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DEC. 23, 1871.]


Lord Ellenborough, C.J. disposed of the case by this short opinion: "The distress may enure as a satisfaction, or may constitute an injury; if the former, then the defendant ought to have pleaded those circumstances which would make it operate as satisfaction; for it is incomplete as satisfaction by the mere act of seizure."

The other Judges, Bayley, Abbott, and Holroyd, concurred with the Chief Justice, Bayley using expressions to which I shall have occasion to The revert, in the further examination of the opinion of Judge Kennedy, who delivered the judgment of the Supreme Court in Quinn v. Wallace. language of the statute of Will. & M.," says Bayley, "is, that the person distraining may sell the goods, not that he must sell. If so, then does he not stand as he did at common law, before the statutes, for it is not averred that the goods were sold? It was the duty of the defendant in his plea to The facts were within his knowledge, and set out the whole of his case. they may fairly be presumed not to have existed, inasmuch as they are not stated.'

The defendant's counsel quoted Lingham v. Warren (1 Brod. & Bing. 36) and Hudd v. Ravener (Ib. 682.)

Lear v. Edmonds, as the point was the same, was relied upon in both these cases as conclusive of the question, and so the court unanimously held. The first case was in the King's Bench, and the second and third in the Common Pleas, and of course before different Judges.

Upon this array of consentaneous authority, may it not be confidently affirmed that under the only issue found in this case the avowant was entitled to a verdict, unless the tenant had shown that the whole rent had been satisfied? And this was the sum of the charge to the jury. And on this ground, no doubt, they rendered the verdict for the avowant.

The judgment upon this verdict was, however, reversed. It is necessary, therefore, to state the grounds of this reversal.

The opinion of the court was given by Judge Kennedy, and, like most of his writings, very long, abounding in references, and confident in conclusions. It requires a close and patient scrutiny.

The opinion assumes, not to say asserts, that there were two sales of the goods distrained. There was nothing in the evidence to authorise such a suggestion. But as there is no force, in my apprehension, in the assumption detrimental to the rights claimed for the avowant, I see no reason for any further remark on this topic.

The English decisions upon demurrers are all disposed of by Judge Kennedy in a breath, as made without careful investigation; indeed, it is added, from a misconception of the statute of 3 Will. & M., sess. 1, c. 502, from which it is said, "Our Act of Assembly is a mere copy."

That there is a substantial, and almost a verbal agreement, between the British statute and our Act of Assembly, cannot be disputed. The words of the British statute are, "where any goods or chattels shall be distrained for any rent reserved and due upon any demise, lease, or contract whatsoever, and the tenant or owner of the goods so distrained shall not, after five days next after such distress taken and notice thereof (with the cause of such taking), left at the chief-mansion, house, or other most notorious place an the premises, charged with the rent distrained for, replevy the same, with sufficient security to be given to the sheriff according to law, that then in such case, after such distress and notice as aforesaid, and expiration of the said five days, the person distraining shall and may, with the sheriff or under sheriff of the county, or with the constable of the hundred, parish or place where such distress shall be taken (who are hereby required to be aiding and assisting therein), cause the goods and chattels so dis trained to be appraised by two sworn appraisers; and after such appraisement shall and may lawfully sell the goods and chattels so distrained for the best price that can be gotten for the same, towards satisfaction of the rent for which the said goods and chattels shali be distrained," &c.

Our Act of Assembly of March 21, 1772, is manifestly taken from this statute of 3 Will. & M. s. 1, c. 5.

The important words in each are these: "Then and in such case, after such distress and notice as aforesaid, and expiration of the said five days, the person distraining shall and may, with the sheriff, under-sheriff, or any constable, &c., cause the goods and chattels so distrained, to be appraised, &c. And after such appraisement, shall or may, after six days' public notice, lawfully sell the goods and chattels so distrained, for the best price that can be gotten for the same," &c.

Now it will at once be perceived that the controlling words, in each of these statutes are all but identical, to wit, by the statute of Will. & M., "after the expiration of the said five days, the person distraining, shall and may, with the sheriff, &c., where such distress shall be taken, &c., ause the goods and chattels, so distrained to be appraised, &c." "And after such appraisement, shall or may, after six days' public notice, lawfully sell the goods and chattels so distrained," is the language of the Act of Assembly of 1772. The critical words differ in this only, the English statute providing first for appraisement of goods distrained says, The Act of Asthe person distraining "shall and may," with the sheriff, &c., cause the goods and chattels so distrained, to be appraised. sembly uses the same language as to the appraisement, i.e., "shall and may.'

But when speaking of the sale, the English statute says, "after such appraisement, shall and may lawfully sell." Our Act of Assembly reads, shall or may lawfully sell."

The variation is in the copulative and disjunctive conjunctions. If, therefore, there is any difference in the enacting force of these two provisions-i.e., may and shall sell, and may or shall sell, the degree of intensity must be claimed for the phraseology of the English statute. But in my apprehension, there is no difference in real meaning between the two.

But taken in connection with the word lawfully, which occurs in each, and qualifies each, the provision as to selling the distrained goods is simply permissive and not mandatory.

And this was the opinion expressed by the Judges of the King's Bench, as is pointedly declared by Bayley, J., in Lear v. Edmunds (1 B. & Ald. 158-9).

It will be observed that Judge Kennedy, in censuring the construc tion of the English statute by the English Judges, leaves out the word lawfully," which, I have already observed, seems to me to render the meaning simply permissive, and not mandatory.

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The statute of William and Mary is a remedial law, and obviously designed to subserve the interest of the landlord in particular. By the old law of distresses the goods distrained were simply a pledge. They could not be sold by the landlord. The new law authorised the pledge to be sold by the landlord. He might lawfully sell. Giving the privilege of selling was all that he could desire. And as the overplus, if any, was to be handed over to the tenant, he had no right to complain. But whatever may be the rationale of the change, the use of the word "lawfully," I do not doubt, was intended to allow, and not to compel the sale by the

landlord. The tenant could always by a replevin test the act of distraint
by the landlord.

