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July 24, 25, 26, 28, Aug. 1, 2, and 5, and Nov. 6.
PEEK v. GURNEY.

Company - Prospectus - Concealment Liability
of directors-Lapse of time-Costs.
THIS was a suit instituted by William Peek the
younger against the surviving late directors of
Overend, Gurney, and Company (Limited), and the
representatives of Mr. Gibbs, a deceased director,
praying for a declaration that the defendants were
liable to make good to the plaintiff the loss he
had sustained by reason of his having purchased
2000 shares in the company on the faith of the
prospectus put forth by the directors, which, as he
alleged, intentionally suppressed facts of vital im-
portance, which, if disclosed, would have pre-
vented him from making any such purchase. The
evidence in the cause established in his Lordship's
opinion, that in May 1865. when Messrs. Gurney
resolved on the formation of a company, if the
firm had attempted to go on without assis-
tance they must have speedily stopped pay:
ment, and that if they had stopped they would
have paid only a very small dividend; that at
that date the liabilities of the firm totally indepen-
dent of its legitimate business were, in round
numbers, 4,000,000l., and its assets only 1,000,000l.;
that the firm was then hopelessly insolvent, and
all the members of the firm were aware of that
fact. In that state of affairs the members of the
firm applied to the defendants Barclay, Gordon,
Rennie, and Gibbs, explained to them the position
of the firm, and induced them to join in the for-
mation of the company. Accordingly on the 12th
July, 1865, they issued the prospectus for the for-
mation of the company to purchase the business
of the firm for 500,000l., one half of which was to
be paid in cash, and the other half in shares on
which 15l. per share was to be credited as fully
paid up. The company was to consist of 100,000
shares of 501. each, of which 15l. per share was
intended to be called up. The plaintiff was not
one of the original shareholders, but purchased
shares in the market.

Kay, Q.C., Swanston, Q.C., and Joliffe, for the plaintiff.

Roxburgh, Q.C. and Lindley, for the defendants
H. E. Gurney, J. H. Gurney, and R. Birkbeck.
Sir Roundell Palmer, Q.C., Fry, Q.C., and Sayer,
for the defendant H. F. Barclay.
Fooks, Q.C. and W. C. Fooks for the defendant
H. G. Gordon.

Jessel, Q.C., Macnaghten, and Medd, for the de

fendant W. Rennie.

Sir Richard Baggallay, Q.C., Macnaghten, and F. W. Maclean, for the representatives of J. C. Gibbs.

Ferrers, for the liquidators of the company. Lord ROMILLY was of opinion that the defen dants had acted bona fide with the view of preserving the goodwill of the old business, and in the firm belief that the million and a half that would be obtained by the formation of the company would be sufficient to effect that purpose. The real object of the formation of the company was to preserve this goodwill which the partners and their families could not command money enough to preserve. It was essential to the formation of the company that this fact should be concealed as the public would not otherwise have taken shares. The honest belief of the directors in the probable success of the company exonerated them from liability in a criminal court, but not in a court of equity. The concealment of a most material fact, which concealment the concealer believes will be beneficial to himself and the man whom he induces thereby to join with him in a speculation does not, his Lordship thonght, exonerate him from the consequences in a court of equity. Upon the concealed fact being known or not depended the whole scheme. The prosecution of the directors for a criminal cffence was extremely ill-advised; they did not intentionally try to induce persons to put money into a concern which they knew would fail; on the contrary they sincerely believed that it would succeed. But that was no excuse in equity, which requires not only that there should be an absence of any intention, or even of any motive to deceive, but also that the truth should be told and that not partially, but that the whole truth should be told. If anyone of the shareholders had, shortly after the shares had been allotted to him, discovered the facts and filed a bill to have the allotment cancelled and his money returned, the court would not have hesitated to give him the relief sought for, or, if that was impossible, make the directors personally able to make good the loss he had sustained. There were, however, other considerations in the present case. Did the case of deception by the prospectus apply to the plaintiff, who was a transferee of shares, and not an allottee, and had the plaintiff come in sufficient time, and with sufficient diligence, to induce the court to interfere in his favour? With regard to the first question, his Lordship thought that if an allottee of shares was bound by time or condonation, a transferee was bound also by the same bar. As regards the other question when a man takes shares in a com

pany he ought to ascertain at once whether the
representations, on the faith of which he took his
shares, are correct or not. In the present instance
the shares were bought in Oct. 1865, and Jan.
1866, but the plaintiff never made any inquiry into
the condition of the concern until after the failure
in May 1866, and, but for the failure, would doubt
less have made no inquiry at all. There was no
conduct more rigidly reprobated in equity than the
system of playing fast and loose-of adopting a
company if successful, and repudiating it if it
fails, and calling on the directors for indemnity.
He was therefore of opinion that the plaintiff
came too late for equity to assist him in this case.
If before the failure an allottee had applied to the
court either to cancel his shares, or to make the
directors personally liable, he would have obtained
a decree in his favour, but the time which had
elapsed, and the order for the winding-up of the
company, entirely precluded the plaintiff from
obtaining the cancellation of the contract, accord-
ing to the decision in Oakes v. Turquand (16 L. T.
Rep. N. S. 642), and, in his Lordship's opinion, the
plaintiff was precluded on similar grounds from re-
quiring the personal indemnity of the directors. The
lapse of time before filing the bill was fatal to the
plaintiff's claim, and the bill must be dismissed,
but without costs, on the ground that the directors,
although they did not gain, or seek to gain, any
advantage by their concealment, were neverthe-
less highly culpable in a moral point of view, and
had by their misconduct, occasioned the calamities
caused by the failure of Overend, Gurney, and
Company.

