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In conclusion, reference may be made to the case of Macfarlane v. Monklands Railway Co. (2 M. 519), and particularly to the opinion of Lord President Inglis (then Lord Justice-Clerk), where the freehold qualification, vote making, and the splitting of superiority and property are adverted to in connection with the interpretation of certain clauses in the company's special Act. It is observed in the rubric of the case that the clauses of the Act founded on were adopted from a style framed with a view to preventing freehold qualifications from being disturbed by such undertakings.
JUDICIAL COMMITTEE OF THE
THE WINDING UP OF A COMPANY.
(Present.-LORD SHAW, LORD PHILLIMORE, and LORD CARSON.)
(From The Times of 5th June.)
Their Lordships allowed an appeal from a judgment of the West Indian Court of Appeal reversing an order made by the Barbados Common Pleas Court ordering the winding up of a limited company.
Mr Wilton, K.C. (of the Scottish Bar), and Mr Blanco White appeared for the appellants; Mr Clauson, K.C., and Mr W. Gordon Brown for the respondents.
Loch and Mr Rodger when they reached the
In the petition for winding up, eight different reasons were assigned therefor. The first was: that the statutory conditions as to general meetings had not been observed; the second that balance-sheets, profit and loss accounts, and reports had not been submitted in terms of the articles of the company; and the third was that the conditions under the statute and articles as to audit had not been complied with. All those allegations were true, and it seemed naturally to follow from the preponderance already alluded to that there was at least considerable force in the fifth reason, that it was impossible for the petitioners to obtain any relief by calling a general meeting of the
Lord Shaw, in delivering their Lordships' judgment, said that the appellants were petitioners for an order by the Court for the winding up of John Blackwood Ltd., under section 127 of the Barbados Companies Act, which was identical with section 129 of the British Companies Act of 1908. The subsection particularly founded upon declared that a company might be wound up by the Court if the Court was of opinion that it is just and equitable that the company should be wound up." Many years ago Mr John Blackwood established an engineering business in Barbados, and carried it on until his death in 1904. Under his will his estate was divided, one-half to Mrs M'Laren, the wife of Mr company. William McLaren, and one-quarter each to The principal ground of the petitioners was his niece Mrs Loch and to his nephew that it was just and equitable, in the circum(Mrs Loch's brother), John Blackwood Rodger, stances, that the company should be ordered lately deceased; the shares to be paid to Mrs to be wound up. That last ground was
affirmed by the Court of Common Pleas. wife and clerk had voted to himself out of the The judgment of the Court below proceeded on funds of the company. Their Lordships exthe view that the statutory prescription for pressed no surprise at the instant, repudiation winding up under the sixth section-namely, of Mr M'Laren's proposals by Mrs Loch-a when the Court considered that it was just and repudiation which was creditable to herequitable-was restricted to cases ejusdem and at the application for a winding up of the generis with those enumerated in the other sub company being made. That application must sections of section 127 of the Barbados Com-succeed. The broad ground was that confidence panies Act. The Board, having fully considered in its management was, and is, and that most the authorities, the judgment, and the argu- | justifiably, at an end. ments, were of opinion that that was not the law. In the opinion of the Board it was in accordance with the laws of England, Scotland, and Ireland that the ejusdem generis doctrine (as supposed to have been laid down by Lord Cottenham) did not operate so as to confine the cases of winding up to those strictly analogous to the five instances of the first subsection of the British Act. It so happened that in several instances there had occurred circumstances analogous to those of the present in regard to the domestic nature of the company and the permanent preponderance of voting power. Having cited several cases in the English and Scotch Courts, Lord Shaw said their Lordships were of opinion that Chief-Justice Greaves (of Barbados), who tried the case, was correct when he said:
The Board agreed with those views. In the opinion which they had formed, Mr M'Laren, for reasons not unnatural, had come to think that the business owed much of its value and prosperity to himself, and that he could manage it as if it were his own. In 1920 the assets very substantially exceeded the £40,000 of the company's nominal capital. In May 1920 Mr and Mrs M'Laren and Mr Yearwood, at a directors' meeting, voted £12,500 to Mr M'Laren, and increased his salary as chairman from £1100 to £2000. Mr M'Laren then proposed to buy Mrs Loch and the Rodger family out for £10,000, of which she was to have £8000 and the Rodger family £2000.
