« EelmineJätka »
premises of the obnoxious persons. The word “watch” is con- the payment must have arisen out of some contract made nected with the word “ beset;" either will do, “watch or beset" with the testator, referring to what Mr. Justice Bayley being the expression. Watching premises to intercept workmen, says subsequently, namely, that in a of suretyship and distribute to them handbills inciting them to rebei against where the testator, had he been living, would have been liable to their employer, seems to us to be well within the law. Moreover, contribution, and the surviving surety pays, he has a right against in such a case the act carries with it the intention. To corrupt the executor for money paid to his use as executor. We agree that workmen under the eyes of the master is as likely as any. this makes it plain that a liability on the part of the testator on a thing we can imagine to coerce the master, and the Act says that contract made in his lifetime is contemplated as founding the right it is only necessary that the means should be used “with a view of action against the executor. The judgment of Littledale, J. to coerce.
was largely quoted from by Lord Justice Mellish. As to the count The Trades Union Congress demand the repeal of the clauses for money had and received, that learned Judge makes observain the Act of last session relating to coercion “in order to place tions which clearly point to a benefit received or liability incurred trade societies on an equality with the rest of the community.” | by the testator. If,” he says, “the testator, in his lifetime, had The objection to this is that the rest of the community is not given been indebted to the plaintiff for money had and received to his to picketing and rattening, and the oppression of masters and use, there would not be any specific appropriation of the money so workmen by powerful combinations must be prevented. Mr. received to the plaintiff's use, but that money, on the death of the Rupert Kettle has drafted a bill which if adopted, may give to testator, would have gone into his general funds, and the debt trade societies such jurisdiction over their own members as will must have been paid out of those funds in its regular order. But prevent appeals to the law, and thus the Criminal Act of last where an executor receives money to the use of a particular yex might be in a measure dispensed with. In the meantime individual, it operates as a specific appropriation of that money magistrates have a task of some difficulty in administering the belonging to the party, and he, in his individual capacity, must be law, but we cannot admit that the difficulty is by any means so liable for the money so received; it has nothing to do with the great as some of our contemporaries appear to think. All that accounts of the testator." is required is a careful attention to the ordinary meaning of the The view taken by the Lords Justices against the liability of words used, and the intention of Parliament.
the testator's estate, in Farhall v. Farhall, is the more important, because the learned text-writer on the subject (Williams
on Executors) distinctly encourages the idea that executors may PERSONAL LIABILITY OF EXECUTORS.
make promises binding their testator's estate, without stating We last week considered the question of the personal liability of
that the consideration for the promise of the executor must be a bankruptcy trustees, and incidentally noticed the liability of
contract made with the testator, or a transaction with him. What executors. This is an important head of law, and it is somewhat
that author says is this : “ It seems to have been once considered unfortunate that we should have different judgments by courts of
that, whenever an action was brought against an executor or equity upon it. In Farhall v. Farhall (24 L. T. Rep. N. S. 610)
administrator, on promises said to have been made by him after a widow who was executrix with three other persons as executors,
the death of the testator or intestate, he was chargeable in his own induced a bank to open an account for her, entitled “Mr. Richard
right, and not in his representative capacity. The more modern Farhall's Executors' Account," and the bank honoured her
authorities have, however, established that, in several instances, cheques upon it, signed “ Mary Farhall, for executors of Richard
the executor may be sued, as executor, on a promise made by him Farhall.” * A considerable sum was advanced in this way with
as executor, and that a declaration founded on such a promise will which the executrix charged the estate of her testator. On a suit
charge the defendant no further than a declaration on a promise for administration by the infant daughter, the bank carried in their
of the testator.” Citing this, Lord Justice Mellish points out that claim in respect of the advances to the widow; but the plaintiff
every case quoted in support of the proposition, without exception contended that she had no right to do so, and that the overdraw at
lay it down as stated above, that is to say, that the consideration the bank was a personal liability of her own Vice-Chancellor
for the promise of the executor must have been a contract by, or Bacon allowed the claim of the bank.
transaction with, the testator. These cases the learned Lord The Vice-Chancellor apparently rested his decision upon Ashby
Justice examines (see p. 686 of our Reports) :-Dovse v. Core F. Ashby (7 B. & C. 414), which Lord Justice Mellish considered
(3 Bing. 20), Powell T. Graham (7 Taunt. 581), Ashby v. Ashby had been misunderstood by the present Lord Chancellor, when
(sup.), and Corner v. Shew (8 M. & S. 350). Vice-Chancellor, in the case of Haynes v. Forshaw, as well as by
Nothing more need be said, and we have to thank the Lords Vice-Chancellor Bacon in the present case.
We will therefore,
Justices for a clear exposition of the law on a point of daily look at Ashby v. Ashby for ourselves. The first count of the de
importance, and we should advise our readers to lay their teaching claration stated that the defendants, as executrix and executor,
well to heart. were indebted to the plaintiff in 5001. for so much money by the plaintiff paid, laid out, &c., to and for the use of the defen
LAW LIBRARY. dants, as such executrix and executor at their request, and then alleged a promise by the defendants as executrix and executor to The Laws relating to Public Health and Local Government, includ. pay the said 5001. The second count was for money had and re- ing the Law relating to the Removal of Nuisances injurious to ceived as executrix and executor; and the third count was on an Health, the Prevention of Diseases, and Sewer Authorities, with account stated by the defendants as executrix and executor. Statutes and Cases. By W. CUNNINGHAM GLEN, Barrister-at-Law. There was a demurrer, and it was contended that there was no Sixth Edition. London: Butterworth. case in which it had been expressly decided that a count for money How much of this portly volume of 844 pages will survive the paid to the defendant's use as executor will charge him de bonis coming session of Parliament? It is said that threatened men testatoris, and Rose v. Bowler (1 H. Bl. 109) and Powell v. Graham live long, and emphatically this may be repeated of threatened (7 Taunt. 581) were cited to the contrary. The count for money laws, and consequently of threatened law books. A new code of paid, it was said, raised a new cause of action, not existing at the sanitary law has been promised for a long time, and now it is time of the death of the testator, and founded on a contract made confidently put forward in the prophetic programme of the work by the executrix and executor. On the other side it was con- to be done by the Legislature during the present year. If it should tended that the plea of plene administravit might be pleaded to all
be done, then Mr. Glen will have wasted a great deal of the labour the counts, and they would all warrant a judgement de bonis he has bestowed upon the production of this volume, and he will propriis. Lord Tenterden said that the count for money had have the honour of materially assisting in his own discomfiture; and received being a personal charge on the executor to which for there can be no doubt that on whomsoever may devolve plene administravit could not be pleaded, and on which the judg. the task of preparing the promised new sanitary code, the ment must be de bonis propriis, and the count on the account framer must largely avail himself of the materials which have stated being of a contrary character, there was a misjoinder. All been here collected for him. Indeed, if the Government really that he decided, therefore, was that the defendants could not be designs what is predicted, they could not do better than call Mr. charged as executors on a count for money had and received. GLEN to their aid, and avail themselves of his extensive knowledge Bayley, J., stated that had the question been new, he should have of this branch of the law as it is, for the construction of the thought all the counts well joined, and that the defendants were law as it ought to be. Beginning as a modest little volume of liable for money had and received as executrix and executor, but pocket dimensions, in successive editions it has grown to be the he felt himself" bound by the authorities. He also expressed his big tome before us, indicating precisely the growth in public view that money might be paid to the use of executors so as to regard of the subjects to which it is deroted and proving beyond charge the assets of the testator. “That imports,” he said, re- question the necessity for immediate legislation, in order to reduce ferring to the first count, “ that the plaintiff has paid it, not on the to something like simplicity the multitude of enactments, often personal account of the defendants, but that he has paid it for conflicting, and still more frequently incomprehensible, with which them, because they were executor and executrix; that is, as it seems the statute book is loaded. All whose duties bring them into to me, in release of something which otherwise would have been a the practical administration of these laws, whether as magistrates, burden on the assets of the testator. I think,” he added, “the lawyers, or parish officers, will acknowledge the almost hopeless plaintiff, having paid the money to the use of the defendants, embroglio into which they are plunged by sections unintelligible, as executor and executrix, has the same rights that, before such moulded by amendment Acts into yet greater unintelligibility and payment, belonged to the person to whom it was made, and con. by unpractical directions which to enforce only increase the missequently that he (the plaintiff) may charge the assets of the chiefs they were designed to remedy. testator."