Bill accordingly dismissed without costs.
Solicitor for the plaintiff, W. A. Downing.
Solicitors for the defendants, Young, Jones, and
Co.; Bevan and Whitting; Wilson, Bristowe, and
Carpmael; Young, Maples, Teasdale, and Co.;
Uptons, Johnson, and Upton; Maynard and Son.

V. C. MALINS' COURT.

Nov. 4 and 6.

Re THE MARSEILLES EXTENSION RAILWAY AND
LAND COMPANY (LIMITED), Ex parte THE
CREDIT FONCIER AND MOBILIER OF ENG-
LAND (LIMITED.)
Company-Advance to directors for purpose of
purchasing shares-Rigging the market-Notice.
ADJOURNED summons. This was an applica-
tion by the liquidators of the Credit Foncier
and Mobilier of England to prove in the wind-
ing-up of the Marseilles Company for a debt
of 10,000l., advanced by the former company
to the latter. It was not disputed by the
official liquidator of the Marseilles Company that
the money was actually paid, but he resisted the
claim for repayment on the ground that the money
had been advanced for the purpose of enabling
the directors of the Marseilles Company to "rig
the market," and thus fraudulently keep up the
price of their own shares; that the acceptance of
the advance was contrary to the memorandum and
articles of association of the Marseilles Company,
and, being ultra vires on the part of the directors,
the transaction was not binding on the shareholders;
and that the directors of the Credit Foncier had
notice of the nature of the transaction. It was
argued on behalf of the Credit Foncier that when
the money was paid the directors of the Credit
Foncier had, in fact, no notice that it was going to
be employed in an improper manner; that no
notice could be inferred from the fact that some
of the directors of the Credit Foncier were also
directors of the Marseilles Company; and that the
validity of the claim was not affected by the fact
that the money might have been employed in an
improper manner after it had been paid. The
Chief Clerk decided against the claim, and the
matter now came before the Vice Chancellor.

Glasse, Q.C., Cotton, Q.C., and H. M. Jackson,
for the liquidators of the Credit Foncier.
Higgins and Gill, for the official liquidator of
the Marseilles Company.

The VICE-CHANCELLOR said that he had to de-
termine whether the money had been parted
with by the Credit Foncier Company under cir-
cumstances which constituted a legal debt against
the shareholders of the Marseilles Company.
Borrowing by public companies depended upon
different principles from borrowing by individuals,
and it did not follow that every sum borrowed by
directors constituted a debt against the share-
holders. There could be no debt against the
shareholders of the Marseilles Company in the
present case, unless the loan had been made for
proper purposes, and was within the powers of
the borrowing company. His Honour then re-
viewed the connection between the Credit Foncier
and the Marseilles Company. He stated that the
latter was an emanation from the former, and
that it was clear that the transactions of the one
company were known to the other. The evidence
showed that the advance of 10,000l. was really part
of a scheme for "rigging the market" and giving a
colourable value to the shares of the Marseilles
Company. The same solicitors acted for both
companies; two of the directors of the Marseilles

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THIS was a suit to compel Maddick to indemnify Hemming against all loss and liability in respect of certain shares taken by Hemming in Fred. Symons and Co. (Limited.) The shares of the company were 101. each, 11. being paid upon application, and 17. on allotment. On the 4th Dec. 1865, Heming made an application for 250 shares, and on the 7th Dec. they were allotted to him. He admitted that he received a pecuniary consideration for taking the shares, but he alleged that the shares were taken for the exclusive benefit of Maddick; that Maddick paid the allotment and deposit moneys, and agreed to indemnify him against all loss and liability; and that he was to transfer the shares to Maddick, or as Maddick should direct. Maddick admitted that he paid the allotment and deposit moneys, and that it was agreed that Hemming was to have no beneficial interest in the shares. But he alleged that the sum which Heming received for taking the shares, was accepted by him as the price of all risk in connection with them, and he produced a written receipt for money paid to Hemming," in consideration of his taking risk of applying for 250 shares in Symons's Company (Limited), the application and allotment money only being paid thereon." He denied altogether that he undertook to indemnify Maddick. On the 12th Dec. 1865, Heming executed a transfer of the shares to one Pott, a nominee of Maddick. The transfer was left by Pott at the office of the company, but the directors refused to accept it, and Hemming's name remained on the register until the winding-up of the comshares under which Hemming had become liable to pany in Dec. 1866. Calls had been made on the pay 10007. He paid a considerable sum, and then filed this bill for an indemnity. He had subsequently entered into a compromise with the liquidator, by which it was agreed that the liquidator should prosecute the suit in Hemming's name.

Cotton, Q. C. and Chitty for the plaintiff. Glasse, Q. C. and Higgins for Maddick. The VICE-CHANCELLOR said that the application for shares was a transaction entered into at the request of Maddick, and for his benefit. It was clear upon the evidence that the beneficial ownership of the shares was vested in Maddick, and he was therefore bound to indemnify the plaintiff.

Solicitors: Linklater and Co.; Alfred Cox.

V.C. BACON'S COURT.
Friday, Nov. 3.

SLEEMAN v. WILSON.
Demurrer-Breach of trust-Acquiescence.

IN the year 1810 Henry Evans lent to John Evans
the sum of 21661. 13s. 4d., and the repayment of
this amount was secured by a bond dated the 19th
Dec. 1810. In the same year Henry Evans made
his will in India, whereby he bequeathed all his
property in England to be divided equally between
the plaintiff, Ann Maria Sleeman, and Henry
Evans (his illegitimate children), and he ap-
pointed Cromwell Massey to be executor in
England and guardian to his children jointly
with his nephews, Richard Evans and Lacy Evans.
Henry Evans, the testator, died in the same year,
and Cromwell Massey proved the will. In the
year 1811 the two children of the testator came
to reside with Lacy Evans (afterwards General Sir
De Lacy Evans), and he acted as their sole guar-
dian, and the above-mentioned bond was delivered
to him. At the time the bond became due John
Evans, the obligor, was well able to satisfy the
debt, but payment was not required by Sir De
Lacy Evans, and in consequence in the year 1831
the debt became irrecoverable, and was wholly
lost. In the year 1833 the plaintiff became aware
of the bond, but no effort was made to recover
the amount due thereon till after the death of Sir
De Lacy Evans in 1870. In July 1871, however,
this bill was filed against the executors of Sir De
Lacy Evans to recover from them the amount due
upon the bond and interest, on the ground that
Sir De Lacy Evans had committed a breach of
trust in neglecting to recover this debt, and was
therefore liable to make good the loss. To this
bill the defendants, the executors, demurred, on
the grounds that Sir De Lacy Evans was not tes-
tamentary guardian, and that after so long a
delay on the part of the plaintiffs to assert their
claim, the court could not assist them, and gene-
rally for want of equity.

