« EelmineJätka »
July 24, 25, 26, 28, Aug. 1, 2, and 5, and Nov. 6. pany he ought to ascertain at once whether the Company were also directors of the Credit Foncier; PEEK V. GURNEY.
representations, on the faith of which he took his and he was satisfied that the directors of the latter
shares, are correct or not. In the present instance company had full notice of the purpose to which Company --- Prospectus — Concealment-Liability the shares were bought in Oct. 1865, and Jan. the money was to be applied. He was therefore
1866, but the plaintiff never made any inquiry into of opinion that the whole transaction was one out This was a suit instituted by William Peek the the condition of the concern until after the failure of which no claim could arise, and the claim must younger against the surviving late directors of in May 1866, and, but for the failure, would doubt. be refused. Overend, Gurney, and Company (Limited), and the less have made no inquiry at all. There was no Solicitors : Frederick Heritage; Hathaway and representatives of Mr. Gibbs, a deceased director, conduct more rigidly reprobated in equity than the Andrews. praying for a declaration that the defendants were system of playing fast and loose-of adopting a liable to make good to the plaintiff the loss he company if successful, and repudiating it if it
Friday, Nov. 3. had sustained by reason of his having purchased fails, and calling on the directors for indemnity.
HEMMING V. MADDICK. 2000 shares in the company on the faith of the He was therefore of opinion that the plaintiff Sale of shares to trustee-Indemnity by cestui que prospectus put forth by the directors, which, as he
came too late for equity to assist him in this case. alleged, intentionally suppressed facts of vital im. If before the failure an allottee had applied to the
trust. portance, which, if disclosed, would have pre- court either to cancel his shares, or to make the This was a suit to compel Maddick to indemnify veuted him from making any such purchase. The directors personally liable
, he would have
obtained Hemming against all loss and liability in respect evidence in the cause established in his Lordship's a decree in his favour, but the time which had of certain shares taken by Hemming in Fred. opinion, that in May 1865. when Messrs. Gurney elapsed, and the order for the winding-up of the Symons and Co. (Limited.) The shares of the resolved on the formation of a company, if the company, entirely precluded the plaintiff from company were 101. each, 11, being paid upon
apfirm had attempted to go on without assis. obtaining the cancellation of the contract, accord. plication, and 11. on allotment.. On the 4th Dec. tance they must have speedily stopped pay; ing to the decision in Oakes v. Turquand (16 L. T. 1865, Heming, made an application for 250 shares, ment, and that if they had stopped they would Rep. N. S. 642), and, in his Lordship's opinion, the and on the 7th Dec. they were allotted to him. have paid only a very small dividend ; that at plaintiff was precluded on similar grounds from re
He admitted that he received a pecuniary conthat date the liabilities of the firm totally indepen, quiring the personalindemnity of the directors. The sideration for taking the shares, but he alleged dent of its legitimate business were, in round lapse of time before filing the bill was fatal to the that the shares were taken for the exclusive benenumbers,
4,000,0002., and its assets only 1,000,0001.: plaintiff's claim, and the bill must be dismissed, fit of Maddick; that Maddick paid the allotment that the firm was then hopelessly insolvent, and but without costs, on the ground that the
directors, and deposit moneys, and agreed to indemnify him all the members of the firm were aware of that although they did not gain, or seek to gain, any against all loss and liability; and that he was to fact. In that state of affairs the members of the advantage by their concealment, were neverthe transfer the shares to Maddick, or as Maddick firm applied to the defendants Barclay, Gordon, less
highly culpable in a moral point of view, and should direct. Maddick admitted that he paid the Rennie, and Gibbs, explained to them the position had by their misconduct, occasioned the calamities allotment and deposit moneys, and that it was of the firm, and induced them to join in the for. caused by the failure of Overend, Gurney, and agreed that Hemming was to have no beneficial mation of the company. Accordingly on the 12th Company.
interest in the shares. But he alleged that the July, 1865, they issued the prospectus for the for.
Bill accordingly dismissed without costs.
sum which Heming received for taking the shares, mation of the company to purchase the business Solicitor for the plaintiff, W. A. Downing.
was accepted by him as the price of all risk in of the firm for 500,0001., one half of which was to Solicitors for the defendants, Young, Jones, and connection with them, and he produced a written be paid in cash, and the other half in shares on
Co.; Bevon and Whitting ; Wilson, Bristowe, and receipt for money paid to Hemming, in considerawhich 15l. per share was to be credited as fully Carpmael ; Young, Maples, Teasdale, and Co.; tion of his taking risk of applying for 250 shares paid up. The company was to consist of 100,000 Uptons, Johnson, and Upton; Maynard and Son.
in Symons's Company (Limited), the application shares of 501. each, of which 15l. per share was
and allotment money only being paid thereon. intended to be called up. The plaintiff was not
He denied altogether that he undertook to inone of the original shareholders, but purchased
V. C. MALINS' COURT.
demnify Maddick. On the 12th Dec. 1865, Hemshares in the market.
Nov. 4 and 6.
ing executed a transfer of the shares to one Pott, Kay, Q.C., Svanston, Q.C., and Joliffe, for the Re THE MARSEILLES EXTENSION RAILWAY AND
a nominee of Maddick. The transfer was left by plaintiff.
LAND COMPANY (LIMITED), Ex parte The
Pott at the office of the company, but the directors Roxburgh, Q.C. and Lindley, for the defendants H. E. Gurney, J. H. Gurney, and R. Birkbeck.
CREDIT FONCIER AND MOBILIER OF ENG. refused to accept it, and Hemming's name remained
on the register until the winding-up of the com
LAND (LIMITED.) Sir Roundell Palmer, Q.C., Fry, Q.C., and Sayer, Company—Advance to directors for purpose of shares under which Hemming had become liable to
pany in Dec. 1866. Calls had been made on the for the defendant H. F. Barclay. Fooks, Q.C. and W. C. Fooks for the defendant ADJOURNED summons. purchasing shares-Rigging the market-Notice.
pay 10001. He paid a considerable sum, and then
This was an applica- filed this bill for an indemnity. He had subse. H. G. Gordon. Jessel, Q.C., Macnaghten, and Medd, for the de- and Mobilier of England to prove in the wind. dator, by which it was agreed that the liquidator
tion by the liquidators of the Credit Foncier quently entered into a compromise with the liquifendant W. Rennie.
Sir Richard Baggallay, Q.C., Macnaghten, and ing-upo of the Marseilles Company for a debt should prosecute the suit in Hemming's name. F: W. Maclean, for the representatives of 'J. C. of 10,0001.:, advanced by the former company
Cotton, Q. C. and Chilly for the plaintiff. to the latter. It was not disputed by the Gibbs.
Glasse, Q.C. and Higgins for Maddick. official liquidator of the Marseilles Company that Ferrers, for the liquidators of the company.
