Page images

of the insurance companies as owner of these two policies. They were his to do as he liked with. He could have surrendered them or mortgaged them. They were clearly in his possession. Upon that ground it must be declared that the assignee under the bankruptcy is entitled to the money arising from the policies.

Costs out of the estate. Solicitors for the assignee, Hillyer, Fenwick, and Stibbard; for the trustee, Uphill.

Ex parte RowBOTHAM; Re ROWBOTHAM. Bankruptcy Act 1869, s. 87-Practice-County Court-Reference to jury-When necessary. THIS was an appeal from an order made by the judge of the County Court of Nottingham in the inatter of a debtor's summons. The Midland Banking Company had issued a debtor's summons against the Messrs. Rowbotham, father and son, in respect of a debt of 280l. alleged to be owing to the bank upon a bill of exchange under the follow. ing circumstances. The father and son had formerly carried on business together in co-partnership, from which the father retired about seven years back, but no notice of his withdrawal was inserted in the Gazette or otherwise made public. Subsequently to the father's retirement, the son, who continued the business, accepted the bill of exchange above mentioned in the name of the partnership firm, and it was in respect of this debt that the summons was issued. The father thereupon filed the requisite affidavit disputing the debt, and applied to the judge of the County Court to have the summons dismissed as against him, upon the ground that he had retired from the business before the debt had been incurred. The judge, however, declined to dismiss the summons, or to order the question of indebtedness to be tried by a jury, as the debtor offered no security for costs. The matter now came by way of appeal before the Chief Judge.

appropriate grand committee; although I venture to submit that, in analogy with the practice of the American Congress, to this committee might advantageously be left the question of the very introduction of the Bill.

"The several committees should, as proposed by Sir Erskine May, carry on their discussions simultaneously, and with open doors, reporters being of course admitted; but I cannot agree in the opinion that unselected members of the House should be allowed to join in their proceedings: since this would grievously impair the representative character of the committees, and expose their deliberations to obstructions from Parliamentary bores; but with a view of facilitating the subsequent passage of the several Bills through the other House of Parliament, it would seem desirable that the departmental committees, or the superintending committee of either House, should be empowered to invite a certain number of members, to be chosen by the other House, to take part in the discussions of the departmental committees, but without any right to vote. A similar privilege, also, should be accorded to members of the Cabinet.

"It would also seem highly expedient that the superintending committee should be authorized to place any member of the House which it represents on as many of the departmental committees as it may deem advisable.

"When a grand committee adopts a Bill, the only questions, as it seems to me, which the House could advantageously consider, are whether the Bill, as a whole, should pass, be rejected, or be sent back to the grand committee for reconsideration; questions on which every member of the House would, of course, have a right to speak and vote.

"On the other hand, when a grand committee rejects a Bill, it should be with the same consequences as if the Bill were rejected by the whole


"While the foregoing would, I think, be the best Bagley, for the debtor, contended that the course of proceeding, I should regard any approximatter ought to have been submitted to a jury.mation to it as a great advantage, as for example, The debtor could not give security for costs, for if if each House were to reserve to itself the direct it were decided that he was responsible for the power relative to introduction of Bills, or to departnership debts, all his property would be swal- cide, in each separate case, what Bills should be lowed up. remitted to the grand committees, or to treat the Bills on their emerging from the grand committees like reports from committees of the whole House, and liable, therefore, to reconsideration in

Westlake, for the banking company, argued that the appeal was premature. The debtor ought to have waited until a petition for adjudication

was filed.

The CHIEF JUDGE was of opinion that according to the practice of the court, if the evidence adduced by the debtor was satisfactory to the court, the summons would be dismissed. If otherwise, the court would allow the validity of the summons, or have the question of indebtedness tried upon security being given by the debtor. It was not the intention of the Legislature that a summons should be dismissed merely upon the debtor's denial of the debt, or that the question should be tried without his giving security. The judge of the County Court had arrived at a right decision, and the appeal must be dismissed. Solicitors for the appellant, Petgrave and Hodg.


Solicitors for the respondent, Ashurst, Morris,

and Co.



IN a recent paper on this subject by Mr. Frederic Hill, he says:


What I propose is this: that for each of the great departments of legislation and administration, there should be formed in each House a committee (which, as suggested by Sir Erskine May, might properly bear the appellation Grand,') for the consideration, at a certain stage of proceed. ings, of all questions falling within its province; as, for example, a grand committee on finance, a grand committee on the army and navy, another on law and its administration, another on foreign affairs, and another on the affairs of the colonies; together with a superintending committee, which should both choose these departmental committees, and, in cases of doubt, decide on the allotment of their work; such superintending committee to be elected in such manner, whether by cumulative voting or otherwise, as to secure that it shall fairly represent the different parties and sections, and be, in fact, an epitome of the House: the same principle to rule its choice of the other committees; so as, in turn, to make each of those committees an epitome of the superintending committee, and therefore also, in effect, of the House. "Supposing the general idea ultimately to find favour, it would be for each House to determine at what stage each Bill should be remitted to its


"Besides the service which these grand committees would render in the work of legislation, they might be of great use in keeping the two Houses well informed respecting the state and action of the several departments of Government; so as to enable the Houses to judge, at all times, how far the existing Government deserved their continued confidence. Their operation would, moreover, to a great extent, supersede the neces sity for special committees: the work now assigned to which the grand committees would, as a rule, be far better able to perform; while, from their constitution, they would carry much more weight with the House; special committees being, as is well known, too often the mere embodiment of clique.

"An important incidental advantage of the proposed arrangement, would be the encouragement it would afford to every member of Government, and to each of his subordinates, to exert himself, to the utmost, for the public good; and the powerful check it would afford to proceedings of an opposite kind.



Objection is frequently taken to such schemes as the foregoing, on the ground that they are a delegation of authority; but surely such objection has but little force where, as in the present case, the enpower can be at any time recalled: while, on the other hand, delegation of authority is the only means by which extended, complicated, and diversified operations can effectually be carried on. What, indeed, is the working of our courts of justice, on which we rightly pride ourselves so much, but the exercise of a delegated authority? And what double benefit, first in the relief to Parliament, and secondly in soundness of decision, has resulted from entrusting to these courts the judgment on disputed elections! To reverse the picture, we have only to turn our eyes to a neighbouring country, and mark the terrible results of the opposite course when carried to an extreme; the omissions. blunders, and deceptions consequent on attempts of a central power to retain all action in its own hands.

"While the foregoing is an outline of the main plan which I wish to submit to this association, there are minor measures which seem also to be well worthy of discussion. The first of these is the means of bringing an exhausted debate to a close. At present, as we know, the forms of the House of Commons, framed with the laudable object of protecting the rights of minorities, are frequently so abused, that the minority, in effect, becomes dominant. In no country. I believe, has uch a perversion ever been carried to an extreme

without producing a resort to force; nor could its occasional manifestation here be regarded without some degree of anxiety did we not see that there are efficient means of averting danger. As the forms of Parliament were necessarily made by the majority, so, by the same majority, can they be unmade, and other forms substituted.

"Upon the whole, bearing in mind that, in the House of Commons, the Speaker represents the whole House and must feel himself bound, by his position, to give full weight to the just claims of all parties and of every single member, and consider. ing, also, the evidence recently given by the present Speaker, I would suggest that that high officer should be entrusted with the power to decide when a debate must be brought to an end; and it would be equally reasonable that he should have autho rity to terminate any single speech which, in his opinion. had become an undue tax on the patience of the House.

"It would also seem convenient that the Speaker should decide when it is right to adjourn the proceedings of the House for want of a sufficient attendance, and whether, in particular cases, it may

not suffice to record the names of the minority instead of subjecting the whole House to a formal division.

"Probably there are other appropriate cases for the speaker's decision, which experience would point out. With powers, however, so augmented, it might be necessary to make the personality of the office liable to more frequent change.

"Perhaps the alterations here recommended in the House of Commons might be usefully extended to the House of Lords; but this would obviously imply alteration in the nature of the presidency; which. however, for other reasons appears desirable.

"So far as organisation is concerned my task here ends; but it seems appropriate to the subject that


touch on a few other ways in which, I think, the great work of legislation might be both expedited and improved; though, in so doing, I do but recall matters which have frequently been spoken of. The first of these is the establishment, throughout the empire, of good local government, based on sound principles of election, and the transfer to such governments of the whole business of local legislation; preserving, however, intact the controlling authority of Parliament: so that by no possibility should there be such a clashing of power as has repeatedly led to bloody contests in Switzerland, and, in North America, to the greatest civil war ever known.

