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who had been settled on the list of contributories of the above company, for leave to appeal notwithstanding the expiration of the time limited by the 124th section of the Act, which provides that rehearings and appeals from any order or decision made or given in the winding-up of a company by any court having jurisdiction under the Act, may be had in the same manner, &c., in which appeals may be had from any order or decision of the same court in cases within its ordinary jurisdiction, "subject to this restriction, that no such rehearing or appeal shall be heard unless notice of the same is given within three weeks after any order complained of has been made, in manner in which notices of appeal are ordinarily given, according to the practice of the court appealed from, unless such time is extended by the court of appeal."

Higgins, in support of the application, stated that it was merely owing to an accidental slip that notice had not been given within the three weeks. Graham Hastings, for the company.

Lord Justice JAMES granted the application on the terms of the applicant paying the costs; and was understood to state that not only should notice of appeal be given, but the appeal should be set down, within the three weeks. Solicitors, Argles and Rawlins.

Jan. 22 and 23.


Partnership agreement-Non-erecution by essential

party-Claim by party to agreement. THIS was an appeal from a decision of the Master of the Rolls. The bill alleged that the plaintiff in conjunction with Messrs. Zegowitz, Ivanoff, and Hope, was in 1867, occupied in study ing the mineral resources of Russia, with a view of developing them by means of companies. In Feb. 1868, the parties took into their confidence one Hughes, who had great experience in coal and iron works, and who agreed to join them in their plans. In June 1868, an agreement was prepared to settle the interests of the parties. It was expressed to be made between Ivanoff, Hughes, Chabord, and Hope, and it was executed on the 15th June, by all the parties except Ivanoff. It stated that the parties in conjunction with Zegowitz had agreed to construct a certain line of railway in the south of Russia, to establish ironworks in the same place, and to work certain coal mines belonging to Ivanoff; and that the parties had conjointly submitted to the Russian Government a request for a concession of the proposed railway, and the agreement then settled how the profits were to be divided amongst the parties. Differences having arisen between the parties, Ivanoff withdrew from the affair, and the bill alleged that it was ultimately arranged that Hughes alone should apply for the concession. Hughes, in Dec. 1868, obtained a lease of certain collieries and in April 1869 he obtained a concession from the Russian government of a line of railway and a promise of a large subsidy. Hughes then repudiated all connection with Chabord and Hope, and started the New Russian Company to carry on the projected undertakings. Chabord accordingly filed his bill, praying for a declaration that he was entitled to share in the profits to be derived from the lease of the collieries, and from the concession and subsidy granted by the Russian government. The Master of the Rolls having dismissed the bill with costs, the plaintiff appealed.

Sir Richard Baggallay, Q.C., Roxburgh, Q.C., Villiers, and Bush Cooper (of the Common Law Bar), for the plaintiff.

The Solicitor-General (Jessel, Q.C.) and Everitt, for Hughes.

Swanston, Q.C. and Ford, for the company.
Chester for Hope.

Their LORDSHIPS were of opinion that Ivanoff was an essential party to the agreement of June 1868, and that, as he did not execute it, the whole arrangement came to nothing. The bill was confined to the agreement of June 1868, and did not allege that any other agreement had been substituted for it on its coming to nothing. Their Lordships

were therefore of opinion that the Master of the Rolls was right in dismissing the bill.

Appeal accordingly dismissed with costs. Solicitor for the appellant, A. C. Hope. Solicitor for the respondents, Thomas Clark.

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Holker, Q.C., Udall, and Simmonds for the plaintiff.

the 22nd June 1871, the trustees offered the said Robert Bruce the sum of £5, stating that in exercise of the discretion vested in them, they had determined to pay him that sum and no more, ds and for the sum so covenanted to be paid to him, and to make no further or other payment. This was a petition by the said Robert Bruce, that the whole of the said sum of 3001. might be ordered to be paid to him out of the personal estate of the settlor. as

Roxburgh, Q.C. and Ince for the defendant. Lord ROMILLY, without hearing the defendant, said that the plaintiff's case entirely failed. The question is, whether the defendant, in attempting to sell refrigerators, is intentionally making the public believe he is selling Kent's refrigerators. He does not use the name Kent, his place of business is not the same or adjoining that of the plaintiff, nor in his advertisements does he in any way attempt to imitate those of the plaintiff. The objection is confined to the use of the words "the New Ventilated Refrigerator." It is not denied that he is entitled to make ventilated refrigerators, and if so why may he not call them by that name? I know no other word in the English language which he could use to express it. There is no evidence to show that the defendant has attempted to mislead the public, or done anything to induce the public to believe he is selling Kent's manufactures. No injunction therefore can be granted, and the bill must be dismissed with costs.

Solicitors: John Fraser; S. H. Head.

Jan. 13 and 19.


Will-Construction-Lapse of bequest-Intestacy. JOHN SIDNEY SMITH, by his will dated the 5th Aug. 1867, gave all his property to trustees upon trust to realise the same, and directed that the moneys so produced should constitute the fund thereinafter designated as his general trust fund. And he directed his trustees to appropriate onesixth part of his said general trust fund as a maintenance fund for his son, J. G. Smith, and that subject thereto his said general trust fund should be held upon trust as to one moiety thereof for his wife, and as to the other moiety in trust as to three-fifth parts thereof for his daughters Emilia Smith, Caroline Isabella Smith, and Catherine Sarah Smith, each to take one-fifth part, and as to the remaining two-fifth parts thereof in trust for his son Alfred Smith. And the testator provided that if any of his said daughters should die in his lifetime without leaving issue living, or in esse, at his death, the shares herein before provided in the said general trust fund for each daughter so dying as aforesaid should not lapse, but should sink into and form part of the same general trust fund and maintenance fund in the same manner as if the same share had never been so given or provided, and the name of the said son or daughter had accordingly been omitted in the gift and dis. position and trusts, thereinbefore contained of the said general trust fund. The testator died on the 14th Jan. 1871, his said daughter Catherine Sarah Smith having died in his lifetime a spinster. The question to be decided was whether the share of his said deceased daughter was disposed of by the will, or whether the testator had died intestate as to it.

Sir R. Baggallay, Q.C., Fry, Q.C., Woodroffe, Langworthy, and Kaye appeared.

Lord ROMILLY said: The testator has divided a certain portion of his property into fifths and given them to individual persons, and not to a class; and has directed that in the event of any of his daughters dying in his lifetime without issue, her share should fall into the general trust fund as if her name was omitted from the will. I am of opinion that this one-fifth is undisposed of by the will, and must go as if there was an intestacy.

Solicitors: Robinson and Preston.

Jan. 13 and 19. PALMER V. NEWELL.

Settlement-Covenant to pay a sum not exceeding 3001.-Trustees' discretion-Limited to time of payment.

A SETTLEMENT contained a covenant by the settlor that his heirs, executors or administrators, should, at such time after the day of his decease, or after the day on which the petitioner, Robert Bruce, should attain the age of 21 years, which ever should last happen, as his trustees, or the survivor of them, in their or his uncontrollable discretion, should think fit, and either in one sum or from time to time in various sums, pay unto the said Robert Bruce, or for his use or benefit, any sum not exceeding in the whole 300l. without any deduction or abatement whatsoever. The settlement contained a recital that the settlor was desirous of securing the payment after his decease of the several annuities, and the gross sum thereinafter respectively specified, to the several persons thereinafter named, the said sum of 3001. being the only gross sum therein mentioned. It was stated that the covenant as originally drawn was for the absolute payment of 3001., and that it had been altered, it being doubtful whether the estate would be able to pay this sum. The debtor died on Dec. 20, 1851, and Robert Bruce attained the age of twenty-one years prior to 1853. On

Southgate, Q.C. and Batten for the petitioner. Rodwell for the trustees.