The VICE-CHANCELLOR said that the applicathe money was actually paid, but he resisted the tion for shares was a transaction entered into at Lord ROMILLY was of opinion that the defen claim for repayment on the ground that the money the request of Maddick, and for his benefit. It dants had acted bonâ file with the view of pre- had been advanced for the purpose of enabling was clear upon the evidence that the beneficial serving the goodwill of the old business, and in the the directors of the Marseilles Company to “rig ownership of the shares was vested in Maddick, firm belief that the million and a half that would the market,” and thus fraudulently keep up the and he was therefore bound to indemuify the be obtained by the formation of the company price of their own shares; that the acceptance of plaintiff
. would be sufficient to effect that purpose. The the advance was contrary to the memorandum and Solicitors : Linklater and Co.; Alfred Cor. real object of the formation of the company was articles of association of the Marseilles Company, to preserve this goodwill which the partners and and, being ultra vires on the part of the directors, their families could not command money enough the transaction was not binding on the shareholders;
V.C. BACON'S COURT. to preserve. It was essential to the formation and that the directors of the Credit Foncier had
Friday, Nov. 3. of the company that this fact should be concealed notice of the nature of the transaction. It was
SLEEMAN v. WILSON. as the public would not otherwise have taken argued on behalf of the Credit Foncier that when shares. The honest belief of the directors in the the money was paid the directors of the Credit
Demurrer-Breach of trust--- Acquiescence. probable success of the company exonerated them Foncier had, in fact, no notice that it was going to In the year 1810 Henry Evans lent to John Evans from liability in a criminal court, but not in be employed in an improper manner ; that no the sum of 21661. 133. 4d., and the repayment of a court of equity. The concealment of a most notice could be inferred from the fact that some this amount was secured by a bond dated the 19th material fact, which concealment the concealer of the directors of the Credit Foncier were also Dec. 1810. In the same year Henry Evans made believes will be beneficial to himself and the directors of the Marseilles Company; and that the his will in India, whereby he bequeathed all his man whom he induces thereby to join with him validity of the claim was not affected by the fact property in England to be divided equally between in a speculation does not, his Lordship thonght, that the money might have been employed in an the plaintiff, Ann Maria Sleeman, and Henry exonerate him from the consequences in a court of improper manner after it had been paid. The Evans (his illegitimate children), and he apequity. Upon the concealed fact being known or Chief Clerk decided against the claim, and the pointed Cromwell Massey to be executor in not depended the whole scheme. The prosecution matter now came before the Vice Chancellor. England and guardian to his children jointly of the directors for a criminal cffence was ex. Glasse, Q.C., Cotton, Q.C., and H. M. Jackson, with his nephews, Richard Evans and Lacy Evans. tremely ill-advised; they did not intentionally try for the liquidators of the Credit Foncier.
Henry Evans, the testator, died in the same year, to induce persons to put money into a concern Higgins and Gill, for the official liquidator of and Cromwell Massey proved the will. In the which they knew would fail; on the contrary they the Marseilles Company.
year 1811 the two children of the testator came sincerely believed that it would succeed. But The VICE-CHANCELLor said that he had to de. to reside with Lacy Evans (afterwards General Sir that was no excuse in equity, which requires not termine whether the money had been parted De Lacy Evans), and he acted as their sole guar. oniy that there should be an absence of any inten. with by the Credit Foncier Company under cir- dian, and the above-mentioned bond was delivered tion, or even of any motive to deceive, but also cumstances which constituted a legal debt against to him. At the time the bond became due John that the truth should ba told and that not the shareholders of the Marseilles Company. Evans, the obligor, was well able to satisfy the partially, but that the whole truth should be told. Borrowing by public companies depended upon debt, but payment was not required Ly Sir If anyone of the shareholders had, shortly after different principles from borrowing by individuals, Lacy Evans, and in consequence in the year 1831 the shares had been allotted to him, discovered and it did not follow that every sum borrowed by the debt became irrecoverable, and was wholly the facts and filed a bill to have the allotment directors constituted a debt against the share. lost. In the year 1833 the plaintiff became aware cancelled and his inoney returned, the court would holders. There could be no debt against the of the bond, but no effort was made to recover not have hesitate to give him the relief sought for, shareholders of the Marseilles Company in the the amount due thereon till after the death of Sir or, if that was impossible, make the directors present case, unless the loan had been made for De Lacy Evans in 1870. In July 1871, however, personally lable to make good the loss he had proper purposes, and was within the powers of this bill was filed against the executors of Sir Dé sustained. There were, however, other considera- the borrowing company. His Honour then re Lacy Evans to recover from them the amount due tions in the present case. Did the case of decep- viewed the connection between the Credit Foncier upon the bond and interest, on the ground that tion by the prospectns apply to the plaintiff, who and the Marseilles Company. He stated that the Sir De Lacy Evans had committed a breach of was a transferee of shares, and not an allottee, and latter was an emanation from the former, and trust in neglecting to recover this debt, and was had the plaintiff come in sufficient time, and with that it was clear that the transactions of the one therefore liable to make good the loss. To this sufficient diligence, to induce the court to interfere company were known to the other. The evidence bill the defendants, the executors, demurred, on in his favourt With regard to the first question, showed that the advance of 10,0001. was really part the grounds that Sir De Lacy Evans was not tes. his Lordship thought that if an allottee of shares of a scheme for “rigging the market” and giving a tamentary, guardian, and that after so long a was bound by time or condonation, a transferee colourable value to the shares of the Marseilles delay on the part of the plaintiffs to assert their was bonnd also by the same bar. As regards the Company. The same solicitors acted for both claim, the court could not assist them, and geneother question when a man takes shares in a com.'companies; two of the directors of the Marseilles ' rally for want of equity.
Amphlett, Q.C. and Renshaw, in support of the tended that the said sum of 11,6661. Consols COURT OF QUEEN'S BENCH. demurrer.
(which was standing in the name of the legal perFry, Q.C. and Graham Hastings for the plain. , sonal representative of C. H. Dawson the elder),
Monday, Nov. 6. tiffs, Mr. and Mrs. Sleoman. was payable to her as part of the residue be
Cox v. SILLEN. The Vice-CHANCELLOR was of opinion that the queathed to her late husband by his father's will. Common Pleas of Lancaster-Cause tried at the plaintiffs had by their long acquiescence forfeited The surviving trustee of the marriage settlement,
assizes-- Before what court a motion to be made any claim they inight have had to the assistance on the other hand, contended that under the
for a new trial-4 85 Will. 4, c. 62, s. 26. of the court, and that on this ground alone, and articles the sum was subject to the trusts of the When an action is brought in the Court of Common without going into any other questions, the de. settlement, and was accordingly payable to him.
Pleas of Lancaster, and tried at the assizes, a murrer n.ust be disallowed.
Wilcock, Q.C. and Lindley for the widow.
rule for a new trial, foc., must be made in the Solicitors for the plaintiffs, Deane aud Chubb. Fry, Q.C. and Ingle Joyce for the surviving
Court of Westminster, of which the judge who Solicitors for the defendants, Stephens and Lang. trustee of the settlement.
tried such cause is a member. Where, there fore, dale.
Amphlett, Q.C. and Streeten for the representa
such an action was tried before Kelly, C.B., and tive of C. H. Dawson the elder.
a nonsuit vas entered, this court rejused to en. Nov. 4 and 7.
Bristowe, Q.C. and Maclean for the infant chil. tertain a motion to set aside the nonsuit and GREINE 1. THE WEST CHESHIRE RAILWAY dren of the marriage.
for a new trial. COMPANY.
The VICE-CHANCELLOR held that it was clear This was an action bronght in the Common Pleas
upon the construction of the articles that the sum of the county Palatine of Lancaster, and was Specific performance - Railway company--Agree of Consols was subject to the trusts of the settle tried at the last assizes at Liverpool before Kelly, ment to make and maintain a siding on plain. ment.
C.B., when the learned judge directed the plaintiff tif's lanıl.
