effect shall be to remove the director from his office, indicating thereby that a binding obligation would have been created, which would render the longer tenure of the office of director inexpedient. And your Lordships were referred to a case of Foster v. The Oxford, Worcester, and Wolverhampton Railway Company, 13 C. B. 200. That was an action for breach of a contract under seal, whereby the defendants covenanted with the plaintiffs (as in the case now before your Lordships) to purchase from them a quantity of iron. The defendants pleaded that at the time of the contract one of the plaintiffs was a director of their company; and to this plea there was a general demurrer. That such a contract would in this country be good at common law is certain. The rule which we have been discussing is a mere equitable rule, and therefore all that the Court of C. P. had to consider was how far the contract was affected by the statute. The decision was, that the statute left the contract untouched, and that its operation was only to remove the director from his office. The 85th and 86th sections of the English statute 8 & 9 Vict. c. 16, on which the court proceeded, were in the same words as the 88th and 89th sections of the Scotch statute 8 & 9 Vict. c. 17; and the counsel at your Lordships' bar relied on this decision as being strictly applicable to the case now under appeal. But there is a clear distinction between them. In Scotland there is no technical division of law and equity. The whole question, equitable as well as legal, was before the Court of Session. All which the Court of C. P. decided was, that a contract clearly good at law was not made void by an enactment that its effect should be to deprive one of the contracting parties of an office. That decision will not help the respondents, unless they can go further, and show that the statute had the effect of making valid a contract which is bad on general principles enforceable here only in equity, and not recognised in our courts of common law. I can discover no ground whatever for attributing to the statute any such effect. Its provisions will still be applicable to the case of directors who become interested in contracts as representatives or otherwise, and not by virtue of contracts made by themselves. I have, therefore, satisfied myself that the Court of Session came to a wrong conclusion; and that the third plea was a sufficient answer to the plaintiff's case. I therefore move that the judgment of the court below be reversed. Lord BROUGHAM.-My Lords, I also arrive at the same conclusion, that the law of Scotland differs in no respect from the law of England upon this matter; and it is very important that it should be understood that there is no such difference between the two systems of jurisprudence. The cases which have been referred to of Whelpdale v. Cookson, 1 Ves. sen. 9; and chiefly the case of Ex parte James, in bankruptcy, clearly lay down what the law of England upon the point is. And Lord Eldon, either in that case or in one of the others-in Campbell v. Walker or in Ex parte Lacey-goes even further than Lord Hardwicke did in Whelpdale v. Cookson, and considers (though he expresses it, no doubt, with the respect due to that eminent judge, rather as a grave doubt than as a well-matured opinion) that Lord Hardwicke did not go far enough in giving effect to this principle when he said that it was possible that the assent of the creditor might validate the sale. Now, how far the two systems of law are the same upon this very important question appears, not only from that which my noble and learned friend has adverted to—namely, the case of The York Buildings Company v. Mackenzie, which is the ruling case upon this subject, and which was decided upon an appeal from Scotland, and according to the principles of Scotch law in this house; but it also appears, from the fact that in that case a distinct reference was made, at least in the argument at the bar, to the English law authorities, and to the very case of Whelpdale v. Cookson, 1 Ves. sen. 9. The case of Ex parte James, 8 Ves. 337, could not have been referred to, because it was decided some years afterwards; but the case of Whelpdale v. Cookson is referred to in the argument at the Scotch bar, as well as the passage in the digest from the Roman law which my noble and learned friend has read. It is also to be observed that, not only were the English cases cited in Scotland in that instance, but conversely, the Scotch case position of a statutory trustee, and is bound to give the benefit of his skill to the shareholders, who, as a body, are comparatively helpless, and cannot, by the necessity of their condition, individually manage their affairs. A contract made between the director and the company is therefore void, especially while he occupies the office of director; and he does not make it valid by merely resigning his office immediately thereafter. The contract is entirely void in equity. The Companies Clauses Act does not alter this law, but rather recognises and confirms it. It is true the C. P. has decided in Foster v. Oxford, Worcester, and Wolverhampton Railway Company, 13 C. B. 200, that that statute does not of itself make the contract void. But, even assuming the correctness of that decision, it was merely the narrow view which a court of common law can take which was there taken; that is, the equitable doctrine could not be given effect to. But the Court of Session in Scotland is a court of both law and equity, and