Sir R. Baggallay, Q.C. and Bagshawe for the person in possession of the estate of the settlor.

Lord ROMILLY held that the petitioner was entitled to the whole sum of 300l. He considered that the discretion of the trustees was confined to the time or times when the money was to be paid, and that having exercised such discretion by their offer of the 22nd June 1871, it was at an end. The expression "without any deduction or abatement whatsoever," was entirely without meaning, unless the covenant was held to extend to the whole sum of 3001.

Solicitors: Wedlake and Letts; R. H. Wilkins; Few and Co.

Jan. 18 and 22.

Injunction — Sale of goodwill-Depreciation of
goodwill by vendor.
THE defendant in this suit formerly carried on
business in partnership with his brother, Ben-
jamin Dawson, as brewers, at Kirkstall, under the
style or firm of Benjamin Dawson and Co. Owing
to the death of Benjamin Dawson the business was
sold by order of the court on the 12th June 1871,
and purchased by the plaintiffs, the sale including
the goodwill of the brewery business theretofore
carried on at the premises in Kirkstall, and the
son and Co. in connexion with the business of
exclusive right to use the name of Benjamin Daw-
brewers. In Dec. 1871, the defendants purchased
a brewery at Burton-on-Trent, and a motion was
now made on behalf of the plaintiff's for an injunc-
agents from soliciting orders from any of the cus-
tion to restrain the defendant, his servants, and
tomers of the late firm of Benjamin Dawson and
Co., at the time of the sale, and from doing any-
thing to destroy the goodwill of the business
parties the motion was treated as the hearing of
purchased by the plaintiffs. By the consent of all

the cause.

The Solicitor-General (Jessel, Q. C.), Fry, Q. C., and W. F. Robinson, for the plaintiff.

Sir R. Baggallay, Q. C. and Marten for the defendant.

Lord ROMILLY said that there was no doubt but that the defendant was entitled to set up the business, but the question is, whether he was entitled personally to solicit the customers of the old firm. He may do so in any public manner-as by advertisements, or by circnlars addressed to the public at large; but he was of opinion that the defendant could not solicit orders from the customers of the old firm, either by private letter or personally, or by traveller or agent; that the principle of equity must prevail, that he cannot act so as to depreciate the property sold. There must, therefore, be an injunction to restrain the defendant from applying to any customer of the firm of Benjamin Dawson and Co. prior to the 12th June 1871, either privately by letter, or personally, or by partner, agent, or traveller, asking that person to continue to deal with him, the defendant, or, not to deal with the plaintiffs. As the point has not been previously decided, the injunction will be granted without costs. Solicitors: Nash, Field, and Layton; Paterson, Snow, and Burney.

Friday, Jan. 19.


Power of appointment-Invalid exercise. TESTATOR, having a power to appoint certain property to all and every or such one or more exclu sively of the other or others of his child or children, or remoter issue born in lawful wedlock, in such proportions, manner, and form, as he should by any deed or deeds, or by his last will and testament, or by any codicil, direct or appoint, made his will, and thereby directed the trustees to hold the said estates upon trust, so long as his said wife should remain alive and be unmarried, to receive the rents and profits of the said premises, and to pay over the fourth part thereof to such one of his said children as his said wife should elect to reside with, and to pay and apply the residue of the said rents and profits to or for the benefit of all his said children. The question that now came before the court for decision was whether the direction as to the fourth part of the rents and profits was a valid exercise of the power.

Sir R. Baggallay, Q. C., Southgate, Q. C., Mackeson, Q. C., Buchanan, and F. C. J. Millar appeared.

Lord ROMILLY held it was clearly not an exer

cise of the power. The right to elect was given to the mother and not to the child, and amounted to a power of appointment given to the mother. Solicitors: Lever and Son; Jones, Blaxland,

and Son.

V.C. MALINS' COURT. Friday, Jan. 19.

ROBINS v. GOLDINGHAM; Re SUCKLING. Solicitor and client-Lien for costs-Solicitor discharged by himself-Production of papers relating to pending litigation. MOTION to compel Suckling, the former solicitor for the plaintiffs in the suit, to deliver up the papers to the present solicitors, upon the undertaking of the latter to hold them subject to Suckling's lien, and to return them to him within twelve days after prosecuting the suit to a conclusion. The bill was filed on the 17th Dec. 1870, by a married lady, and one of the trustees of her settlement, to restrain the seizure, under a distress, of farming stock and other property comprised in the settlement. Answers were put in and evidence filed, and on the 7th July 1871, Suckling obtained an order referring the suit and all further proceedings therein to the judge of the Worcester County Court. Being unable to obtain immediate payment of the costs incurred, Suckling refused to proceed further in the matter, and wrote a letter, suggesting that his name should be removed from the record as the plaintiff's solicitor. On the 16th Aug. Suckling delivered his bill of costs to the trustee, who refused to pay the bill out of his own pocket, on the ground that he was only interested in the suit as a trustee, and that an undertaking had been given that he was not to be liable for costs. On the 13th Oct. Suckling commenced an action against the trustee for the costs, and on the 6th Dec. he instituted bankruptcy proceedings against him in the Birmingham County Court. On the 9th Dec., the plaintiffs obtained an order appointing as their solicitors in the suit Messrs. Wilkins, Blyth, and Maraland, who applied to Suckling for the papers, undertaking at the same time to hold them subject to his lien. Suckling, however, refused to deliver them up on the ground that his retainer was disputed; alleging further that the papers would be required for the purpose of the action at law and the bankruptcy proceedings. Glasse, Q.C. and Locock Webb in support of the motion.

Cotton, Q.C. and Everitt for Suckling. The VICE-CHANCELLOR said that it was clear that Suckling had discharged himself as the plaintiff's solicitor; and having done so, he could not be allowed to stop the litigation by withholding the papers. There must be an order in the terms of the motion, with an undertaking by the plaintiffs to give Suckling access to the papers for the purpose of the action; and the costs of the motion must be paid by Suckling.

Solicitors: Wilkins, Blyth, and Marsland; Miller and Miller.

Saturday, Jan. 20.