Solicitors; Fiddey; R. and W. Smith.
to be nonsuited. This was a suit for the specific performance of
Millward, Q.C. now moved for a rule calling an agreement entered into between the directors
upon the defendant to show cause why the nonof the West Cheshire Railway Company and the
Wednesday, Nov. 8.
suit should not be set aside and a new trial be plaintiff. The company had applied to Parliament
WARD v. WOLVERHAMPTON WATER WORKS had. He adınitted, however, it was the usual pracfor an Act empowering them (inter alia) to run
tice in such case to move the court to which the tioned against the bill, but withdrew his oppo; This was a bill filed by a shareholder in the old chequer, but that there was no rule of law upon throug", the plaintiff?s land. The plaintiff peti. Right to re-purchase-Failure to perform condition. learned judge belonged, before whom the cause
was tried, which in this case would be the Ex. sition in consideration of an agreement entered into between the company and himself whereby that company and its directors, to obtain a decla- the subject, and that the 4 & 5 Will. 4, c, 62, s. 26,
railway . temporaneously with the construction of the said ration that a right of purchasing certain property in terms gave the suitor power to apply to any
one of the Superior Courts at Westminster.(0.) railway, and for ever thereafter maintain, at their of the company, which had been given to the Cor. own proper expense, a sufficient siding of at least poration of Wolverhampton by a deed executed MELLOR, J.-Although there is no rule of law, 100 yards in length alongide the line of railway as in 1857 was now determined. The old company
the practice has been uniform to apply to the constructed through the land of the plaintiff, and
were incorporated in 1815 by Act of Parliament, court of which the Judge who tried the case is a upon land belonging to the plaintiff, and to be and under the powers of the Act they executed member.] No doubt the practice has been so, and provided by him for that purpose, for the use of works, raised by the creation of shares, a capital shortly after the passing of the Act a case arose of of 44,9801., and incurred a mortgage debt of
an application to this court with reference to a cause and to the reasonable satisfaction of the plaintiff.” The agreement contained a clause by which all 17,300l. In 1855 the Wolverhampton New Water. tried before Gurney, B., and the court expressed a disputes between the parties were to be referred works Company were incorporated by Act of Par. desire that the motion should be made in the Exto and determined by arbitration according to the liament, and by the same Act the Corporation of chequer. Before the passing of the 4 & 5 Will. 4,
c. 62, the practice was to make the application provisions with respect to arbitration contained in Welverhampton were empowered to purchase the the Companies' Clauses Consolidation Act 1815. works of the new company. By an agreement before the two judges of assize, before one of
whom the cause was tried; but by the terms of The company completed their line of railway, but between the two companies dated the 14th Feb. did not make the siding, and have since refused to 1856, it was agreed that in the event of the the 26th section the suitor has the liberty of make it. arrangement being confirmed by Act of Parliament, applying to any one of the Superior Courts of
Westminster, and in many cases it would cerFor the defence it was submitted that the land the old company should grant its works in per upon which the siding was to be made being the petuity to the new company at a rent which tainly be more convenient not to apply to the
same court of which the learned judge who tried plaintiff's, and not the company's, the plaintiff should be equal to interest upon the share capital should have made the siding and then have of the old company at a certain rate; that the it is a member. (COCKBURN, C.).-Ön the other brought an action for damages, but that it was
new company should pay thu interest on the hand, in a great variety of cases, it would be most not a case for specific performance.
mortgage debt of the old compa y; and that the desirable that the application should le made to Amphlett, Q. C. and Townsend appeared for the grant should contain a provision enabling the such court.] As it is only a rule of practice it is plaintiff.
new comary or the Corporation of Wolver. desired to review it. Kay, Q. C. and Speed for the defendants.
hampton (in the event of a sale of the works of COCKBURN, C.J.-We do not think that it is The Vice-CHANCELLOR was of opinion that the the new company to them), on or before the end desirable to establish a different pructice from agreement was such a one as the court had power
of any year, by the payment by them to the old that which has hitherto prevailed. to enforce and decreed specific perforınance, the old company to entitle themselves to the
company of a sum equal to the share capital of Attorney for the plaintiff, Loreniles, Liverpool. thereof, with costs. Solicitor for the plaintiff Henry Smith. works comprised in the grant subject to the mort.
COURT OF COMMON PLEAS. Solicitors for the defendant, cunlitfe and Beau. gage debt of 17,3001. and interest, but freed from
Wednesday, Nov. 8. mont (agents for J. R. and R. Lingard, and Rowell, confirmed by an Act passed in 1856, and was the rent thereby reserved. The agreement was
McBLAIN V. CROSS. Manchester). carried into effect by a deed dated 1st Jan. 1857. Telegram-Undisclosed principal-Statute of
The deed contained a proviso that if the new
company, or (in the event of a sale of the works ACTION for not accepting 100 tons of bay, tried
of the new company to them) if the Corporation before Bramwell, B., at Surrey Assize.. Plaintiff, Marriage Articles --Agreement to grant allowance should on or before any 25th day of Dec., after a dealer in Ireland, received through C. Cross, the - Whether perpetual annuity.
having given to the old company six months brother of the defendant, a contract note relating SPECIAL case. By his will in 1824 C. H. Dawson notice of their desire to avail themselves of the to the sale of from 100 to 200 tons of hay, which the elder gave the residue of his property to trus option thereby given, pay to the old company note did not mention the price. At a subsequent tzes upon trust to sell and divide the proceeds 46,2461., the new company, or the party making interview, at which plaintiff, defendant and C. among his children living at his death, and the such payment, should thereupon become entitled Cross were present, and the sale of the hay was issue of such of them as should be then dead, and to the works subject to the mortgage debt of discussed, C. Cross said he was then acting for his he appointed the trustees his executors. The 17,3001. and interest, but free from the rent brother, the defendant. Upon this evidence being testator had four children, all of whom survived thereby reserved.
given, the Judge adınitted letters and telegrams him. On the marriage of C. H. Dawson the In 1869 the corporation of Wolverhampton signed by C. Cross as evidence against the defenyounger (one of the four children), certain pro. | purchased the works of the new company, and on
dant. The Judge left certain questions t, the perty belonging to the intended wife was settled the 18th June 1870 gave notice to the old company jury (who found for the plaintiff, dainages 2201.) upon the usual trusts for the wife for life, with of iheir intention to pay 42,2461. to them on the 25th and reserved leave to defendant to move to enter remainder to C. H. Dawson the younger for life, Dec. 1870, in order to become absolute owners of the
a verdict, if there was no evidence of authority with remainder to the children of the marriage wurks. The corporation, however, did not pay off of C. Cross to bind defendant, and if the letters Articles of agreement of even date with the settle. the share capital at the time stated in the notice, and telegrams did not form altogether a sufficient ment were also executed between C. H. Dawson the but continued to pay interest ; and on the 15th memorandum in writing to satisfy the Statute of elder and the trustees of the settlement. The June 1871 they gave a second' notice to the old Frauds. articles contained a recital of the settlement, and company, stating their intention to pay off the
Channell moved for a rule nisi, pursuant to tho C. H. Dawson the elder thereby agreed with the share capitul on the 25th Dec. 1871. Tho plaintiff leave reserved. trustees to pay 350l. every year during the life of | alleged that such purchase by the corporation
The COURT (Willes, Keating, and Brett, JJ.) C. H. Dawson the younger, " and in case the said would be to the prejudice of himself and the other refused the rule, holding that there was sufficient intended wife should survive her said intended shareholders of the old company, and filed a bill eridence of authority, and that two telegrams, of husband, then to continue the said yearly pay for the above purpose. The case was heard on
which the latter was in this form, “ Buyer accepts ment to the trustees of the said settlement for the demurrer.
your offer. Signed, C. Cross," and in which the purposes thereof.” Payments in respect of the Kay, Q. C. and Jolliffe for the demurrer.
name of the defendant was not mentioned as allowance were ma le down to 1859. In 1865 Fry, Q. C. and Procter for the bill.
buyer, together constituted a sufficient memoranC. H. Dawson the elder died; and difficulties The VICE-CHANCELLOR said that the case
dum of the contract, on the ground that the de. having arisen as to the joint effect of the articles depended upon the construction of the deed of the fendant might be treated as the undisclosed and the will of C. H. Dawson the elder, it ist Jan. 1857, which must be read together with principal of c. Cross, who appeared on the telewas decided by Wood, V.C. (on a special the agreement and Act of Parliament which were
grams to be liable as principal, by reason of his case, pre ared for that purpose), that the carried into effect by it. It was clear on the con contracting as agent for an undisclosed principal. gift by will to C. H. Dawson, the younger of a struction of that deed that the right of the corpo.