Their Lordships did not desire to characterise those suggestions in the language which, perhaps, they fully deserved. The Rodger family, entitled to one-fourth of the holding in the company, nominally £10,000, but in reality of a much higher value, were to be bought off for £2000. No confidence in the directorate could survive such a proposal. To crown all, as was afterwards discovered, the £10,000 could be comfortably paid by Mr M'Laren out of the £12,500 which, four days before, he and his
It must, however, be said in justice to Mr M'Laren that after the parties were at arm's length the £12,500 was refunded and the minute rescinded. Further, being advised that the increase of salary from £1100 to £2000 was wrong, he abandoned it from February 1922, and at their Lordships' Bar, he being present, an assurance was given that the two years' increase already drawn-namely, £1800—would forthwith be paid to the company.
Their Lordships would humbly advise his Majesty that the appeal should be allowed with costs, and the order of the Court of Common Pleas of Barbados restored with costs in both Courts below.
Solicitors, Mr E. Leslie Harris of Beveridge & Co., London, for Thomson & Morgan, Solicitors, Alloa; Mr T. M. Weir, London.
IT is officially announced that an Order in Council has been issued extending the Maintenance Orders (Facilities for Enforcement) Act, 1920, to Papua. The Act provides for the enforcement in England and Ireland of maintenance orders made by a Court in any part of His Majesty's dominions outside the United Kingdom or in any British Protectorate to which it extends, and the legislature of Papua has made reciprocal provision for the enforcement therein of maintenance orders made by Courts in England and Ireland.
The operation of the above-mentioned Order in Council is confined to England and Northern Ireland, and similar provision has not yet been made as regards the Irish Free State by the Government of that State.
THE Secretary for Scotland has appointed Mr James Conner, Sheriff-Clerk Depute of Aberdeenshire, to be Sheriff-Clerk of Aberdeenshire in place of Mr David Littlejohn, deceased.
WE are requested to announce that the firm of Holmes, Mackillop & Co., writers, Clydesdale Bank Chambers, Johnstone, and 208 St Vincent Street, Glasgow, was dissolved on 30th June last. From and after that date Mr W. H. Mitchell, Mr E. L. Mackillop, and Mr Ralph Risk will carry on business under the same firm name and at the same addresses as hitherto.
A NOTE ON "HABITUAL
or not he was still a habitual criminal, and the
By the Prevention of Crime Act, 1908 (8 Edw. VII. cap. 59), section 10 (1), “Where a person is convicted on indictment of a crime, committed after the passing of this Act, and subsequently the offender admits that he is or is found by the jury to be a habitual criminal, and the Court passes a sentence of penal servitude, the Court, if of opinion that by reason of his criminal habits and mode of life it is expedient for the protection of the public that the offender should be kept in detention for a lengthened period of years, may pass a further sentence ordering that on the deter-evidence on his own behalf. mination of the sentence of penal servitude he In allowing the appeal, the Court overbe detained for such period not exceeding ten ruled Rex v. Stanley ( 2 K.B. 235). Their nor less than five years, as the Court may Lordships declined to follow the case of determine, and such detention is hereinafter M'Donald v. H.M. Advocate (1917 J.C. 17). referred to as preventive detention."
There the Court of Criminal Appeal (for this Subsection 2 of the same section enacts: purpose and this purpose alone Scotland does A person shall not be found to be a habitual enjoy the jurisdiction of a Court of Criminal criminal unless the jury finds on evidence Appeal) held that where the jury find on (a) that since attaining the age of sixteen evidence that the accused, charged with being years he has at least three times previously a habitual criminal, has on a previous occasion to the conviction of the crime charged in the been found to be a habitual criminal and said indictment been convicted of a crime, sentenced to preventive detention, they must whether any such previous conviction was convict him; and they cannot take into before or after the passing of this Act, and consideration whether, since that sentence, he that he is leading persistently a dishonest or has been leading persistently a dishonest or criminal life; or (b) that he has on such a criminal life. Carried to its logical conclusion, previous conviction been found to be a habitual this interpretation of the statute is equivalent, criminal and sentenced to preventive detention." as the Lord Chief Justice pointed out in Norman, The interpretation of this section has given to calling a man a habitual drunkard even rise to difficulties in both Scotland and England. though he may have been a teetotaller for The matter has now been settled in England thirty years. In refusing the appeal in by a bench of thirteen judges in the case of M'Donald, Lord Dundas, who delivered the Rex v. Norman, in which judgment was delivered leading opinion, came into direct conflict on 26th May. The appellant had been sentenced with the view which has now prevailed in to three years' penal servitude for burglary England, in saying: "I cannot see that the and forgery. In September 1917 he had been meaning and effect of the subsection are found by a jury to be a habitual criminal and materially different from what they would have had been sentenced to preventive detention. been if the words had run that a person The appellant at the trial was told by the Court shall be found to be a habitual criminal if that it would be of no avail for him to call (and only if) the jury finds on evidence, etc." evidence on his part, and the jury were directed Once that is conceded, then the whole case that they had no option but to find the prisoner goes the other way. The only question, as a habitual criminal. He was sentenced, as it was put by the Crown in the English case, a habitual criminal, to undergo five years' is one of the identity of the prisoner with the preventive detention. Against that sentence person previously found to be a habitual he appealed. criminal and sentenced to preventive detention. The appeal was successful. There was a The whole point is a narrow one, and savours very marked division of judicial opinion. of the metaphysical. It need create no alarm The Lord Chief Justice carried seven judges with him, and Avory J. gave the leading opinion of four dissentients. Sankey J. declared himself unable, at the end of the day, to adhere to either party. The Court held that, unless the prisoner makes an admission, it was always a question of fact for the jury to say whether
that our law upon it is diametrically opposed to the English one, for, from the point of view of the sentence which the prisoner actually gets, the matter is really academic. As Lord Dundas said in M'Donald, “ the Act appears to have provided against cases of undue hardship. In the first place, I apprehend that the charge
principal sum awarded the arbiter allowed interest thereon at the rate of 5 per cent. per annum from the 4th day of November 1918 until payment." This interest was the subject of the assessment.