therefore it ought to have decided that such a contract was void. he is to protect, and so that he could not make any the time have been better. But still so inflexible is Rolt, Q.C., and Macfarlane (Advocate), for respondents. The third plea of the defendants does not raise the general question of law, whether a director can validly contract with the company of which he is a director, but merely restricts the question to whether the Companies Clauses Act makes the contract void. If the sole question be the operation of that statute, then the case of Foster v. Oxford, &c. Railway Company, 13 C. B. 200 sufficiently sets it at rest, for it was there decided that the only effect of the statute is to make the director cease to be a director, leaving the contract valid. If, however, the general question of law be sufficiently raised by the third plea, which we say it is not, still the cases of Coles v. Trecothick, 9 Ves. 234; Campbell v. Walker, 5 Ves. 677; Murphy v. O'Shea, 2 Jon. & L. 425; Selsey v. Rhoades, 2 Sim. & St. 41; Gibson v. Jeyes, 6 Ves. 266, and others, show, that if you put an end to the relation of trust and allow a reasonable time to elapse, and you show that the transaction was perfectly fair, the contracting such duties to discharge, shall be allowed to enter cannot be impeached. We say here, that in fact, Thomas Blaikie had ceased to be a director before the contract was made, or at least completed, and that the contract was in every respect fair and reasonable. The present appeal ought, therefore, to be dismissed. The Solicitor-General replied. Cur, adv. vult. The LORD CHANCELLOR (after stating the plead-is or may be impossible to demonstrate how far in Ings). My Lords, the ground relied on by the appellants is, that Mr. Thomas Blaikie, holding as he did the situation of chairman of the board of directors, was a trustee for the company; or, at all events, that as between himself and the company, he was subject to the same objections as those which affect a trustee in his relation to the cestui que trust, whose interests into engagements in which he has or can have a per- any particular case the terms of such a contract have appears that so entirely bonâ fide was Mr. Mackenzie's possession found to be, that the rule of the civil law, happily the rule in Scotland, though most unfortu nately never introduced into our jurisprudence, namely, that "fruges bonâ fide perceptae et consump tae" are to be held to be the property of the party who is ultimately held not to have the title, was applied in the case of Mackenzie. So entirely free from all imputation of fraud was he found to be, that he was allowed not merely to remain in undisputed and undisturbed possession of the rents and profits of the estate during those eleven years, that is, up to the period of the appeal; because the rule of bond fide consumption applies not only up to the time of a decision against him in the court below, but up to the final decision of the Court of Appeal. And accordingly Mr. Mackenzie's bona fides was found to be so unimpeachable in the case, and his conduct in the whole transaction was found to be so entirely without fraud, that not only did the court below find the other party liable to costs because they had charged him with fraud, which the court at the first decided in his favour, but afterwards he was adjudged to have the whole of the expenses allowed to him to which he had been put in ornamental improvements upon the estate. That is certainly one very strong instance of the application of the rule; perhaps it is stronger than any other within our recollection, because in that case it clearly shows that so entirely was the opinion of the court in favour of the rule, that even while they held that the transaction could not be sustained, but that his purchase was invalid, they nevertheless decreed him possession of the rents and profits, and also to be allowed for the expenses of the improvement. In that case, my Lords, I must also observe that it was not merely the decision of this House which set the court below right upon a point of Scotch law, as it has once and again done, but the Scotch law appears to have been by no means distinctly maintained by the court below to be as it was ultimately found not to be by your Lordships' decision; for, in the first instance, they decided against the party seeking to set aside the sale; the court afterwards, however, by a narrow majority, set aside the sale. Then again came both parties to appeal against this second decision, and then by a narrow majority again the court refused to set aside the sale, and found, as I have already stated, that in respect of the charge of fraud, the defendant, Mr. Mackenzie, was entitled to his expenses. Therefore, it cannot be said to have been at all the understanding of the court of session that the law was in favour of such purchases at the time when you find these two conflicting decisions in the court below, and each by such a very narrow majority. My Lords, I also agree with my noble and learned friend, that the decision in the case of Foster v. The Oxford, &c. Railway Company, in the C. P., upon which great reliance was placed at your Lordships' bar, does not apply to this case, because there the transaction was past all doubt valid at common law, though not in equity; but had the C. P. an equitable jurisdiction as well as a common law jurisdiction, the anomaly never could have happened of a transaction being found legal and valid in that court, which could not stand examination on the other side of Westminsterhall. It has not often occurred to me to see a stronger instance of the great inconvenience, to say the very least of it, of that division between the two sides of Westminster-hall-I will not say that impassible barrier between them-for, on the contrary, it is constantly, and must be for the sake of justice, constantly passed; but I have seldom seen a more striking instance of the inconvenience of the existence of that division, and of not allowing the court to exercise both jurisdictions; at all events, whenever a case arises on which entire justice cannot be done without the exercise of both jurisdictions. On the whole, I entirely agree that the judgment of the court below must be reversed. The LORD-CHANCELLOR.