Attorney : Spaull. share of residue was adeemed pro tanto by the ration to purchase the property was not taken away provision made by C. H. Dawson the elder for his by their having given notice to purchase, and then for any party in any action now depeuling in, or here
(a) The 26th section enacts, “That it shall be lawful said son and his family by the marriage articles ; having failed to purchase at the time specified in after to be depending in, the said Court of Common and a sum of 11,6661. Copsols was ordered to be the notice. Nor was it any hardship to the share- Pleas at Lancaster, to apply by motion to any oue of purchased out of the testator's estate to answer holders in the old company that such a right the Superior Courts at Westminster sitting in banco the allowance, the income to be paid to C. H. should continue to exist. The demurrer was,
witbin such period of time after the trial as motions of Dawson the younger during his life. In 1869, therefore, allowed with costs.
the like kind sball from time to time be pe mitted to C. H. Dawson the younger died, having appointed
Le made in the said Superior Court, for a rule to show Solicitors: Sharp and Ullithorne ; Bower and
cause why a new trial should not be granted or nousuit his wife his sole executrix. The widow now con. Cotton.
set aside, and a new trial had," &c.
upon estates in Wilts and Hereford-sold for 1907.
Nov. 2 and 3.
The COURT (Kelly, C.B., Bramwell, Channell, ESTATE AND INVESTMENT
selling broker-Broker protected against action the jury had found a verdict for the plaintiff on that
STOCK AND SHARE MARKETS. The declaration stated that plaintiff retained a certificate. The court distinguished the case of The following are the fluctuations of the week. and employed the defendant as selling broker Hatch v. Levis (5 L. T. Rep. N. S. 254; 7 H. & N. for reward, to sell certain goods on terms of a 367), on the ground that that case was only a
ENGLISH FUNDS. Fri. Sat. Mon, Tues Wed. Thu, certain sale note in words, &c. : question of damages, and did not involve a ques
210 2394 2391 26th Oct. 1869. tion of right.
3 Cent. Red. Ann.... 914
910 Sold by order, and for account of Mr. D. Pappa, to
911 Rule absolute. 3 Cent. Cons. Ann.. 92% 92% 92%
927 arrive to my principals, Messrs. Hanson and Son, 500 tons of black Smyrna raisins (1869 growth), fair
Attorneys for plaintiff,"Gregory, Rowcliffe and Co. New 24 7 Cent. Ann... average quality in the opinion of the selling broker. Attorneys for defendant, Sharp and Üllithorne. Do. do. Jan. 1894.
Do. 3} c. Jan. 1894
91 911 911 And in consideration thereof defendant promised
COURT OF PROBATE.
57'Cents. F Jan. 1873 plaintiff that he (defendant) would use due care,
Tuesday, Nov. 7.
Annuities April 5, 1885 skill, and Giligence in and about the said.sale by
In the Goods of THOMAS.
Do. exp. Jan. 1880 the defendant, and in acting as the selling broker,
Metropolitan Board of
Lost will—Entry against interest admitted in Works 3 * c. Stock. 963 96) 97 within the meaning of the contract, and in and
964 about sampling and examining the same in order the deceased testatrix was supposed to have
proof of execution.
Corporation of London
4 per c. Bonds.... to form a just and correct opinion of the same
Red Sea Tele. Ann. 1908 within the meaning of the contract and in de. made a will before the Wills Act, leaving her Consols
, for Acc...
93 claring the same as between the plaintiff and estate to her husband. It was left in the custody India 5 * Cent. for Acc.
Do. 5 P Cent. July the buyer. That defendant accepted the retainer of the solicitor who prepared it, but it could not
1121 112) 1125 1121 and entered on the employment, and all conditions be found when looked for in his repositories. He
India Stock, 1874 had since died, and the husband of the testatrix
207 2077 208 208 were performed, &c., necessary to entitle the
India 4 # C. Oct. 1888 102, 102;
103 plaintiff to have due care, skill, &c., used by the the will beyond the fact that he had conveyed her could give no further evidence of the existence of
India Stock, 5 # Cent. defendant, yet the defendant só unskilfully, &c.,
Jan. 7, 1870
India Bonds (10001.)... 20s.a 258.a 258.a 258.a conducted himself in and about, &c., that although instructions to the solicitor, and had gone with
Do. (under 10001.) the said goods were black Smyrna raisins (1869 her to his office to execute the will, but was not
Ex. Bills, 10001...
98.a 9s.a growth), fair average quality, yet the defendant de present at the execution.
C. A. Middleton now moved for probate of a
5001, clared his opinion that the same were not fair aver
Do. 1001. and 2002. age quality within the meaning of the contract, per the solicitor's ledger, in his own handwriting :draft copy, and read the following extract from
58.al quod buyer refused to accept, and plaintiff could
India Enfaced Paper not enforce the said contract of sale against him. 1835.
Mr. John Thomas, publican.
$. d. 5 Cent. July 1880
Do. Jan. 1872 At the trial before Bovill, C.J., it was contended June 15. Mrs. T. being very ill, attending you
looking out and perusing her mother's will, for the plaintiff that the contract meant that the
a Premium. and taking instructions for making her will raisins were to be of fair average quality, taking and advising
6 8 the average of the growth of 1869, a very bad June 16. Drawing same and ingrossing ; 17th,
REPORTS OF SALES. year ; that the raisins were of such quality, and attending at the Bear Inn ; 18th, reading over
NOTE. - The reports of the Estate Exchange are officially that although the defendant acted honestly and
and attending the execution,
supplied in the following list. Auctioneers whose names I kept it.] Paid June 18.
are registered there will oblige by reports of their own bonâ fide in giving his opinion, he showed a gross
sales.] want of skill in coming to his conclusion. For the The Court, on the anthority of Higham v. defendant it was urged that the contract meant Ridgway (2 Sm. L. Cas. 270), held proof of execu
Wednesday, Nov. 1. the raisins to be of fair average quality, looking tion to be sufficient, and granted probate of the
By Mr. H. E. MARSA, at Guildhall Tavern.
Perpetual rent charge of 701. per annuin, amply secured at the general average of a number of years ; that copy: the words “ 1869 growth were only inserted to Attorney: R. and G. Burchett.
Reversionary interest in a moiety of 22321. 78. 5d., amply ensure the raisins being fresh as well as of fair
secured by way of mortgage on freehold and copyhold pro
perties, on death of a lady aged 32-sold for tool. average quality; that the raisins did not come up
Friday, Nov. 3. to this standard ; and that even if defendant was wholly wrong in his conclusion, he was in the posi
Tuesday, Nov. 7.
By Messrs. NoRTox, Trist, WATNEY, and Co., at the Mart. THE PANTHEA.
Kent, in parishes of Strood and Frindsbury. Brompton tion of an arbitrator, and so was protected from
Farm, with hous, homestead, and 15la. 2r. Bp.-sold for
11.90ui. an action of this sort. His Lordship adopted this Priority-Master's wages and disbursements-Ship
óroker--Shipbuiller. view, and directed a nonsuit, giving plaintiff leave
A cottage and 2n. Ir. 82p. adjoining-sold for 4:07.
City. No. 11, Cheapside, freehold-sold for $8501, to move to enter the verdict if the court should be Four suits were institutod against this vessel,
Wednesday, Nov. 8. of opinion that the construction put upon the con. two by persons who had been her masters at dif
By Messrs. Edwin Fox and BoUSFIELD, at the Mart. tract by the defendant was wrong and the defen- ferent times for wages and disbursements, one by Portland-wwn. No. 11, Lower William-street, term 23 years
-sold for 3301. dant was not entitled to the protection he claimed. a shipbroker, for disbursements for alleged neces.