Lord Justice Mellish holds this as meaning that But it is one thing to promise, another thing to attempt, and quite a different thing to curry, a comprehensive amendment of a position of being liable to a penalty under the magistrates' order if Zaw so difficult in itself and affecting so many interests at so he does not send it forwards, and imprisonment for contempt by umany points as is this legislation in the matter of health. To start the Court of Chancery if he does. with, there is the difficulty that the scientists and experts are not i In this unsatisfactory state of things everybody exclaims that themselves agreed what ought to be done. Millions have been something must be done; but it is remarkable that as yet noalready expended upon arterial sewerage, with no other result body has ventured even to suggest the outline of a practical plan than to propagate typhoid fever. Routing out cesspools, we have so for doing it. The Government is expected io accomplish what the befouled the rivers as to poison their waters and cause really more united wisdom of the whole country has failed to devise, and as we mischief than we have cured. The law requires the magistrates to are somewhat incredulous as to this supposed omniscience of any determine what structural works they shall order to be done on Gorernment, we do not anticipate any material change in the law the premises and at the cost of a man who has a disagreeable during the coming session. smell in his yard. The order is to cover the drain and pass on It is enough to say that, as a well-arranged collection of the law 2ts contents to his next neighbour, who in his turn becomes a as it is, with notes of the various decisions upon it by the courts, nuisance, is ordered to cover up and move on, and so forth, until the sensible instructions and practical forms, together with a most accumulated sewage is collected at the boundary of the magisterial copious index by which this huge mass of law is rendered readily suthority, or at a place where it has no right to be, and the owner of accessible, there is no book on the subject bearing any comparison which obtains an injunction, leaving the unfortunate victim in the with this one by Nir. GLEx.
NOTES OF THE WEEK. after that company suspended payment on the ' tiff could not make a good title to the premises.
11th May 1866. The plaintiff being at that time | By a settlement made on the marriage of the COURT OF APPEAL IN CHANCERY. the registered owner of eighty shares, on the 14th plaintiff, Mrs. Cooper, her father granted the Jan. 15 and 17.
May 1866 sold them through his brokers to the premises to A. B., to hold the same to the use of (Before the LORD CHANCELLOE.)
defendant who is a jobber or dealer of shares, and the settlor for life, remainder to the use of Mary
a member of the Stock Exchange, at 11; discount, his wife, in case she should survive him for her SIXNETT 1. HERBERT.
or 5s. per share. On the name day the defendant life, remainder, in case the plaintiff should at her Vill_Charity le gacies-Cy près--Fund, standing handed to the plaintiff's brokers a ticket with the death be discovert, to her use in fee, but in case
in bank to trust account-Trusts unascertain- name of Robert Graham, jun., as the purchaser of she should then be a married woman (which hap; able.
thirty of these shares, and a transfer was sulise. pened) to the use of the said A. B., his heirs and MIARY MORICE, spinster, by will dated the 7th quently executed to him by the plaintiff, but in assigns, upon trust to receive the rents and profita, April 1865, bequeathed annuities to certain per consequence of the winding-up of the company, it and to pay the same to the plaintiff for her life sons, and charged all and singular her real estates could not be registered, and the plaintiff was for her separate use, and after the determinat.co with the payment thereof, with power to the an- settled on the list of contributories and remained / of that estats to stand seised of the premises nuitants to recover the annuities when in arrear liable to the company for the calls which were sub. to such uses and upon such trusts as the plaintiff y distress and sale, and subject to the annuities sequently made. The plaintiff having been obligadto shoull by will appoint, and in default of such she devised her real estate to the Rev. James pay these calls had recourse to the purchaser, Robert appointment, to the use of the heirs and assists Hughes in fee. The testatrix also bequeathed Graham, jun., who turned out to be an infant, and 4 of the plaintiff for ever. After the death of the several legacies, of which there was one of 30001, therefore incapable of being bound by his contract. plaintiff's husband she entered into an agreement to F. R. Roberts and J. Sinnett, upon trust to The plaintiff then filed his bill against the defen. with the defendant for the sale to him of the prene applied “in aid of an endowment for the dant, requiring him to take the shares and indem. mises in fee, but on looking into the title it was Velsh church now in course of erection at nify the plaintiff against the calls on the ground objected on behalf of the defendunt that it was Aberystwith,” and the rest of her personal that he had not discharged his original liability by doubtful whether the ultimate limitation to the cstate subject to the payment of debts and lega- substituting for himself the name of a person heirs and assigns of the plaintiff was a legal cies, she bequeathed to F. R. Roberts and J. capable of contracting according to the usages of or equitable interest; that, if legal, it would Sinnett“ upon trust to be by them applied in aid | the Stock Exchange. The principal question not come within the rule in Shell's case. and of erecting or of endowing an additional church at which arose (but which the view taken by the unite with her life estate, which was clearly
Aberystwith,” and appointed those gentlemen her Master of the Rolls rendered it unnecessary to equitable. "executors. The testatrix died in 1866. It was decide) was whether a jobber, who gives a name, Charles Hall and Whitehorne for the plaintiff. found by the chief clerk that there was not any to which no objection is taken within the ten days church answering the description of an additional / allowed by the rules of the Stock Exchange before defendant.