If I am right in this distinction, the groundwork on which Judge
Kennedy rests his dissent from the English courts, is wholly set aside.
The writer adds:

It will be observed that the opinion given by him is not only at
variance with two reported decisions of the Supreme Court of Penn-
sylvania, and the decision of the Supreme Court of the United States, but,
in express language, denies the authority of the English decisions: Lear v.
Edmunds, Lingham v. Warren, and Hudd v. Ravener. In this last case,
the very matter of a second distress is presented in the pleadings, and
Hutchings v. Chambers referred to in its support. It was sustained and

THE RESERVATION OF RIGHTS AGAINST SURETIES. WE last week discussed the question of time as an element in suretyship, with reference to the recent case of Petty v. Cooke. Another case of some interest on the same subject is Bateson v. Gosling (25 L. T. Rep. N. S. 570), in which a debtor executed a composition deed, to which the plaintiff had assented. By that deed the debtor assigned all his property to trustees upon trust to pay the creditors rateably so far as the property realised might extend. The creditors gave the debtor what was in terms an absolute release, followed, however, by a proviso in these words: "Provided always that any creditor who has any specific lien or security for his demand, or any part thereof, or to the payment whereof any person or persons is or are liable as surety or sureties from said assignor, may execute these presents without prejudice to the same security, or to the claim against any surety or sureties, and with the consent of the said trustees or trustee for the time being of these presents, may convert the same into money, or make any allowance out of his demand for the same to the satisfaction of the trustees." It was held that the effect of the deed was not to extinguish the debt, and that the reservation of remedies against the sureties was valid.

The first principle of suretyship derived from the Roman law is that a surety is answerable for the whole debt-whether there is one surety or several, each is individually liable for the whole debt, and co-cautioners were given a remedy one against the other by means, first, of a compulsory contribution, and, secondly, The modes of relief which the law by a subrogation of rights. allows to a surety are, first, by payment of the debt by the principal debtor; secondly, by time being given to the principal debtor to the prejudice of the surety; and thirdly, by the release or discharge of the principal debtor equivalent to payment. This third method was the one contended for in Bateson v. Gosling, and it was boldly argued in the words of a question put by Mr. Justice Brett, that supposing the deed to expressly and clearly give an absolute release to the assignor, but at the same time expressly reserve rights against sureties, that reservation is null and void.

Mr. Justice Willes delivered a lucid judgment, which exhausts the subject, and in the course of it he referred to the note to Lewis v. Jones (4 B. & C. 515), where the principles are fully stated. That note is supposed to have been written by Mr. Justice Holroyd, but in a marginal note to a copy in our hands it is stated that it was written by Mr. Cresswell. The learned writer divides the cases where the creditor cannot retain a remedy against the surety, into two classes, first, where the agreement with the principal may be considered as a fraud upon the surety, by altering his situation or increasing his risk; and, secondly, where, allowing the creditor to recover against the surety would operate as a fraud upon the principal, or anyone joining with him in paying or securing the composition money, inasmuch as it would give the surety a right to proceed against the principal for that debt from which the creditor had agreed to discharge him. Here we seem to get at the kernel of the whole matter as to the reservation of rights against sureties. If a principal debtor obtains a release of his debts it would be plainly inequitable for a surety to remain liable, inasmuch as the surety might then sue the principal debtor, who, consequently, would not have been released from his debt, but would simply have had the direction of his liability shifted. In order, therefore, to make reservations against sureties valid, it was laid down in Ex parte Glendinning (Buck, 517), that a creditor entering into a composition with a debtor and wishing to retain his remedy against a surety, must cause the reservation to appear upon the face of the agreement. And it was early recognised that where the remedy against the surety is reserved in the agreement for composition, a recovery against the surety cannot operate as a fraud upon the principal; for that if a demand out of that recovery arises against him, it is with his own consent: (Ex parte Giffard, 6 Ves. jun. 809.) The principles established thus early have been carefully sustained. A suggestion that the surety must assent to the transaction was disposed of by Baron Parke in Kearsley v. Cole (16 M. & W. 628), and his view, after some doubt, was followed in Price v. Parker (24 L. J. 130, Q. B.).

We then come to those cases in which a deed operates so completely to extinguish the debt that there can be no reservation against sureties. Mr. Justice Willes cites Cowper v. Green (7 M. & W. 633), as happily illustrating the effect of a release. There the creditors released a debtor, and the debtor afterwards

insisted on recovering from one of his creditors a security which was in his hands, and he even promised the creditor to pay the residue of his demand if he would give up the security. The creditor accordingly gave up the security, and as the debtor failed o perform his promise, the creditor sued him on it; but it was held that the promise was without consideration, as the debt having been extinguished by the release, the debtor was entitled to a return of his security. If then (remarked Mr. Justice Willes) in any case the release absolutely destroys the debt, there can be no reservation of remedies against the sureties. Whether a creditor is paid his delt or releases it is all one to the surety; the debt is gone. That was clearly laid down by the present Lord Chancellor in Webb v. Hewitt (3 K. & J.), when, at page 444, he said: "The debt is gone in equity, and it is impossible to reserve a right against the surety in such a transaction as that."

To take an illustration on the other side, in Green v. Wynn (L. Rep. 7 Eq. 28), a third party joined as surety to a mortgage deed, for the due payment of interest only, and the principal and surety entered into a joint and several covenant with his creditor to pay the interest. Subsequently the debtor executed a deed under the Bankruptcy Act 1861, and was released by the creditors, there being a proviso that nothing contained in the deed should affect any mortgage held by any creditor, or any right or remedy which any creditor might have against any other person in respect of any debt due by the debtor either alone or jointly with any other person. It was held by Vice-Chancellor Giffard that the effect of the deed was to give a qualified release, and not to extinguish the debt; and that the remedy of the creditor against the surety in interest was not barred. Dismissing Webb v. Hewitt as not applicable to the case before him, the Vice-Chancellor shortly stated the principle. He said, "From Solly v. Forbes (2 Brod. & B. 38), down to the more recent cases, the rule has always been this: that you may suspend your right to proceed against the principal debtor, and yet proceed against the surety; and that even if you put into your deed words which, standing alone, amount to a release, the court will not give effect to them, but will take the whole of the deed together, and effectuate that which was the real intention of the parties." That decision was affirmed on appeal (L. Rep. 4 Ch. App. 204).