Haverstock-hill. Nos. 1 and 2, Arthur-grove, term 88 years A rule having been obtained, saries, and the fourth by a shipbuilder, by whom
-sold for 3301. H. Gijjaru, Q. C., Murphy, and Howard Smith she was repaired, and in whose hands she was showed cause.
when the shipbroker commenced his suit. It apSir John Karslake, Q. C., Sir George Honyman, peared that the claims of the two masters were SOLICITORS' JOURNAL, Q. C. and Watkin Williams supported the rule. good. The ship having been a voyage, returned KEATING and BRETT, JJ., held that the rule to English port in charge of M., one of the
NOTES OF NEW DECISIONS. should be discharged on the ground that the defen- masters and the shipbroker was then appointed dant was entitled to the same protection as an by that master to be broker for the ship whilst PRACTICE-Costs — ADMINISTRATION SUITarbitrator ; they did not decide on the construc- in that port. The broker had no previous know. ADMINISTRATOR DE BONIS NON-Executor of tion of the contract.
ledge of the master or owner, and he undertook DECEASED ADMINISTRATOR.--In a suit for ad. Bovill, C.J. maintained his opinion on both the management of the ship's affairs as an ordi- ministration by the administrator de bonis non of grounds.
Rule discharged. nary matter of business. The freight did not come an intestate against the executor of a deceased Thomas and Hollams for plaintiff.
into the shipbroker's hands, as it had been prepaid, administrator, the plaintiff had a balance in his Stibbard and Beck for defendant.
and he mide no inquiries as to how any advances hands sufficient to pay his costs of the suit, and
he might make were to be repaid to him. He paid the defendant had in his hands a balance insuffi. COURT OF EXCHEQUER.
various charges, and then allowed the vessel to be cient to pay his costs. Held, that the plaintiff, Saturday. Nov. 4.
placed in the hands of the shipbuilder for repairs, as the legal personal representative of the intes. HINDE V. SHEPPARD AND OTHERS.
and when she was much increased in value tate, was entitled to retain his costs in full out of 30 g: 31 l'ict. c. 142, s. 5---Certificate for costs. by the repairs done to her, he arrested her for the balance in his hands, and that the defendant, The plaintiffs sued the defendants for trespass his advances and claimed to be paid in priority to as a stranger to the estate, was not entitled to on certain lands at Frimby, in the county of Cum- the shipbuilder. The judge referred the whole have both the balances paid into court, and the berland. The defendants' pleaded, inter alia, a question to the registrar to report as to the claims costs paid rateably to each party, but was only justification, on the ground that there always had and as to the order in which they should be paid ; entitled to retain his balance so far as it went in been an ancient custom for the inhabitants of the and on Oct. 13th the registrar duly made his payment of his costs : (Rice v. Orgles, 25 L. T. village of Frimby to play at games on the green report, and the various parties applied for orders Rep. N. S. 263. Rolls Court.) at all times of the year. The defendants also to be made by the court in accordance with the WILL-EXECUTION-FOOT OR END”-15 & 16 pleaded a public right of highway over the report.
VICT. C. 24.-lhe testator wrote his will in the green. At the trial before Willes, J., at the Cohen, for the shipbroker.
presence of the attesting witnesses on one side of last Cumberland spring assizes, the jury found Clarkson, for the shipbuilder.
a piece of paper, and though there was a cona verdict for the plaintiff for 40s. on all the issues Pritchard, for the masters.
siderable space left blank at the bottom of the page, except the issue upon the plea setting up a
The COURT ordered that the payments be made he wrote the attestation clause at the back, and public highway, which they found for the defen- out of the registry, in accordance with the report the attesting witnesses signed there : Held to be dant. The learned judge being requested to
and in the order therein set out, that is to say, a sufficient execution : (In the goods of Archer, 25 certify for the plaintiff's costs, reserved his deci. first, the costs of the sale of the vessel in the suit L. T. Rep. N. S. 274. Prob.) sion, and subsequently, while sitting at chambers, instituted by the shipbroker, as this was for the WILL CLAUSE INSERTED BETWEEN THE refused to certify.
benefit of all; secondly, the master's wages and TESTATOR'S SIGNATURE AND ATTESTATION.-A kemplay having obtained a rule for the defen. disbursements; thirdly, the claim of the ship- testator, after signing his will and before the dants to show cause why the plaintiff should not builder for repairs ; fourthly, the balance (if any) attesting witnesses, inserted a clause changing his be allowed his costs pursuant to the 5th section in part satisfaction of the claim of the broker. wife's interest, and made no fresh acknowledgof 30 & 31 Vict. c. 142, which provides that no Solicitors, Field and Sumner ; Clarkson and ment before the witnesses signed : The court excosts shall be recoverable in a Superior Court Co.; Stocken and Jupp.
cluded the clause from probate : (In the goods of where less than 101. are recovered in an action of
Arthur, 25 L. T. Rep. N. S. 274. Prob.) tort unless the judge certify on the record that Epps's CHOCOLATE.-—"Nous n'avons en France qu'une WIFE's INCOME UNDER WILL OF HER FATHER.
DISSOLUTION-VARIATION OF SETTLEMENTS, there was sufficient reason for bringing such
seule usine où la préparation du Cacao emploie un action in a Superior Court, or unless the court or matériel et un personnel aussi considérables que ceux
-The major part of the income of the guilty a judge at chambers shall by rule or order allow que nous avons vus dans l'usine de Messieurs Epps. wife was derived from the trusts of her father's such costs,
C'est une véritable curiosité dans son genre que cette will, and was settled on her during her life as a
Situation Quain, Q.C. (C. Crompton with him), showed immense fabrique." -La
(the Imperialist strictly personal and inalienable provision, unless organ). The wrapper of each cake of Chocolate is labelled “JAMES Erps & Co., Homeopathic Chemists,
or until she, being discovert, should do or suffer Holker, Q.C. (Kemplay with him), in support of L ndon." Also, mukers Ot’ Epps's Milky Chocolate anything, or any event should happen, by which the rule. (Chocolate aud Condensed Milk).
“ the said income or any part thereof should
LAID DOWN IN
either voluntarily or involuntarily be aliened or rendered her a party to the suit in respect of her eldest son of the late Mr. Andrew Winderburn encumbered or be receivable otherwise than by interest under the will, and not in respect of any Colvile, of Ochiltree and Crombie, Fifeshire, the respondent herself personally." In that event liability she might be under to the testator's by the Hon. Louisa Mary, daughter of William, it was provided that the trustees, at their own estate ; and that an independent suit would be first Lord Auckland. He was born in London in discretion, might apply the income for the benefit necessary for the enforcement of any such liability : 1810, and was educated at Eton and Trinity of the respondent or her children: The court held (Walker v. Seligmann, 25 L. T. Rep. N. S. 294. College, Cambridge, where he graduated B.A., as that, supposing the substituted trusts of the will Rolls.)
a senior optime in 1831, and proceeded M.A. in came into operation, the income which the trus- MALICIOUSLY MAKING A MAN BANKRUPT.-A 1834; he was called to the bar at the Inner tees might allot to the wife could not be regarded lengthy headnote on this subject, too long for Temple in 1835, and in 1845 he was appointed as “property in reversion,” and that the court transcription, will be found in the case of Johnson Advocate-General of the Honourable East India therefore could make no order in regard to it. But, v. Emerson (25 L. T. Rep. N. S. 337, Ex.) [Some Company at Fort Wiiliam in Bengal; he was under the circumstances, it made an order for comments on this case appear in our leading transferred to the puisne justiceship of Her Mathe payment of 5001. a year to the husband out columns.]
jesty's Supreme Court at Calcutta in 1848, when of the wife's life interest: (Milne v. Milne and Will-CONSTRUCTION-LEGACIES WHETHER he received the honour of knighthood by patent. Fowler, 25 L. T. Rep. N. S. 274. Div.)