-I do not propose to allow costs in the court below, for I think the company misled the plaintiffs, by putting their plea on a wrong ground Judgment reversed. V. C. KINDERSLEY'S COURT. July 21 and 22. HEATH V. CHAPMAN. Parol trust-Superstitious uses-1 Edw. 6, c. 14— 43 Eliz. c. 4-2 & 3 Will. 4, c. 115-1 Vict. c. 26. Where a testator transferred a sum of stock in his lifetime into the names of trustees, and declared by parol that they should hold it upon certain trusts, (which were partially executed before his death,) and then (inter alia) to have masses and requiems said for his soul and the souls of the poor dead, and for other pious uses: Held, that such a transfer and declaration of trust was not a violation of the Wills Act 1 Vict. c. 26; that, although charitable uses might be declared by parol, gifts for such purposes as the saying of masses and requiems for the souls of the dead were not charitable, but superstitious uses, within 1 Edw. 6, c. 14; that they bore no analogy to the charitable uses enumerated in the 43 Eliz. c. 14; that they were not rendered legal by the 2 & 3 Will. 4, c. 115; and that they were void. Held also, in accordance with West v. Shuttleworth, 2 Myl. & K. 684, that the next of kin and not the Crown was entitled to the benefit of the void gift. Dominico Dragonetti, the testator in this cause, in the year 1846 instructed his solicitor, Appleby, to prepare his will. The instructions then given were put into writing as follows:-"21st March 1846.Instructions for the will of Signor Dominico Dragonetti, of No. 4, Leicester-square. Count Pepoli and Samuel Appleby to be trustees and executors. Gives to his trustees and executors a sufficient sum when invested as will produce an annuity of 257. Hoare for the plaintiff. Baily, Q.C., for some of the legatees.-The trust for Signor Zimolo and Mary Chapman were good, as having been acted upon in the testator's lifetime; and the successive removals of the disabilities affecting Roman Catholics and particularly the 2 & 3 Will. 4, c. 115-rendered valid the other trusts also. Elderton for Mary Chapman. Bagshawe for the proprietor of the chapel at Moorfields. Anderson, Q.C. (Ellison with him), for Antonio Girolamo Zener.-There was no trust, but only a secret understanding; the cestui que trusts were uncertain, and so the trust was revocable, and in effect a violation of the Wills Act, 1 Vict. c. 26; besides which the uses were superstitious, and therefore void. Wickens for the Attorney-General. Baily, Q.C. in reply. The following authorities were referred to in the argument :-Attorney-General v. Herrick, Ambl. 712; Attorney-General v. Davies, 9 Ves. jun. 535; Attorney-General v. Hinxman, 2 Jac. & W. 270; West v. Shuttleworth, 2 Myl. & K. 684; Williams on Executors, Vol. II. 850; Bayley v. Boulcott, 4 Russ. 345; Gaskell v. Gaskell, 2 Y. & J. 502 ; 1 Edw. 6, c. 14; 43 Eliz. c. 4; 2 & 3 Will. 4, c. 115; 7 Will. 4 & 1 Vict. c. 26, s. 9; Wilding v. Richards, 1 Coll. 655; Duke on Charitable Uses, 466, 469, 472; AttorneyGeneral v. Fishmongers' Company, 1 Keen, 492; Emery v. Hill, 1 Russ. 112; Attorney-General v. sterling for Giovani Zimolo, husband of D. D.'s late | of his estate; and it having been ascertained by a sister, Maria D., to be paid him for his life; and after commission of inquiry sent out to Venice, that Antohis death he gives the principal moneys to the priests nio Girolamo Zener was his sole next of kin, and he officiating for the time being at the church of Mistri, having been made a party by supplemental bill, the near the city of Venice, where his late sister was cause now came on for hearing upon the certificate of buried, for masses and pious uses; gives his Gasparo the chief clerk, stating the transfer of the stock di Solo double bass, whereon he continually played in the testator's lifetime, the parol declaration of in public, to the church of St. Marco at Venice, the trusts on which it was held, and requesting the to be played there in perpetuity for the use opinion of the court-First, whether, inasmuch as the of the church-given out of respect, D. D. having trusts were only declared by parol, they were played at such church from the age of fifteen for not revocable, and whether they were not, in many years; gives to his trustees a sufficient sum effect, a violation of the Wills Act, 1 Vict. c. 26; in capital as will produce from the funds 301. a year secondly, whether the trusts declared, or some of for the use of the Church of St. Marco at Venice, for of them, were not really superstitious uses, and theremasses and requiems, for the souls of the testator and fore void; and thirdly, whether the property, or any the, poor dead, and for other pious uses; gives to his and what part of it, in