Alleged patent-Circulars threatening proceedings for infringement Refusal to bring action to try validity-Injunction restraining circulars. PLAINTIFF, a lamp merchant carrying on business in London, purchased in Sept. 1871 a stock of lamp burners, manufactured according to an invention patented in the United States in 1859, and advertised his purchase in a newspaper called the Grocer. The defendants, lamp merchants at Birmingham, had in 1865 taken out a patent in England for improvements in lamps burning paraffin oil; and, on seeing plaintiff's advertisement, they applied through their solicitors to the plaintiff for one of the American lamp burners, for the purpose, as they stated, of having formal proof on which to found legal proceedings against him, for an infringement of their patent. On the 3rd Oct. 1871 the plaintiff forwarded one of his lamp burners to the defendants, and wrote to say that he hoped an action would be commenced at once. No action was brought, but the defendants issued a circular to the lamp trade, stating that on the discovery of the public sale of any lamp burners made in infringement of their patent, they would at once proceed by injunction against the offender, and would also sue for damages. The plaintiff pressed the defendants to take legal proceedings, but without effect, and on the 14th Dec. 1871 the plaintiff filed his bill praying for an injunction to restrain the defendants from publishing the above circular, or circulating any notice representing that the sale or use of the lamp burners offered for sale by the plaintiff was an infringement of any patent of the defendants, or calculated by the threat of legal proceedings to deter dealers or the public from purchasing or using the said lamp burners. A motion was now made for an interlocutory injunction in the above terms. Glasse, Q. C., T. Aston, and Ingle Joyce in support of the motion.

Cotton, Q. C. and Lawson for the defendants.

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The VICE-CHANCELLOR said that if the defendants believed in the validity of their patent, their circular was in good faith; but if they had not that belief their circular bordered upon fraud. Their conduct in not bringing the action certainly gave the impression that they had no such belief. There was not any prima facie presumption in favour of a patent; and the defendants must not, because they had the colourable protection of a patent, issue circulars which destroyed the plaintiff's trade. Refusing to undertake to bring an action to try the validity of the patent, the defendants must be restrained from issuing circulars, in the terms of the motion.

Solicitors, Ingle, Cooper, and Holmes; Burton, Yates, and Hart.




Jan. 12, 13, 16, 17, and 18.

mark-Suit to restrain infringement of Acquiescence-False representation. THIS suit was instituted to restrain the defendant from infringing what the plaintiff alleged to be his trade mark, by using the word "Eureka" with reference to shirts. In 1819 the plaintiff invented a shirt of a particular shape which he called "The Eureka Shirt," by which name it was known among the trade. This description of shirt was also manufactured and sold by several persons (including the defendant) as the "Eureka shirt," of which fact the plaintiff was aware, as was shown by (among other evidence) his bill heads and the covers of his shirt boxes, on which it was stated that no other shirts sold in the plaintiff's name were genuine except such as were stamped on the band of the collars "R. Ford's Eureka Shirts." Subsequently to the passing of the Merchandise Marks Act 1862 (25 & 26 Vict. c. 88), the plaintiff placed the words "trade mark on either side of the figure which contained the words "R. Ford's Eureka Shirt." In 1857 the plaintiff, on his billheads and otherwise, stated that he was the patentee of these shirts although he had never obtained any patent relating to them. The defendant manufactured shirts of this particular shape which he called " Eureka Shirts."

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books of the company, although it was never entered in the share register of the company. Amphlett, Q. C. and Brooksbank were for the official liquidator.

Kay, Q.C. and Graham Hastings for Mr. Adams. The VICE-CHANCELLOR was of opinion that the directors having allotted the shares to Mr. Adams, they could not, even if they had attempted it, cancel that allotment. Mr. Adams must, there fore, be settled as a contributory in respect of fifty shares.

Solicitor for the official liquidator, Pulbrook, Solicitors for Mr. Adams, Argles and Rawlins.

Jan. 23 and 24.

GOMPERTZ v. KENSIT. Validity of marriage-Imperfect signatures in marriage register-4 Geo. 4, c. 76, s. 22. THIS was a question as to the validity of a mar riage raised under the following circumstances. By the will of Sarah Broadhurst, shares in a waterworks company were vested in a trustee in trust for Adelaide de Grenier for life, with remainder to Georgiana Adelaide Harvey (spinster) for life, with remainder to her children. The testatrix died in 1841. On the 5th July 1841, Georgiana Adelaide Harvey married William' Frederick Lewis Gompertz, and there was issue of the marriage, one child only, Amy Georgiana, who, in 1866, married Stephen Spring. By the settlement executed on the latter marriage, the reversionary interest of Amy Georgiana Gompertz in the said shares was assigned to W. F. L. Gompertz and Geogiana Adelaide Gompertz died soon after her Oliver Murphy as trustees of the settlement. daughter's marriage, and Adelaide de Grenier

died in 1869. The trustees of the settlement then applied to Henry Kensit (the executor of the trustee of Sarah Broadhurst's will) to transfer the shares to them. He declined to do so, on the ground that doubts were entertained of the validity of the marriage of W. F. L. Gompertz and his wife; and a bill was accordingly filed for the execution of the trusts of the will, and a declaration as to who was now entitled to the shares. W. F. L. Gompertz had signed the marriage register as "Frederick Gompertz," and G. A. Harvey had signed as Adelaide Harvey." The names appeared in the same form in the register of banns, but there was no evidence as to the names in which the banns had been published. Addresses were appended to the names in the marriage register, which Kensit alleged to be false. Under these circumstances Kensit submitted that the marriage was null and void within 4 Geo. 4 c. 76, s. 22. Gompertz stated that he had given the order for the banns (the marriage being a clandestine one), and alleged that the other Christian names had been omitted for brevity's sake. He contended that as the marriage had been May-recognised by every one for such a length of time, no doubt could now be raised as to its validity. Kay, Q.C. and Roberts for Gompertz. Amphlett, Q.C. and Russell for Kensit. Woodroffe for Oliver Murphy.

Little, Q.C. and Caldecott were for the plaintiff. Kay, Q.C. and H. Gijard were for the defendant. The VICE-CHANCELLOR was of opinion that the plaintiff was not entitled to the exclusive use of the word Eureka" as applied to shirts, and that in consequence of his acquiescence in the use of that name by several manufacturers and by the trade generally, and of his own wilful misrepresentation by advertising himself as patentee of these shirts, there was no ground to sustain the suit, which must therefore be dismissed with



Solicitors for the plaintiff, Edmands and Solicitors for the defendant, Reed, Phelps, and Sidgwick.

Jan. 18 and 20.


Company-Amalgamation—Application for shares -Repudiation of shares-Share register-Contributory.

THIS was an application on behalf of the official liquidator to settle Mr. Adams on the list of contributories, in respect of fifty shares held by him in the above-named company. Mr. Adams had been a shareholder and director of the Bristol Marine Insurance Company, the business of which was, in 1869, transferred to the United Ports Company. Part of the consideration for the transfer was, that each shareholder in the Brstol Company should receive the same number of shares in the United Ports Company. as he had held in the Bristol Company. In April 1869, Mr. Adams received a form of application for shares in the United Ports Company, which he filled in and returned to the manager of the company, requesting to have fifty shares allotted to him, and authorising the directors to place his name upon the register of shareholders. These shares were allotted to Mr. Adams on the 22nd April 1869, but notice thereof was not given to him until after the 15th May, on which day he wrote to the manager of the United Ports Company, withdrawing his application for shares. A correspondence thereupon ensued with respect to Mr. Adams's right to withdraw, and on the 14th Aug. 1869 the company's solicitors wrote to Mr. Adams's solicitor, stating that a resolution had been passed by the directors, cancelling the allotment of shares to Mr. Adams. There was, however, no entry in the minute book of any such resolution, and one of the directors who was present at the meeting when the resolution was alleged to have been passed, denied that it had been passed. At the time of the allotment to Mr. Adanis. the company had no proper share register. Mr. Adams' name, however, appeared in the several allotment

The VICE-CHANCELLOR said that to render a marriage void under 4 Geo. 4, c. 76, s. 22, it was necessary to show that both parties were cognisant of the fraud. Here there was no evidence that

Mrs. Gompertz did knowingly or wilfully concur in the undue publication of banns. No question, therefore, could be raised under the Act as to the validity of the marriage, and the plaintiff was entitled to the relief prayed.