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THIS was a suit for the specific performance of an agreement entered into between the directors of the West Cheshire Railway Company and the plaintiff. The company had applied to Parliament for an Act empowering them (inter alia) to run

through the plaintiff's land. The plaintiff petitioned against the bill, but withdrew his opposition in consideration of an agreement entered into between the company and himself whereby the railway company agreed to "construct contemporaneously with the construction of the said railway, and for ever thereafter maintain, at their own proper expense, a sufficient siding of at least 100 yards in length alongide the line of railway as constructed through the land of the plaintiff, and upon land belonging to the plaintiff, and to be provided by him for that purpose, for the use of and to the reasonable satisfaction of the plaintiff." The agreement contained a clause by which all disputes between the parties were to be referred to and determined by arbitration according to the provisions with respect to arbitration contained in the Companies' Clauses Consolidation Act 1845. The company completed their line of railway, but did not make the siding, and have since refused to make it. For the defence it was submitted that the land upon which the siding was to be made being the plaintiff's, and not the company's, the plaintiff should have made the siding and then have brought an action for damages, but that it was not a case for specific performance. Amphlett, Q. C. and Townsend appeared for the plaintiff.

Kay, Q. C. and Speed for the defendants. The VICE-CHANCELLOR was of opinion that the agreement was such a one as the court had power to enforce and decreed specific performance, thereof, with costs.

Solicitor for the plaintiff Henry Smith. Solicitors for the defendant, Cunliffe and Beau mont (agents for J. R. and R. Lingard, and Rowell, Manchester).

Tuesday, Nov. 7. DAWSON . ROBINSON. Marriage Articles-Agreement to grant allowance -Whether perpetual annuity. SPECIAL case. By his will in 1824 C. H. Dawson the elder gave the residue of his property to trustees upon trust to sell and divide the proceeds among his children living at his death, and the issue of such of them as should be then dead, and he appointed the trustees his executors. The testator had four children, all of whom survived him. On the marriage of C. H. Dawson the younger (one of the four children), certain property belonging to the intended wife was settled upon the usual trusts for the wife for life, with remainder to C. H. Dawson the younger for life, with remainder to the children of the marriage. Articles of agreement of even date with the settlement were also executed between C. H. Dawson the elder and the trustees of the settlement. The articles contained a recital of the settlement, and C. H. Dawson the elder thereby agreed with the trustees to pay 3501. every year during the life of C. H. Dawson the younger," and in case the said intended wife should survive her said intended husband, then to continue the said yearly pay ment to the trustees of the said settlement for the purposes thereof." Payments in respect of the allowance were male down to 1859. In 1865 C. H. Dawson the elder died; and difficulties having arisen as to the joint effect of the articles and the will of C. H. Dawson the elder, it was decided by Wood, V. C. (on a special case prepared for that purpose), that the gift by will to C. H. Dawson, the younger of a share of residue was adeemed pro tanto by the provision made by C. H. Dawson the elder for his said son and his family by the marriage articles; and a sum of 11,6661. Consols was ordered to be purchased out of the testator's estate to answer the allowance, the income to be paid to C. H. Dawson the younger during his life. In 1869, C. H. Dawson the younger died, having appointed his wife his sole executrix. The widow now con

tended that the said sum of 11,6661. Consols (which was standing in the name of the legal personal representative of C. H. Dawson the elder), was payable to her as part of the residue be queathed to her late husband by his father's will. The surviving trustee of the marriage settlement, on the other hand, contended that under the articles the sum was subject to the trusts of the settlement, and was accordingly payable to him. Wilcock, Q.C. and Lindley for the widow. Fry, Q.C. and Ingle Joyce for the surviving trustee of the settlement.

Amphlett, Q.C. and Streeten for the representative of C. H. Dawson the elder.

Bristowe, Q.C. and Maclean for the infant children of the marriage.

The VICE-CHANCELLOR held that it was clear upon the construction of the articles that the sum of Consols was subject to the trusts of the settle

ment.

Solicitors; Fiddey; R. and W. Smith.

Wednesday, Nov. 8.

WARD v. WOLVERHAMPTON WATER WORKS COMPANY.