that event went to the Crown, trustees a further sufficient sum to produce 201. a year, or the next of kin of the testator. for the use of the chapel of Catholics in Moorfields, in the city of London, for masses; he gives to his trustees a further sufficient capital sum as will produce annually 207. for the use of the chapel or church of St. Simeone Grande, in Venice, for masses; he gives to his trustees a further sufficient sum as will produce an annuity of 107., the same to be paid to and for the separate use for life of Mary Chapman, and after her death the capital to be distributed for the benefit of the poor in London. Residue, will consider." Appleby then prepared a will as nearly as possible in accordance with these instructions, but advised the the testator to make a transfer of stock, and to declare the trusts of it during his lifetime. The testator, therefore, on 1st April 1846, transferred some stock into the names of Count Pepoli, the plaintiff, and Vincent Novello, directing them, by parol, to carry out his wishes as stated in the instructions for his will; but no deed of trust was ever executed The stock transferred was a sum of 30381. Os. 4d., 31. 58. per cent. Annuities. Amongst the papers of the testator was found the following memorandum :— "To see Count Papoli; to write to Venice; to speak to one or two brokers as to the sale of my property; to cause to be paid 157. sterling per annum to Signor Zimolo, in Venice, until his decease, and then the said 157. per annum to go to the Church of St. Simeone the Great, for prayers for the good of the souls of the poor dead." The first dividend on the stock transferred became due in the testator's lifetime, and the trustees applied 251. of it in part payment of the gifts to Zimolo and Mary Chapman, which pay-Stephens, 3 Myl. & K. 347. ments had been since continued by them. The testator made his will in April 1846, and thereby, after giving certain specific and pecuniary legacies, bequeathed the residue of his property as follows:"And, as respects the residue of all the money and securities for money belonging to me at my bankers, in whatever bank or place the same may be, I desire that, after all the obligations, gifts, and engagements shall have been satisfied, the above-mentioned residue be held in deposit, for the purpose of inquiring whether there be any relation of my blood living; if such be found, it is my will that all the said residue be given to my next of kin; and if there be living several of my relations in equal degree of consanguinity, I desire that the said residue above alluded to be divided in equal shares for them and among them. As respects, however, the residue of my other properties, I order that they shall be sold and converted into money for the purpose of disposing thereof exactly in the same manner as above expressed; but if there should not be found any relations of my blood, in that case I desire and order that the residue, whether of the money and securities for money, or for the articles of property sold and converted into money, should be distributed to the poor of the parishes of St. Mark and St. Simeone the Great, at Venice; the whole is to be carried out by my testamentary executors entirely according to their discretion as respects the methods to be adopted for the accomplishment of my will exactly: whom I appoint, repeat and desire for my testamentary executors, in all and singular the matters pro omnibus et per omnia." The testator ap-cuted, and not merely executory ; but that being so, it pointed the plaintiff, Vincent Novello, and Count Pepoli his executors; and died on the 16th April 1846. This suit was instituted for the administration The VICE-CHANCELLOR.-This case has necessarily occupied some time; but that has enabled me to look into the authorities, and to form my opinion upon it. But for this, I should certainly have taken further time to consider my judgment before pronouncing it. The first question submitted to me by the certificate of the chief clerk was, whether a gift of this kind affected by a transfer of stock to trustees, the transferor declaring by parol the purposes of such gift, was not a violation of the Wills Act. I confess it does not appear to me that it is so. That Act (1 Vict. c. 26) requires that an instrument to operate as a testamentary one shall be signed by the testator or by some other person in his presence and by his direction, and that such signature shall be duly witnessed by two persons; but that requisition does not prevent a person from doing what he might have done before that Act-namely, creating a trust inter vivos, by giving or transferring a sum of money or stock to trustees, and declaring the trusts thereof, either verbally or in writing. If the testator, after making the transfer of the stock in this case, had executed a deed of trust, attested by only one witness; though such deed would not have operated in any way as a testamentary instrument under the Wills Act, it would clearly have been a good and valid declaration of trust. Unless it was intended to take effect only after the death of the transferor, the argument that it was a violation of the Wills Act cannot be maintained. When, in such a case, he declares a trust for himself for life, and afterwards for others, it is no violation of that Act. The trust, indeed, must be exe is, I think, quite clear that such a trust may be created by parol. But the mere intention to create such a trust, as if here there had been no actual transfer of |