We apprehend that there can no longer be any doubt about this head of law. An absolute extinguishment of the debt alone releases the surety, and where a deed contains a proviso with reservation of rights, the court will look at the whole of it, aud construe it so as to retain the creditor's rights against the surety, unless such a construction would operate as a fraud upon the principal.

THE ELEMENTS OF THE LAW OF AVERAGE. (Continued from page 113.)


THE contribution of general average has reference to the actual values of the property saved by the step whereby the loss sought to be made good by general average contribution has arisen, without regard to the existence of any policies of insurance which may have been effected on the ship, freight, or cargo: (Stevens on Average, 4.)

The values of the different interests for contribution are the actual net values ultimately saved.

If the ship or goods have sustained damage, they contribute on their value in the damaged condition, including any amount made good by contribution for general average losses.

When the claim is adjusted, as usual, on the ship's arrival at her port of destination, the cargo contributes upon its net value at that port, after deducting freight, duty, if any be payable on it, landing charges, and brokerage, if the goods are usually sold by a broker.

If, by consent of all parties interested, the claim is adjusted at the loading port, when the ship has put back to that port, the cargo contributes upon its first cost on board the ship.

Cargo jettisoned is made good in general average, and contributes on a similar footing.

The loss of freight on goods jettisoned is likewise recovered in general average, and this freight bears its share of the contribution. In the apportionment of general average, particular or special charges at a port of refuge are deducted from the values to contribute.

Although general average expenses are recoverable in case of the ship and cargo being afterwards totally lost, the value of the property to contribute towards them in the event of the arrival of ship and cargo at the port of destination, is not the value at the time when the expenses were incurred, but at the time of arrival at that port, "at the time and place of the contribution becoming absolutely due." The shippers may decline to contribute towards the disbursements at the time when they are incurred, and leave the master to raise funds for liquidating them, on the security of a bottomry bond on ship, freight, and cargo; or by a sale of part of the cargo. "It is the possibility only of the cargo ultimately arriving at its destination which is bought at the expense of the

disbursements." The cargo is not intended to find a market at an intermediate port. (Benecke, Pr. of Indem. 314.)

When general average expenses are incurred, and the ship and cargo are afterwards totally lost, they should be apportioned on the net values actually at risk when the expenses were incurred.

If part of the property is saved from the wreck, it should be applied in the first place towards payment of the general average expenses, and, if insufficient to pay them, the excess should be apportioned on the net values at risk when they were incurred. An adjustment of general average ought not to be made at an intermediate port," at any foreign port into which the ship may put in distress, unless the voyage and adventure are necessarily terminated there: (Stevens on Average, 49.)


If in any case the contributory value of the cargo, arriving in sound condition, exceeds its insured value, the assured bears the proportion of general average attaching to the excess; and the proportion attaching to the insured value of the cargo is divided among the insurers upon that insured value, according to the several amounts covered by them.

When the contributory value is less than the insured value, the proportion of general average attaching to the cargo is in like manner divided among the underwriters in the proportions which the several amounts insured bear to the insured value.

If the policies of insurance on cargo are open, that is not valued, it is divided on the amount of the insurable interest in cargo in proportion to the different amounts underwritten.

It was formerly the practice that the freight should contribute upon its net amount after deducting the wages and port charges for the whole voyage (Stevens on Average, 57); but the contributory interest in freight towards general average, in respect of the deduction of wages and port charges, is now, so far as practicable, regulated by principles similar to those which govern the Admiralty Court with reference to these deductions in fixing the value of freight in awards for salvage.

In the case of a ship being chartered to proceed either in ballast or with cargo to a port where she is to load a cargo for the homeward voyage, the net chartered freight home contributes to general average incurred on the outward voyage, it being an interest at risk on that voyage: (Stevens on Average, 56; Moran v. Jones, 1 El. & Bl. 779.)

If salvage services be rendered to a chartered ship, when in ballast, the freight, not being yet earned, is not included in the value on which salvage is awarded; but this chartered freight, when earned by the ship being subsequently enabled to prosecute her voyage with the intended cargo, should contribute with the ship at the port of destination to the amount paid for the services rendered.

Salvage awarded and settled with the salvors at an intermediate port for services rendered to a ship having cargo on board, would not be assessed on the freight in course of being earned; but in like manner the freight when afterwards earned ought to contribute.

When the whole freight has been paid in advance at the commencement of the voyage, and is at the risk of the proprietor of the cargo or his underwriters on the freight advanced, it contri butes, either separately or collectively, as increased value of the cargo realised at the port of destination (Trayes v. Worms, 34 L. J. 274, C. P.), without being subjected to any deduction for wages and port charges which are payable by the owner of the ship and not of the cargo; and it bears the particular charges attaching to freight.

When part of the freight has been paid in advance, and is not at the risk of the shipowner, a corresponding proportion of the general average and particular charges on freight attaches to the freight advanced, and from the contributory value of that part of the freight which is made payable at the port of discharge, and is at the risk of the shipowner, only a proportionate amount of the wages and port charges, &c., is deducted.



In foreign countries certain items are allowed as general average, which in this country are not so treated, and other diffe rences in the practice of adjustment exist; a stipulation, therefore, is often introduced into policies of marine insur ance to the effect that when any general average is settled at a foreign port of discharge, the assured may recover upon the foreign statement. The clause (termed the Foreign General Average Clause") is usually in these terms: "General average payable according to foreign statement if so quired by the assured." Where no such stipulation has been made in the policies, the claim is readjusted in conformity with the practice of this country, for recovery from the insurers, unless they agree to settle on the foreign statement. On this subject reference may be made to Stevens on Average, 65; Benecke Pr. of Indem. 329.