Right to re-purchase-Failure to perform condition. THIS was a bill filed by a shareholder in the Old Wolverhampton Waterworks Company against that company and its directors, to obtain a declaration that a right of purchasing certain property of the company, which had been given to the Corporation of Wolverhampton by a deed executed in 1857 was now determined. The old company were incorporated in 1845 by Act of Parliament, and under the powers of the Act they executed works, raised by the creation of shares, a capital of 44.9801., and incurred a mortgage debt of 17,300l. In 1855 the Wolverhampton New Waterworks Company were incorporated by Act of Parliament, and by the same Act the Corporation of Wolverhampton were empowered to purchase the between the two companies dated the 14th Feb. works of the new company. By an agreement 1856, it was agreed that in the event of the arrangement being confirmed by Act of Parliament, the old company should grant its works in perpetuity to the new company at a rent which should be equal to interest upon the share capital of the old company at a certain rate; that the new company should pay the interest on the mortgage debt of the old compa y; and that the grant should contain a provision enabling the new company or the Corporation of Wolverhampton (in the event of a sale of the works of the new company to them), on or before the end of any year, by the payment by them to the old company of a sum equal to the share capital of the old company to entitle themselves to the works comprised in the grant subject to the mortgage debt of 17,300l. and interest, but freed from confirmed by an Act passed in 1856, and was the rent thereby reserved. The agreement was carried into effect by a deed dated 1st Jan. 1857. The deed contained a proviso that if the new company, or (in the event of a sale of the works of the new company to them) if the Corporation should on or before any 25th day of Dec., after having given to the old company six months' notice of their desire to avail themselves of the option thereby given, pay to the old company 46,2461., the new company, or the party making such payment, should thereupon become entitled to the works subject to the mortgage debt of 17,300l. and interest, but free from the rent thereby reserved.

In 1869 the corporation of Wolverhampton purchased the works of the new company, and on the 18th June 1870 gave notice to the old company of their intention to pay 42,2461. to them on the 25th Dec. 1870, in order to become absolute owners of the works. The corporation, however, did not pay off the share capital at the time stated in the notice, but continued to pay interest; and on the 15th June 1871 they gave a second notice to the old company, stating their intention to pay off the share capital on the 25th Dec. 1871. The plaintiff alleged that such purchase by the corporation would be to the prejudice of himself and the other shareholders of the old company, and filed a bill for the above purpose. The case was heard on demurrer.

Kay, Q. C. and Jolliffe for the demurrer. Fry, Q. C. and Procter for the bill. The VICE-CHANCELLOR said that the case depended upon the construction of the deed of the 1st Jan. 1857, which must be read together with the agreement and Act of Parliament which were carried into effect by it. It was clear on the construction of that deed that the right of the corporation to purchase the property was not taken away by their having given notice to purchase, and then having failed to purchase at the time specified in the notice. Nor was it any hardship to the shareholders in the old company that such a right should continue to exist. The demurrer was, therefore, allowed with costs.

Solicitors: Sharp and Ullithorne; Bower and Cotton.

COURT OF QUEEN'S BENCH.

Monday, Nov. 6.

Cox v. SILLEN.

Common Pleas of Lancaster-Cause tried at the assizes-Before what court a motion to be made for a new trial-4 & 5 Will. 4, c. 62, s. 26. When an action is brought in the Court of Common Pleas of Lancaster, and tried at the assizes, a rule for a new trial, &c., must be made in the Court of Westminster, of which the judge who tried such cause is a member. Where, there fore, such an action was tried before Kelly, C.B., and a nonsuit was entered, this court refused to entertain a motion to set aside the nonsuit and for a new trial.

THIS was an action brought in the Common Pleas of the county Palatine of Lancaster, and was tried at the last assizes at Liverpool before Kelly, C.B., when the learned judge directed the plaintiff to be nonsuited.

Millward, Q.C. now moved for a rule calling upon the defendant to show cause why the nonsuit should not be set aside and a new trial be had. He admitted, however, it was the usual practice in such case to move the court to which the

learned judge belonged, before whom the cause chequer, but that there was no rule of law upon the subject, and that the 4 & 5 Will. 4, c. 62, s. 26, in terms gave the suitor power to apply to any one of the Superior Courts at Westminster.(a.) MELLOR, J.-Although there is no rule of law, the practice has been uniform to apply to the court of which the Judge who tried the case is a member.] No doubt the practice has been so, and shortly after the passing of the Act a case arose of an application to this court with reference to a cause tried before Gurney, B., and the court expressed a desire that the motion should be made in the Exchequer. Before the passing of the 4 & 5 Will. 4, c. 62, the practice was to make the application before the two judges of assize, before one of whom the cause was tried; but by the terms of the 26th section the suitor has the liberty of applying to any one of the Superior Courts of We-tminster, and in many cases it would certainly be more convenient not to apply to the same court of which the learned judge who tried it is a member. [COCKBURN, C...-On the other hand, in a great variety of cases, it would be most desirable that the application should Le made to such court. As it is only a rule of practice it is desired to review it.

was tried, which in this case would be the Ex

COCKBURN, C.J.-We do not think that it is desirable to establish a different practice from that which has hitherto prevailed. Attorney for the plaintiff, Lowndes, Liverpool.

COURT OF COMMON PLEAS. Wednesday, Nov. 8. MCBLAIN v. CROSS. Telegram-Undisclosed principal-Statute of

Frauds.

ACTION for not accepting 100 tons of hay, tried before Bramwell, B., at Surrey Assizes. Plaintiff, a dealer in Ireland, received through C. Cross, the brother of the defendant, a contract note relating to the sale of from 100 to 200 tons of hay, which note did not mention the price. At a subsequent interview, at which plaintiff, defendant and C. Cross were present, and the sale of the hay was discussed, C. Cross said he was then acting for his brother, the defendant. Upon this evidence being given, the Judge admitted letters and telegrams signed by C. Cross as evidence against the defendant. The Judge left certain questions t the jury (who found for the plaintiff, damages 2201.) and reserved leave to defendant to move to enter a verdict, if there was no evidence of authority of C. Cross to bind defendant, and if the letters and telegrams did not form altogether a sufficient memorandum in writing to satisfy the Statute of Frauds.

Channell moved for a rule nisi, pursuant to the leave reserved.

The COURT (Willes, Keating, and Brett, JJ.) refused the rule, holding that there was sufficient evidence of authority, and that two telegrams, of which the latter was in this form, "Buyer accepts your offer. Signed, C. Cross," and in which the name of the defendant was not mentioned as buyer, together constituted a sufficient memorandum of the contract, on the ground that the defendant might be treated as the undisclosed principal of C. Cross, who appeared on the telegrams to be liable as principal, by reason of his contracting as agent for an undisclosed principal. Attorney: Spaull.