Sir R. Baggallay, Q.C. and Bellvell for the church at Aberystwith being erected or being the transfer is completed, is discharged from his
Lord Romilly said the question was whether about to be erected at the time of the death of the liability if it afterwards turns out that the name
the remainder to the heirs of the plaintiff was of testatrix. The question was whether the gift of given was that of a person incapable of contract
the same quality as the life estato given to her. the residue for the purpose of endowing a church ing, though the jobber was not aware of it. The
As shown by the deed itself, there appeared no not in existence was void under 9 Geo. 2, c. 36, as name of Graham was received from a Mr. Lan- intention to continue the estate in the trustee an attempt to bring fresh land into mortmain. cashire, a member of tho Manchester Stock Ex- after the life of the plaintiff, and in his opinion the Vice-Chancellor Bacon having held that the gift of change, but who, on inquiry, refused to disclose remainder to the heirs of the plaintiff was a legal the residue was not intended to provide an endow. the name of the principal for whom he acted.
The point was much too doubtful to ment except in the event of a church being in Southgate, Q.C., and Bagshare for the plaintiff. compel a purchaser to accept the title, and the bill course of erection at the death of the testatrix, and that the gift therefore failed, the defendant for the defendant.
Sir R. Baggallay, Q.C., Macnamara, and Higgins must be dismissed with costs.
Solicitors : Shefield and Sons; Build and Son. -appealed. The Solicitor-General (Jessel Q.C.), Amphlett,
Lord ROMILLY, after stating the facts said, that Q.C., Bristove, Q.C., Kay, Q.C., Fallows, Speed and liable according to the usages of the Stock Ex. the question was whether the defendant was
Dec. 16, 1871, and Jan. 15, 1872. Hughes appeared. change which, when they do not contravene the
ELSE V. ELSE. The LORD CHANCELLor varied the decree of law of the realm, were in his opinion the law of Sale by the court-Conditions ca culated to misthe court below as appealed from. He directed the court, and according to such nsages interme. an inquiry at chambers whether or not the funds diate dealers were, in the absence of fraud, exempt Tuis was an adjourned summors raising an
lead--Purchaser discharged. in the hands of the trustees for the purpose of from all liability to the original seller, provided important question as to the practice of the erecting an additional church at Aberystwith, or any or what part thereof, could be so laid out and they gave all the information as to their transactions required of them, otherwise there would be of an order in the carse certain property ha:
court on sales under its authority. In pursuance employed; and subject to that inquiry, there would be a declaration that the sum of 5001., and action, and the usages of the Stock Exchange been settled by one of the conveyancers of the
as many suits as there were jobbers in the trans. been sold, under conditions of sale, which hal no more might be set apart by the trustees and obviate this necessity. Equity likewise passes conrt in the ordinary way. The conditions proexecutors out of the impure personalty towards over the heads of innocent intermediate parties, vided that the title should commence with cer; the aiding in erecting an additional church at and takes hold of the person ultimately and ex trin deeds of lease and release, dated respectively Aberystwith, and the whole of the pure personalty clusively liable. The suit ought, therefore, to have the 23rd and 2+ih July 1833, being conveyances towards the endowing of such church; without been brought against Mr. Lancashire, who had prejudice to any question which might arise, in refused to give up the name of the real purchaser, such deeds as a good substantive root of title,
on sale, and that the purchaser should accept case the inquiry should be answered in the and the defendant ould not be made liable he and should not make any objection or requisition negative. There was no reason why the next of cause Mr. Lancashire had given the name of a sin should be present at that inquiry as it was minor as the nominee of himself or some
in respect of any prior title or evilence of title, only a matter between the Attorney General and closed principal, and the bil mlist" bs disiniste notwithstanding any recital or notice, or diselo the estato. The costs of the appeal to be costs in with costs.
sure of by the the cause.
recitals in the release as if the vendor of 1933 was Solicitors : E. Balden for F. R. Roberts, Aberyst. Clarke.
Solicitors for the plaintiff, Ellis, Parker, and seised in feo simple under a derise in his favour; with; Jones, Blazland and Son; Raven and
and the conditions of sale were settled on that Bradey.
Solicitor for the defendant, John Tucker.
understanding ; but upon reference to the will it
seemed extremely probable that upon the true ROLLS COURT. Dec. 14, 1871, and Jan. 15, 1872.
construction of the gift he only took the fee simple Dec. 5 and 7, 1871, and Jan. 11, 1872
COOPER 2. KYxOCK.
contingent on his leaving issue, and, he being of RENNIE V. MORRIS.
advanced age and unmarried, the purchaser re. Specific performance-Remainder wether legal or fused to complete, on the grounds that the coni Transfer of shores-Liability of jobber-Usages of equitable-Rule in Shelley's crese inapplicable. ditions did not sufficiently disclose the nature of the Stock: Erchange.
This was a suit for specific performance of an the title, and insisting that he ought not to lo This was a suit arising out of a transaction in agreement purchase certain property which compelled to accept a title which might turn out the shares of Overend, Gurney, and Co., shortly the defendant resisted, contending that the plain. to be no title at all.
THE LAW TIMES.
JAN. 20, 1872.]
The Solicitor-General (Jessel, Q.C.) and Eegg for The VICE-CHANCELLOR held that the debts of
Saturday, Jan. 13. the purchaser. the petitioners were binding on those who had
Re LADY AMHERST'S WILL. Joshua Williams, Q.C. for the persons inte associated themselves together to form the company: Will-Legacy — Forfeiture clause -- Petition for rested in completion of the sale.
and that this association was within sect. 199 of the Lord Romilly said that it often became the Companies Act 1862. He accordingly made an
liquidation-Forfeiture. duty of the court to sell the real estate of suitors, order for the compulsory winding-up of the asso
LADY ADHERST, by her will, bequeathed 10,0001. and when this was the case it was the function of ciation, and made no order on the motion
to trustees upon trust to pay the income to the conveyancing counsel of the court to prepare Solicitors, Linklaters and Co. ; Aigles and Raw- he should by deed or will appoint, among his
Ferdinand Byron Cary for life, with remainder as the conditions of sale, which should be such as to lins ; Rooks, Kenrick, and Harston. allow of the highest price possible being obtained,
children, with a proviso that if he should, at any Pet nothing should be inserted calculated to mis.
time, “assign over, assure, mortgage, or in any lead or deceive an innocent purchaser. Having
V.C. BACON'S COURT.
manner incumber, or by any instrument in writing, come to the conclusion that the vendor of 1838
parol agreement, or otherwise howsoever, part only took a fee simple in the event of his leaving
Thursday, Jan. 11.
from” the interest of the trust fund, then his issue, the question to be decided is, whether it is
Re THE EUROPEAN CENTRAL RAILWAY interest in the same should cease and should go open to the purchaser to insist on his objection.