In readjusting the claim according to English usage, care has to be taken that the shipowner recovers on both statements no more than an indemnity for his actual disbursements.

The shipowner and merchant are liable to pay their proportions of general average adjusted according to the law of the port of destination: (Benecke Pr. of Indem. 326.) (To be continued.)

DEC. 23, 1871.


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(Continued from page 114.)

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THE work is at once crude and defective, for of the many important theories and speculations that have been put forward on various points in connection with the history and development of the Roman legal system, some Mr. Poste discreetly omits to notice, " and others he touches upon only to mystify himself and his readers. Mancipatio He somehow finds a comparison between "Traditio" and "FeoffConveyance by Deed," and between ment," comparisons which totally fail, though, on the other hand there was the closest analogy between "Mancipatio" and "Feoffment." Both were essentially public and formal, both were the methods of conveying what was property par excellence, i. e., res As to the sentence on page 143, mancipi and realty respectively. "Mancipation, as conveying property without possession, may be compared to a deed in English law," we confess we cannot understand it. In the first place movable things could not be mancipated unless present (Ulpian 19, 6), that is, the property in them could not be conveyed without possession. Secondly, immovables might be mancipated, although the parties were not upon them; but in old English law a deed was of no avail for the conveyance of such estates, i. e., those which were in possession, but only such as were in futuro. Mr. Poste then goes on to say that the transfer of res nec mancipi was the more difficult, implying that this could be done by in jure cessio only. This, however, is an assertion in support of which he offers no proof, and which seems utterly without foundation. Res nec mancipi were the commonest and least valuable articles-is it at all likely that for the conveyance of them, even in earliest times, any ceremony beyond mere tradition was requisite? The whole account of "Titles " is, however, crude and illogical to a degree, and would seem to have been penned by a youth at college unable to collect his thoughts, and not by Take the dea barrister long experienced at examinations. "the events to which real rights are finition of "Titles: annexed by the legislator; in other words, the modes prescribed by the Legislator by which such rights may be acquired; in other words, the legislative definitions of the classes of persons in whom such rights are declared to be vested." In other words-event-mode of acquisition=legislative definition of a class of persons, which is rather an extraordinary result. Take Dominium,' next that most interesting title "Usucapio." Here Mr. Poste is especially poor. He mixes up "Usucapio" with " and both with "Possessio pro hærede," while he says not a word upon "Præscriptio," as it was in the time of Gaius; indeed, he appears to be unacquainted with it. In connection with titles, we have the question, "per quas personas nobis acquiratur," which explained clearly enough in the text, Mr. Poste obscures by his He first says that "Justinian incommentary (pages 177-8). vented peculium adventitium," but it was Constantine who did so: (Code 6, 59); next speaks of an incomprehensible estate a " and then goes on to jumble "fee, or reversion in remainder;' possessio and property, utterly ignoring the wide differences between them, and that the former required both the fact of detention and the intention to keep the object, and therefore failing to point out that though a Roman could always have acquired pro"enim hoc vobis ignorantibus et inperty by those in his power, vitis obvenit" (Inst. II. 9, 83): yet he could acquire possessio by them only when he became aware of the physical acquisition, and contributed the necessary animus.

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No attempt whatever is made to explain the origin of Testaments, and yet this is a subject which must have attracted the attention of anyone who has read the theory propounded in "Ancient Law." Sir H. S. Maine there lays down-having first assumed that children were emancipated from special favour and affection-first, that the power of making wills was granted in order to countervail the harshness of the strict common law which divided the property of a person among his children in potestate at the time of his death, and took no note of those who had left the family; and secondly, that the Romans never abused this power. Now to the correctness of the above assumption one may fairly demur-a man is just as likely to kick his son out of his family for being a scamp as to emancipate him for being a saintwhile the second proposition is simply contrary to the facts. Were

it true, whence had been the need of the Leges Furia, Voconia and Falcidia, providing that something at least should be left the heir? Whence the need of the querela inofficiosi testamenti enabling near relations who had been disinherited sine justa causa to set aside the will as unnatural ?

The commentary on the fourth book, Actions, is throughout None of the various cross classifications obscure and bewildering. of actions are mentioned-no example of a formula is set out at length and as to an historical notice of the three systems, the legis actiones, the formulary system, the extraordinary system, or a comparison of the law of procedure at different epochs, this is what Mr. Poste carefully eschews.

If any portion of the Corpus Juris merits the attention of an English jurist it is that which relates to equity. A scientific treatise on either English or Roman law must in great measure be a narrative of the growth of equity, and of its expansion till it dwarfed the jus civile. Yet it will scarcely be credited that Mr. Poste has contrived to compress all he knows upon this matter into half a dozen lines on pp. 385 and 386, in connection with torts under the Lex Aquilia.


Upon the faults of the book we have said almost sufficient, and we have scant space left to point out its utter want of method. The commentary is, in a word, not a commentary upon Gaius - it is rather a series of essays more or less, generally less, connected with the text. "Restitutio in integrum, a branch of the Prætor's equitable jurisdiction, and one of the most remarkable cases of his not at the cognitio extraordinaria," should have been described end of " Tutors," as it is, but-in connection with the account either of equity generally, which Mr. Poste has passed over, to be found or of the cognitio extraordinaria which is outline of the Why does an four hundred pages later. "scholæ jurisprudentium" follow the subject "quibus modis tutela finiatur?" And what possible connection could even Mr. Poste discover between Title and Verbal Contracts, between Greek or any other psychology, and "de injuriis (p. 389)? between the formulary procedure and the rules 480) P Aristotle (page of found in the rhetoric "the logic of justice as how can the comprehension of administered in the courts," be aided by regarding it as a syllogism of which the major premise is "the substantive law annexing a certain remedy to certain conditions, the minor premise is," &c., these again being represented by certain letters (page 427), &c. ? Moreover not only is the commentary usually irrelevant to the text, but the matters of which it treats are frequently dealt with piecemeal-the beginning here the conclusion elsewhere. Thus for "Title" the index refers us to pages 3 and 307, but the chief account is to be found on page 141 and following. So "Possession" is met with on pages 157-9, 398, and 500-516.