(a) The 26th section enacts, "That it shall be lawful for any party in any action now depending in, or hereafter to be depending in, the said Court of Common Pleas at Lancaster, to apply by motion to any one of the Superior Courts at Westminster sitting in banco within such period of time after the trial as motions of the like kind shall from time to time be pe mitted to Le made in the said Superior Court, for a rule to show cause why a new trial should not be granted or nonsuit set aside, and a new trial had," &c.

Nov. 2 and 3.

PAPPA v. ROSE.

Broker-Goods to be of fair quality in opinion of selling broker-Broker protected against action for want of skill in forming opinion. THE declaration stated that plaintiff retained and employed the defendant as selling broker for reward, to sell certain goods on terms of a certain sale note in words, &c.: 26th Oct. 1869.

Sold by order, and for account of Mr. D. Pappa, to arrive to my principals, Messrs. Hanson and Son, 500 tons of black Smyrna raisins (1869 growth), fair average quality in the opinion of the selling broker. J. ROSE.

(Signed)

And in consideration thereof defendant promised plaintiff that he (defendant) would use due care, skill, and diligence in and about the said.sale by the defendant, and in acting as the selling broker, within the meaning of the contract, and in and about sampling and examining the same in order to form a just and correct opinion of the same within the meaning of the contract and in declaring the same as between the plaintiff and the buyer. That defendant accepted the retainer and entered on the employment, and all conditions were performed, &c., necessary to entitle the

plaintiff to have due care, skill, &c., used by the defendant, yet the defendant so unskilfully, &c., conducted himself in and about, &c., that although the said goods were black Smyrna raisins (1869 growth), fair average quality, yet the defendant declared his opinion that the same were not fair average quality within the meaning of the contract, per quod buyer refused to accept, and plaintiff could not enforce the said contract of sale against him. At the trial before Bovill, C.J., it was contended for the plaintiff that the contract meant that the raisins were to be of fair average quality, taking the average of the growth of 1869, a very bad year; that the raisins were of such quality, and that although the defendant acted honestly and bona fide in giving his opinion, he showed a gross want of skill in coming to his conclusion. For the defendant it was urged that the contract meant the raisins to be of fair average quality, looking at the general average of a number of years; that the words "1869 growth were only inserted to ensure the raisins being fresh as well as of fair average quality; that the raisins did not come up to this standard; and that even if defendant was wholly wrong in his conclusion, he was in the position of an arbitrator, and so was protected from an action of this sort. His Lordship adopted this view, and directed a nonsuit, giving plaintiff leave to move to enter the verdict if the court should be of opinion that the construction put upon the contract by the defendant was wrong and the defendant was not entitled to the protection he claimed. A rule having been obtained,

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H. Giffard, Q. C., Murphy, and Howard Smith showed cause.

Sir John Karslake, Q. C., Sir George Honyman, Q. C. and Watkin Williams supported the rule. KEATING and BRETT, JJ., held that the rule should be discharged on the ground that the defendant was entitled to the same protection as an arbitrator; they did not decide on the construc

tion of the contract.

BOVILL, C.J. maintained his opinion on both grounds. Rule discharged.

Thomas and Hollams for plaintiff.
Stibbard and Beck for defendant.

COURT OF EXCHEQUER.
Saturday. Nov. 4.

HINDE V. SHEPPARD AND OTHERS. 30 & 31 Vict. c. 142, s. 5-Certificate for costs. THE plaintiffs sued the defendants for trespass on certain lands at Frimby, in the county of Cumberland. The defendants pleaded, inter alia, a justification, on the ground that there always had been an ancient custom for the inhabitants of the village of Frimby to play at games on the green at all times of the year. The defendants also pleaded a public right of highway over the green. At the trial before Willes, J., at the last Cumberland spring assizes, the jury found a verdict for the plaintiff for 40s. on all the issues except the issue upon the plea setting up a public highway, which they found for the defendant. The learned judge being requested to certify for the plaintiff's costs, reserved his decision, and subsequently, while sitting at chambers, refused to certify.

Kemplay having obtained a rule for the defendants to show cause why the plaintiff should not be allowed his costs pursuant to the 5th section of 30 & 31 Vict. c. 142, which provides that no costs shall be recoverable in a Superior Court where less than 101. are recovered in an action of tort unless the judge certify on the record that there was sufficient reason for bringing such action in a Superior Court, or unless the court or a judge at chambers shall by rule or order allow such costs,

Quain, Q.C. (C. Crompton with him), showed

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The COURT (Kelly, C.B., Bramwell, Channell, Cleasby, BB.), held that as the right to play games was the real question in the cause, and that as the jury had found a verdict for the plaintiff on that issue. the learned judge ought to have granted a certificate. The court distinguished the case of Hatch v. Lewis (5 L. T. Rep. N. S. 254; 7 H. & N. 367), on the ground that that case was only a question of damages, and did not involve a question of right. Rule absolute.

Attorneys for plaintiff, Gregory, Rowcliffe and Co. Attorneys for defendant, Sharp and Ullithorne.

Lost

COURT OF PROBATE. Tuesday, Nov. 7.

In the Goods of THOMAS. will-Entry against interest admitted in THE deceased testatrix was supposed to have proof of execution. made a will before the Wills Act, leaving her estate to her husband. It was left in the custody of the solicitor who prepared it, but it could not be found when looked for in his repositories. He had since died, and the husband of the testatrix the will beyond the fact that he had conveyed her could give no further evidence of the existence of instructions to the solicitor, and had gone with her to his office to execute the will, but was not present at the execution.

s. d.