[ocr errors]

Had good provincial assemblies, with well adjusted powers, been long ago established throughout the United Kingdom, probably much existing dissatisfaction would have been avoided: and, above all, the demand for Home Rule,' now so unfortunately and unseasonably raised in Ireland, would never have been heard of.

"The benefit of such liberal policy is pretty distinctly shown in the present state of our colonies; though it may be doubted whether, as respects these, concessions have not gone too far; whether, in other words, sufficient care has been taken to keep the imperial authority supreme and undisputed. At the same time it must be remem bered that in this imperial authority the colonies have as yet no share.

"Another way in which Parliamentary labour might be much reduced, a way now slowly coming into use, is to abandon the hopeless and unprofitable attempt to crowd into any Bill special provisions for all the cases which may fall within its scope; instead of laying down broad principles only, and leaving to subordinate authorities the supply of details necessary for practical operation.

"It will, I am sure, be very gratifying to the association if the discussions to which this paper may give rise, aid at all in improving the working of that great constitutional court for the maintenance of which our brave forefathers bled, and which has conferred on the country inestimable



REPORTS OF SALES. [NOTE. -The reports of the Estate Exchange are officially supplied in the following list. Auctioneers whose names are registered there will oblige by reports of their own sales.]

Thursday, Dec. 7.

By Mr. H. E. MARSH, at Guildhall Tavern.

The reversion to 10,007, and 737. Consols on death or mar

riage of a lady aged 64 years- sold for 830L

office-sold for 3007.

A policy and bonus for 1115/. on a life, aged 43, in the Sun Reversion to 1007. Bank Annuities, on death of a lady aged 33-sold for 1907.

Reversion to one-thirteenth part of 56,3757., secured in railway debentures, &c., receivable on death of a gentleman aged 79, and three ladies aged 72, 73, and 74-sold for $7002. B version to 3250, secured on borough rates and railway debentures, on death of a gentleman aged 57 and a lady aved 65; also to 251. Bank Annuities, on death of same lady-sold for 153007.

Friday, Dec. 8.

By Messrs. RUSHWORTH, ABBOTT, and Co., at the Mart. Isle of Wight.-The reversion to the Great Budbridge Estate of 354 acres, including a rent-charge of 751. per annum; the life of a gentleman aged 71-sold for 10,5501. also a rent-charge of 262. 11. 6d. per annum, subject to Hampshire, near Farnborough.-Two farms, containing 101a. 3r. 9p., and a plot of land 12a. Ir. 6p., freehold-sold

for 29604.

King's-cross.-Nos. 10 to 22, Providence-row. freehold, leased

for ten years at 107. per annum-sold for 6807. Clerkenwell.-Nos. 48, 49, and 50, Lower Rosoman-street, and Nos. 14 and 15, St. James's-buildings, term four years

-sold for 2657.

Friday, Nov. 24.


affidavit to ground a motion for security for
Practice-Security for Costs-Affidavit.
costs stated that the defendant "was advised
and believed that he had a good and legal defence
on the merits to the action.'
Held insufficient.

tration suit ordered to be sold. Some of the persons interested in the property were infants. The property was put up to sale subject to a condition, which stated that the order for sale had (Before been made notwithstanding the fact that several infants were interested in the property, and that should not be questioned, nor should any objection An the jurisdiction of the court to make the order or requisition be made on account of the order. The purchaser objected to complete his purchase, on the ground that the court had no jurisdiction to make the order, and that the condition was one which the court would not enforce. Held (affirming the decision of Malins, V.C.), that even if there was no jurisdiction to make the order for sale, the purchaser was bound by the condition, and must complete his purchase. Semble, however, that there was jurisdiction to make the order: Peckham.-No. 6, Lyndhurst-square, freehold - sold for (Nunn v. Hancock, 25 L. T. Rep. N. S. 469. L. JJ.)

Tuesday, Dec. 12.

By Messrs. DEBENHAM, TEWSON, and FARMER, at the Mart.
Essex, St. Osyth, Lodge Farm, and Rouse's Farm, with
homesteads, comprising 226a. 2r. 10p.-sold for 8300.
Wood-street, Nos. I and la, Little Love-lane, freehold-sold

for 69007.

Sussex, Southwater, an enclosure of freehold land, contain

ing 2r. 33p.-sold for 8007.

Wednesday, Dec. 13.

By Messrs. EDWIN Fox and BOUSFIELD, at the Mart.


No. 7, adjoining-sold for 6107.

Reversion to two third parts of 14,7287. 18. 10d., amply secured on mortgage of property on a life aged 61, and a contingent reversionary interest in the remaining third part-sold for 50702.

Reversion to two third parts of 10,0007. Consols, on the same life, and a similar contingent interest in remaining third part-sold for 30201.

GENERAL RELEASE FROM DEBTS-PLEA OF IN ANSWER TO ACTION FOR DEBT-EQUITABLE REPLICATION THAT DEBT SUED FOR WAS UNKNOWN TO PLAINTIFFS AT THE TIME, AND NOT INTENDED TO BE INCLUDED IN RELEASE. To a declaration in the ordinary form for debt, the defendant pleaded that before action the defendant was indebted to the plaintiffs and others in divers sums, and, being unable to pay, it was agreed he should deliver and transfer to A. and B. certain stocks, shares, and securities in full satisfaction Westminster, Nos. 3, 4, and 5, Great Peter-street, freehold and discharge of the said debts, and that the said

A contingent reversion to one-half part of 54291. 3s. 7d. Con-
sols; a ditto in remaining moiety; also a contingent re-
versionary interest in the sums of 36867. 148. 3d., Three per
Cents.; and 6337. 158. cash-sold for 11507.

Greenwich, No. 57, London-street, freehold-sold for 9107.
No. 17, Stockwell-street, freehold-sold for 11102.

[blocks in formation]

creditors should accept the same in full satisfaction and discharge; and the plea then set out Hatton-garden, No. 10s, with workshop, freehold-sold for the deed, which purported to be a deed poll under the hands and seals of the parties, the creditors of the defendant, and the defendant, whereby, after reciting that the defendant was indebted to the said creditors in divers sums, and that they had also further claims against him, and had agreed to accept in full discharge thereof the said stocks and shares, and in consideration of the delivery and transfer thereof, to execute to the defendant the absolute release thereinafter contained-each of the said creditors (including the plaintiffs), did thereby "remise, release, and for ever discharge the defendant, his heirs, &c., of and from all their said several debts, claims, and demands, and all manner of actions, &c., for or by reason of the said several debts due, owing, or claimed to be now or hereafter due, owing, or recoverable against the defendant, or for or by reason of any other debt, claim, matter, or thing, from the beginning of the world to the date of these presents," and by the Isaid deed the defendant in consideration of the

[merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][ocr errors][merged small][merged small]


[merged small][merged small][ocr errors]

91a 912 91 92 92 92 matters aforesaid, released the said creditors and

110 a 110

110 110 shut shut shut shut India 4 C. Oct. 1888 104a 1043a 104

India Stock, 1874

India Stock, 5 Cent.

Jan. 7, 1870

India Bonds (10001.).

[blocks in formation]

Do. (under 10001.)

Ex. Bills,10001..

Do. 1001. and 2001.

3 c.

India Enfaced Paper

Cent. July 1880

Jan. 1872

5 Do.

☐ Ex. Div.