COMPANY; Ec parte SYKES.
over to his children as if he were actually dead. Without expressing any opinion as to how the Company-Power to pay calls in advance-Aa. By virtue of four deeds of appointment, F. B. court would look at the question if it arose be- vance by directors for purpose of paying their his life interest, to his son, B. P. Cary. On the
Cary appointed the whole trust fund, subject to tween two strangers, but arising as it does on a own fees-Winding-up-Contributories. sale by order of the court, he was of opinion that This was an application to settle Colonel Sykes 17th Nov. 1870, F. B. Cary filed a petition for the objection was fatal. The purchaser must be on the list of contributories to the above-named Bankruptcy Act 1869. B. P. Cary now petitioned
liquidation according to the provisions of the discharged, have his deposit returned, and be paid company under the following circumstances : his costs out of the fund standing to the credit
of Colonel Sykes, who had been chairman of the board that the trust fund be paid to him, F. B. Cary the cause. 1
having incurred a forfeiture by presenting the of directors, was the holder of twenty-five shares petition for liquidation. The petition was opposed Solicitors, J. Elliott Foc; Le Riche and Son. in the company, upon which there were 221. per by the creditors of F. B. Cary, on the grounds
share alleged by the liquidator to be unpaid. By that presenting a petition for liquidation did not
the articles of association shareholders were emV.C. MALINS' COURT.
powered to pay in advanco of calls the amount of cause a forfeiture within the terms of the proviso Jan. 13, 15, and 16.
in the will.
De Gex and Warmington were in support of the
W. Pearson was for the creditors' trustee.
The VICE-CHANCELLOR said that the moment sheres.
the petition for liquidation was presented, F. B. its liabilities in Oct. 1805, and during the follow. This was a petition to wind-up the above comand Sawyer, who claimed in respect of unpaid upon their shares, upon which they were to receive entitled to the fund. pany, presented by two clerks, named Matthews ing year, advanced the amounts of capital unpaid Cary parted with his interest, and a forfeiture
was caused, and thereupon B. P. Cary became salaries, and an advertising agent named Roberts, 5 per cent. interest, and then iminediately repaid
Solicitor for the petitioner, John Yarde, for who claimed to be a creditor of the company for the amount to themselves for fees due to them as
Whilborne and Tozer, Teignmouth. directors. The official liquidator contended that 1218!. in respect of advertisements. Roberts was
Solicitors for respondents, Terrell and Chamber. this was an improper use to make of the power to also an allottee of fifty shares in the company. In the beginning of 1871 a scheme was set on foot pay calls in advance, and that therefore Colonel | lain, for Terrell and Petherich:, Exeter. to establish a banking company to carry on busi. | Sykes ought to be settled upon the list of contriness between London, Berlin, and the tast; and butories. On behalf of the directors it was sub
V. C. WICKENS' COURT. the scheme was promoted by one Henry De'Lacy mitted that the company, when the advances
Thursday, Jan. 11. were made, was only in temporary need of money, O'Brien. From the prospectus, which was brouglit
SINGER V. AUDLEY. oat in April 1871, it appeared that the capital of there being a large amount of uncalled capital, the company was to be 150,0001., in 15,000 shares and that it was not for some time after that the Practice-Witness- Ipplication for cross-examinaof 301. each, the deposit being 11., payable on
company became actually insolvent. The com. tion of before examiner- -Application refusedapplication, and 21. on allotment. The principal pany was ordered to be wound-up in Jan. 1868. “ Pending motion." hat of the company was to be in Berlin, with an
Kay, Q.C. and Barilsuell appeared in support of This was à motion on behalf of the plaintiff in establishment in London, the temporary offices the application.
the above suit, that the defendant should be being at 33, Cornhill. Messrs. Apcar, Gaussen,
Eudis, Q.C. and Reginald Hughes for Colonel ordered to attend before the examiner, at his own and Belirend, and nine other English and Sykes.
expenso, and be examined by hiin. The suit was German gentlemen were the proposed directors.
The VICE-CHANCELLOR said that the directors instituted for an injunction to restrain the inThe company
be established under being trustees for the shareholders were to exer. fringement of a trade mark. An interim order the German Code of Commerce, and the North cise their powers for the benefit of the company, had been made, which was afterwards directed to German Companies Law of 1870; and the pro
and not for their own benefit. They must have stand over (as part of the case) until the hearing spectus stated that, under the provisions of that known at the time these payments were made of the cause. Subsequently the defendant, who law, applicants for shares could not be made that the company was in insolvent circumstances. lived in the country, was ordered to be examined ; liable before the incorporation of the company, be treated as in satisfaction of calls.
The payments which they had made could not and he asked for 13 guineas for expenses to bring and that their money must, therefore, be returned
Colonel him to town for that purpose. He was offered in full, if the undertaking should not be proceeded Sykes must therefore be placed upon the list and accepted 10 guineas. On Dec. 5th last, he with. The prospectus also stated that one-half of
of contributories. As Ithis was a representa- appeared before the examiner, when the matter the capital had already been subscribed in Ger- tive case Colonel Sykes's costs were allowed. was ordered to stand over till Dec. 22nd. In many, and 31. per share (being 10 per cent. of the Solicitors for the official liquidator, Fox and the interim the defendant received another nominal value required to be paid by the above. Robinson.
10 guineas. On the 22nd Dec. he appeared before mentioned law before incorporation) had been Solicitors for Colonel Sykes, Hughes, Masterman, the examiner, and on the advice of counsel declined deposited at the bankers at Berlin. Subscriptions and Hughes.
to be sworn, on the ground that the affidavit on were invited for the remaining 7500 shares. The
which he was to be cross-examined, was an affidavit whole of these shares were allotted to applicants ;
Jan. 11 and 12.
on which the interim order for the injunction had and 22,5001, being the amount of the deposits, was ATTORNEY-GENERAL 1. The Great EasTERN taken by the plaintiff as to it. The question was
been made, and no further evidence could now be paid into the London and County Bank, Lombard.
whether the motion was a pending motion for the of shareholders in Berlin, which was required by German law to be held for the incorporation of
Power to block up streets - Interlocutory injunc
tion. the company, that there was not suificient evi.