Solicitors: Lewis and Lewis; J. A. Parry; George Kensit.

Tuesday, Jan. 23. IMRAY V. IMESON. Construction of will-Conditional gift over—“ Or” read as "and." TESTATOR by his will gave certain real and per sonal property to trustees in trust for his son John for life, and after his death for his children in equal shares; but if his son Johu should die under twenty-one without leaving lawful issue living at his decease, the testator directed the property to be in trust for his other children in equal shares. And after further gifts the testator gave the residue of his property in trust for his four sons, Matthew, Thomas, John, and Christopher, but in case no child of his should live to attain twenty-one, or if none of them should leave lawful issue at his or her death or respective deaths, then the testator gave the residue to certain other persons. In 1861 testator died, leaving one daughter, Jane, and the four sons named in his will surviving. All the testator's children attained twenty-one. John, who attained twenty-one in 1864 died without issue in 1568, having given all his real and personal estate to his wife Helena, whom he appointed his executrix. In a special case stated for the opinion of the court, the questions were (1) whether under the above circumstances the property of which trusts were declared in favour of John and his children fell into the residue and passed by the residuary gift;

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and if so (2), whether the interest taken by the testator's three surviving sons and the widow of his deceased son under the residuary gift was absolute and indefeasible.

Eddis, Q.C. and Langworthy for the widow of the testator's son John.

Kay, Q.C. for testator's sons, Matthew, Thomas, and Christopher.

Ramadge for testator's daughter Jame. Macnaghten for the persons entitled under the gift over of the residue.

The VICE-CHANCELLOR held that the property fell into the residue, and passed by the residuary gift, and that the interest which passed under such residuary gift was absolute and indefeasible. Solicitors: Tucker, New, and Langdale; Payne.

COURT OF QUEEN'S BENCH. Saturday, Jan. 20. BUCKHURST (app.) v. THE GUARDIANS OF CHATHAM (resps.). Case stated by sessions-Certiorari-Appeal from guardians-Appointment of officers. THIS was an appeal upon a special case stated by the quarter sessions of the county of Kent. The appellant had been appointed collector of rates in the borough of Chatham, and the respondents had reduced his salary. He complained, and they deprived him of his office. He appealed to quarter sessions against his dismissal, and judgment was then given for the respondents, subject to this case. The local Act 42 Geo. 3, c. lvi., sect. 15, gives power to the guardians, or to any nine of them, to appoint officers and to revoke appointments, ten days' notice having first been given to all the guardians. Sect. 16 empowers the guardians to make bye-laws, rules, orders, and regulations, which, and all other acts, orders, and proceedings of the said guardians shall be entered in a book. It is enacted by sect. 17 "that no such bye-law, rule, order, regulation, act, or proceeding shall be repealed or revoked unless by a majority of a greater number of the guardians present at some subsequent meeting than were present at the doing or making thereof." Sect. 54 provides that anyone aggrieved by anything done by order of the guardians may apply for relief to the guardians, and may appeal to quarter sessions, and the determination of the justices shall be final and conclusive. By sect. 58 no order shall be removed by certiorari or any other writ or process whatever into any court of record. The appellant was elected at a meeting of twentysix guardians, and dismissed at a meeting of ten. Manisty, Q. C. and F. J. Smith, for the respondents.

Prentice, Q. C. and Barrow for the appellant. The COURT (Blackburn and Quain, JJ.) held that the quarter sessions had power, under the Act, to state this special case, and that the revocation of the appellant's appointment was valid. Judgment for respondents. Attorneys for appellant, Sandys and Knott, for W. W. Hayward, Rochester. Attorneys for respondents, Nickinson, Prall, and Nickinson, for Prall and Son, Rochester.

DIXON (app.) v. COCKETT (resp.)
Evidence of tolls-Jurisdiction of justices on
matters of title.
THIS was an appeal upon a case stated by justices
of Lincolnshire. The appellant, who was col-
lector of the tolls of Dunham Bridge, had de-
manded and taken from the respondent 1d. upon
his passing over the bridge on foot, the respon
dent having on the same day previously passed
over and paid the toll. The justices had convicted
the appellant upon a summons and fined him 6d.
and costs, but by the case stated reserved to this
court the questions (1) whether they had juris-
diction, the appellant claiming the toll as a matter
of right; (2) whether the appellant was entitled
to the toll. By the local Act (11 Geo. 4, c. lxvi.), the
69th clause provides the maximum tolls to be
charged for carriages, horses, cattle, and foot
passengers, 1d. being the toll for every foot pas-

senger. The 70th clause provides that horses
and cattle may repass without payment, if toll
has been paid the same day. Clause 84 gives a
justice power to hear and settle disputes respect-
ing tolls, to determine the amount of the toll dis-
puted, and to award costs and charges to be levied
by distress. Clause 86 gives the bridge com-
pany incorporated by the Act power to alter the
tolls by resolution. Clause 90 empowers justices
to convict summarily for demanding and taking
unauthorised tolls. From 1830 to the present
time neither the bridge company nor their lessees
had ever demanded a second toll the same day
from a foot passenger, but the company had never
formally passed an exemption to that effect.
Care for the appellant.

J. W. Mellor for the respondent.

The COURT (Blackburn, Lush, and Quain, JJ.), considered that the practice of forty years was some evidence that the company had exempted foot passengers from second payments, but they

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Tuesday, Jan. 23.

Guarantee to accept bills-Mutual mistake-
Principal and agent.
THIS was a special case upon an action for
Plaintiffs are
breach of contract of guarantee.
brickmakers, trading under the name of the
Medway Gault Brick Company. Defendant is an
attorney, who had entered into a building agree-
ment with a builder named Hatten. The contract
was signed by the defendant and one Ashenden,
plaintiffs' agent-"As agent for and on behalf
of the Medway Gault Brick Company, I hereby
agree to supply Mr. Hatten, of Sutton, or such
other person to whom this contract may be trans-
ferred, with 200,000 patent gault bricks, at 30s.
per thousand; also 200,000 wire cuts, at 38s. per
thousand, to be delivered alongside at Deadmen's
Dock in such quantities and at such times as he
or they may require, but to be taken within four
months from the date hereof. Month's account,
and bill at five months; the due performance of
this contract by Mr. Hatten and any subse-
quent transferee being guaranteed by Mr. Gover."
The defendant set up a double defence. First,
that he guaranteed only Hatten's acceptance of
these bills, which had been given; secondly, on
equitable grounds, that both Ashenden and he had
mutually intended and mistaken the effect of the
guarantee to relate only to Hatten's acceptance,
and not his payment of the bills. The plaintiffs had
always understood the guarantee to be absolute
for payment.

James, Q.C. (with Philbrick) for plaintiffs.
J. C. Mathew for defendant.