[ocr errors]
[merged small][ocr errors][merged small][merged small][merged small][ocr errors][merged small][merged small][merged small][ocr errors][merged small][merged small]


[ocr errors][ocr errors][merged small]

NOTES OF NEW DECISIONS. DISCOVERY - PRACTICE-OFFICIAL LIQUIDATOR-AFFIDAVIT AS TO DOCUMENTS.-An official liquidator is bound to make an affidavit as to documents in his possession: (Re Contract Corporation (Limited); Gooch's case, 25 L. T. Rep. N. S. 526. M. R.)

each and every of them from all debts, claims, and demands, and all actions, &c., which he might then or thereafter have or claim against them. 104 104 Averment of delivery and transfer of the said shares, &c., by the defendant and acceptance thereof by the plaintiffs on the terms of the said deed, and of fulfilment of all conditions to make 28.b the deed binding on the plaintiffs. Equitable replication, that before and at the time of the execution of the said deed, the plaintiffs did not know that the debt in the declaration mentioned was due to them from the defendant, or that they had any claim or cause of action against him in respect thereof. And further that the defendant did then know that the said debt was due, and that the plaintiffs had a claim or cause of action against him in respect thereof, and did not inform the plaintiffs thereof before the execution of the said deed. And that the plaintiffs executed the said deed intending that the execution thereof should, and believing that it did and would, and that it was intended by the defendant to relate only to the sum of money which did not include the claim now sued for, and in which the defendant was indebted to the plaintiffs on their account with him respecting transactions between them in July 1870, and not intending thereby to release any other claim or cause of action whatever; and that, if they had known, which they did not know, at the time of the execution of the deed, of the existence of the claim in respect of which this action was brought, they would not have executed the said deed. On demurrer, it was held by the Court of Exchequer (Martin, Bramwell, and Cleasby, BB.), that the replication was bad. The case of Lyall and another v. Edwards (6 H. & N. 337; 30 L. J. 193, Ex.) was distinguishable, as being a case of trover, and the release there pleaded in answer to the action was a release from debts or claims ejusdem generis, within which a claim for a tort could not be a said to be included. The cases in equity proceed on the ground of mistake or such circumstances as that a plaintiff could be indemnified and the contract rectified, which could not be done in this court. There was here no allegation of fraud, and no duty on the defendant to inform the plaintiffs of the existence of the debt and non constat that the defendant did not, all through, intend that the release should, and believed that it would extend to and operate upon this very debt: (Moore and another v. Weston, 25 L. T. Rep. N. S. 542. Ex.)

AGREEMENT TO PAY ANNUITY-WHETHER PERPETUAL.-By a marriage settlement, property of the wife was settled upon the usual trusts for the wife for life, with remainder to the husband for life, with remainder to the children of the marriage. By articles of agreement of even date, which recited the settlement, the father of the husband agreed to pay 3501. every year during the life of his son, and in case the wife should survive the husband, "then to continue the said yearly payment to the trustees of the said settlement for the purposes thereof." Held, that this created a liability on the part of the father to pay a perpetual annuity of 350l.; and a sum of 11,6661. Consols, which had been set apart out of the father's estate to answer the annuity, was ordered (on the death of the son leaving his wife surviving), to be transferred to the trustee of the settlement to be held upon the trusts thereof: (Dawson v. Robinson, 25 Î. T. Rep. N. S. 486. V.C. B.)


Kisbey moved, on behalf of the defendant, for an order that the plaintiff do give security for costs. The motion was grounded upon the affidavit of the defendant, in which he stated: "I am advised and believe that I have a good and legal defence on the merits to the action." The action was brought to recover 391. 4s., for goods sold and delivered to the defendant. The defendant lodged 201. in court. The plaintiff resided in England, out of the jurisdiction. In Spencer v. Campion, (3 Ir. Com. Law Rep., 230), an affidavit that the defendant believed that he had a good and legal defence on the merits was held sufficient.

Madden, contra.-The affidavit of merits was defective. In the case of Lunham v. The Dublin, Wicklow, and Wexford Railway Company (2 Ir. L. T., 24), it was held that the affidavit of the defendants, in which it was stated that "they verily believed they had good grounds for resisting the further maintenance of the action," was defective. It is not sufficient in an affidavit of merits to allege that the defendant is advised and believes that he has a good defence on the merits; a positive averment of that fact is necessary. Pordage v. Carter (6 Ir. Jur., 236).

Kisbey. The case in 3 Ir. Com. Law is an authorised report that reported in 2 Irish Law Times has not such weight.

WHITESIDE, C.J.-I cannot agree with you. We report in the Irish Law Times. The reports in can see no reason to doubt the propriety of the that publication are very well done, and appear to be furnished by legal gentlemen who very well understand the cases reported. It is a very useful publication.

FITZGERALD, J.-The statute requires a satisfactory affidavit, and can we say the affidavit in this case is so, when it neither sets forth special reasons, nor says that the defendant has a defence on the merits.

Kisbey having replied,

WHITESIDE, C.J.-The Legislature finding that so many untenable applications on behalf of defendants to oblige plaintiffs to give security for costs were made, thought it advisable to limit the class of cases in which such an order should be made; and, as has been alluded to by my brother Fitzgerald, the court will not grant an order requiring the plaintiff, who lives out of the jurisdiction, to give security for costs, unless the defendant shows upon an affidavit that he has a satisfactory defence upon the merits. In this case all that the defendant says is," he is advised and believes that he has a good and legal defence upon the merits." Mr. Kisbey has cited the case of Spencer v. Campion (3 Ir. Com. Law Rep., 230). In that case Judge Crampton said: "Certainly under the old practice such an affidavit would have been sufficient, and I can see no reason why it should not be equally so under the new practice. Many cases might be suggested where a party cannot positively aver as to merits. Considering the affidavit satisfactory, I will make the order." The question as to an affidavit of merits in such a case came before the full Court of Queen's Bench, when Chief Justice Lefroy was head of the court, and they held that an affidavit in which the defendants merely expressed their belief that they had a good defence, was defective. I will not indulge in hairsplitting, and encourage litigation. The court must entertain the decision reported in the 2 Irish Law Times; it has been given in a very intelligible form in that journal, and is a decision of the full court. We think that the cases that have been cited against this motion are decisive, and moreover the statute says that the affidavit must be satisfactory. In this case the affidavit is not satisfactory, and as to the circumstance that the plaintiff lives out of the country, we do not think there is anything in that circumstance to alter our opinion.

No rule on the motion-The plaintiff's costs to be costs in the cause.


COULSON (Benjamin), 4, Great Woodstock-street, Maryle bone, Middlesex, carver and gilder. Next of kin to send in by Dec. 23 at the M. R. Jan. 8, at eleven o'clock, at the said chambers, is the time appointed for hearing and adjudicating upon such claims.

SMALL (John), Gaisborough, York, gentleman. Heir-at-law or next of kin to send in by Jan. 7 at the chambers of V.C. B. Jan. 22, at twelve o'clock, at the said chambers, is the time appointed for hearing and adjudicating upon such claims

(a) From the Irish Law Times.



Transferred to the Commissioners for the Reduction of the National Debt, and which will be paid to the persons respectively whose names are prefixed to each in three months, unless other claimants sooner appear.] ANDREWS (Geo. Laurence), St. Vincent-place, City-road, E.C., gentleman, deceased. 3007. Reduced Three per Cent. Annuities. Claimant, Richard Andrews, surviving exe


CRAWFORD (John), Esq., George-street, Hanover-square, Middlesex; MACKENZIE (Sir George Stuart), Bart., Coul, Rosshire, N. B.; and MACKENZIE (Mary), his wife, 1567. 58. d. Three per Cent. Annuities. Claimant, Edward Henry John Crawford, sole executor of John Crawford, deceased.

MORRIS (Ann), Ordnance-place, Chatham, Kent, widow, 75. New Three per Cent. Annuities. Claimant, John Foster Morris.

SOWARD (Rebecca), Newnham, Cambridgeshire, widow, five dividends on the sum of 3637. 138. 4d. Reduced Three per Cent. Annuities. Claimant, Edward Hadingham. SWINTON (Geo.), Esq., Bengal Engineers, 18607, 198. 4d. New Three Per Cent. Annuities. Claimant, said George Swinton.

WALTER (Adelaide), Bonby, Lincolnshire, spinster, 1017. 58. Three Per Cent. Annuities. Claimant, Susan Coutts Walter, widow.

WHEELER (Frances), Fawley. spinster, now wife of William Cooper, Fawley, mariner; BOUND (Henry), of the same place, schoolmaster; and BOUND (Charles), of the same place, yeoman, all in Hants, 537. 58. Three Per Cent. Annuities. Claimant, said Frances Cooper, formerly Francis Wheeler, the survivor.


HERNE BAY PIER COMPANY.-Creditors to send in by Jan. 1 their names and addresses, and the particulars of their claims, and the names and addresses of their solicitors (if any, to F. N. Maynard, 55, Old Broad-street, E.C., the official liquidator of the said company, Jan. 9, at twelve o'clock, at the chambers of V. C. M., is the time appointed for hearing and adjudicating upon such claims. SOUTH DEVON MUTUAL CHIPPING ASSURANCE ASSOCIATION.Creditors to send in by Jan. 4 their names and addresses, and the particulars of their claims, and the names and addresses of their solicitors (if any), to Henry Blanchford, Teignmouth, official liquidator of the said association, Jan. 9, at eleven o'clock, at the chambers of the M. R., is the time appointed for hearing and adjudicating upon such claims.