Horton Smith for the motion. dence that 7500 shares had been subscribed in This was an application for an interlocutory Rigby contra. Germany, and that there had been no bon, tide Company from permanently stopping up Sun- the motion was not a pending one for the pur
injunction to restrain the Great Eastern Railway The VICE-CHANCELLOR said that he considered payment of 10 per cent. thereon. The scheme accordingly fell through, and the company was
street, in the city of London. By the general poses of obtaining new, or further evidence as to never incorporated. To avoid attachment the de. powers contained in an Act of Parliament passed it. There had been a common error on both sides, posit moneys which had been paid into the London in 1861, the company were authorised to stop up and the defendant must refund the twenty guineas and County Bank were transferred to Coutts's any streets required for their works, and the work's to the plaintiff. The motion would be refused, Bank in the names of Apcar, Gaussen, and Beh
were to be on a level above that of the streets, and but without costs. rend, and arıangements were being made for the according to the deposited plans, Sun-street was Solicitors : John Nicholas Jason ; Seal for return of this money in full. The petition was
to be crossed by an arch 10ft. high. By a subse- Rawson, George, and Wade. presented on the 20th Dec., and on the 22nd Dec. quent Act passed in 1870, the company were em. an order was made on an ex parte application by the level of the streets, and for this purpose they Endowed Schools Art-Meyricke Fund-otion to powered to make their railway and station below
Re THE MEYRICKE Fund. the petitioners, appointing a provisional liquidator. A motion to discharge this order as irregular, contended that they were, by the general powers
enforce information as to, against the bursar of came on to be heard with the petition. It ap- contained in the Act, entitled to block up Sun.
Jesus College, Oxford-Jurisdiction.
street. peared that the order for the advertisements was
The relators (the Commissioners of Thus was a motion on behalf of the Endowed given in May 1871, by the company's secretary, Sewers), however, contended that the general Schools Commissioners to commit the Bursar of at the office in Cornhill, in the presence of O'Brien; powers of the company were restricted by the Jesus College, Oxford, for contempt in refusing to and Roberts alleged that he gave credit to the deposited plans which they alleged were incorpo. produce documents connected with an endowment company: The directors, on the other hand, rated in the Act.
called the Meyricke Fund, to the Commissioners alleged that it was agreed that O'Brien should
The Solicitor-General (Jessel Q.C) Amphlett Q.C., to enable them to form a scheme for its adminis. bear all the preliminary expenses; that they knew and Pontifex were in support of the motion. tration under the Endowed Schools Act. The nothing of Roberts ; and that they were bound by Sir Rounilell Palmer, Q.C., Kay, Q.C., and Smart motion also asked that a writ of sequestration the prospectus to return the deposit moneys in full. were for the company.
might be ordered to issue against the property They contended, therefore, that Roberts could not The VICE-CHANCELLOR was of opinion that the and effects of the Principal, Fellows, and claim to be paid out the fund at Coutts's bank, and company were not entitled to stop up Sun-street, Scholars of the College, as being a corporato that there
no valid debt upon which a but even if he were not satisfied on that point, body acting or concerned in the administrawinding up order could be made.
where mischief of such importance was intended to tion of the endowment, its property and income, Glasse, Q.C. and Chitty for the petitioners. be done, he wonld always grant an injunction until and in receipt and payment of the moneys thereof,
Cotton, Q.C. and Higgins for Messrs. Apcar, the hearing of the cause. The injunction must and as being the depositories of the funds of the
therefore be granted.
same, for the same contempt; the contempt conPearson, Q.C. and Robinson for the other di. Solicitor for the relators, A. J. Baylis.
sisting in the refusal of the said Bursar, Principal, Solicitor for the company, W. H. Shaw.
Fellows and Scholars of the said College to comply
with the requisitions made to them by the com- He was immediately precipitated upon the road
COURT OF COMMON PLEAS. missioners, under the authority of the above Act, between the lines and seriously injured. A rule
DENT v. NICKALLS. and to render accounts, statements, and answers in pursuance of the leave was obtained, and also
Jan. 11 and 12. to inquiries relating to the endowment, and pro- for a new trial on the ground that the verdict was perty and income thereof.
against the evidence of plaintiff's contributory Sale of shares-Usage of Stock Exchange-Ultimate Sir Roundell Palmer, Q.C. and Lindley for the negligence.
Huddleston, Q.C. and L. Kelly showed cause, THE plaintiff having in the year 1867 through his Osborne Morgan, Q.C. and Greenside for the and argued that the door must have been left un. broker on the Stock Exchange, sold to the defen. college. fastened through defendants' negligence.
dant, a jobber, 160 shares in the Bank of HindusThe VICE-CHANCELLOR decided that the com. M. Chambers, Q. C. and W. G. Harrison sup. tan, China and Japan, the defendant on the missioners had the jurisdiction they claimed, and ported the rule.
name day gave the plaintiff's brokers the name of were entitled to the discovery.
The Court (Cockburn, C. J., Blackburn, Mellor, Edward Eaton, Drysalter, Macclesfield, as the Solicitors: Farrer, Ouvry, and Co.; Frederick and Quain, JJ.) considered that the plaintiff's ultimate purchaser. It turned out that Edward Clark.
proceedings were not beyond the ordinary and rea- Eaton was, in fact, a boy of the age of sixteen
sonable behaviour of a railway passenger, and years, and just returned home from school. Upon Friday, Jan. 12.
that there was evidence to justify the verdict. the company being wound-up the name of Edward Re THE BELFAST TRAMWAYS COMPANY
Rule discharged. Eaton, a minor, appeared upon the register as a (LIMITED). Attorney for plaintiff, Thos. H. Dixon.
shareholder. The Court of Chancery ordered the Company-Petition for compulsory winding-up
Attorney for defendants, Burchells.
transferor's name, the plaintiff in this action, Resolution to wind-up voluntarily-Qualification
to be placed on the list of contributories, of directors-Petition disniissed.
Nov. 28, 1871, and Jan. 11, 1872.
whereby the plaintiff became liable to the This was a petition by the holder of five 101.