The translation would be more fitly styled a paraphrase. Thus the sentence-" Alia causa est eorum nominum quæ arcaria transcriptive entries differ from mere vocantur," is rendered, entries of a person as debtor to cash," (page 327) which is cer66 nam si filius tuus servus ve So (page 453) tainly too free. noxam commiserit, quamdiu in tua potestate est, tecum est actio; si in alterius potestatem pervenerit, cum illo incipit actio esse; si sui juris incipit esse, directa actio cum ipso est et noxæ deditio extinguitur," is rendered, "If your son or slave has done a wrong while he is in your power, an action lies against you; if he becomes his own master, a direct action lies against the offender himself, and the noxal action is extinguished," which is perhaps scarcely correct.

There is but one other point to be noticed. In the preface an apology is made for the amount of English law introduced. This apology is totally unnecessary; and fortunately so, for the writer's reputation. On page 200 Mr. Poste says: "By English law, if a man dies intestate, and without kindred, the devolution of his property follows different rules, according as it is real or personal." Does it not follow different rules if he die intestate with kindred? Had, however, this apology been necessary, had the striking analogies of the two systems been shown, we might have had a work which would have been of value to the mature thinker. As

it is, we have a production which will not at all times guide without misleading the beginner, and which is certain, not unseldom, to bewilder the more advanced student.


(Before the LORDS JUSTICES.).
Thursday, Dec. 14.

Ex parte DEWHURST; Re VANLOHE. Bankruptcy-Money acquired during bankruptcy -Payment out of after acquired money-Right of trustee to recover.

THIS was an appeal from a decision of the Chief Judge, reversing a decision of the Judge of the County Court of Manchester. Vanlohe, who was a clerk with a salary of 5001. a year, was adjudicated a bankrupt on the 14th Sept. 1870. Subsequently, his employer, hearing that he was bank rupt, wished to get rid of him, and in Jan. 1871, he dismissed him, giving him 2001. as a compensation for the loss of his situation. At this time Vanlohe was still an uncertificated bankrupt. Out of the money so received he paid his landlord 1301., being a half year's rent of a furnished house which he occupied under an agreement to pay the rent in advance. The trustee under the bank. ruptcy hearing of this payment made an application in the County Court of Manchester that the landlord might be ordered to refund the 1307. on the ground that it belonged to the estate and was divisible amongst the creditors. The Judge of the County Court ordered the landlord to refund the money, but on appeal the Chief Judge reversed this order, and the trustee now appealed from the Chief Judge's decision.

De Gex, Q.C. (Reed with him) appeared in support of the appeal.

Without calling upon

Bagley, who appeared for the landlord,

Lord Justice JAMES said that he thought the order of the Chief Judge was quite right. If the trustee had given notice to the bankrupt's employer, he could have intercepted the money and prevented it from being paid to the bankrupt. But where the bankrupt received the money and paid it away bonâ fide and without collusion, in the ordinary course of business, it would be most mischievous to follow it in the hands of the person to whom it was so paid.

Lord Justice MELLISH concurred.

Appeal accordingly dismissed, with costs. Solicitors for the appellant, Horne and Hunter. Solicitors for the respondent, Pritchard and Englefield.

Friday, Dec. 15.


(GOOCH'S CASE.) Practice-Notice of appeal-Extension of time. THIS was an application by the official liquidator of the above company for an extension of time within which to give notice of motion of appeal from an order made by the Master of the Rolls directing the liquidator to make an affidavit as to documents in his possession relating to the question at issue between him and Gooch: (See 25 L. T. Rep. N. S. 526.) The order was made on the 17th Nov. 1871, and the twenty-one days expired on the 8th Dec., on which day the liquidator intimated his intention to appeal, but he did not serve formal notice of motion till the 12th Dec. The present application was made on the ground that the order had not been drawn up within the twenty-one days.

Sir Richard Baggallay, Q.C. and J. W. Chit'y in support of the application.

Osborne Morgan, Q.C. and Bagshawe, for Gooch, contended that the application should be refused, as notice of motion might have been given without the order being drawn up, and as it was competent for the official liquidator to have the order drawn up himself.

Their LORDSHIPS granted the application, and refused Gooch his costs of opposing the application.

Solicitors for the official liquidator, Linklater and Co.

Solicitor for Gooch, H. Wellington Vallance.


rigging the market. There was evidence that two of the directors of the Marseilles Company were also directors of the Credit Foncier, and that the same solicitors acted for both companies, and these facts were relied upon as fixing the Credit Foncier with notice of the illegal purpose for which the money was borrowed. The Vice-Chancellor having refused their claim, the liquidators of the Credit Foncier appealed.

Glasse, Q. C., Cotton, Q. C., and H. M. Jackson, for the appellants.

Napier Higgins and Gill for the respondents. Lord Justice MELLISH said that he could not director everything known to him in his character think that because two companies had a common of director of one company must be taken to be known by the other company. appointed to act as member of a board, and had A director was acting. Then as to the solicitor who acted for no power to bind the company except when so both companies there was no evidence of what he actually knew. The Marseilles Company, having power to borrow, borrowed money from the Credit Foncier, and his Lordship could see nothing to affect the latter company with notice of any improper intention. The real question was which of two innocent sets of shareholders was to bear the loss, and if the directors of the Marseilles Company had really done anything wrong, it was more just that their shareholders should suffer than the The claim shareholders of the Credit Foncier. must, therefore, be allowed.

Lord Justice JAMES was of the same opinion. Solicitor for the Credit Foncier, Heritage. Solicitors for the Marseilles Company, Hathaway and Andrews.

Dec. 14 and 16.