C. A. Middleton now moved for probate of a the solicitor's ledger, in his own handwriting :draft copy, and read the following extract from 1835. Mr. John Thomas, publican. June 15. Mrs. T. being very ill, attending you looking out and perusing her mother's will, and taking instructions for making her will and advising June 16. Drawing same and ingrossing; 17th, attending at the Bear Inn; 18th, reading over and attending the execution.

I kept it.]

Paid June 18.

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The COURT, on the authority of Higham v. Ridgway (2 Sm. L. Cas. 270), held proof of execution to be sufficient, and granted probate of the copy;

Attorney: R. and G. Burchett.

ADMIRALTY COURT. Tuesday, Nov. 7. THE PANTHEA. Priority-Master's wages and disbursements-Shipbroker-Shipbuilder. FOUR suits were instituted against this vessel, two by persons who had been her masters at different times for wages and disbursements, one by a shipbroker, for disbursements for alleged necessaries, and the fourth by a shipbuilder, by whom she was repaired, and in whose hands she was when the shipbroker commenced his suit. It appeared that the claims of the two masters were good. The ship having been a voyage, returned to English port in charge of M., one of the masters and the shipbroker was then appointed by that master to be broker for the ship whilst in that port. The broker had no previous knowledge of the master or owner, and he undertook the management of the ship's affairs as an ordinary matter of business. The freight did not come into the shipbroker's hands, as it had been prepaid, and he made no inquiries as to how any advances he might make were to be repaid to him. He paid various charges, and then allowed the vessel to be placed in the hands of the shipbuilder for repairs, and when she was much increased in value by the repairs done to her, he arrested her for his advances and claimed to be paid in priority to the shipbuilder. The judge referred the whole question to the registrar to report as to the claims and as to the order in which they should be paid; and on Oct. 13th the registrar duly made his report, and the various parties applied for orders to be made by the court in accordance with the report.

Cohen, for the shipbroker.
Clarkson, for the shipbuilder.
Pritchard, for the masters.

The COURT ordered that the payments be made out of the registry, in accordance with the report and in the order therein set out, that is to say, first, the costs of the sale of the vessel in the suit instituted by the shipbroker, as this was for the benefit of all; secondly, the master's wages and disbursements; thirdly, the claim of the shipbuilder for repairs; fourthly, the balance (if any) in part satisfaction of the claim of the broker. Solicitors, Field and Sumner; Clarkson and Co.; Stocken and Jupp.

EPPS'S CHOCOLATE.-"Nous n'avons en France qu'une seule usine où la préparation du Cacao emploie un matériel et un personnel aussi considérables que ceux que nous avons vus dans l'usine de Messieurs Epps. C'est une véritable curiosité dans son genre que cette immense fabrique."-La Situation (the Imperialist organ). The wrapper of each cake of Chocolate is labelled "JAMES EPPS & Co., Homœopathic Chemists, London." Also, makers of Epps's Milky Chocolate (Chocolate and Condensed Milk).

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NOTES OF NEW DECISIONS. PRACTICE-COSTS - ADMINISTRATION SUITADMINISTRATOR DE BONIS NON-EXECUTOR OF DECEASED ADMINISTRATOR.-In a suit for administration by the administrator de bonis non of an intestate against the executor of a deceased administrator, the plaintiff had a balance in his hands sufficient to pay his costs of the suit, and the defendant had in his hands a balance insufficient to pay his costs. Held, that the plaintiff, as the legal personal representative of the intes tate, was entitled to retain his costs in full out of the balance in his hands, and that the defendant, as a stranger to the estate, was not entitled to have both the balances paid into court, and the costs paid rateably to each party, but was only entitled to retain his balance so far as it went in payment of his costs: (Rice v. Orgles, 25 L. T. Rep. N. S. 263. Rolls Court.)

WILL-EXECUTION-FOOT OR END "-15 & 16 VICT. C. 24.-The testator wrote his will in the presence of the attesting witnesses on one side of a piece of paper, and though there was a considerable space left blank at the bottom of the page, he wrote the attestation clause at the back, and the attesting witnesses signed there: Held to be a sufficient execution: (In the goods of Archer, 25 L. T. Rep. N. S. 274. Prob.) WILL- CLAUSE TESTATOR'S SIGNATURE AND ATTESTATION.-A testator, after signing his will and before the attesting witnesses, inserted a clause changing his wife's interest, and made no fresh acknowledgment before the witnesses signed: The court excluded the clause from probate: (In the goods of Arthur, 25 L. T. Rep. N. S. 274. Prob.)

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either voluntarily or involuntarily be aliened or encumbered or be receivable otherwise than by the respondent herself personally." In that event it was provided that the trustees, at their own discretion, might apply the income for the benefit of the respondent or her children: The court held that, supposing the substituted trusts of the will came into operation, the income which the trus tees might allot to the wife could not be regarded as property in reversion," and that the court therefore could make no order in regard to it. But, under the circumstances, it made an order for the payment of 500l. a year to the husband out of the wife's life interest: (Milne v. Milne and Fowler, 25 L. T. Rep. N. S. 274. Div.)

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USURIOUS CONTRACT- MINOR-EXORBITANT INTEREST-31 & 32 VICT. c. 4-EQUITABLE RELIEF COSTS.-The jurisdiction of this court over unconscionable bargains is not affected by the repeal of the usury laws, or by the 31 & 32 Vict. c. 4, as to dealings with reversionary interests. An exorbitant rate of interest agreed to be paid by a young and needy man on the security of property in reversion, held by an indefeasible title, is unfair dealing within the 31 & 32 Vict. c. 4. Where a young man charged his reversionary interest with exorbitant sums for interest on loans principally made to his brother, an infant, the court decreed the charge to stand as security only for the sums actually advanced, and for interest at 51. per cent.: (Tyler v. Yates, 25 L. T. Rep. N. S. 284. Ch.)