LOYD v. SPENCE.
payment of, and was obliged to pay calls shares in the above company praying that the
in respect of the said shares. Evidence was
LOYD v. FLEMING. company might be ordered to be wound-up com.
given to prove the usage and custom of the pulsorily. The allegations were that the company Action by assignee of policy of marine assurance
Stock Exchange, and that the liability of the was not prosperous. The petitioner had asked Interest of assignee in subject of policy-31 g: 32 jobber ceased upon his giving the name of the for a return of his purchase money, and, that
Vict. c. 86, s. 1.
ultimate purchaser within the meaning of that being refused, he threatened to take proceedings THESE were demurrers to the declarations in both term on the Stock Exchange, if no objection was for a winding-up of the company. The directors
cases. The actions were brought upon a policy taken to such name according to the usage. The proposed to convene a meeting for the purpose of of marine insurance underwritten by the defen. jury having found a verdict for the plaintiff
, a passing a resolution for a voluntary winding-up, đants, the only difference between the two actions rule was obtained for a new trial on the ground of and thereupon this petition was presented. The being that in the former the defendant pleaded a
misdirection. meeting was held on the 27th Nov. 1871, and a composition deed to which the plaintiffs demurred; and Dent with him) for plaintiff, contended that
Sir George Honyman, Q.C. (Watkin Williams resolution was passed, as proposed by the but upon the
argument it was admitted that no directors. Notice of that rasolution was given to objection to the plea could be substantiated, and
a custom to pass on the name of a pauper, a married the petitioner. He, however, insisted that as one the only question for the court therefore was the able one,
and that'in the event of the custom being
woman, a lunatic, or an infant, was an unreason. of the directors who took part at the meeting was validity of the declarations. The plaintiffs were not a shareholder, the resolution was of no effect. executors of one Entwistle, deceased, and it was
decided to be so, that the plaintiff was entitled to karslake, Q. C. and W. W. Karslake for the alleged in the declaration that the persons who
recover from the defendant by virtue of his conpetitioner.
tract. insured the goods, the subject of the policy, were Greene, Q. C. and Brooksbank for the company,
Joseph Brown, Q.C. (4. R. Jelf with him), in Hume 'williams, of the Common Law Bar, for reason of loss it was alleged that the assured did support of the rule
. other parties. by their factors and servants sue, labour, and travel
The COURT (Bovill, C. J., Brett and Grove, JJ.) The VICE-CHANCELLOR was of opinion that for, in and about the defence, safeguard, and
were of opinion that a jury should find by their there was no sufficient reason for the petition recovery of the goods, and thereon and for that verdict what is the established and recognized The resolution to wind-up voluntarily was a valid purpose did necessarily lay out and expend divers
, one, and must be acted upon. The petition must large sums of money.
and after the said loss made the rule absolute for a new trial in order be dismissed with costs. and misfortune, and the said expenditure had
that the custom should be found by a jury. Solicitors: A. Puibrook; Jacobs, North, and been incurred, the said policy, together with all
Attorneys for plaintiff, Thomas and Hollam. Vincent. rights accrued under and by virtue thereof, was
Attorneys for defendants, Morley and Sherrij.
Monday, Jan. 15.
cluded with the general averment that the plain. HANSON 2. THE LANCASHIRE AND YORKSHIRE Marriage settlement-Policies settled on wisem tiffs were entitled to recover the amounts under
RAILWAY COMPANY. Corenant by husband to effect others and assign written by the defendants.
Negligence, evidence of—Onus of proof. them to trustees for wife--Policies effected-No F. M. White (with him Lanyon), for defendants, Action for compensation for personal injuries
assignment-Death of husband insolvent. contended that under the Policies of Marine sustained by a passenger on defendants' line. It This was an adjourned summons. A husband Assurance Act 1868 the declaration was bad in appeared that the train in which the plaintiff was having settled certain policies of insurance on his that there was no averment that Entwistle was travelling was turned off the line by a log which wife, by articles of marriage, covenanted that he irterested in the goods assured.
lay across it. This log had fallen off a luggage would within twelve months thereafter, effect Holker, Q.C. (with him Maclachlan), for plain. train just before, and no negligence was imputed further insurance or insurances on his life, and tiff, argued that the word “duly” was sufficient to the driver of the train in which plaintiff was assign the same to the trustees of the articles, for to show that the assignment was operative within travelling. It was, however, contended that the the benefit of his wife. Within twelve months the meaning of the Act.
Cur. adv. vult. after the marriage he effected two insurances for Jan. 11. - The Court (Blackburn, Mellor, and dants' negligence. It appeared that the logs were
log fell off the luggage train throngh the defen. 7001. and 8001. respectively. He died (insolvent) Lush, JJ.) gave judgment in favour of the plaintiff. fastened on to the truck' by means of a chain, and about two years after his marriage, without having Attorneys for plaintiff, Suinhurne and Parker.
that this chain had broken ; it further appeared assigned the two policies to the trustees. The Attorneys for defendants, Hillyer and Fenwick. that there was a new method (inore effectual than question was whether the two policies were within
the use of a chain) of securing logs in a truck by the covenant.
Wednesday, Jan. 17.
means of stanchions, and that the defendants in Greene, Q.C. and Everitt for the summons. Karsloke, Q.C. and Davenport, contra.
GUILDFORD UNION (apps.) v. ST. OLAVE's many cases used these stanchions, though in others The VICE-CHANCELLOR decided that the two
they still adopted the old-fashioned method of
securing the logs by means of a chain. At the policies were within the covenant, and ordered the Status of irremovability - Break of residence costs of the summons to be costs in the cause.
Stay in a hospital-Animus revertendi.
trial, before Willes, J. at the last Liverpool assizes,
the learned judge held that, under these circum. Solicitor, Harwood.
This was a special case, stated by consent on stances, there was evidence of negligence to go to
appeal from an order of removal of a pauper to the jury. The case went accordingly to the jury. Higgs v. DORRIS.
the place of his last legal settlement. The pauper 'The defendants gavo no evidence, and the jury Practice-Partition Act 1868, ss. 384-Copyholds lived in the respondents' union before the 25th found for the defendants.
- Married women and infant tenants in jee- March 1867, long enough to obtain a status of Holker, Q.C., moved for a new trial on the ground Decree for sale.
irremovability. On that day he was admitted of misdirection. He contended that wherever This suit was instituted by a married woman into the respondents' workhouse, and he remained there is evidence of negligence to go to the jury, and her husband for the purpose of obtaining a
there until the 27th Aug. 1868, when he volun. the onus of proof is thrown on the defendant to decree for a partition or sale of certain copyhold tarily took his discharge, and on the same day show that there was no negligence, and that, as lands of a moiety of which the wife was tenant in became an inmate of a hospital in another union. the defendants in this case called no evidence, the fee. The defendant, an infant, was tenant of the On the 31st Dec. 1869 he was discharged from the judge ought to have directed a verdict for the other moiety.
hospital, and took a lodging in the respondents' plaintiff. E. Cutler for the plaintiffs.
union, where he remained until until the 20th Jan. The Court (Willes, Byles, Brett, and Grore, Vincent for the defendant. 1869, when he was again admitted into the respon. JJ.), refused the rule.
Rule refused. The VICE-CHANCELLOR made a decree for sale. dents' workhouse.