The COURT (Cockburn, C.J., Blackburn, Mellor,
and Quain, JJ.) interpreted the guarantee to refer
to payment of the bills, and held that, under the
circumstances, the equitable defence was invalid.
Judgment for plaintiffs.
Attorneys for plaintiffs, Nash, Field, and

Attorneys for defendant, Roche and Gover.



Lands Clauses Consolidation Act 1845, s. 127-
Superfluous lands not required for the purposes
of the Act.

and had thereby committed an illegal act, also that defendant was justified in stopping the user at the fountain head, for the plaintiff, by exeessive user, had forfeited all his former right to the enjoyment of the stream. A verdict having been found for the plaintiff, with leave reserved for the defendant to move on the above grounds,

H. T. Cole, Q. C., Lopes, Q. C., and Pinder showed cause.

Kingdon, Q. C., Montague Bere, Q.C., and Mortimer, in support of the rule, contended that the

plaintiffs having exceeded any right to which they

were entitled, had thereby caused a suspension of such right.

The COURT (Willes, Byles, Brett, and Grove, JJ.) were of opinion that the defendant was only entitled to stop the plaintiff's excessive user of the water by ordinary means, and by the least injurious mode in his power; they considered that he was not entitled to remove the weir, as that was an excess which would only be justified by there being no other remedy.

Rule discharged.
Attorneys for plaintiffs Whittakers and Wool-
bert, for Riccard and Son, South Molton.
Attorney for defendants, Thos. Sismey, for
Pearse and Crosse, South Molton.


Upon a covenant not to carry on a trade within a
certain distance, such distance is to be measured
not according to the ordinary mode of access, but
by a straight line upon a horizontal plane, or as
the crow flies.

UPON a former day in Michaelmas Term cause was shown against a rule obtained by the defendant, calling upon the plaintiff to show cause why a verdict should not be entered for him upon the ground that upon a true construction of his covenant he was entitled to have it entered for him, subject to the award of the arbitration agreed on between the parties, the court to determine the principle upon which such arbitrator is to proceed. It appeared by the declaration that by a certain deed dated the 10th Feb. 1871 between the plaintiff and the defendant, after reciting that the defendant had contracted with the plaintiff for the sale to him of the leasehold premises and goodwill of the business of a licensed victualler, carried on by the defendant, called the Lord Holland public-house, the defendant covenanted with the plaintiff that in case the defendant should take, keep, or be in any way concerned in the trade or business of a licensed public-house, beershop, or place for the sale of THIS was a special case stated upon an action of wines or spirits within the distance of one-half of ejectment. Plaintiff claimed land adjoining land a mile of the said premises so called the Lord of his own and the defendants' railway, which had Holland, that he, the defendant, should pay to the been compulsorily acquired by them for purposes plaintiff the sum of 5001. as liquidated damages. of their Act of Parliament. The Act under which The declaration then alleged that the defendant the land was acquired received the royal assent broke his agreement, and kept a place, and was on 30th June 1845, and five years was the time concerned in the trade and business of a licensed limited for the completion of the works. The public-house, within the distance of one-half of a land had been used to deposit chalk and spoil mile of the said premises. The defendant pleaded which had been taken from a neighbouring cut-that he did not keep and was not concerned in the ting, but from soon after the passing of the Act trade and business of a licensed public-house until the present time, it had been let as gar- within the distance of one-half of a mile of the dens. Sect. 127 of the Lands Clauses Consoli- said premises called the Lord Holland. From the dation Act 1845, provides "with respect to lands facts proved at the trial, it appeared that acquired by the promoters of the undertaking shortly after the defendant sold to the plaintif the premises and goodwill of The Lord Holland under the provisions of this or the special Act or any Act incorporated therewith, but which shall he took and kept a public-house called The Duke not be required for the purposes thereof," that of Cambridge, which house was alleged by the the promoters are to sell within ten years from plaintiff to be within the distance of one half of a mile from The Lord Holland. The actual disthe time limited for the completion of the works; and in default thereof, all such superfluous lands remaining unsold at the expiration of such period shall thereupon vest in and become the property, of the owners of the land adjoining


Pinder (with Cole, Q.C.), argued for the plain


Manisty, Q.C. (with Raymond) for the defen


The COURT considered that it was not sufficient
to exempt the defendants from forfeiture that at
required this land for the purposes thereof.
some period since the passing of their Act they had

Judgment for plaintiff.
Attorneys for plaintiff, Johnson and Wetherall.
Attorneys for defendants, Maples and Co.

Excessive user of easement-Right to prevent-
Least injurious motte to be used.
THE question in these cases being the same, one
action being by the tenant and the other by the
reversioner, the court heard the arguments as on
one rule.

The action was brought against the defendant,
a miller, for destroying an ancient weir, whereby
the plaintiff lost the enjoyment and user of the
water as heretofore. The defence was that the
plaintiff had irrigated beyond his right to do so,

tance had been measured, and it appeared that taking the nearest walking distance, that is, cutting off corners, the distance between the two taking the distance in a straight line, as the crow houses was 25 yards, short of half a mile; that, mile; but that taking the centre of the road, that flies, the distance was 75 yards short of half a is, following the course a carriage would take, the distance was 19 yards over half a mile. Martin, B., at the trial expressed his opinion that the distance should be measured in a straight line, or as the crow flies, and a verdict was accordingly taken for the plaintiff with 5001. damages, leave being reserved to the defendant to move for this rule.

Parry, Serjt. and F. Turner showed cause and cited Leigh v. Hind (9 B. & C. 774); Atkyn v. Ward (2 Star. N. P. 83, 89); Stokes v. Grissell (23 L. J. 41, C. P.); Reg. v. Saffron Walden (9 Q. B. 76); Jewell v. Stead (25 L. J. 294, Q. B.); Lake v. Butter (24 L. J. 273, Q. B.); Wing v. Earle (Cro. Eliz.); Dingman v. Walker (28 L. J. 867, Ch.)

Garth, Q.C. and A. L. Smith appeared in support of the rule, and relied upon Leigh v. Hind (9 B. & C. 774), which had been acted upon ever since and was considered as laying down the rule, that the distance by the ordinary mode of access is that which is to be considered. Cur. ade. vult.

The COURT being divided in opinion, Cleasby, B. held that the distance should be considered in connexion with the subject-matter, and should be measured upon the principle of the ground to be travelled over and not as the crow flies, and,

therefore, that the rule should be made absolute. Martin and Channell, BB. held that the distance should be measured as by a line drawn upon a horizontal plane; and they also considered that the question had been concluded by authority. Rule discharged.

Attorneys for the plaintiff, Stileman and Neate. Attorneys for the defendant, Shum and Cross


Thursday, Jan. 11. WARD v. MARTIN.

Mortgagor and mortgagee-Equity of redemption -Right to redeem-Mortgagor (a bastard) dying intestate and without heirs-Claim of mortgagor's administratrix to redeem under sect. 219 of Common Law Procedure Act 1852-Mortgagee's

claim to hold the estate-Escheat.