CUMULATIVE OR SUBSTITUTIONAL.-E., by a He was made Chief Justice in 1855, and appointed USURIOUS CONTRACT– MINOR-EXORBITANT codicil to his will, gave legacies to a number of assessor to the Judicial Committee of the Privy INTEREST-31 & 32 VICT. C. 4- EQUITABLE legatees, and by a second codicil gave to most of Council on Indian Appeals in 1859, and a member RELIEF- Costs. The jurisdiction of this court the legatees legacies similar in amount, and to of the Judicial Committee in 1865. Sir James over unconscionable bargains is not affected by other legatees smaller legacies. The question was Colvile, who is a magistrate and deputy-lieutenant the repeal of the usury laws, or by the 31 & 32 whether the legacies in the second codicil were for the county of Fife, married, in 1857, Frances Vict. c. 4, as to dealings with reversionary in- cumulative or substitutional. Held, on the Elinor, daughter of Sir John Peter Grant, K.C.B., terests. An exorbitant rate of interest agreed to authorities, that the legacies were cumulative : formerly a member of the Supreme Council at be paid by a young and needy man on the security (Wilson v. O'Leary, 25 L. T. Rep. N. S. 327. Calcutta, and now Governor of Jamaica, by whom of property in reversion, held by an indefeasible V.C. B.)
he has issue. title, is unfair dealing within the 31 & 32 Vict.
THE NEW ATTORNEY-GENERAL AND SOLICI. c. 4. Where a young man charged his reversionary
TOR-GENERAL.—Sir John Duke Coleridge, Q.C., interest with exorbitant sums for interest on loans
THE BENCH AND THE BAR.
who has succeeded Sir Robert Collier as Attorneyprincipally made to his brother, an infant, the
General, is the elder son of Sir John Taylor Colecourt decreed the charge to stard as security only
ridge, of Heath's-court, Devonshire, by the eldest for the suis actually advanced, and for interest at MR. KEEBLE has requested us to insert the fol. daughter of the late Dr. Albert Buchanan, vicar 51. per cent. : (Tyler v. Yates, 25 L. T. Rep. N. S. lowing letter, which he addressed to the Daily of Woodmansterne, Surrey, and rector of North284. Ch.) Telegraph:
fleet, Kent. He was born in the year 1821, and PLEADING — DEMURRER ADMINISTRATION “Šir, — My attention has been called to the notice was educated at Eton and at Oxford, where he was AND PARTNERSHIP ACCOUNT-MULTIFARIOUS. in your paper of this date of a matter which a scholar of Balliol and a Fellow of Exeter NESS-PARTIES.- Where a bill was filed by three occurred before Mr. Commissioner Kerr yesterday, Colleges, and where he graduated B.A. in 1842, children against their father's surviving partner on the conclusion of a trial of a person named and proceeded M.A. in 1816. In the November of and executor, charging him with wilful neglect Patrick McHugh, and as your report is inaccurate, the same year he was called to the Bar by the and default, and praying for the administration of and might, if believed, reflect prejudicially upon Honourable Society of the Middle Temple; he their father's estate ; for an account of the part my professional repute, I am desirous that it was made a Queen's Counsel and elected a nership business; and for an injunction to restrain should be corrected. The facts, so far as they Bencher of the Middle Temple in 1861. From the defendant from dealing with the partnership relate to myself, are shortly these : On Tuesday 1855 to 1866 he held the Recordership of the property: Held, that a demurrer on the ground last I was engaged at the Surrey sessions till late borough of Portsmouth. In August, 1864, he suc. that a fourth child (out of the jurisdiction) was in the afternoon, but having been previously cessfully contested Exeter ; but in July, 1865, he not a party to the suit, and for multifariousness, instructed in several cases at the Central Criminal was returned unopposed, in conjunction with must be overruled : (Pointon v. Pointon, 25 L.T. Court, I had sent my clerk there, to watch the Lord Courtenay (whom he had formerly opposed) Rep. N. S. 294. V.C. W.)
progress of the business, in order to apprise me if as one of the representatives in Parliament for VOLUNTARY SETTLEMENT—WHEN VOID As A either case were near trial. During the time he that city. In 1868 he succeeded Sir Robert Collier FRAUD UPON CREDITORS-THE DOCTRINE AS was absent, and in my absence, a brief was as Solicitor-General, and now, upon the elevation
ENGLAND AMERICA.- delivered to him bearing a solicitor's name; but of the latter to the judicial bench, Sir John D. ColeAmerican cases have decided (1) that a voluntary as he was suspicious of the person, he saw the ridge becomes Attorney-General. Sir John, who is settlement in favour of a wife cannot be impeached solicitor, who ignored the matter, and the brief entered in the Parliamentary Companion as a by subsequent creditors merely because it was was destroyed.
decided Liberal, has been a frequent contributor voluntary; and (2) that subsequent indebtedness. “Yesterday matters were mentioned to Mr. to the Elinburgh Review and other publications, cannot be invoked to make that fraudulent which Commissioner Kerr, by Mr. Avory, relative to the and for some time acted as Vice-President of the was honest and free from impeachment at the time. man who had assumed to act for the prosecution, Articled Clerks' Society. He married in 1846 In the English case of Spirett v. Willows (10 L. T. and during the inquiry my name was mentioned Jane Fortescue, daughter of the Rev. George Rep. N. S. 450) it was laid down that if a volun. by the counsel for the prosecution, upon which I Turner Seymour, of Farringford-hill, in the Isle tary settlement hinders and delays creditors whose made a statement to the commissioner to the above of Wight. Mr. George Jessel, Q.C., M.P. for debts were contracted at the time, it is immate. effect, adding, as the fact was, that I had not even Dover, who succeeds Sir John D. Coleridge as rial whether the maker was solvent when he exe- seen or heard of the brief in question, and that, Solicitor-General, is a gentleman of Jewish extraccuted it, and it is void. But if such settlement is had it been offered to me by the solicitor whose tion, being the youngest son of the late Mr. Zachaimpeached by creditors whose debts were not con- name was mentioned, I should have refused it, in riah Nathaniel Jessel, a merchant, of Putney, by tracted when it was made, an express fraudulent conformity with a recent resolution of the Surrey Mary, danghter of the late Mr. Henry Harris. intent on the part of the maker must be shown. Sessions bar.
He was born in London in the year 1824, was The former of these propositions was doubted in
“As I am not one of that class who “tout for educated at University College, London, where the case of Freeman v. Pope (21 L. T. Rep. N. S. briefs,' I trust you will do me the justice to insert he graduated B.A., in 1813, as a University Scho816 ; 23 Ibid, 208.) Held, by the American Court, this letter in your next issue, in as prominent a lar in Mathematics, and proceeded M.A. in the that notwithstanding Spirett v. Willows, the deci. position as the report to which it refers.”
following year, obtaining a gold medal in mathesions in the American cases interpret the law
matics. He was called to the Bar at Lincoln's-inn under the statute of 13 Eliz. in accordance with LORD CHIEF JUSTICE COCKBURN.—The London in May, 1847, and was made a Queen's Counsel the prevailing law in England. P. made a volun. correspondent of the Manchester Guardian men. and a Bencher of his Inn in 1865. He is a Senatary settlement on his wife in consideration only tions a rumour that on the settlement of the Ala- tor of the University of London, and at the general of the marriage relation, being in prosperous bama claims a peerage will be offered to Lord Chief election of 1868 he was returned in the Liberal business, and solvent at the time. The settled Justice Cockburn, and that he will accept it with interest as one of the representatives of the property consisted of land and a house, the latter the view of giving his assistance in the Appellate borough of Dover. Mr. Jessel married in 1856 to be built after the making of the settlement, and Tribunal of the House of Lords. A former Liberal Amelia, eldest daughter of Mr. Joseph Moses, for which various contracts were entered into by Premier offered to advise Her Majesty to summon merchant, of London. In conformity with the the settlor. After the house was built and every: Sir A. Cockburn to the Upper House, but the usual practice Mr. Jessel will shortly receive the thing done to complete the property to be vested offer was at that time declined for family reasons. honour of knighthood. in the settlee, the settlor's firm failed. Held, He was made Chief Justice in 1856, so that the JERSEY JUDGES versus THE TREASURY. - Ten that P. having been solvent when he made the period of fifteen years' service which entitled him of the twelve judges of the Jersey Royal Court settlement, and it not being proved that it was to a retiring pension has nearly expired. The were engaged recently in adjudicating a case, executed with intent to defraud, the settlement Chief Justiceship of the Queen's Bench would already alluded to in our columns, in which was good: (Sedgwick v. Place and others, 25 L. T. then be offered in due course to Sir J. D. Coleridge, they were all personally interested. "It was an Rep. N. S. 307. American Reports.)