PLEADING

- DEMURRER ADMINISTRATION AND PARTNERSHIP ACCOUNT-MULTIFARIOUS. NESS-PARTIES.-Where a bill was filed by three children against their father's surviving partner and executor, charging him with wilful neglect and default, and praying for the administration of their father's estate; for an account of the partnership business; and for an injunction to restrain the defendant from dealing with the partnership property: Held, that a demurrer on the ground that a fourth child (out of the jurisdiction) was not a party to the suit, and for multifariousness, must be overruled: (Pointon v. Pointon, 25 L. T. Rep. N. S. 294. V.C. W.)

VOLUNTARY SETTLEMENT-WHEN VOID AS A FRAUD UPON CREDITORS-THE DOCTRINE AS LAID DOWN IN ENGLAND AND AMERICA. American cases have decided (1) that a voluntary settlement in favour of a wife cannot be impeached by subsequent creditors merely because it was voluntary; and (2) that subsequent indebtedness. cannot be invoked to make that fraudulent which was honest and free from impeachment at the time. In the English case of Spirett v. Willows (10 L. T. Rep. N. S. 450) it was laid down that if a voluntary settlement hinders and delays creditors whose debts were contracted at the time, it is immate. rial whether the maker was solvent when he executed it, and it is void. But if such settlement is impeached by creditors whose debts were not contracted when it was made, an express fraudulent intent on the part of the maker must be shown. The former of these propositions was doubted in the case of Freeman v. Pope (21 L. T. Rep. N. S. 816; 23 Ibid, 208.) Held, by the American Court, that notwithstanding Spirett v. Willows, the decisions in the American cases interpret the law under the statute of 13 Eliz. in accordance with the prevailing law in England. P. made a voluntary settlement on his wife in consideration only of the marriage relation, being in prosperous business, and solvent at the time. The settled property consisted of land and a house, the latter to be built after the making of the settlement, and for which various contracts were entered into by the settlor. After the house was built and everything done to complete the property to be vested in the settlee, the settlor's firm failed. Held, that P. having been solvent when he made the settlement, and it not being proved that it was executed with intent to defraud, the settlement was good: (Sedgwick v. Place and others, 25 L. T. Rep. N. S. 307. American Reports.)

TRUSTEE-INVESTMENT OF TRUST FUND ON INSUFFICIENT SECURITY-FRAUD OF TRUSTEE'S SOLICITOR LIABILITY OF TRUSTEE.-Trustees applied to their solicitor to find them an investment for certain trust moneys. The solicitor, by means of forgery, induced them to advance the moneys on an insufficient security. Held, that the trustees were liable to make good the loss (Sutton v. Wilders, 25 L. T. Rep. N. S. 292. Rolls.) PRACTICE ADMINISTRATION SUIT-PARTY SERVED WITH DECREE-CLAIM AGAINST PERSON SO MADE A PARTY.-The residuary legatees under a will filed a bill against the executors for the administration of the testator's estate, and having obtained a decree they served it on the testator's sister under 15 & 16 Vict. c. 86, s. 42, r. 8. The testator had in his lifetime purchased certain stock in the name of his sister, and by his will he gave her an annuity. The sister claimed to be absolutely entitled to the stock, but the plaintiffs alleged that she held it in trust for the testator. On a motion for an injunction to restrain her from dealing with the stock: Held, that the service of the decree on the testator's sister only

rendered her a party to the suit in respect of her interest under the will, and not in respect of any liability she might be under to the testator's estate; and that an independent suit would be necessary for the enforcement of any such liability: (Walker v. Seligmann, 25 L. T. Řep. N. S. 294. Rolls.) MALICIOUSLY MAKING A MAN BANKRUPT.-A lengthy headnote on this subject, too long for transcription, will be found in the case of Johnson v. Emerson (25 L. T. Rep. N. S. 337, Ex.) [Some comments on this case appear in our leading columns.]

WILL CONSTRUCTION-LEGACIES WHETHER CUMULATIVE OR SUBSTITUTIONAL.-E., by a codicil to his will, gave legacies to a number of legatees, and by a second codicil gave to most of the legatees legacies similar in amount, and to other legatees smaller legacies. The question was whether the legacies in the second codicil were cumulative or substitutional. Held, on the authorities, that the legacies were cumulative: (Wilson v. O'Leary, 25 L. T. Rep. N. S. 327. V.C. B.)

THE BENCH AND THE BAR.

AN EXPLANATION.

MR. KEEBLE has requested us to insert the following letter, which he addressed to the Daily Telegraph: "Sir,-My attention has been called to the notice in your paper of this date of a matter which occurred before Mr. Commissioner Kerr yesterday, on the conclusion of a trial of a person named Patrick McHugh, and as your report is inaccurate, and might, if believed, reflect prejudicially upon my professional repute, I am desirous that it should be corrected. The facts, so far as they relate to myself, are shortly these: On Tuesday last I was engaged at the Surrey sessions till late in the afternoon, but having been previously instructed in several cases at the Central Criminal Court, I had sent my clerk there, to watch the progress of the business, in order to apprise me if either case were near trial. During the time he was absent, and in my absence, a brief was delivered to him bearing a solicitor's name; but as he was suspicious of the person, he saw the solicitor, who ignored the matter, and the brief was destroyed.

"Yesterday matters were mentioned to Mr. Commissioner Kerr, by Mr. Avory, relative to the man who had assumed to act for the prosecution, and during the inquiry my name was mentioned by the counsel for the prosecution, upon which I made a statement to the commissioner to the above effect, adding, as the fact was, that I had not even seen or heard of the brief in question, and that, had it been offered to me by the solicitor whose name was mentioned, I should have refused it, in conformity with a recent resolution of the Surrey Sessions bar.

"As I am not one of that class who 'tout for briefs,' I trust you will do me the justice to insert this letter in your next issue, in as prominent a position as the report to which it refers."