WATERLOO AND WHITEHALL RAILWAY COMPANY.-Creditors to send in by Jan. 12 their names, and addresses and the particulars of their claims, and the names and addresses of their solicitors, if any, to John Parsons, 7, Westminsterchambers, Victoria-street, Middlesex, the official liquidator of the said company, Jan. 26, at twelve o'clock, at the chambers of V. C. M., is the time appointed for hearing and adjudicat ing upon such claims,


CARY (Henry N.), Paignton, Devon, brewer. Jan. 8; Yard Eastley, solicitor, Paignton. Jan. 18; V. C. M., at twelve o'clock. COWDEN (Martha), 3. Owen's-row, St. John-street-road, Clerkenwell, Middlesex. Dec. 29; Lewis and Sons, solicitors, 7, Wilmington-square, Clerkenwell, Middlesex. Jan. 9; M.R.. at eleven o'clock.

FAIRHURST (Jno. B.), Wigan, grocer. Dec. 22; L. R. Rowbottom, solicitor, Wigan. Jan. 15: V.C. M., at twelve o'clock.

FORBES (Charles), Devonport-road, Shepherd's-bush, Middlesex, barrister-at-law. Dec. 26 G. J. Brownlow, so'icitor, 31, Bedford-row, Holborn, W.C. Jan. 10; V.C. W., at one o'clock,

HIBBERT (Jno.), Brookside-in-Godley, Chester, cotton manufacturer. Jan. 1; John and Jos. Hibbert, solicitors, Hyde, Chester. Jan. 11; V.C. W., at ten o'clock.

JONES (ugh), Esq., 100, Wood-street, Cheapside, E.C., and 12, Hansell-streeet, Cripplegate, E.C., and Bryngwyn-hall, Flint. Dec. 30; Barnard and Harris, solicitors, Greshambuildings, Basinghall-street, E.C. Jan. 15; V.C. W. at twelve o'clock.

NEATE Stephen, Marsh lane, Battersea, Surrey, house and land agent. Jan. 10; G. Fraser, solicitor, Furnival's-inn, E.C. Jan. 17; V.C. B. at twelve o'clock. OLDHAM Wm. S., Plestowes, Warwick, farmer. Jan. 6; Reece and Harris, solicitors, 101, New-street, Birmingham. Jan. 22; V.C. M. at twelve o'clock. PARKIN (Wm.), Mortomley, Ecclesfield, York, joiner. Jan. 4; Younge and Co., solicitors, Sheffield. Jan. 18; M. K., at eleven o'clock.

PONSFORD (Jno., 46, Cambridge-street, Paddington, Middlesex, gentleman. Jan. 4; W. Millman, solicitor, 9, Southampton-buildings, Chancery-lane, W.C. Jan. 11; M. K., at eleven o'clock.

POTE (Rev. Edward), Grandchester, and King's College, Cambridge. Jan. 8; Dawes and sons, solicitors, 9, Angel court, E.C. Jan. 10; V. C. W., at twelve o'clock. RODDA (John), 42, Clissold-road, Stoke Newington, Middlesex, builder. Jan. 1;. Haynes, solicitor, 30, Manchesterstreet, Manchester-square, Middlesex. Jan. 15; M. R. at 11 o'clock.

SEWELL (Robert S., Sussex-house, Hammersmith, Middlesex, gentleman. Jan. 1; Tompson and Co., solicitors, 4, Stone-buildings, Lincoln's-inn, W.C. Jan 10; V.C. W.

at 12 o'clock. WEBBER (Martha A.), 28, Harrington-square, Middlesex. Dec. 23; Iliffe and Co., solicitors, 2, Bedford.row, W.C. Jan 23; V.C. M. at 12 o'clock.

CREDITORS UNDER 22 & 23 VICT. c. 35. Last day of Claim, and to whom Particulars to be sent. AKERS (Benjamin), Great Dunmow, Essex, labourer. Feb 1; F. J. Snell, solicitor, Great Dunmow, Essex. ALLEN (John), 29, Villa-road, Handsworth, Staffordshire, gentleman. Feb. 29; C. B. King, solicitor, 20, Templestreet, Birmingham. ASTLEY Blanch), 15, York-terrace, Regent's-park, N.W. Jan. 15; Kent and Co., solicitors, Fakenhamn, Norfolk. AUSTIN Geo.), Shefford, Bedford, attorney-at-law. March 4; A. S. Wade Gery, solicitor, Shefford, Beds. BELANT W.), 7, Whittington-terrace, Highgate-hill, Islington, Mid desex, pawnbroker. Dec. 21; Thomson and Edwards, solicitors. 7, Doughty-street, Mecklenburghsquare, Mid flesex.

BIDWELL (Alfred C.), Esq., Sparkford-lodge, Winchester. Jan. 10; Farrer and Co., solicitors, 66, Lincoln's-inn-fields, W.C.

BROOKS (Rev. G. W.), Filey, York, clerk in Holy Orders. Jan. 15; Tate, solicitor, 29, Westborough, Scarborough. BROWN (Thos.), 53, Cadogan-place, Sloane-street, Middlesex, gentleman. n. 31; J. Me Millan, solicitor, 39, Bloomsbury-square WU.

CARWARDINE (Kev. John B.). Colne Priory, Essex. Jan. 31; Paine and Co., solicitors, 47, Gresham-house, Old Broadstreet, E.C.

CHEARNLEY (Wm.), Esq., Halifax, Nova Scotia, Canada. Jan. 10; Bschoff and Co., solicitors, 4, Great Winchesterstreet-buil in 5s.

CLAYDEN (Jno.), Littlebury, Essex, farmer. Jan. 20; Freeland and Bellingham, solicitors, Saffron Walden. COMBES (Edw.), Chichester, gen leman. Jan. 12; E. Arnold, solicitor, North Pallant, Chichester.

DAVIDSON (David), Roslin Cottage, Lewisham High-road, Surrey, gentleman. Jan. 1; Wooton and Son, solicitors, 2, Finsbury-circus, E.C.

DEEKS (Geo.), 36, Westbourne-terrace, Hyde-park, Pad-
dington, Middlesex, gentleman. Jan. 15; W. H. Davis,
solicitor, 14, Bedford-row, Holborn, W.C.
DILLON (Geo.), 27, Cutler-street, Houndsditch, E.C., and
Farleigh-road, Hackney, Middlesex, hatter. Dec. 26;
Hillearys and Tunstall, solicitors, 5, Fenchurch-buildings,
DUNN (Alexander), Lieut.-Col. in H.M.'s 33rd Regiment of
Foot. Feb. 15 Richards and Walker, solicitors, 29,
Lincoln's-inn-fields, W.C.



FORSTER (Richard), Freshford, Somerset, brewer. Feb. 1; Stone and Sparks, solicitors, the Town-hall, Bradford-onFULFORD (Baldwin', Esq., Great Fulford, Devonshire. Jan. 3; H. Samler, solicitor, 23, Carter-lane, Doctor's-commons, GIRADOT (Capt. Henry) Rosynalt, Erbistock, Denbigh,


Friars, Chester.

Royal Horse Artillery. Jan 1; Helps and Co., solicitors, HAMILTON (Thos. T.) Esq., Elgin-crescent, Notting-hill, W. Feb. 1; Uptons and Co., solicitors, 20, Austinfriars,

HARRINGTON (Sir Henry B.), K. C. S. I., 70, Oxford-terrace.
Hyde-park, W. Mar. 25; Loughborough and Son, solici-
ters, 23, Austinfriars, E.Č.

HYDE (Thos.), Esq., Clitheroe, Lancashire. Jan. 15; Robin-
son and Sons, solicitors, Clitheroe Castle, near Clitheroe.
JAMES (Thos.), Balking, Berks, farmer. Dec, 26; G. F.
Croudy, Farringdon, Berks.
JONES (Mary), 33, Ponsonby-place, Westminster. Jan. 1;
H. D. Draper, solicitor, 45, Vincent-square, Westminster.
KNIGHT (Joel E.), Esq., 51, Church-road, De Beauvoir Town,
Middlesex. Jan. 31; G. and J. Clark, solicitors, 28, Fins-
LAMBERT (Henry S.), surgeon on board the Peninsular and
Oriental Steam Navigation Company's steamship Massilia.
Dec. 20. M. T. Hodding, solicitor, 5, St. Mildred's-court,
Poultry. E.C.
LANDON (Louisa A.), Clevedon, Somerset. Jan. 6; R. B.
Postons, solicitor, Brentwood, Essex.
LILLEYSTONE (Robert), Darnley-road, Gravesend, Kent,
builder. Dec. 31; A. Tolhurst, solicitor, 77, New-road,
LISTER-KAYE (Geo.), Esq., Heworth, York. March 1; W.
Gray, solicitor, York.