should he at that time hold the office of Attorney action brought by Mrs. Chase, proprietress TRUSTEE-INVESTMENT OF TRUST FUND ON General.
of the Royal Yacht Club Hotel, to recover pay. INSUFFICIENT SECURITY-FRAUD OF TRUSTEE'S THE JUDICIAL COMMITTEE. — Sir Montagu ment of the sum of 95l. 11s. The actual defenSOLICITOR-LIABILITY OF TRUSTEE.- Trustees Smith, who, under the late arrangement, becomes dants were Her Majesty's Treasury, the nominal applied to their solicitor to find them an invest- one of the paid members of the Judicial Com. defendants being Mr. Robert Pipon Marett, Her ment for certain trust moneys. The solicitor, by mittee of Her Majesty's Privy Council, is the Majesty's Attorney-General for Jersey ; Mr. John means of forgery, induced them to advance the eldest son of the late Mr. Thomas Smith, of Bide. Le Conteur, Q.A.D.C., Viscount or Sheriff of moneys on an insufficient security. Held, that ford, Devonshire, by Margaret Colvile, daughter Jersey ; and Mr. Peter John Simon, Queen's the trustees were liable to make good the loss : of Captain M. Jenkyn, R.N. He was born at Receiver for the island. The claim was for (Sutton v. Willers, 25 L. T. Rep. N. S. 292. Rolls.) Bideford in 1809, and was educated at the dinners supplied to the judges of the court during
PRACTICE-ADMINISTRATION SUIT – PARTY Grammar School of that town. Called to the bar the past six years, on the occasion of the opening SERVED WITH DECREE-CLAIM AGAINST PERSON by the Honourable Society of the Middle Temple of the assize of Heritage. The case for the plain. SO MADE A PARTY.–The residuary legatees under in Nov., 1835, he chose the Western Circuit, and tiff was briefly as follows: From a very remote a will filed a bill against the executors for the afterwards became a Bencher of the Middle date the Crown had been in the habit of paying administration of the testator's estate, and having Temple. He received the honour of a silk gown for a dinner to the judges on these occasions, the obtained a decree they served it on the testator's in 1852, and in April, 1859, he was elected in the cost being defrayed out of the revenues of Her sister under 15 & 16 Vict. c. 86, s. 42, r. 8. The Conservative interest as one of the representa- Majesty in Jersey. Six years ago Her Majesty's testator had in his lifetime purchased certain stock tives in Parliament for the borough of Truro; he Treasury gave instructions that no more dinners in the name of his sister, and by his will he gave held his seat until Feb. 1865, when he was ap. should be paid for out of the fund. The judges, her an annuity. The sister claimed to be abso. pointed one of the Justices of the Court of on each occasion of the opening of the assize, lutely entitled to the stock, but the plaintiffs Common Pleas. He had previously contested asserted their right to dine as before, and ordered alleged that she held it in trust for the testator. Truro unsuccessfully on two occasions-namely, the Viscount to have the usual meal prepared. On a motion for an injunction to restrain her in 1819 and 1852. The other new paid member of This was done regularly, the Viscount being com. from dealing with the stock : Held, that the ser. the Judicial Committee, Sir James William Colvile, pelled to obey on pain of imprisonment. Revice of the decree on the testator's sister only' of Ochiltree and Craig-flower, Fifeshire, is the peated applications were made for payment to
the Queen's Receiver, and at length the present
Mr. Welford's decision. The question raised by action was brought. One of the judges (Mr.
plaintiff's advocate, although of considerable David de Quetteville) was challenged by the
interest to married ladies whose husbands have Attorney General, who objected to his sitting on
NOTES OF NEW DECISIONS.
deserted them, was settled nearly forty years ago account of the public manner in which he had in CHARTER PARTY-DEED FREIGHT-DEFICI. by higher authority than Mr. Welford. He has open court expressed his opinion as to the OF CARGO-INDORSEES OF BILLS OF in fact, taken upon himself, by a mode of reasonconduct of the Crown in refusing to pay for the LADING.–The term “dead freight " means “not ing. obviously wrong, to overrule the unanimous dinners, designating it as “scandalous." The freight, but an unliquidated compensation for the decision of four eminent judges (sitting together) other judges overruled the challenge, and Mr. De loss of freight recoverable in the absence and of the Court of Common Pleas, viz., Chief Justice Quetteville took his seat. The point before the place of freight :” (por Lord Ellenborough in Tindal, and Justices Gaselee, Bosanquet, and court was whether the ancient custom of the Phillips v. Rodie, 15 East 254, approved.) The Alderson, in Williamson v. Dawes, reported at Crown in giving these dinners was to be looked shipowner, therefore, is entitled to be paid for a page 292 of 9 Term Reports. A comparison of the upon as a right or an act of courtesy. The oldest deficiency of cargo, not at the rate assigned per facts of that case with those in Wood v. Roberts document that could he produced relative ther-to ton in the charter party for actual cargo, but can scarcely to bring any mind of ordinary was an entry in the Royal Court records in June a reasonable sum, deductions being made for capacity to the conclusion that, according to the 1616, when it was ordered that the dinners charges saved to the shipowner in consequence of decision of the Superior Court, Mrs. Roberts was “should be provided as heretofore." The the deficiency. No consideration of inconvenience not liable to be sued. In Williamson v. Dawes, Attorney General, who defended himself and Mr. can prevent a right of lien where a charter party the husband (Dawes) was adjudged bankrupt in Simon, contended that this was no proof of an has expressly created that right. Where in 1824. He did not surrender for examination, but engagement on the part of the Crown to give the dorsees of a bill of lading are also the charterers absconded to France, and remained abroad till dinners, and even if so, Her Majesty's Treasury of a ship, they are bound by a stipulation as 1832. a period of eight years. Shortly after he having given orders to discontinue payment of to lien in the charter party. Bills of lailing signed left this country he was proclaimed for not apthem was a sufficient reason why the judges by the master are prima facie evidence that pearing under his bankruptcy, and for which he ought not afterwards to have ordered them. the quantities named therein were received on then rendered himself liable, on his return to this After hearing the parties and consulting for an board by him; the onus of rebutting this pre- country, to be arrested and punished for a felony. hour, the court deferred judgment till a future sumption and of showing that a less quantity Mrs. Dawes remained in this country, and conday,
than that specified was received lies on a ship. tracted the debt for which she was sued by owner : (McLean v. Fleming, 25 L. T. Rep. N. S. Mr. Williamson. Then, in what respect do 317. H. of L.)
the two cases differ? Substantially, the facts REAL PROPERTY AND
are alike. In Wood v. Roberts, the husband CONVEYANCING.
left Scotland in 1865, and has been abroad MERCANTILE LAW.
ever since: he was made bankrupt, and, not NOTES OF NEW DECISIONS.
appearing for examination, a warrant was issued WILL-CONSTRUCTION.-By his will, made in
for his arrest. In Williamson v. Dawes, the hus.