Ex parte MEYER; Re STEPHANY. Bankruptcy Act 1869, s. 6, sub-sect. 3-" Otherwise absenting himself”—Intent-Act of bankruptcy. THIS was an appeal from an order of Mr. Registrar Pepys annulling an order of adjudication of bank. ruptcy made against Stephany, on the petition of three persons holding bills of exchange for small amounts. On the 6th Nov. 1871 a bill of exchange due to Meyer, one of the petitioning creditors, was dishonoured, and on the same day Meyer called on Stephany, who promised to bring the money to Meyer's residence before three o'clock that day. This, and other promises made on the following days, Stephany failed to keep; and on the 9th Nov. his father-in-law obtained judgment against Meyer and two other creditors filed their petition him on an overdue bill of exchange. Thereupon alleging that Stephany, by failing to bring the money to Meyer, had committed an act of bankruptcy within the words of the 3rd sub-section of the 6th section of the Bankruptcy Act 1869, viz., that the debtor had, "with intent to defeat or delay his creditors being a trader, departed from his dwelling-house, or otherwise absented himself." Meyer appealed. De Gex, Q. C. and Finlay Knight, for the appellant.

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Kay, Q. C. and Bagley, for Stephany. Robertson Griffiths, for the execution creditor. Lord Justice JAMES said that, to constitute an act of bankruptcy the debtor's absenting himself must have been with intent to defeat or delay his creditors, and there was no such intent in the present case. This, however, was not really a case of the debtor absenting himself, but of breaking his promise to pay, which was not an act of bankruptcy. His failing to call with the money was not an act calculated to delay his creditor, but, on the contrary, to accelerate his movements. The registrar's order was, therefore, perfectly right.

Lord Justice MELLISH was of the same opinion.
Appeal accordingly dismissed with costs.
Solicitor for the appellant, Salaman.
Solicitor for the respondents, E. A. Marsden.

Saturday, Dec. 16.


Will-Construction-Charitable gift- Description of object applicable to two societies-Parol evidence.

Company-Winding-up-Loan for illegal object- THIS was an appeal from a decision of Malins, Rigging the market-Knowledge of illegality-V.C. By her will, dated July in 1868, Frances Solicitor-Notice-Directors-Right of proof. M. Kilvert gave a legacy of 10,000l. to "the THIS was an appeal petition from an order of treasurer for the time being of the fund for the Malins, V. C. refusing to admit the Credit Foncier relief of the widows and orphans of the clergy of to prove in the winding-up of the Marseilles Com- the diocese of Worcester, to be applied by him pany for a sum of 10,000l advanced by the former for the benefit of that charity." Previously to to the latter company under the following cir- 1837, the diocese of Worcester comprised only one cumstances. The money was advanced at various archdeaconry, but in that year the archdeaconry times in 1864 and 1865. The Marseilles Company of Coventry was added to it. There were two did not deny the loan, but contended that, with societies in the diocese answering the description the knowledge of the directors of the Credit Fon- in the will, one called "The Society for the cier, the money had been applied in payment of Relief of Clergymen's Widows and Orphans, and sums dne to various sharebrokers by one Bowles, Necessitous Clergymen in the Archdeaconry of contractor to the company and concessionaire of Worcester," and the other called "The Charity a line of railway intended to be made by the Mar- for the Relief of Necessitous Clergymen, their seilles Company, for buying shares in the com- Widows and Orphans, within the Archdeaconry pany on behalf of the directors for the purpose of of Coventry." It appeared that the testatrix and

her father and mother had been subscribers to the first-named society, but there was no evidence that she knew anything about the other society. The Vice-Chancellor held that as the description in the will was equally applicable to both societies, the legacy must be divided between them: (See 24 L. T. Rep. N. S. 823.) The first-named society appealed from this decision.

Cotton, Q.C. and C. Walker, for the appellants. Glasse, Q. C. and Vaughan Hawkins, for the respondents.

Warmington, for the residuary legatees. Lord Justice JAMES said that he had no doubt whatever about the case. clearly indicated a particular charity, and as there The words of the gift were two charities answering the description, she had any connection with either of them. The parol evidence was admissible to show whether

to the first-named charity, and to it she clearly evidence showed that she had been a subscriber intended to give the legacy.

Lord Justice MELLISH was of the same opinion. Order of the Vice-Chancellor accordingly dis charged, in so far as it directed half to be paid to the other charity.

Solicitors for the appellants, Meredith and Co. Solicitors for the respondents, Duncan and


Dec. 16 and 18.
(Before Lord Justice JAMES.)

Judgment creditor-27 & 28 Vict. c. 112-Elegit-
Seizure of surplus lands of railway company-
Extension line-Distinct undertaking-Rights of
judgment creditor.

THIS was an appeal petition from an order of Wickens, V.C. The petitioner, who was the con the Tendring Hundred Railway Company, retractor employed to construct the original line of covered judgment against the company for 57344., due to him under the contract. The company was incorporated in 1859, and by an Act passed in 1863 it was authorised to extend its railway. On the 12th July 1870, Ogilvie issued a writ of elegit upon his judgment, under which the sheriff seized some surplus lands acquired by the company under its Extension Act. Recently Ogilvie presented a petition under 27 & 28 Vict. c. 112, pray. ing for the sale of the company's interest in the lands seized under the writ, and for payment of his debt out of the proceeds of sale, and Wickens, V.C., made an order directing inquiries as to the the company's interest in the lands. The company amount of the petitioner's debt and the nature of appealed from this order.

Greene, Q. C., and Millar, for the appellants. Dickenson, Q.C. and W. P. Beale, for the peti tioner.

Lord Justice JAMES said that under 27 & 28 Vict. c. 112 the judgment creditor was entitled ex debito justitia to come to the court for an order of sale. Of course, only the debtor's interest in the land could be sold, and no one else who had an interest in the land could be prejudiced by the order. It was no defence to say that the lands in question belonged to a distinct undertaking from that in respect of which the company had incurred the debt. There might be rights as between the two sets of shareholders, but that could not affect the creditor. The appeal must therefore be dismissed with costs.

Solicitor for the appellants, Batten. Solicitors for the petitioner, F. and T. Smith and Sons.

ROLLS COURT. Monday, Dec. 18. LONGLEY V. LONGLEY. Will-Construction-Words passing real estateResulting trust.