1 HIS was a case raising a curious question. One Martin, deceased, had in his lifetime mortgaged an estate in fee to the plaintiff. Martin was illegi timate, and upon his death intestate, the defendant, his widow, as administratrix of his estate, took out a summons, under sect. 219 of the Common Law Procedure Act 1852 (15 & 16 Vict. c. 76) offering to pay the full principal and interest moneys due on the mortgage, and all costs, and Pigott, B. made an order therein directing that, on payment of such principal, interest, and costs, the mortgagee should reconvey the estate. A rule was then obtained by the plaintiff, the mortgagee, calling on the defendant, the administratrix of the deceased mortgagor, to show cause why that order of Pigott, B. should not be rescinded. The facts were peculiar. Martin, the mortgagor, died intestate, without issue, and, being illegitimate, he accordingly left no heir at law. The defendant, the widow, took out

letters of administration, and offered to redeem the mortgage as above mentioned. This the plaintiff, the mortgagee, refused to accede to, and claimed to hold the estate (which of course, on the mortgagor's death, without an heir, escheated to the Crown) free from any claim on the part of the mortgagor and his representatives. The Crown on the application of the mortgagor's against her. It did not appear at the hearing of the summons before Pigott, B., whether the mortgage were in fee or for a term of years; the property was very small, barely enough in fact to pay the mortgage and other debts.

widow had renounced all claim on the estate as

Kingdon, Q. C. and Buckmill showed cause on the part of the defendant, and contended that the order was most equitable under the circumstances. [CLEASBY, B.-What right had the defendant to redeem? CHANNELL, B. - But for the 219th section of the Common Law Procedure Act 1852

there would have been no right to redeem at law at all.] It had been decided in equity that a mere dry equity of redemption on a mortgage in fee does not escheat to the Crown, but vests in the mortgagee subject to the mortgagor's debts; but otherwise in the case of a mortgage for a term of years. The administratrix might have filed a bill for administration, and have compelled a full account from the mortgagee. The administratrix as primarily responsible for debts should have the right to realize the estate, pay the debts, and take the little surplus, if any: (Beale v. Simons, 16 Beav. 416; Fisher on Mortgages, p. 309.)

Manisty, Q.C. and H. T. Atkinson, contra, in support of this rule, argued that the administratrix had no right to redeem the estate, which belonged to the mortgagee, burdened with the mortgagor's debts: (Catley v. Sampson, 33 Beav. 571.) He referred also to sect. 220 of the Common Law Procedure Act, 1852.

The COURT (Kelly, C.B., Channell and Cleasby, BB.) were of opinion there was clearly no power to make the order in question under the statute, but suggested that the case should stand over for a fortnight. for an arrangement, if possible, between the parties.

Stands over accordingly. Attorneys for the plaintiff, Souten, agent for Sherwood, Wellingborough. Attorneys for the defendant, Mead and Daubeny, 2, King's Bench-walk, Temple, agents for Beed. ham, Kilbolton, Hunts.

Saturday, Jan. 13.

THE BALLINA MILLS COMPANY) (LIMITED) v. THE ROYAL INSURANCE COMPANY. Principal and agent - Payment to agent and another person jointly-No discharge of the person paying.

THIS was an action to recover 9401. on a policy of fire insurance, tried before Kelly, C. B., at the London sittings after Trinity Term last. The defendants pleaded payment, and the question turned on that plea. A verdict for the defendants was directed, with leave to move to enter the verdict for the plaintiffs. The facts, shortly stated, were, that the plaintiffs were an English company, having offices in London, which was governed by a board of directors, and a managing director whose occasional duty it was to go over

to Ireland and visit the mills there, and to give | directions to the subordinate manager there. The mill in question was one of a number of mills belonging to the plaintiff company, and was under the management of a local manager, a Mr. Ham, who carried on the business of the mill, subject to the direction of the London board. The mill was a flax-mill. Early in 1867 a policy for 1000l. on the mill was effected with the defendants' company. On the 19th Oct. 1867 the mill was accidentally destroyed by fire. Notice of the fire was given by Mr. Ham, the local manager, to the head office of the plaintiffs' company in London, and on the 24th Oct. Watson, the managing director in London of the plaintiffs' company, gave notice, by letter, of the fire to the defendants. On the 26th Oct. the defendants' surveyor went from London to Ballina and surHam the plaintiffs' manager there, at 9107. It veyed the premises, and adjusted the loss, with having come to the knowledge of the plaintiffs that a Mr. Evans, the agent of the landlord of the mills of which the plaintiffs were the lessees, had been placing himself in communication with their manager, Ham, therefore the plaintiffs, by their solicitor, on the 31st October, wrote to Mr. Ham expressing their surprise at his having completed arrangements with the insurance company without first communicating with the plaintiffs' board. The defendants, it appeared, had an agent at Ballina, a Mr. McAndrew, and he, representing the defendants' company, and notwithstanding the last-mentioned letter, agreed with Ham that the insurance company should pay the amount of the loss, which had been assessed on their behalf at 9401., by a bill at three days in favour of Ham and Evans, the latter being the agent of the landlord, which bill was paid into the National Bank at Ballina jointly by Ham and Evans, in their joint names. The money still remains in the Ballina Bank, the Court of Chancery having intervened to protect the defendants' company when the question of payment was raised, and whether they might not have to pay the same sum twice over. The questhe defendants to Ham, the local manager of the tion in the present case is whether a payment by plaintiffs' mills, and this person (Evans), is such a payment as entitles them to plead payment in answer to the action. A verdict was directed for the defendants on the plea of payment, with leave to move to enter a verdict for the plaintiffs for 9401., on the ground that the payment to Ham and Evans was no payment to the plaintiffs, and a rule to that effect having been obtained, Manisty, Q.C. Aspinall, Q.C. and R. G. Williams, for the defendants, showed cause against it, and

D. Seymour, Q.C., Day, and Lewers, for the plaintiffs, contra, argued in support of it.

The COURT (Kelly, C.B., Martin, Channell, and Cleasby, BB.), with great reluctance, came to the conclusion that the rule must be made absolute to enter the verdict for the plaintiffs. There was not a particle of evidence that Ham was a general agent; and, if he were so, yet a payment to him as such must be made in the ordinary way. It might possibly be different had the payment to him been in cash; but it was not so. It was most important that persons in his position should be kept within the strict line of duty attaching to their office.

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THIS was an action by the plaintiff, a shipowner at Liverpool, and owner of the ship Champion of the Seas, against the defendants, who carry on business at Melbourne, and have also an office in London, and it was brought to recover 951. 8s. 10d., the amount of general average adjusted upon a cargo from Melbourne to London. The action came on to be tried before Kelly, C.B., and a special jury of the City of London, at Guildhall, at the sittings after Trinity Term, 1869, and the damages in the declaration, subject to a resulted in a verdict for the plaintiff for special case, which was argued more than a year ago, and was re-argued, by order of the court in Trinity Term last. The vessel sailed from Melbourne with a cargo of general merchandise, amongst which were several boxes of gold belonging to the defendant. She was tight staunch, and sufficiently manned, and furnished with every necessary for the voyage, and was in every respect seaworthy. On the voyage to England she met with exceptionally rough weather and severe gales, and in consequence thereof, a donkey engine, with which she was fitted for the ordinary working purposes of the ship, and for the

supply of which the usual quantity of coals had been taken on board, had to be kept constantly at work to pump the ship and to keep her afloat, the tempestuous weather having caused her to spring several leaks. The coals becoming exhausted it became necessary, in the master's opinion, not only to purchase a further supply of coals on the voyage, but also to cut up a quantity of spare spars which were stored on board, in order to furnish fuel to keep the donkey engine at work pumping the ship, and eventually and by those means, the vessel arrived in England with her cargo safe and undamaged. The question involved in the case was whether the cost of these spars and of certain repairs of the engine, was or was not the subject of general average to which the defendants were bound to contribute.