NOTES OF NEW DECISIONS. 1835, a testator gave the H. Hill estate to his grand.
band was liable to be arrested the moment he set son A.; and should A.die without an heir he desired SALE -SPECIFIC ARTICLE-MISTAKE OF BUYER bis foot in this country, although no warrant had that the said H. Hill estate should be given to his | AS TO AGE-SILENCE OF SELLER.-On buying a
been issued against him. In Wood v. Roberts the grandsɔns B. and C. : Held, that A. took an estate specific article, without warranty expressed or warrant was issued simply to enforce his appear. tail and not the fee simple, for the words "without implied, after having had full opportunity of in. ance for examination under the bankruptcy, an heir" must mean without an heir of his specting the whole, or a sample the same as the
Whereas in Williamson v. Dawes, the husband body,” inasmuch as the persons to whom the gift bulk, caveat emptor; for the vendor is not bound after being arrested was liable to a severe punishover was made were capable of being A.'s col. to dispel false impressions as to the value or
ment. Mr. Welford's statement of the law is lateral heirs : (Hancock v. Clavcy, 25 L. T. Rep. fraudulent act of the seller, have formed in the mind is voluntary, although he does not intend to return, quality of the thing sold, which may, through no
" that where the absence abroad of the husband N. S. 323. M.R.)
LANDLORD AND TENANT-NOTICE TO QUIT- of the buyer; nor will the mere passive acquiescence such absence will not invest the wife with the legal Custom.-A tenant from year to year of a stone of the one in the tacit self-deception of the other attributes of a feme sole; but where the adjuraquarry in Yorkshire received from his landlord render the contract between them void. But, tion or exile is such that the husband could not six months' notice to quit. The tenant claimed nevertheless, they must be ad idem as to the return to the realm, that it would have been conthe right, under an alleged custom of the district, terms of sale, unless the circumstances are such trary to law for him to do so, then the wife must to be allowed to continue in possession a reason. as to preclude either from denying that he agreed be treated as a single woman, and capable of bindable time after the expiration of the notice, to to the terms of the other. The plaintiff, a farmer, ing herself by her own contracts.” The grounds enable him to "get" the stone he had “bared." having good new oats, asked the manager of the
on which Mr. Welford holds Mrs. Roberts to have At the expiration of the notice, the landlord defendant, a trainer of racehorses, if he wanted to acquired the status of a feme sole are, that her brought an action of ejectment against the tenant, buy oats, and, on being answered by the manager he sets his foot in the
United Kingdom, and the
was liable to be arrested the moment who thereupon filed a bill to restrain the action, that he was always ready to buy oats, gave him a and setting up the custom as against the landlord. sample, and told him the price. The manager letter he wrote proves that he is fully aware of the Held, that the evidence failed to prove the ex:
took away the sample, and next day bought the legal, I need not say the penal, consequences which istence of the custom as alleged ; and that, even if bulk, but afterwards refused to accept the will occur to him on his return by reason of his flight it had existed, the proper remedy of the tenant oats, because they were new, whereas, from justice.” Accepting Mr. Welford's view of would have been at law: (Vint v. Constalle, 25 he said, he had thought to buy old. The the law, the liability of Mrs. Roberts depended L. T. Rep. N.S. 324. V.C. M.)
defendant being sued by the plaintiff in upon the answers to two questions. 1st. Did the County Court, there was a confict of testi. Roberts go abroad voluntarily or not? 2nd. Was
mony a' to whether "old" oats had been men. he prevented from returning because it would MAGISTRATES' LAW.
tioned at the bargaining; and whether trainers have been contrary to law for him to do so ? It
always used old oats only, to the plaintiff's know. would have been well if Mr. Welford had directed HAMMERSMITH POLICE-COURT, ledge. The judge told the jury to consider, first, his attention more particularly to these points, so Thursday, Nov. 2.
whether the word “old had been used in the that his views might be contrasted with those of (Before Mr. INGHAM.)
conversation ; if so, their verdict should be for the the four judges in Williamson v. Dawes. As to
defendant; if not, secondly, whether the plaintiff the first question, it is not manifestly the fact Ferocious dog-Keeping unmuzzled-Eviilence of believed the defendant believed, or to be under that Roberts left Scotland entirely of his own
ferocity-Locolity. Mr. Casolla, of Phillimre.gardens, South Ken-parchase of old oats; if so, the defendant was the impression, that he was contracting for the accord? He was not expelled or taken out of
the country under sentence of the law, as in the sington, wits summoned for unlawfully keeping in entitled to the verdict. They found for the defen- case of transportation, but he ran away, and his a public thoroughtare an unmuzzled ferocious dant. Held, that there must be a new trial. Per going away did not depend upon the will of any dog. Cockburn, C.J.- Because it was doubtful upon
one else but himself. The answer to the first Martin was attorney for the complainant. which of the two grounds the verdict was based, question being a negative, a very slight examinaF. 0. Crump was counsel for thu defendunt.
and it inight have been founded on the second tion of the second will prove how untenable Mr. The dog in question was a Dalmatian carringe question, which ought not to have been left to the Welford's decision is. The learned judge says dog, which for four years had run loose in some jury. Per Blackburn and Hannen, JJ.-Because that Roberts's absence (i. e., his remaining abroad) mews at Kensington. In July last a child, be it seemed likely that the jury did not understand was involuntary, because "his returning to this longing to one of seven families residing in the from the latter question that, in order to relieve country would have been contrary to law;"" and mews, pulled the dog by the tail, whereupon the the defendant, it was necessary they should find, he explains the latter hy saying that " Roberts dog turned upon the child and bit it in the fore. not merely that the plaintiff believed the defen- would be liable to arrest the moment he returns, head. For the coinplainant, evidence was given of a dant to believe that he was buying old oats, but and to avoid the legal or penal consequences he bite inflicted upon the same child on one peevious that he believed the defendant to believe that he remains abroad.” To my mind this is very occasion, and once also the dog had been seen to the plaintiff, was contracting to sell old oats; and odd logic. A warrant is issued to arrest a catch hold of the truusers of some boys running there was no sufficient evidence to support such a man, in order to enforce his compliance with through the mews. The evidence for the defence went to show that finding : Smith v. Hughes, 25 L. T. Rep. N. S. the law (to which it is the bounden duty 329. Q. B.)
of every man to submit), and because he, unless irritatod, the dog was perfectly quiet and
of his own free will remains out of the docile ; and it was contended that the two bites
country to avoid arrest, it is said that his "reinflicted after provocation, during the course of CORRESPONDENCE OF THE maining abroad is involuntary, because his refour years, could not prove the dog to be ferocious.
PROFESSION. The learned counsel subinitted, citing the dictum
turning would be contrary to law.” Mr. Welford's
own answer to the question, how would his reof Erle, C. J., in Worth v. Gilling (L. Rep.2 C. P.,
turning be contrary to law would expose the at p. 3), that it must be distinctly proved that the Nork.-- This department of the Law Times being open to fallacy of the reasoning. If the warrant had been dog was of a fierce and savage nature, which the
tree discussion on all professional
topics, the Editor is not issued for the express purpose of expelling him
responsiblo for any opinions or statements contained in it. particular dog certainly was not. The fact that
from the country, or to prevent his coming back, a dog bit when it was worried, did not prove that
then his returning would have been “contrary to it was savage by nature.
THE LIABILITY OF MARRIED WOMEN TO BE law," but the object of the warrant was the very Mr. INGHAM said he was of opinion that, SUED.-Wood v. ROBERTS. — The judgment of reverse of that, viz., to enforce his eubmission to although the dog might be a very good-natured the Judge of the Birmingham County Court in the the law by his arrest the moment he came within dog in the country, nevertheless for the locality in above case, of which a report appears in your last reach. If Roberts was an involuntary exile, the which it lived he must consider it a ferocious dog week's issue, being, as I conceive, radically wrong, husband in Williamson v. Daves must have been, within the meaning of the Act of Parliament. He and having occasioned much surprise amongst for the latter had far greater canse than Roberts should not, however, inflict a fine, but adjourc the many legal practitioners in this district, I take for remaining abroad ; he was guilty of felony, and case to enable Mr. Casella to compensate the the liberty of asking the insertion of this letter in punishable with great severity, whereas Roberts father of the child. If the dog bit anyone again your paper so that the Profession generally may was only liable to arrest, and temporary imprison. he should order it to be destroyed.
be able to form an opinion as to the soundness of 'ment until he had passed an examination under