Attorneys for plaintiff, Bower and Cotton. Solicitors, Farrer, Finch, and Tatham; Percy
E. Clarke, for respondents, contended that by
Nov. 11, 1871, and Jan. 15, 1872. house or lodging to which to return in the re.
Re BRUTTON, an Attorney.
spondents' union, the pauper could not have a
Attorney, suspension of-Practice. hospital. GEE V. THE METROPOLITAN RAILWAY COMPANY.
Nov. 11th, 1871.-Murray moved on behalf of the
Thesiger, for appellants, called attention to the Incorporated Law Society for a rule calling on one Eriilence of negligence-Ordinary behaviour of a exception of time passed in a hospital from the Brutton, an attorney, to show
cause why he railway passenger---Contributory negligence. computation of irremovability by 9 & 10 Vict. should not be suspended for three years. He This was an action for negligence tried before c. 66, s. 1, and the case of Hartfield v. Rotherfield based his application on the fact that the Master Cockburn, C. J. in Middlesex. Verdict, 2501. for 17 Q, B. 746), decided upon that section. (Stopped of the Rolls had already suspended him for plaintiff'; leave reserved to defendants to move on by the court.]
three years for professional misconduct, and he the ground that there was no evidence of regli. The Court (Cockburn, C. J., Blackburn, Mellor, read portions of the judgment of the Master of gence on defendants' part. Plaintiff and his and Quain, JJ.), held that independently of the ex- the Rolls. The court refused the rule, on the brother were talking about signals by lights upon ception by statute, the pauper's status of irre- ground that they would not 'act without atti, railways whilst in one of defendants' carriages. movability was not destroyed by the circumstances davits setting forth the misconduct complained Just before arriving at Sloane-square station of his absence. Judgment for appellonts. of; as they might not necessarily agree with the plaintiff put his hand upon the rod of the off. Attorney for appellants, F. F. Smallpeice. Master of the Rolls as to the amount of punishdoor in order to look at the signals at that station. Attorneys for respondents, C. Wellborne. ment to be inflicted.
Murray subsequently renewed his application not having registered it was not entitled to re- " ascertained,” i.e., “ made certain " when the on affidavits, and a rule nisi was granted. No cover, and against that rule.
testator died, although it could not be known for cause being shown, the court took time to con. Fooard, for the plaintiff, in showing cause, con. some time after. sider what course it would adopt.
tended that the whole thing turned on sect, 24 of The Court took this view and made the grant.
Cur adv, vult. 5 & 6 Vict. c. 45, s. 24, which rendered registration Proctor, Ayrton.
COURT OF DIVORCE. that course, as they would thereby overrule the not been any publication of it by the plaintiff, so
Friday, Jan. 12. judgment of the Master of the Rolls. They there. as to render registration necessary, nor anything
(Before LORD PENZANCE, J.O.) fore made the rule absolute, to suspend him for to give property in it to anyone but the author or
GABB v. GABB AND MARSHALL. three years, and further to suspend him from his assignee. The defendant had infringed the Dissolution suit-Hearing-No security given for practising until the court should otherwise order. plaintiff's copyright both at common law and wife's costs-Postponement-Practice. Kule accordingly. under the statute.
This was a husband's suit for dissolution, and the Attorney for the applicants, E. W. Williamson. Kemp, for the defendant, in support of his rule. case had been set down for trial at this sittings.
- This was not a “song," but simply words sung The husband, however, had failed to deposit the Wednesday, Jan. 17.
to a song tune, which had been known to, and the wife's taxed costs for the hearing in the registry, STAFFORD (Trustee, &c.) v. GARDNER.
property of the world for years. Printing a thing or to give security for them. Custom of the country-Incoming tenant-Payment but the means only by which it was published. This was not as defendant had contended, a publication, Searle, on 11th Jan., obtained an order that the
case should not be tried before next term. of rent in arrear to landlord. Action for the value of acts of cultivation by the singing in public as a speech delivered by a member the cause be taken out of the list altogether, and
song had been as much published by the plaintiff Thrupp, now on behalf of the wifo, moved that trustee in bankruptcy of an outgoing tenant against the incoming tonant of a farm. The de- of any right for a newspaper to print. It became to his constituents, which it was no infringement placed on the reserved list.
Searle opposed.-The husband believed that he fendant received notice from his landlord to pay the property of all who heard it sung. Being then should be able to deposit the costs by next
term, the valuation money to him in consequence of the outgoing tenant being in arrear with his rent, and published, it required registration, and not having and he was anxious that the case should not lose accordingly paid the landlord. This action was
been registered, the plaintiff could not maintain its place in the list. brought to obtain the sum awarded by the valuers
The COURT.-The best order to make will the action. to the outgoing tenant. By the custom of the circumstances, the rule must be 'discharged, the wife has had a fortnight's notice that her
The Court were of opinion that, under the be that the case shall not be tried until after country the landlord is bound to pay an outgoing Kelly, C.B., and Channell
and Cleasby, BB.,
costs are deposited, or that security has been given tenant for the value of the acts of cultivation and thinking that the case must be decided on the for them. produce left upon the farm, and the landlord looks to the incoming tenant for reimbursement. express terms of the rule itself, by which the Attorney for petitioner, Hendricks.
Attorney for respondent, Oldershaw. O'Malley, Q.C. (with him Merewether), argued defendant had assumed a publication by the plaiuthat the contract was one between landlord and tiff, so that whatever doubts might have arisen on incoming tenant, and that defendant could not be the construction of the statute 5 & 6 Vict. c. 45,
Tuesday, Jan. 16. made responsible by reason of his having, as a had the points been made before, the only question
MILNE V. MILNE AND FOWLER. matter of convenience, appointed a valuer.
on the rule now was whether registration was Bulucor, Q.C. (Graham with him) contra. necessary, and that it was only necessary, as a
Dissolution-Variation of settlement-Appeal to The Court (Willes, Brett, and Grove, JJ.) were matter of compulsion, in the case of a book, and
full court-Motion to strike out certain paraof opinion that the incoming tenant having paid interpretation clause (sect. 2), but rather a
graphs in the husband's case for appeal. this song was clearly not a book, within the
In this case a decree absolute had been prothe sum due to the outgoing tenant to the landlord, was discharged, and that there was no such
“dramatic representation,” which did not require nounced and the court had made an order varying evidence of a contract between the incoming and registration; whilst, on the other hand, Martin, B., the settlements on the marriage, and directing the outgoing tenants as to bind the defendant after though he did not, under the circumstances, intend trustees under the will of the wife's father to pay payment to the landlord. to differ, was not prepared, had the case been one
a certain sum annually to the husband. Attorneys for plaintiff, Thomas and Hollams, of greater pecuniary importance, to agree that an
Sir J. Karslake now moved to strike out certain Attorney for defendant, Ridley and Stokes.
action at common law would lie against the defen- statements in the husband's answer to the wife's dant for what he had done.
case for appeal as impertinent and scandalous. Rule discharged.