LORD (Wm.), Esq., Hawthorns, Clapham-road, Surrey.
Feb. 1; J. and C. and W. Rogers, solicitors, Westminster
chambers, Victorin-street, Westminster.
LOVETE (Ann), Little Lea, Peasmarsh, Rye, Sussex. Feb. 1;
C. W. Stevens, solicitor, Bucklersbury, E.C.
MCGARRY (Capt. Wm., Edwardsburgh, Glenville, Ontario,
Canada. Feb. 1; Harvey and Alsop, solicitors, 12, Castle
street, Liverpool, England.

NICHOLSON (Henry), Esq., Peterborough, Northampton, merchant. Jan. 16; Clarke and Co., solicitors, 29, Colemanstreet, E.C.

OTTWAY (Richard, H.), Hastings, Sussex, gentleman. Jan. 1; Wilson and Co., solicitors, Bridge-street, Salisbury. PEARMAN (Sarah). Lower Beech, Hyde Farm, near Wheathampstead, Hereford, farmer. Jan. 1: F. C. Scargill, solicitor, King-street, Luton, and 89, Chancery-lane, PEARSON (Charles), Talworth-house, Roath, Glamorgan,


gentleman. Feb. 1; H. Heard, solicitor 24, Trinity-street, Cardiff.


POTTS (Jos. T.) Esq., 20, Fitzwilliam-square, Dublin. 13; A. B. Toad, solicitor, 123, Lower Baggott-street, Dublin.

PRICE (Robert), 12, Milk-street, Bristol, timber merchant.
March 25; Wm. Plummer, solicitor, Bristol-chambers,
Nicholas street, Bristol.

RAYNER (Richard), Spondon, Derby, gentleman. Feb. 1;
H. Hogg, solicitor, 19, Wheeler-gate, Notts.
RHODES (Samuel), Ash-grove, Horton, near Bradford, and
Darley-street, Bradford, glass and china merchant. Feb.
1; J. Green, solicitor, 2, Aldermanbury, Bradford.
ROLT (Right Hon. Sir John), Ozleworth-park, Gloucester.
Feb. 1; Field and Co., solicitors, 36, Lincoln's-inn-
fields, W.C.

SCARE (Bar abas G.), Wilby, Suffolk, farmer. Feb. 1; C.
Clabbe, solicitor, Framlingham.
SHARPUS (Thomas), 13, Cock-pur-street, Charing-cross, and
3, Albert-terrace, Knightsbridge, Middlesex, china and
glass dealer. Jan. 17; E. Rye, solicitor, 16, Golden-
square, W.

SMITH (Octavius H., Esq., Thames Bank Distillery, and 28, Princes-gate, Hyde-park, Middlesex, and Auchranich, Argyle. Feb. 6: Few and Co., solicitors, 2, Henriettastreet, Covent-garden, W.C.

SPEER (Maria), Weston, Thames Ditton, Surrey. Jan. 21; Kempson and Co., solicitors, 31, Abingdon-street, Westminster, S.W.

STROTHER (Mary), Scarborough, wine and spirit merchant. Jan. 23; Woodall and Woodall, solicitors, 26, Queentstreet, TUCK (Geo.), Shipdham, Norfolk, farmer. Jan. 31; F. L.


Soames, solicitor, 10, New-inn, Strand, W.C.
USHER (Chas. F. A.), Charlemount Lodge, Church-road,
New-cross, Surrey, gentleinan. Jan. 15; Fesenmeyer and
Son, solicitors, 42, Great James-street, Bedford-row, W.C.
VINCENT William), Ansford, Somerset, gentleman. Feb. 1
Henry Dyne, solicitor, Bruton, Somerset.
WALL (George A.), Richmond, Surrey, Fishmonger. Jan. 20;
Smith and Moore, solicitors, Richmond, Surrey.
WALTON (Frances), Esq., 6, Surbiton-terrace, Surbiton,
Surrey. Jan. 9; G. F. W. Mortimer, solicitor, 1, Mitre-
court Chambers, Temple, E.C.
WATKINS (Wm.), 16, New Burlington-street, and Feltham,
Middlesex. Feb. 10; Taylor and Co., solicitors, 28, Great
James-street, Bedford-row, W.C.

WESTON (Rev. Henry A.), 4, Trinity-place, Halifax. Feb. 9;
Wilkinson and Howlett, solicitors, 14, Bedford-street,
Covent-garden, W.C.
WHICHELD (Rowland), 20, Trigon-terrace, South Lambeth,
Surrey, and 61, Castle-street, Leicester-square, W.C.,
hotel keeper and licensed victualler. Jan. 18; W. M.
Webster, solicitor, 33, Essex-street, Strand, W.C.
WILLIAMS (Robert, Hayfield-terrace, Levensulme, near
Manchester, warehouseman. Jan. 9; Bagshaw and Wig-
glesworth, solicitors, Chancery-place, Booth-street, Man-
WILMSHURST (Emellia E.), Parson's-mead, Croydon, Surrey.
Jan. 7; Geo. H. Hogan, solicitor, 23, Martin's-lane,
Cannon-street, E.C.
YORKE (Hon. and Ven. Henry R.), Wimpole, Cambridge.
Jan. 20 Francis and Co., solicitors, 17, Emmanuel-street,


AN EVENING BEVERAGE-GACA'OINE.- The Food Journal says:-By a new process to which the nibs are subjected, the principal part of the oil is effectually removed; a thin beverage, well adapted for afternoon or evening use, as a substitute for tea, being the result. The flavour of Caca'oine will, in addition, be a great attraction to all."-Each packet or tin is labelled,

"JAMES EPPS & Co., Homoeopathic Chemists, London." Also makers of Epps's Milky Caca'oine (Caca'oine and Condensed Milk.)


MARYLEBONE POLICE COURT. (Before Mr. MANSFIELD.) Saturday, Dec. 9. Lodgers' Goods Protection Act (34 & 35 Vict. c. 79) -Goods of tenant purchased by lodger-Declara tion of lodger-" Beneficial interest.' THE trustees of the Permanent Benefit Building Society, Ludgate-hill, were summoned on the com plaint of Mr. Thomas H. Cox, of 118, Highgateroad, Kentish-town, and charged with unlawfully causing to be distrained, condemned, and removed certain goods and effects, the property of the said complainant, contrary to the statute 34 & 35 Vict.

c. 79.

[ocr errors]

lodged with Mr. Levi Lee, who was the occupier of the house named in the summons. Witness paid 10s. a week for rent. He furnished his bed. room himself, and used a sitting room and dining room containing some furniture belonging to Mr. Lee. A distress was put in by the chief landlord on the 3rd Nov., and there was a condemnation of Mr. Lee's effects on the 9th Nov. Witness bought the goods distrained upon for 191. 7s., and obtained a receipt and a copy of the stamped inventory of these things from George Osborne, the broker employed to levy the distress. Witness continued to use the same rooms, and paid the same rent as before. He did not remove the goods, and on the 23rd Nov. the defendants put in another distress, and a second inventory of Lee's effects was made by the same broker, Osborne, who was employed on the previous occasion, and who, therefore, knew that witness had purchased the goods. He, however, again enumerated them in his inventory as the property of Lee. Witness gave the defendants notice that these things were his property, but, notwithstanding his claim, the goods were condemned, and most of them removed. No arrangement was made between Mr. Lee and witness after the latter had paid for the goods, but Lee was to pay for them when he was able to buy them back again.

Mr. Cox stated that since December 1869 he had

Mr. Levi Lee stated that, at his request, the things were condemned by arrangement and sold to Mr. Cox for 191. 7s. Cox said that witness could use the goods until he was in position to pay him for them.

Kingsford (instructed by Messrs. Shaen, Roscoe, and Massey), for the defendants, said that the course taken by the defendants might seem a hard one, but it was justifiable, because, till the present inquiry showed the transaction between Cox and Lee to be bona fide, the defendant had reasonable ground for suspecting collusion. This case was not within the statute. For, first, Lee, the immediate tenant, had a "beneficial interest" and of the furniture in some of the rooms, the exin the goods distrained, since he had the actual, clusive, use of the goods distrained; and further, Lee derived a direct benefit from the use of this furniture, since he received from Cox the same rent as before, and part of this rent was paid for the use of the furniture in the two rooms occa


sionally used by the lodger; secondly, the furniture was not in the use and possession of Cox, qua lodger. Doubtless, the furniture was the property, or in the lawful possession" of Cox, within the express terms of the statute. But the statute was intended, as shown by the preamble, and a consideration of the previous law of dislodger as such, and not to give lodgers a right, tress, to exempt only goods owned and used by a which no other third person had, viz., to lend goods for the use of a tenant with an exemption of them from distress by the superior landlord. Such an interpretation of the statute would open a wide door to fraud and collusion. If either of the two positions contended for were correct, the declaration under the statute failed to be sufficient.