awarded was part of the damages and not taxable as income; (c) that the assessment, if competent, should have been made on the assignees under an assignation in security, who, in respect that the amount awarded was less than their debt, collected the whole amount, principal and interest, under the arbiter's decision.
of being a habitual criminal does not come into operation . . . . unless the judge is prepared to impose a sentence of penal servitude in respect of the substantive crime libelled and (ex hypothesi) proved against the accused. If the judge is not so prepared, the 'habitual The objections to the assessment as argued criminal' charge is not proceeded with. In before the Commissioners were (a) that interest the second place, even if that charge is brought on a sum due under a decree of Court or of an before the jury, and they find it to be estab-arbiter was not taxable as income; (b) that lished, it is left to the discretion of the the sum awarded was damages and the interest judge to decide whether or not, as matter of expediency, he should pass any sentence of preventive detention." Cases occur in practice in this country where accused, admitted or proved to be "habitual criminals," are sent to imprisonment only. It is noteworthy too that in England, in the case of Stanley, now overruled as taking too draconian a view of the statute, the prisoner, although unsuccessful on the technical point, had his sentence of three years' penal servitude reduced to one, of twelve months' imprisonment. The sentence of five years' preventive detention was thus automatically quashed. It is inconceivable that in a case such as that figured by the Lord Chief Justice, where a man has been a teetotaller in crime for many years, the Court would not take the most lenient view of his case; and it would not be at all hurtful to him that he is unable in person to prove his own virtues to the jury. But as an exercise in the logical interpretation of double negatives, the leading English case is probably a more striking effort than its Scots equivalent.
INCOME TAX ON CASUAL INTEREST. A case which seems to have escaped the notice of the reporters was decided by the First Division on 26th January last, and in view of the article on the above subject which appeared in our issue of 28th April 1923 it will be of interest to the profession to take note of it in these columns.
The case came before the Court on an appeal by the Inland Revenue against a decision of the Special Commissioners cancelling an assessment under Schedule D which had been made on Robert Henry Ballantine, C.A., Glasgow, as judicial factor on the estate of the late Robert Forrest. The assessment was on a sum of £678 of interest awarded by an arbiter along with a principal sum found due as "additional costs, loss and damage" incurred by the original claimants in the arbitration who, at the date of the award, were represented by the judicial factor.
The award was pronounced by the arbiter on 14th January 1921, and in addition to the
The Special Commissioners gave no decision on (a) and (b), and decided (c) in favour of the judicial factor.
When the case came originally before the First Division it was remitted back to the Commissioners to give a finding in fact on whether the sum contained in the award was damages or not. The Special Commissioners later reported that "the amount awarded by the arbiter was awarded mainly for damages which we fix at three-quarters of the total sum awarded. We consider that the balance was for extra costs under the contract."
The questions of law submitted for decision in the ultimate report of Special Commissioners were (a) whether the interest awarded by the arbiter is taxable as interest; and (b) whether, if so, it is taxable in the hands of the respondent. regard to the second question of law. No decision was given by the Division in
The cases referred to by the parties in connection with the first question of law will be found quoted in the article in the "Scots Law Times previously referred to. In addition, the case of Michelham,  1 Ch. 705 was quoted in support of the contention by the Revenue that the interest under a decree was taxable as interest under Case III., Schedule D of the 1918 Act.