Hawkins, Q.C. for tho husband, took a pre-
Attorney for the plaintiff, W. T. Bateson, 6, liminary objection that the application should be
made to the court of appeal, which alone had CLARKE v. Bishop.
Attorney for the defendant, Thos. Angell, Guild. power to direct the form in which the questions Copyright-Action for infringement of in a song- hall-yard, City.
brought before it should be raised and stated. Publication Registration-What is a publica.
The Court took this view, and declined to tion-What productions require registration
make any order. 5$ 6 Vict.c. 45, ss. 2, 24.
COURT OF PROBATE.
Attorneys for petitioner, Pritchard and Sons. This was an action for the infringement of the
Thursilay, Jan. 11.
Attorneys for respondents, Pyke, Irving, and copyright of a song, tried before the Common Ser.
(Before Lord PENZANCE.)
Pyke. jeant, in the Lord Mayor's Court, London, on the
In the Goods of TEPPER. 3th Sept. last. The plaintiff was a comic vocalist, No will forthcoming-Next of kin a brother in
WILSON v. WILSON AND HOWELL. and the proprietor and owner by assignment of a Australia-Grant to cousin in this country, ad Matrimonial suit-Alimony-Husband's faculties comic song called “Come to Peckham Rye,” coligenda with special directions.
--Alimony allotted on capital invested in busi. which had never been printed or published, but J. TEPPER died suddenly on 10th Dec. 1871, and ness from which no income was received. the words of which he had purchased for a valu. on search being made in his repositories no will This was an application for alimony. The hus. able consideration from a Mr. Elton, who had conld he found, although he had frequently spoken band's faculties arose out of a sum of 20,0001., of written the words thereof subsequently to the of having made one, and had told his cousin (Mr. which 10,0001. was in settlement, and produced an 3 & 4 Will. 4, c. 15, and the 5 & 6 Vict. c. 45, Turner) that he had appointed him executor. His income of 5001. a year, and 10,0001. was invested and which were sung to the well known air of next of kin was a brother, who had been absent in ironworks under arı icles of partnership, which Coming through tne Rye.” The plaintiff was in for forty years in Australia. It was necessary provided that the profits should not be received, the habit of singing this song, dressed in charac- that an administrator should be appointed at but should remain accruing in the concern untii ter as a quaker, at various music halls, and had once, in order to carry on his business as a soli. the capital had risen to 13,0001. The husband obtained considerable notoriety and popularity by citur, to collect his debts, and represent him in a was willing to pay alimony on 5001. a year interest. so doing, and itwas first brought out or produced Chancery suit.
Inderwick for the wife, now moved that ali. in London on Boxing night of 1870. It had never Bayjord now moved for a grant under the 73rd mony be allotted at 10001, a year, including the been registered under the Act of 5 & 6 Vict. c. 45, section to Mr. Turner, the deceased's cousin. value of the second 10,0001. with its increments. The defendant having heard the plaintiff sing the The Court made a grant ad coligenda bona to
Searle for the husband, contra. song in question took the words down, and subse. the cousin for the use and benefit of the next of The COURT held that though the second 10,0001. quently printed and published the song with a few kin, with special directions to the administrator was not at present producing an income, it was alight verbal differences, in a sheet of songs, under to pay certain fire assurances. The sureties to in the nature of property increasing yearly in the title of “ Down at Peckham Rye,” after which justify, but the bond not to cover that part of the value, and capable of being disposed of, and the plaintiff had to give up singing the song, and estate which was in the Court of Chancery. therefore must be counted in the husband's also lost the profit of granting licences to other Attorney, Robarts.
faculties. It therefore allotted alimony at the singers to sing it at various music halls, and
rate of 2001. a year. the song which before was a property of value to the plaintiff, became, in consequence of its publi.
Tuesday, Jan. 16.
Attorneys for petitioner, Newman, Dale, and
Stretton. cation by the defendant, of no pecuniary value at
(Before Lord PENZANCE.)
Attorney for respondent, E. W. Cooper. all to him. The declaration contained two counts,
In the Goods of SIDEBOTHAM. and the defendant pleaded, first, not guilty; Bequest of residue to trustees for the benefit of
JONES V. JONES. secondly, that the plaintiff was not the proprietor children living at the time of death of lestator- Matrimonial suit-Wife's petition dismissed-Ap. of the song; thirdly, that he was not the proprie. No children living at that time and widow peal to full court-Alimony pending appealtor of the copyright, and, fourthly, that the copy; not enceinte — Failure of trust when ascer. Practice. right was not a subsisting copyright; on all tained.
In this case a wife sued for a judicial separation which pleas issue was joined. The assignment by T. H. SIDEBOTHAM, late of Staley, in the county of on the ground of her husband's adultery, but the Elton to the plaintiff was dated the 10th Dec. Chester, duly executed a will, by which he bo- court found the issues against her, dismissed the 1870, and was iu the following terms, “I hereby queathed his residuary estate to his two brothers, petition, and refused to allow her the costs. She assign to Henri Clark all my copyright property James and Walter Sidebothom, in trust for the appealed to the full conrt, and the husband having and interest in the song I composed called . Come benefit of any of his children living at the time of his refused to pay any further alimony after the disto Peckham Rye,” and of which I am the author, death, or born within due time afterwards. There missal of the petition, and the right to sing it whenever and wherever wero no children living when testator died, and it Searle now moved for an order on him to con. be pleases." It had not been printed or published turned out that his wife was not enceinte. His tinue the payment of alimony, at the rate ordered in any way except by the plaintiff's singing it as brother James died within a fortnight of the testa. pending suit, and cited Lovcden v. Loveden (1 Phil. above mentioned before the printing of it by the de. tor, and the question was whether his share of the 362). fendant. A verdict was found for the plait tiff for residue vested in him before his death. The other The COURT.--The registrar tells me that in 10.. and a rule was obtained by Kemp for the defen- executor and residuary legatee had renounced, and the ecclesiastical courts there was always a dant, in Michaelmas Term last to set aside that C. A. Middleton now moved for grant of adminis. new order made for alimony ponding appeal, Terdict and enter it for the defendant, on the tration with the will annexed to the executors of made by the court to which the appeal was carried. ground that the plaintiff had published the song James Sidebotham as one of the residuary legatees. Though here the full court is the same court
as within the meaning of the Act of Parliament, and He submitted that the failure of the trust was this, only differently constituted. As the full