Besley (instructed by Messrs. Ashurst, Morris, and Co.) for the plaintiff, said that there could be no question here of "beneficial interest" in Lee. There was no arrangement between him and Cox, and the latter could at any moment determine Lee's use of this furniture. The purchase of the furniture by Cox was clearly bona fide. If the contention of counsel for the defendants were maintained, the statute would in fact prevent a lodger from doing an act of kindness to his landlord. Then, as to Cox's interest in this furniture, it was clear that it was his property. The words of the statute were in the alternative "property, or in the lawful possession of such lodger," and there was nothing on the face of the statute to require that goods, in order to be exempt, should be not only owned but used by the lodger.

Mr. MANSFIELD said that whenever an Act of Parliament was passed, the very first case that cropped up was sure to be one that had not been contemplated in the Act. This was so here. The defendants were justified in acting as they had done, since the circumstances were such as to awaken suspicion, and to call for a full inquiry. It now, however, appeared that the sale to Cox was bona fide, and that the furniture sold to him was

[blocks in formation]

viz., three guineas, would, under the circum-
stances, be allowed.

Kingsford asked to have the case stated for the
decision of the Court of Queen's Bench.
Mr. MANSFIELD did not think that any point of
law was involved, but he consented to grant a case
if Mr. Kingsford would state the points upon
which he wished to have the decision of the
Superior Court.


When holden.

Friday, Dec. 22

[blocks in formation]

Friday, Dec. 29
Friday, Jan. 5....
Friday, Dec. 29
Friday, Dec. 22
Wednesday, Jan. 3
Tuesday, Jan. 2.
Friday, Jan. 5..
Friday, Dec. 29
Wednesday, Dec. 27.
Monday, Jan.. 1...
Monday, Jan. 1
Tuesday, Jan. 9.
Thursday, Jan. 4
Thursday, Dec. 28
Friday, Jan. 5....
Friday, Jan. 5...
Tuesday, Jan. 9
Monday, Jan. 8

Wednesday, Jan. 3



T. W. Saunders, Esq.
W. T. Greenhow, Esq...
A. R. Adams, Esq.

W. Cope, Esq.

E. H. Reed, Esq.
J. Johnes, Esq.

J.J.Johnson, Esq., Q.C.
F. A. Philbrick, Esq.
C. Saunders, Esq.....
Sir W. H. Bodkin, Knt.
H. C. Lopes, Esq., Q.C.
George Francis, Esq.
C.S.Whitmore, Esq.,Q.C
S. Warren, Esq., Q.C....
J. B. Maule, Esq., Q.C..
C. G. Merewether, Esq.
J. H. Brewer, Esq.

[blocks in formation]

Clerk of the Peace.

J. Taylor.

S. Sanderson.

T. R. T. Hodgson.
W. D. Batte.

J. Trevor.

[blocks in formation]

10 days

8 days

R. Toller.

10 days

C. Hughes.

Mr. Serjeant Cox
J. Middleton, Esq.
W. F. F. Boughey, Esq.

10 days

J. Howard.

10 days
14 days.


ARRANGEMENT WITH CREDITORS-IF DEBBENTURE HODERS BOUND BY THE SCHEME.-Where a scheme of arrangement with creditors filed under the Railway Companies Act 1867 has been duly confirmed and enrolled, and has thus become binding upon the debenture holders of the company, a debenture holder who had recovered judgment against the company for his debenture debt before the filing of the scheme, will be restrained from issuing execution against the property of the company under his judgment, the judgment being only one of his remedies for compelling payment of the debt, and not conferring upon the debenture holder any independent right in another character. Before the passing of the Railway Companies Act 1867, M., a debenture creditor of a railway company whose debt was overdue, recovered judg ment in an action against the company for the principal of his debt, together with interest and costs of the action. After the passing of the Act, the company filed a scheme of arrangement with their creditors. The scheme became binding on the debenture creditors of the company, the necessary assents under the provisions of the Act having been given to it, and it was duly confirmed by the court and enrolled. The scheme made no provision for payment of the debts of the judg ment creditors as such. After this had been done, the company having regained possession of their property M. sued out execution against them, upon his judgment, and the sheriff, under the writ, seized some of their rolling stock: Held, upon bill filed by the company, that there was jurisdiction to restrain M. from proceeding under his judgment, and an injunction was granted accordingly: (The Potteries, &c., Railway Company v. Minor, 25 L. T. Rep. N. S. 522. L. JJ.)


THE proceedings in the Court of Common Pleas in connection with the suit of Case v. M'Clelllan, as reported in Monday's Mercury, expose a very unsatisfactory custom prevalent on the Liverpool and other stock exchanges. It may be as well briefly to recapitulate the facts. Mr. M'Clellan desired to sell a number of shares; he employed for his purpose a Liverpool broker, Mr. Case. And we may at once remark that no personal odium attaches to this gentleman for his share in the subsequent transactions; he only did that which his fellow brokers had been in the habit of doing for many years-that which the law is declared to allow, and which one of the Superior Courts of the land rules that he has a perfect right to do. Mr. Case, therefore, is exonerated from all personal obloquy. Well, he sold the shares at a certain price, and we may suppose made the best bargain he could for his client. When settling day and time for transferring the shares arrived, Mr. M Clellan again resorted to his broker, who had previously forwarded to him the terms upon which the sale had been effected. Mr. Case sold the shares on behalf of Mr. M-Clellan at 140 per cent.; but when the latter came to examine the transfers, he found that he was required to sign a statement to the effect that he had received 1414 per cent., or a difference of 10s. per share. The amount of the difference upon the whole transaction was comparatively trifling, but Mr. M'Clellan refused to put his name to what

which they are handed to him for sale and the day of settlement. If it were not for this custom, the "bulls" and the "bears" would be completely harmless. It is the possesion of a large amount of stock belonging to other people, and which they use in the most unscrupulous manner, that gives them the baneful power they often exercise upon our stock exǝhanges. It lies with the great body of honest and respectable brokers to put an end to a system such as that which we have described. No doubt long custom has caused it to be regarded without aversion, but no length of time can justify the practice.-Liverpool Mercury.


THE Supreme Court of the United States has affirmed the decision of the Circuit Court in the case of the Brooklyn Life Insurance v. Miller. The action was brought on a policy of insurance, issued by the company, the premium on which was to be paid part cash and part in notes, the party insured relying on a friend to make the cash R. Champney, jun. payment. The agent of the company agreed to look to such third party for payment, and sent the insured his policy with the notes to sign, informing him at the same time that no policy was in force until the premium was paid. The insured signed the notes, and returned them to the agent, but the cash payment was not obtained. The defence was, that the acts of the agent in the matter did not bind the company, because agents were prohibited to make any contract changing the provisions of the policy. The court held, that the circumstances of the case amounted to a waiver as to the cash payment, and that the act of the agent bound the company. The judgment was accordingly. This court affirm that judgment.. Clifford, J. delivered the opinion.

J. J. P. Mody.
R. Clarke.

was on the face of it a false statement; he had,
only received 1401. 15s., and no man should make
him declare by his signature that he had been
paid 1411. 58. People not learned in the law and
in stock exchange customs will probably think
that his position was impregnable. Not a bit of
it. Appeal is made to the law, and both the
judges of our own Court of Passage and of the
Court of Common Pleas have decided that Mr.
M'Clellan has not got a legal leg to stand upon,
and he gets shown out of court with something
like contempt, saddled with the costs of two trials


NOTES OF NEW DECISIONS. VENDOR AND PURCHASER-Sale of a PUBLIC HOUSE-SPECIFIC PERFORMANCE-TIME THE ESSENCE OF THE CONTRACT.-The trustees of a will, under their power of sale, put up a public house for sale by auction as a going concern. On the day fixed for completion the purchaser refused to complete, on the ground that the trustees were not. in a position to transfer the licence, which had been renewed in the name of the testator after his death: Held (reversing the decision of the Master of the Rolls), that as time is of the essence of the contract upon the sale of a public house as a going concern, and as the trustees were not on the day fixed for completion in a position to transfer to the purchaser a valid licence, that in the name of the deceased owner being a nullity, the purchaser was entitled to repudiate the contract, and accordingly a bill for specific performance of the contract was dismissed with costs: (Cowles v. Gale, 25 L. T. Rep. N. S. 524. L. JJ.)