The Lord President in his opinion stated: "We learn from the Commissioners' Report that the award consisted mainly of damages. It is plain from that Report that any exact discrimination between damages and what might have been treated as contract extras is impossible; but the Commissioners say that if a discrimination were to be attempted three-fourths of the whole might be definitely fixed as damages. I think it may be safely taken that the award was not an adjustment of a contract debt at contract rates, but was substantially an assessment of compensation to the contractors for their outlays and losses
under the particular circumstances in which these outlays and losses were incurred. It is impossible, of course, to know precisely the reasons which influenced the arbiter in taking the plan of fixing three capital sums in the first instance as at the date of the lodging of the amended claim, and then adding interest on those sums from that date until payment. It is enough that that was the mode he thought fair for the purpose of assessing compensation to the contractors in the circumstances of the case before him.
that there is at least one recorded opinion adverse to the chargeability of such interest. In Lee's Trustee v. Inland Revenue (1916 S.C. 188) Lord Johnston, speaking I think of ordinary judicial decrees, thought that the assessability of such interest to income tax under Case III. of Schedule D depended on the character of the debt or obligation in respect of which the decree was pronounced, and that, if the decree was substantially one of damages, the interest ordered to run on it was just part of the damages, and not, therefore, chargeable to income tax.
The importance of the case lies on the fact that a sum of money though in nomine interest is not necessarily taxable under the Act, and interest awarded along with a sum of damages may be regarded generally as one of the exceptions.
"Now it is familiar that an assessment of the kind may contain as one of its constituent The questions put in the case are superseded elements an allowance in respect that the by those appended to the Commissioners' claimant has lain for a long time out of his Report: and the result is that question (a) falls remedy. The propriety of such an allowance-if the above opinion is sound-to be answered may depend on the character of the claim, and in the negative. That answer makes it units amount may depend on many considerations necessary to say anything with regard to of which time is only one. But an interest question (b)." calculation is a natural and legitimate guide to be used by an arbiter in arriving at what he thinks would be a fair amount. In most cases in which such an allowance is a constituent of an award it does not separately appear, but is slumped along with other elements in the gross sum decerned for: but there is nothing to prevent an arbiter, if he thinks it just and reasonable in a particular case, to make the allowance in the form of an actual interest calculation from a past date until the sum fixed as at that date is paid. In all such cases, however, whether the allowance is wrapped up in a slump award or is separately stated in the decree the interest calculation is used in modum æstimationis only. The interest is such merely in name, for it truly constitutes that part of the compensation decerned for which is attributable to the fact that the claimant has been kept out of his due for a long period of time. It is not, therefore, interest of money' chargeable under Case III. of Schedule D.
It is possible that a different question might have been presented if the arbiter had made a slump award assessing compensation to the claimants for their additional costs, loss and damage' as at its own date, and providing that the claimants should be entitled to interest on the amount so awarded from that date until payment. The form of the award in the present case seems to me to make it impossible to distinguish the character of the so-called interest (a) between the 4th of November 1918 and the date of the award, from its character (b) between the date of the award and the date of payment. We heard no argument specially directed to the case of interest ordered to run on a slump award of compensation or damages, and I express no opinion upon it. It may be observed, however,
FACULTY OF ADVOCATES.-Mr Robert Macinnes, M.A. (Edinburgh); Mr James Wellwood Johnston, B.A. (Oxford); Mr Andrew Lockhart Innes, B.A. (Oxford), LL.B. (Edinburgh); Mr Archibald Moir Macrae Williamson, M.A., LL.B. (Aberdeen); and Mr John Harold Dickson, M.A., LL.B. (Glasgow), have been admitted to the Faculty of Advocates.
THE death is announced of Mr Thomas Reid, writer, 160 Hope Street, Glasgow, who was for a number of years one of the Shawland representatives on the Parish Council of Eastwood. A keen Liberal in politics, Mr Reid was an active worker for his party in the old Parliamentary Division of East Renfrewshire and in the new division of Pollok. Mr Reid served for many years on the former Langside Ward Committee, and on the redivision of wards he became a member of Pollokshaws Ward Committee.
WE regret to record the death of Mr F. B. Richardson, who for many years carried on business as a writer at 65 Bath Street, Glasgow. He was educated at Ayr Academy and Glasgow University, where he took the degrees of M.A. and LL.B. In his younger days he was one of the leading criminal lawyers in Glasgow. Unfortunately he suffered a breakdown in health which continued to be indifferent for the rest of his life and prevented his attaining that eminence in his profession which his early achievements promised. Mr Richardson was unmarried.