ARTHUR LONGLEY, by his will, dated the 17th March 1856, gave, devised, and bequeathed all his stock-in-trade, household furniture, plate, linen, china, books, moneys standing in his name in the funds, book debts, securities for money, policies of insurance, and all other the estate and effects of which he should be possessed, entitled to, or interested in, at the time of his decease, and of whatever nature or kind or wheresoever the same might be, to trustees, their heirs, executors, and administrators, according to the nature and quality thereof respectively, upon the trusts thereinafter declared, which were to sell his busi ness, get in his outstanding debts, and also con vert into money all such of his personal estate as should not consist of money; and he further di rected his trustees and the survivor of them, and the executors and administrators of such survivor to stand possessed of and interested in the money to arise by such sale or sales,and also of and in the rest and residue of his estate and effects, upon trust to invest the same as therein declared. The testator died on the 13th Jan. 1871, having become possessed of real estate since the date of his will, and the question arose whether it passed to the trus tees at all, and, if so, whether or not any trusts were declared thereof.

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DEC. 23, 1871.]

Southgate, Q. C. and B. Swan, for plaintiffs, the heirs at law of the testator.

Ramadge for the defendants, who, if the real estate passed by the will, upon the trusts therein declared, would be entitled thereto in remainder. Oswald for the trustees.

Lord ROMILLY held that the real estate passed to the trustees, but that the trusts were entirely confined to personal estate, and there was, therefore, a resulting trust of the real estate in favour of the heirs at law.

Solicitors, Wm. Sturt; Wilkinson and Howlett.

Thursday, Dec. 7.

STEWART v. EARL VANE. Settement Tenant for life-Improvements on settled estates-Charge on inheritance. THIS was an application by a tenant for life that the expenses of certain necessary improvements, effected on a settled estate, might be declared to be a charge upon the inheritance. Under a settlement, dated the 29th Sept. 1842, certain estates were vested in trustees for a term of years, and, subject thereto, stood limited to Earl Vane for life, with remainder to his eldest son, Lord Seaham, in tail male. The settlement contained the asual powers of sale and exchange, and also extensive provisions for working and getting the minerals under the estates, but no provisions for improving the surface. A considerable sum of money had been expended by Earl Vane, the tenant for life, in road making and other improvements, upon the estates, and he now asked that the expenses might be charged upon the inheritance.

Macnaghten, for Earl Vane, said, that a similar order to that now asked for had been made in Frith v. Cameron (L. Rep. 12 Eq. 169; 24 L. T. Rep. N. S. 791.)

C. Hall for the trustees.

The VICE-CHANCELLOR thought the case fell within the principle of the authorities, and was similar to Frith v. Cameron, and accordingly made

the order.

Solicitors for Earl Vane, Uptons, Johnson,

and Co.

Solicitors for the trustees, Gregory and Co.

Thursday, Dec. 14.

Motion to take bill off file-Filing bill without authority. THIS was a motion by Mr. Chinery, the ConsulGeneral of the Republic of Liberia, in this country, to have a bill, which had been filed by Mr. Jackson, the consul in London, taken off the file, on the ground that it had been filed without the authority of the Republic. The bill had been filed to restrain the Imperial Bank from parting with a sum of 17,000l. which had been raised by loan and paid into the bank on behalf of the Republic. There had been a revolution in Liberia, by which the former president had been deposed, and the object of the suit was to prevent Chinery, the Consul-General appointed by the former government, from dealing with the money until the Legislature of the Republic had met and decided what should be done. The bill was filed by Mr. Jackson, the consul in London, without, as it appeared, the authority of the Republic.

Cotton, Q.C., Higgins, and G. Wood for Chinery, moved that the bill might be taken off the file, and contended that it would be a dangerous precedent if the court sanctioned the conduct of Mr. Jackson in taking these proceedings without the consent of his superiors.

Glasse, Q.C. and Rogers for the bill.
Medd for the bank.

The VICE-CHANCELLOR said that upon general principles he concurred in the argument that it was not competent to a subordinate officer of a foreign Government to use the name of his Government against the superior representative of that Government in this country, but that under the circumstances he should order the motion to stand over instead of directing the bill to be taken off the file, since, by taking the bill off the file, the court would lose all control over the subject-matter of the suit. Motion to stand over till Hilary Term, Chinery undertaking not to deal with the money in the mean time.

Solicitors: Fearon, Clabon, and Fearon; Tilleard, Godden, and Holme.

V.C. BACON'S COURT. Friday, Dec. 15.

CHARLTON v. CHARLTON. Will-Construction-Estate and effects. THOMAS CHARLTON by his will, dated the 6th March 1849, after making certain specific bequests, gave and bequeathed all the residue of his estate and effects whatsoever and wheresoever" to three persons "their executors, administrators, and "the assigns," upon trust to "sell and convert



same, and to hold the proceeds upon the trusts |
therein declared. The testator also declared that
upon the appointment of any new trustees "all
conveyed, trans-
the estates, moneys, and premises," subject to the
trusts of his will, were to be “
ferred, and assigned" to the new trustees" their
executors, administrators, and assigns." In the
devise of the real estates which he held as trustee,
At the time of making
the testator gave and bequeathed them to trustees
"their heirs and assigns."
his will, and also at the time of his death, the
testator was possessed of certain real estate. The
question now was whether or not the testator's
real estate passed under the will.

Kay, Q.C. and Chapman Barber were for the plaintiffs.

G. Lawrence for the testator's widow, the tenant for life under the will.

Amphlett, Q. C. and J. T. Pierce (of the Common
Speed for the trustees of the will.
Law Bar) for the heir-at-law.


The VICE-CHANCELLOR was of opinion that it estate," to pass all his real estate, and that the was the testator's intention, by using the word omission of the word "heirs" did not signify. That this was the intention was also clear from the power given to the trustees to sell the Solicitors for the plaintiff, C. J. and H. Show property. bridge.

Solicitor for the defendants. J. Henry Bartlett.