H. James, Q.C. (with him was Cohen), for the plaintiff.

Pollock, Q.C. (0. Lodge was with him) contra, for the defendants. Cur, adv. vult. Jan. 17.-The COURT, differing in opinion, the following judgments were now delivered.

KELLY, C.B. and BRAMWELL, B., were of opinion that under the circumstances the costs and expenses in question were gederal average expenses to which the owner of the cargo might justly be called on to contribute.

MARTIN, and CLEASBY, B.B., on the contrary, were of a different opinion, and thought that the defendants ought not to be called upon to con tribute towards the payment of the losses and expenses incurred by the shipowner in this case, and which the plaintiff, by his contract, was bound to bear himself.

Cleasby, B., as the junior baron, with drew his judgment, and there was, thereupon,

Judgment for the plaintiff. Attorneys for the plaintiff, Westall and Roberts, 7, Leadenhall-street, E.C. and Walton, 30, Great Winchester-street, E.C. Attorneys for the defendants, Waltons, Bubb,

Friday, Jan. 19.


Injunction to restrain an action of trespass until the questions involved in such action, and others connected therewith, have been disposed of by an information by English Bill on the equity side of the court. THE Solicitor-General (Jessel, Q.C.) (W. W. Karslake with him) moved on the equity side of this court for an injunction to restrain the defendant until further hearing from prosecuting an action of trespass commenced on the 5th June last against two persons, Kennedy and Turner, who were tenants under the Crown of certain lands in the manor of Muchland, in Lancashire. This application had been referred to the full court by Cleasby, B., sitting lady of the manor of Muchland in Lanca shire, and as such was entitled to the minerals lying thereunder, and had, as it was alleged, a right to search for them, making compensation to the tenants according to the custom of the manor. Barker, the present defendant, was one of the tenants of the manor, and Kennedy and Turner were lessees for the Crown of the mines and minerals under the lands held by entered the land occupied by Barker and proBarker, and who, in pursuance of their lease, ceeded to bore for the minerals, for which act one brought an action of trespass in this court, the Hodgson, who was in possession under Barker, writ also asking for an injunction to restrain the defendants. The present injunction was sought for, inasmuch as an information by English bill had been filed on the equity side of this court, for the purpose of ascertaining the rights of the Crown and the tenants, and it was argued that as the action of trespass will not settle the entire question, which alone can be satisfactorily disposed of by the information, the injunction should be granted to stay the proceedings at law until the entire question had been determined in equity..

at chambers. It appears that the Queen was

Manisty, Q.C, and Herschell showed cause.
The Solicitor-General, in reply.

BB.) were of opinion that as other questions The COURT (Kelly, C.B., Channell, and Cleasby, were involved in the information by English bill besides those in the action of trespass, and which it was of importance should be settled, it was right that the action should be stayed, in order that the whole subject should be dealt with by the court sitting in its equity


Injunction granted. Solicitor for the Crown, Horace Watson, solicitor to the Commissioners of Woods and Forests. Solicitors for the defendant, Cunliffe and Beaumont.

Saturday, Jan. 20. DYTE v. THE ST. PANCRAS BOARD OF GUARDIANS. Board of guardians-Appointment by, of medical officer to infirmary-Appointment not under seal -Necessity of seal to validity of contract-Corpo

ration-Executed and executory considerationDifference between. THIS was an action by the plaintiff, a medical man, to recover 1371. 6s., the amount of a quarter's salary at the rate of 400l. a year, and also an equivalent for apartments and rations claimed by him in lieu of notice, on account of his alleged illegal dismissal by the defendants from his post of medical officer of the Highgate Infirmary under the following circumstances:-In Dec. 1869 the plaintiff was a candidate for the then vacant post, and on the 5th Dec. 1869 the infirmary committee passed the following resolution :-"Resolved, that it be recommended to the guardians at their meeting this afternoon to appoint Mr. Dyte medical officer for three months, and that he devote his whole time during such period at and for a sum of 100l., board and rations.' This resolution and appointment was approved by the board, and on the 9th Dec. the plaintiff received a letter from Mr. Fildew, the clerk to the board, announcing to him his appointment, and sending him a copy of the above resolution, and adding that the appointment would probably take effect only from the date of the day on which the plaintiff should enter on his duties, which he was subsequently informed he was expected to do on the 7th Jan. 1870, from which day he fulfilled his duties up to the 25th March, when the three months expired, and when he received 100l. salary for that period of service. His appointment was sanctioned by the Poor Law Board on the express condition that it was to cease upon the infirinary being handed over to the Central London Lock Asylum district. The plaintiff continued on after the 25th March, nothing being said or done till the 6th April, when a resolution was passed at an infirmary committee meeting that "the medical cfficer," and other officers and servants therein mentioned, "whose engagements expired at Lady Day, should be employed monthly at the several salaries assigned to them by the guardians." On the 24th May, at an infirmary committee meeting, notice in writing was served on the plaintiff by the chairman of the committee, informing him of the termination of his appointment on the 24th June next, such notice being served in conformity with a resolution of the Board of Guardians of the 6th May previously; but the service was accompanied by the distinct verbal statement of the chairman that "it was

merely a formal notice intended to relieve the St. Pancras Board from liability for salaries, &c., beyond 24th June, when it was expected the infir mary would be transferred to the central board, and, if it were not then transferred, the notice would go for nothing." On the 23rd June the plaintiff was informed his successor had been appointed, who would enter on his duties next day. The plaintiff then left, under protest, on the 24th June, being paid another 1001. for services up to that date. The other officers referred to above, and who had also received like notices, remained on until the transfer of the infirmary to the central board at Michaelmas 1870. The action was tried before Pigott, B., at London Sittings after Trinity term last, and the plaintiff was nonsuited, with leave to move; and a rule was accordingly obtained to enter a verdict for the plaintiff for the sum claimed, on the ground that the contract engaging or continuing the plaintiff as medical officer was valid, though not under the seal of the defendants; that it was a contract to serve till the infirmary was handed over to the central board, or till the plaintiff had three months' notice; and that he had had no legal notice to leave, and did not waive notice, &c.

H. James, Q.C. and Beasley for the defendants showed cause against, and

M. Chambers, Q, C. and Nasmyth for the plaintiff supported the above rule.

The COURT (Martin, Channell, and Pigott, BB.) were of opinion the rule should be discharged. The board of guardians were not a trading corporation, and the contract was not valid for want of a seal, there being a difference in that respect between executed and executory considerations. Rule discharged. Attorney for the plaintiff, WV. Venn, 3, New Inn, Strand.

Attorneys for the defendants, Cunliffe and Beaumont, 43. Chancery-lane, agents for W. D. Cooper, 81, Guildford-street.

Tuesday, Jan. 23.


SHEPHERD V. THE MIDLAND RAILWAY COMPANY. Negligence from permitting ice to form upon the platform of a railway station, whereby a pas senger fell and was injured.

Searle now argued that the court was bound by the practice of the Ecclesiastical Courts, by which a wife was entitled to her costs, if neces sary de die in diem, and that the Rule 158, under which the Judge Ordinary had acted, was ultra vires.