The first question which naturally suggests itself is-What is the authority upon which Mr. M'Clellan is compelled to sign that which he knows to be untrue? Is there some ancient Act of Parliament declaring that in these stock transactions mens shall be made liars? Nothing of the kind. The sole authority for this monstrous imposition is contained in a nota bene appended to the transfer documents, and which runs as follows:-" The consideration set forth in a transfer may differ from that which the first seller will receive, owing to a subsale from the original buyer; and the Stamp Act requires that in such cases the consideration mouey paid by the sub-purchaser shall be the purchaser shall be the one inserted in the deed as regulating the ad valorem duty (55 Geo. 3, c. 184)." With reference 40 the last clause of this precious note, it was shown to be inaccurate, and if that be so it can only have been introduced in order to cover with a false gloss of legality a most objectionable prac tice. On the general queetion at issue, it really passes the comprehension of non-legal minds the fullest possible measure of legality such a proto understand why the judges should invest with SETTLEMENT-POWER OF SALE-CONVERSION. position as that contained in this note. Re--A settlement contained a power to sell real member, the seller has distinctly to declare that estate, the proceeds to be laid out in land, or the larger sum-be it 10. or 10,000l.-has been Government or real securities, which, when purpaid to me." Willes, J., thinks the note ex- chased, should be liable to the same uses as were plains the meaning of the words "paid to me.' therein declared of the said premises, which were We can only say that to us it appears one of the to the settlor for life, with remainder to his wife most non-natural "explanations" ever offered. for life, with remainder, in default of appointment Then the principle of the thing seems altogether (which happened), to their children, as tenants in opposed to our ordinary notions of business. On common, their heirs and assigns respectively. the one side there is a numerous and influential The land was sold in 1821, and the proceeds inbody of gentlemen conversant with all the move- vested in real securities, and thus remained to the ments affecting the value of shares. On the other present time. Held, that the trustees were not side is the general body of the public, knowing bound to invest in land, and that the trust prolittle about stock exchange transactions, and perty had acquired the character of personalty: largely dependent upon the brokers. The latter (Atwell v. Atwell, 25 L. T. Rep. N. S. 526. M. R.) meet, form an association with the strictest possible laws, and then frame a rule in which they say to their patrons, "We sold your shares for so-By marriage articles it was agreed in consideramuch, but in the course of the fortnight before settling day they had been resold for a larger amount; you must declare that you have received the higher sum." If it be legal for the brokers to do that, we do not see much difference in the bakers and butchers agreeing that their cus tomers shall be treated in a somewhat similar fashion. As it is, the brokers have considerable privileges. None of the shares quoted on the stock exchange lists can be sold except through the medium of a broker, so that they really possess a monopoly of a most profitable business.

[merged small][ocr errors]

MARRIAGE ARTICLES-DEFAULT OF HUSBAND IN PERFORMING HIS PART OF THE AGREEMENT. tion of the intended marriage that the intended husband should make a certain settlement, and that the father of the intended wife should (inter alia) settle three-tenths of his residuary estate upon trust for the husband for life, with remainder for the wife for life, with remainder upon certain trusts in favour of the children of the marriage, with remainder over in default of issue. The marriage took place, and the wife died without issue. The husband failed to perform his part of the marriage articles, but after the death of the wife's father he claimed to be entitled for his life to If we turn from the legal to the moral aspect of three-tenths of the father's residuary estate, and the question, it presents itself in a still more he took out a summons in a suit for the adminisobjectionable form. Apart from the falsehood to tration of the estate to enforce his claim: Held which the seller has to put his signature, the (affirming a decision of Lord Romilly, M.R., temptation for improper dealing with shares under 24 L. T. Rep. N. S. 10), that the marriage having a system which so completely protects the broker been the material consideration for the articles is obvious. He may, if he please, manipulate the husband was entitled to what he claimed: with them to any extent between the date on ' (Jeston v. Key, 25 L. T. Rep. N. S. 522.)



NOTES OF NEW DECISIONS. COLLISION FOG DUTY AND POWERS OF TRINITY MASTERS AS ASSESSORS-EVIDENCEPRACTICE.-Four to five knots an hour is not a moderate speed for a steamer in a thick fog in the Baltic, twenty-five miles east of Gothland. The duty of Trinity Masters, sitting as assessors in the Admiralty Court, is to assist the judge in questions of nautical skill. In case of a difference of opinion between the judge and the assessors, the judge is not at liberty to act upon any inferences which they may draw from the evidence, except they accord with his own. It is the duty of the judge to decide the case on his own responsibility (The Magna Charta, 25 L. T. Rep. N.S. 512. Priv. Co.)

COLLISIONS-REGULATIONS FOR PREVENTION, ARTICLES 13, 16.-Article 16 of the "Regulations for preventing collisions at sea only applies when there is a continuous approaching of two ships. When two vessels are meeting end on, or nearly end on, within the meaning of Article 13, and one of them, at a proper distance, ports her helm sufficiently to put her on a course which will carry her clear of the other, she thereby determines the risk, and is not approaching another ship so as to involve risk of collision " within the meaning of Article 16, and is not bound to slacken speed or stop: The Earl of Elgin v. the Jesmond (25 L. T. Rep. N. S. 514, Adm. Čt.)


PRACTICE-DUTIES OF PROCTOR WITH RESPECT TO PROXIES-The usual practice in the High Court of Admiralty as to proxies is for proctors to proceed without the exhibition of any proxy until called upon to produce it, and when they are called upon they satisfy the law by stating the names of the parties for whom they appear. In the vice-admiralty courts proctors are not bound to do more than this under rule 40 of the Vice-Admiralty Rules and Regulations, unless upon a strict order of the court. The production of a proxy, purporting to be duly signed and sealed, but without proof of the handwriting of those who appear to have subscribed the instrument, is a prima facie compliance with an order to produce a proxy, and throws the onus of disproving its authenticity on the opponents. An objection to a suit on the ground of the non-production of a proxy is a preliminary objection, to be raised on motion, and not on protest, and the utmost a court can do where such proxies as above are produced is to stay proceedings until further information can be obtained: (The Euxine, 25 L. T. Rep. N. S. 516. Adm. Ct.)


THE brig J. L. Bowen left New York, May 28, 1871, for Gibraltar. She had one passenger, a master, two mates, a cook, and six men before the mast. The ship and cargo were worth 50,000dols. June 1st an affray occurred between four of the seamen and the officers, in which the master was killed, and the second mate injured so as to be unable to do duty, and the first mate was badly hurt. This latter remained at his post, and headed the vessel back for New York. He controlled the men, and received the aid of the passenger; the cook, a coloured man, was faithful. Two of the four men engaged in the affray were disabled therein. The first mate was the only officer left for duty, and the only person left alive who understood navigation. For two days and two nights, crippled as he was, he remained on deck all the time, and took no sleep. He was wounded twice in the head, his shoulder was knocked out of joint, and he had to keep one arm in a sling. He set a signal of distress, and on the 3rd fell in with the ship Europa, from Bremen to New York, with a general cargo and 130 passengers. She had a master and only one mate, the libellant Hilmer, and beside him the only person on the Europa who could navigate the ship was the master. The brig sent to the ship a boat in which was the cook and one man. The cook stated the condition of affairs on the brig. The master sent Hilmer on to the brig to investigate and report, which he did, detailing the facts, and also the fact that the first mate of the brig requested assistance. The result was that Hilmer, by consent of the ship's master, went on the brig alone, discharged his duties as mate, and aided in bringing the vessel safely to port on the 5th. The weather was fine, but soon after meeting the ship and brig parted company in a fog, and only met again in port. The libel is filed on behalf of Hilmer, and all others who are salvors and claim salvage compensation, for Hilmer for the Europa and her crew. It was denied that the brig was in great peril or danger, or that she was rescued from great or any considerable peril beyond the power of her mariners to control. Blatchford, J., in the United States District Court, New York, after detailing the facts fully and more elaborately than we have digested them above, held the service was salvage service, and all the claimants were entitled: (Williamson v. The Alphonso, 1 Curtis C. C. P. 376; The Czarina,'

2 Sprague, 48; The Roe, Swab. Rep. 44; The
Janet Mitchell, id. 111; The Golondrina, Eng. Law
Rep. 1 Adm. & Eccl. 334; Jones on Salvage, 14.)
The real contest was, what shall be awarded?
In the first case cited, the master was down with
the yellow fever; the mate of the salving vessel,
obeying the signal of distress, took the ship and
ran her twenty-three miles to port. The Alphonso
and cargo were worth 15,000dols. There the court
allowed 750dols., of which 300dols. went to the
mate. In the second case the master and two
mates had been killed, and no one was left to
navigate the ship. The salving vessel sent her
mate, who navigated the distressed ship twenty
days. She was worth, with cargo, 95,000dols.
5485dols. were awarded; owners, 3500dols; master,
800dols.; first mate, 1000dols.; second mate,
25dols., and sixteen sailors 10dols. each. In the
case of the Roe, in distress, the value saved was
9,350.; 150l. was awarded, beside the payment
made to the two sailors who came on board for

to insure against war risk, or that, by their failure to effect such an insurance, they had committed any breach of the contract; and, secondly, that the defenders were, notwithstanding such failure, bound to take delivery of the cargo, and having failed to do so, were liable for the loss arising on the sale, which was eventually carried through. The defenders reclaimed. Watson and Innes for them. Shand and Travner in answer.