Saturday, Dec. 16.


ss. 69 and 80-Reinvestment of purchase money
Lands Clauses Consolidation Act (8 & 9 Vict. c. 18),

THIS was a petition for the reinvestment of money
paid into court by a railway company for certain
leasehold lands which the company had taken, and
of which the petitioner was tenant for life. Part
of the purchase-money had been previously in-
vested, and the petitioner now asked that the
the parties interested in remainder having con-
residue might be invested in freehold property, all
sented thereto, and that the company should pay

the costs of the investment.

Everitt appeared in support of the petition. Stevens, on behalf of the company, submitted, that the company, having paid the costs of one investment, ought not to be made to pay the costs of a second, and that the original property having been leasehold, the money ought not now to be

invested in freehold.

The VICE-CHANCELLOR, being of opinion that
the investment was a proper one, allowed it, and
Solicitor, C. E. Freeman.
ordered the company to pay the costs.

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Hemings applied under the Trustee Act 1850,
s. 49, that the clerk of records and writs might
withstanding the third trustee had not entered
certify that the cause was fit to be set down not-
an appearance. He referred to Westhead v. Sale
12 Sim. 163).
(6 W. R. 52); De Crespigny v. Ketson (cited in

The VICE-CHANCELLOR made the order as asked.
Solicitor, Burrell.

Friday, Dec. 15.

Practice-Lunatic wife-Separate property applied
for maintenance-13 & 14 Vict. c. 101, s. 5.
THIS was a petition presented by the master in
lunacy of Victoria, South Australia, for the pur-
pose of having the dividends of a sum in court,
being the separate property of a married woman
confined in the pauper lunatic asylum at Mel-
bourne, applied for the expenses incurred by the
colony for her maintenance.

Alan C. Bruce for the petitioner. Renshaw for the respondent. The VICE-CHANCELLOR said that the difficulty in the case was, that he was asked to take property settled to the separate use of the wife, for the purpose of defraying the expense of her maintenance, which was prima facie the husband's debt. Ón the construction of the Colonial Act, however, he considered the master in lunacy of Victoria was intrusted with the powers of committee of a lunatic's estate, and was pointed out as the person to receive and collect the property. He should, therefore, on the authority of Peters v. Grote (7 Sim. 238), in which a debt due to the keeper of a lunatic asylum had been ordered to be paid out of a lunatic's wife's property, direct the

payment of the arrears for her past, and of the future dividends for her future, maintenance, to the master in lunacy.

Solicitors, Roy and Cartwright; Satchell and Chapple.

Re POLTESCO MARBLE COMPANY (LIMITED). Company-Winding-up-Right to damagesSubstantive application. THIS was a petition by two persons-one of whom claimed to be entitled to a sum due for salary, as secretary of the company, and the other as his assignee for value-praying that the company might be wound-up compulsorily. The company was being wound-up voluntarily. In the vacation a provisional liquidator had been appointed at the instance of the petitioners, who then gave an undertaking to be answerable in damages.

Hemming and Randolph for the petitioners. Hadley, for the company, was not called upon. The VICE-CHANCELLOR said it was quite clear that no case has been made out for the order asked must be dismissed with costs. by the petitioners, and that therefore the petition

Hadley asked that the order might be so framed as not to prejudice the right to damages under the petition.

The VICE-CHANCELLOR, after conferring with the registrar, said it seemed that the practice was in such cases to make a substantive application, and therefore the order would be confined simply to the dismissal of the petition. Solicitors: P. Woods; E. T. Lewis.

Saturday, Dec. 16. LEWIS v. ALLENBY. Practice-Administration-Order for preparation of scheme-Failure of order-Adjourned summons-Petition in the cause.

cause. By an order made on further consideraTHIS was an adjourned summons in the above scheme for the distribution of the residuary pertion it was ordered that certain trustees should sonal estate of the testator in the cause, amongst prepare and submit to the judge in chambers a

charities, in accordance with the discretion given

to them by the testator. No second further consideration was reserved by this order. Before any scheme had been settled one of the trustees died. The surviving trustee, however, settled a scheme adjourned into court, now came on for hearing. and took out a summons for its approval by the judge in chambers. The summons having been Karslake, Q. C. and W. P. Dickins for the plaintiffs.

Hemming for the Crown.

Greene, Q.C., Nalder, Bathurst, and Borthwick for other parties.

The VICE-CHANCELLOR said that the order The summons made had failed or broken down. was merely consequential on the order, and as one of the trustees had died, the order could be no longer carried out. No further consideration had been reserved, and the proper course to obtain the sanction of the court to the scheme would be to Solicitors: Bell and Newman; Hicks, and Son; present a petition in the suit. No order would be made on the summons, except that the costs be Raven and Bradley; Miller and Smith.

costs in the cause.

Wednesday, Nov. 29.
(Before Lord PENZANCE.)
In the Goods of COLES.

Probate granted of a will commencing “I have
given all my property to A.B.," &c.
W. COLES died May 26, 1871, leaving a will dated
June 18, 1870, in the following terms:-"I have
given all I have to Bertha Chamberlain and her
two sons, commonly called and known as Joseph
to pay my sister 3s. 6d. a week as long as she
Brailey Coles, and Henry John Coles. They are
lives, and after her death to pay her son William
Gent 3s. 6d. a week so long as he lives; the
Chamberlain, Joseph Brailey Coles, and Henry
residue to be equally divided between Bertha
tor, and Bertha Chamberlain renounced admin-
John Coles, share and share alike."
Brailey Coles died in the lifetime of the testa-

Inderwick moved for a grant of administration with the will annexed to Mr. Williams as guardian of Henry John Coles. He read an affidavit from one of the attesting witnesses, who wrote the will to the testator's dictation, and who stated that the testator expressly desired him to make use of the words "I have given," &c., at the beginning of the will. When the document was executed it was handed to him to give to Mr. Williams after testator's death. As to the testamentary character of the words "I have given," &c., he referred to In the goods of Daines (3 Hagg. Ecc. 321).

E. Clarke for Wm. Gent, the nephew and sole next of kin contra.-It is for the person applying for the grant to make out that the deceased was

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