The FULL COURT held that the Judge Ordinary had full discretion under the rule, and confirmed his order, disallowing the wife's costs. Proctor for petitioner, Crosse.

to the defendants to move to enter a nonsuiting the court found the issues for the husband, if the court should be of opinion that there was and being of opinion that the wife's story was no evidence of negligence to go to the jury. trumped up, refused to make the ordinary order From the facts proved upon the trial it appeared that the wife's costs for the hearing, for which that the plaintiff, who is a solicitor, practising at security had been given in the registry, should be Luton, on the 29th Dec. 1870 took a return railway paid to her. The wife appealed to the full court, and ticket at the Midland railway station at Luton, for Ampthill, to which place he proceeded accordingly. lle came back to the Ampthill station at about 3.35, in order to return to Luton by the train which was advertised to leave there at 3.48. It was a cold frosty day. As he was smoking a cigar and walking along the platform he suddenly fell, the effect of which was that he dislocated his right shoulder and sustained other injuries. Upon being assisted up, he looked to see what was the cause of his fall, when he discovered that it arose from some ice which had been allowed to form on the platform. It was supposed that the ice was formed from water which had escaped from a pipe erected to convey water from the roof of the station to a receptable below the platform, but as to this there was no positive evidence. The ice, however, had evidently arisen from water which had escaped from somewhere and crossed the platform for a distance of more than half a yard, and was nearly an inch in thickness. No evidence was adduced by the defendants. A rale nisi having been obtained,

O'Malley, Q C. and Metcalfe showed cause. Bulwer, Q.C. and Merewether in support of the rale. The COURT was of opinion that there was evidence of negligence to go to the jury.

Rule discharged. Attorneys for the plaintiff, Lewis, Munns and Co. Attorneys for the defendants, Beale, Marigold and Co.

COURT OF PROBATE. Tuesday, Jan. 23. (Before Lord PENZANCE.) In the Goods of RUDDY. Will-Surviving executor out of the country · Limited administration with will annexed granted to a residuary legatee-38 Geo. 3, c. 8721 & 22 Vict. c. 86.

THOMAS RUDDY died in 1850, leaving a will, of which his wife Mary Ruddy, Thomas Hudson, and Richard Rowland, were appointed executors. Rowland renounced; and the will was proved by Mrs. Ruddy and Hudson. Mrs. Ruddy died in 1859, and Hudson left this country in 1855, under circumstances which made it improbable that he would ever return. Thomas Ruddy's estate was entitled to a share in the residuary estate of James Ruddy, and on the death of the tenant for life in 1871, a suit was instituted in Chancery for the administration of James Ruddy's estate. It be came necessary that there should be a personal representative of Thomas Ruddy other than the absent Hudson.

Searle now moved under the 38 Geo. 3, c. 87 and the amending Act 21 & 22 Vict. c. 86, for a grant of administration with the will annexed to Mary Rapley, one of Thomas Ruddy's residuary legatees.

The COURT made the grant, limited to the representation in the Chancery suit, and the receipt of such moneys as the Court of Chancery should hold the estate of Thomas Ruddy is entitled to.

Solicitor, P. W. Lovett.

Monday, Jan. 22.

In the Goods of MARY HAMER. Will No attestation clause-Attesting witnesses refused to make the usual affidavit-Subpoena issued to compel their attendance in court under the 24th section of the Probate Court Act. MARY ANNE HAMER, late of Credenhill, in the county of Hereford, spinster, died 17th Sept. 1871, leaving a will bearing date 6th Sept. 1871. It was duly executed and attested, but it contained no attestation clause. An affidavit of due execution was therefore required from the attesting witnesses, but this they both refused to make.

Bayford, on behalf of the executors, moved the court to issue, under the 24th section of the Probate Act, a subpoena to compel the attendance of the witnesses to give evidence as to the execution

of the will.

Tuesday, Jan. 23.


Dissolution suit-Condonation-New charges of adultery.

THIS was a husband's suit for dissolution on the ground of his wife's adultery with the co-respon dent. The wife in her answer pleaded condonation.

Searle, for the husband, now moved for leave to amend his petition by adding new charges of adultery committed since the filing of the petition, by which the original adultery would be revived.

Bennet and Finney, for the respondent and corespondent, objected.

The COURT-The best course will be to file a supplemental petition embodying the new charges, and the two petitions can be tried together. Solicitor for the petitioner, Sturt. Solicitors for the respondent, Lake and Co. Solicitor for the co-respondent, Abbott.

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Clarkson moved to dismiss the suit, on the did not exceed 1000l., the Court of Admiralty had ground that as the value of the property salved no jurisdiction by the Merchant Shipping Amendment Act 1862 (25 & 26 Vict. c. 63), s. 49, which gave all jurisdiction in salvage cases where the value of the property salved was under 1000l. to justices.

Phillimore, for the salvors, contended that the County Courts Admiralty Jurisdiction Act 1863 (31 & 32 Vict. c. 71), sect. 9, revived the original which could be instituted in a County Court under jurisdiction in all salvage suits, and that any suit instituted in the Admiralty Court, subject, of that Act (viz. under 1000l. value), could also be course, to the risk of condemnation in costs under

that section.

The COURT held that it had jurisdiction, but that the question whether it was a proper cause to be tried in this court, was a question to be decided when the facts were before the court.


NOTES OF NEW DECISIONS. PRACTICE-NOTICE OF OBJECTION-MISTAKE IN PLACE OF ABODE OF OBJECTOR.-A notice of objection pursuant to the 6 & 7 Vict. c. 18, s. 7, schedule A, No. 5, signed by the objector, with the address of his former place of abode, is insufficient, although his residence is so near the former that it stands upon part of the garden belonging to the former residence: (Caver v. Roberts, 25 L. T. Rep. 751. C. P.)

BOROUGH FRANCHISE-DESCRIPTION OF QUALIFICATION-DWELLING-HOUSE.-Under the description" dwelling-house," a qualification as for a house may be proved under 2 Will. 4, c. 45, or an The COURT made the order as prayed. occupation of a dwelling-house under the RepreAttorneys: Sharpe, Parkers, Pritchard, and sentation of the People Act. A person claimed a Sharpe. vote for the borough of M., who occupied a house as joint tenant with another, the value of such COURT OF DIVORCE AND MATRIMONIAL house being much more than enough for a qualifi

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cation under the Reform Act 1832. The nature of the qualification was described in the list as dwelling-house." He was thus entitled to a vote

THIS was an action brought by the plaintiff against (Before the Full Court, Lord PENZANCE, J.O., and under the Reform Act, but not under the Repre

the defendants to recover damages for an injury sustained by him in consequence of the alleged negligence of the defendants. The cause was tried at the last assizes for Bedfordshire, before Cockburn, C.J., when a verdict was returned for the plaintiff with 1501. damages; leave being reserved


Matrimonial suit - Wife's costs disallowed

158 and 159 of new Rules and Orders-Practice. THIS was a wife's suit for judicial separation on the ground of her husband's adultery. At the hear

sentation of the People Act. He was accordingly objected to, on the ground that a description of the nature of a qualification "dwelling-house under the Representation of the People Act could not confer a vote under the Reform Act. The revising barrister struck out the word "dwelling."

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