The COURT now altered the interlocutor of the Lord Ordinary, and assoilzied the defenders. Their Lordships held that it was the duty of the seller, on the cargo being shipped, at once to forward the bills of lading to the purchasers, in order that they might, as soon as possible, be invested with the property of the cargo. Delivery of shipping documents was the proper fulfilment of the contract. It was stipulated by the contract that one of these should be a policy of insurance; and where a party contracts in general terms to effect insurance of a cargo, he guarantees indemnity against all risks ordinarily covered by In the case of the Janet Mitchell, some one was insurance. War risks are undoubtedly included needed to navigate the ship, which, with her cargo, among these, and the fact that war broke out after was worth 29,7001. The mate of the salving ship the date of this contract did not affect the liability volunteered, and the owners of the Mitchell gave of the sellers. It would be just as reasonable for him 2001. for his services; 1000l. was allowed the an underwriter to say that he insured in time of remaining officers, the owners, and the crew. In peace and did not contemplate war, as for a party the case of the Golondrina, the two mates had contracting to procure insurance to say so. On deserted her, and the master had jumped over- the failure of the pursuers, therefore, to deliver board; the second mate of the salving vessel shipping documents, including a policy covering brought the distressed ship into port. Her values war risk, the defendants were entitled to rescind amounted to 26,000l. The award was 1,8001. In the contract. this case ship and cargo are valued at 50000dols. Award is ordered of 3000dols. The owners of the Europa, 1600dols.; to her master, 450dols; to Hilmer, 650dols.; to the crew, 300dols., according to their wages.-Pacific Law Reporter.

Thursday, Nov. 30.


Marine insurance-War risk.

IN June 1870, the pursuers, Messrs. Birkett,
Sperling, and Co., who are merchants in London,
sold to the defenders, Messrs. Engholm and Co.,
who are merchants in Leith, a cargo of oats of
about 1100 quarters, to be shipped by the Ems, on
her arrival "at Archangel, at the price of 23s.
cost, freight, and insurance to London, or the east
coast of Britain, according to charter-party, for
every 3041b. weighed out, sound or damaged, at
port of discharge. Payment to be made by cash
in London on handing invoice, and in exchange
for shipping documents," &c. The cargo was
duly shipped on board the Ems at Archangel, and
Engholm and Co., inclosing invoice for the oats,
on 1st Sept. 1870, Birkett and Co. wrote to
amounting to 11627, 11s. 2d. Engholm and Co., in
reply, refused to pay the amount of the invoice
unless Birkett and Co. insured the cargo against
war risk, and they now pleaded that the pursuers
not only against the natural perils of the sea, but
were bound, under the contract libelled, to insure
against, the risk of hostile capture, to which the Ems
as a German vessel was exposed, owing to the
war which was declared between France and Ger-
many July 15, 1870. A correspondence ensued
between the parties, and on Sept. 8, Birkett and
Co., effected an insurance covering war risk,
leaving for after decision the question of liability
for the premium, which amounted to 601. 10s. 6d.
An offer to halve the expenses having first been
made by Engholm and Co., and declined by Birkett
and Co., was afterwards made by Birkett "without
prejudice," and rejected by Engholm, who main-
at the expense of the sellers, the contract was at
tained the position that, failing such insurances
at end. On the 22nd Sept. Engholm and Co.
of compensation for loss of market. On the 23rd
declined to take the cargo, and intimated a claim
Sept. the Ems arrived at Fraserburgh, and it
was agreed between the parties, under reserva-
tion of their legal rights, that the vessel should
proceed to London, and that the cargo should
there be sold to the best advantage. This was
accordingly done, but the difference between the
nett proceeds of the sale and the invoice price of
the cargo amounted to 355 1s. 11d., which repre-
sented the loss to the pursuers caused by the
defenders' refusal to take the cargo, and for re-
covery of which the present action was brought.
By joint minute of admission the parties agreed
that the cargo was duly shipped, and was in all
respects conformable to contract; that the differ-
ence between the invoice price and the amount
realised by the sale should be held to be
2941 11s. 5d., and that in the event of its being
found that the sellers were not bound to insure
against war risk decree should be pronounced in
their favour for the said sum of 294l. 11s. 5d.,
and also for the sum of 301. 5s. 3d., being the
amount of one-half of the premium. The Lord
Ordinary (Jerviswoode) accordingly decerned
against the defenders for these two sums, with the
interest and expenses, finding, first, that they had
failed to establish that the pursuers were bound



THIS case, which has for some time elicited considerable attention amongst colliery owners and land proprietors, has again been before the Court of Exchequer of Pleas. This case came before Hannen, J. and a special jury at the Durham Summer Assizes in 1868, when a verdict was given for the plaintiff for 25001. damages, subject to the opinion of the court upon a spcial case to be stated by Mr. Gainsford Bruce, who was to find all facts necessary to raise all points of law. That gentleman subsequently held hearings both in Newcastle and Durham for the reception of evidence, and it was elicited that the plaintiff was Mr. Edward Spoor, of Togston-hall, Northumber land, and the defendant Mr. William Green, late governor of Durham County Gaol. In 1842, the late Mr. T. Colpitts Granger, M.P. for Durham, was owner of 28 acres of land at Low Bitchburn near Crook, in the county of Durham, and he sold fendant, without excepting the mines and minerals, and duly conveyed the same to Mr. Green, the debut, notwithstanding this deed of conveyance, made in 1842, Mr. Grainger, in 1844, leased the coal under these 28 acres of land to Messrs. John J. Smith and John Sharp. In 1845 the defendant, half an acre of the land comprising the 28 acres, Mr. Green, conveyed to Mr. T. Jamieson about but without excepting the mines and minerals, and Mr. Green entered into the usual covenants that he, and the then mortgagee, had power to convey, for peaceable enjoyment, free from incumbrances. from Mr. Jamieson the land in question, he at the In 1846, Mr. Spoor, the present plaintiff, purchased same time having no notice of the lease of the mines and minerals, which were not excepted in the conveyances from Mr. Jamieson to him. Mr. Spoor subsequently built about twenty houses on the piece of land at considerable cost. On Christmas Eve 1865, the tenants were alarmed by the cracking of the walls of their houses, and for their own safety were glad to make a hasty retreat, and the whole block of houses became, and still are, a perThis injury was caused by a subsidence of the fect wreck and ruin, and are quite uninhabitable. ground consequent upon mining operations underwhich the plaintiff, Mr. Spoor, sustained, that he neath. It was for damages for the loss and injury brought the present action. For some days past the Lord Chief Baron Kelly, and Barons engaged in listening to the arguments on the Bramwell, Channell, and Cleasby, have been special case.

Manisty, Q.C. and Heath, of the Northern CirE. H. De Rhe Philipe, as agent for Brignall, of cuit, appeared for the plaintiff, (instructed by Durham.)

Circuit (instructed by Messrs. Hill and Hoyle, as Quain, Q.C., and Kemplay, of the Northern agents of Lisle, of Durham), were retained on behalf of the defendant.

day, which involved some exceedingly nice points At the conclusion of the argument on Wednesof law, the Chief Baron said that in consequence of the extreme intricacy of the case, the court would consider the facts and law raised by the learned counsel, and postpone their judgment.

it was very desirable that the plaintiff and deAfter some discussion, his Lordship added that fendant should come to some friendly arrangement of the case.

« EelmineJätka »