LORD CHIEF JUSTICE COCKBURN.-The London correspondent of the Manchester Guardian mentions a rumour that on the settlement of the Alabama claims a peerage will be offered to Lord Chief Justice Cockburn, and that he will accept it with the view of giving his assistance in the Appellate Tribunal of the House of Lords. A former Liberal Premier offered to advise Her Majesty to summon Sir A. Cockburn to the Upper House, but the offer was at that time declined for family reasons. He was made Chief Justice in 1856, so that the period of fifteen years' service which entitled him to a retiring pension has nearly expired. The Chief Justiceship of the Queen's Bench would then be offered in due course to Sir J. D. Coleridge, should he at that time hold the office of AttorneyGeneral.

THE JUDICIAL COMMITTEE. - Sir Montagu Smith, who, under the late arrangement, becomes one of the paid members of the Judicial Committee of Her Majesty's Privy Council, is the eldest son of the late Mr. Thomas Smith, of Bideford, Devonshire, by Margaret Colvile, daughter of Captain M. Jenkyn, R.N. He was born at Bideford in 1809, and was educated at the Grammar School of that town. Called to the bar by the Honourable Society of the Middle Temple in Nov., 1835, he chose the Western Circuit, and afterwards became a Bencher of the Middle Temple. He received the honour of a silk gown in 1852, and in April, 1859, he was elected in the Conservative interest as one of the representatives in Parliament for the borough of Truro; he held his seat until Feb. 1865, when he was appointed one of the Justices of the Court of Common Pleas. He had previously contested Truro unsuccessfully on two occasions-namely, in 1849 and 1852. The other new paid member of the Judicial Committee, Sir James William Colvile, of Ochiltree and Craig-flower, Fifeshire, is the

eldest son of the late Mr. Andrew Winderburn Colvile, of Ochiltree and Crombie, Fifeshire, by the Hon. Louisa Mary, daughter of William, first Lord Auckland. He was born in London in 1810, and was educated at Eton and Trinity College, Cambridge, where he graduated B.A., as a senior optime in 1831, and proceeded M.A. in 1834; he was called to the bar at the Inner Temple in 1835, and in 1845 he was appointed Advocate-General of the Honourable East India Company at Fort William in Bengal; he was transferred to the puisne justiceship of Her Majesty's Supreme Court at Calcutta in 1848, when he received the honour of knighthood by patent. He was made Chief Justice in 1855, and appointed assessor to the Judicial Committee of the Privy Council on Indian Appeals in 1859, and a member of the Judicial Committee in 1865. Sir James Colvile, who is a magistrate and deputy-lieutenant for the county of Fife, married, in 1857, Frances Elinor, daughter of Sir John Peter Grant, K.C.B., formerly a member of the Supreme Council at Calcutta, and now Governor of Jamaica, by whom

he has issue.

THE NEW ATTORNEY-GENERAL AND SOLICITOR-GENERAL.-Sir John Duke Coleridge, Q.C., who has succeeded Sir Robert Collier as AttorneyGeneral, is the elder son of Sir John Taylor Coleridge, of Heath's-court, Devonshire, by the eldest daughter of the late Dr. Albert Buchanan, vicar of Woodmansterne, Surrey, and rector of Northfleet, Kent. He was born in the year 1821, and was educated at Eton and at Oxford, where he was a scholar of Balliol and a Fellow of Exeter Colleges, and where he graduated B.A. in 1842, and proceeded M.A. in 1846. In the November of the same year he was called to the Bar by the Honourable Society of the Middle Temple; he was made a Queen's Counsel and elected a Bencher of the Middle Temple in 1861. From 1855 to 1866 he held the Recordership of the borough of Portsmouth. In August, 1864, he successfully contested Exeter; but in July, 1865, he was returned unopposed, in conjunction with Lord Courtenay (whom he had formerly opposed) as one of the representatives in Parliament for that city. In 1868 he succeeded Sir Robert Collier as Solicitor-General, and now, upon the elevation of the latter to the judicial bench, Sir John D. Coleridge becomes Attorney-General. Sir John, who is entered in the Parliamentary Companion as a decided Liberal, has been a frequent contributor to the Edinburgh Review and other publications, and for some time acted as Vice-President of the Articled Clerks' Society. He married in 1846 Jane Fortescue, daughter of the Rev. George Turner Seymour, of Farringford-hill, in the Isle of Wight. Mr. George Jessel, Q.C., M.P. for Dover, who succeeds Sir John D. Coleridge as Solicitor-General, is a gentleman of Jewish extraction, being the youngest son of the late Mr. Zachariah Nathaniel Jessel, a merchant, of Putney, by Mary, daughter of the late Mr. Henry Harris. He was born in London in the year 1824, was educated at University College, London, where he graduated B.A., in 1843, as a University Scholar in Mathematics, and proceeded M.A. in the following year, obtaining a gold medal in mathematics. He was called to the Bar at Lincoln's-inn in May, 1847, and was made a Queen's Counsel and a Bencher of his Inn in 1865. He is a Senator of the University of London, and at the general election of 1868 he was returned in the Liberal interest as one of the representatives of the borough of Dover. Mr. Jessel married in 1856 Amelia, eldest daughter of Mr. Joseph Moses, merchant, of London. In conformity with the usual practice Mr. Jessel will shortly receive the honour of knighthood.

JERSEY JUDGES versus THE TREASURY. - Ten of the twelve judges of the Jersey Royal Court were engaged recently in adjudicating a case, already alluded to in our columns, in which they were all personally interested. It was an action brought by Mrs. Chase, proprietress of the Royal Yacht Club Hotel, to recover payment of the sum of 951. 11s. The actual defendants were Her Majesty's Treasury, the nominal defendants being Mr. Robert Pipon Marett, Her Majesty's Attorney-General for Jersey; Mr. John Le Conteur, Q.A.D.C., Viscount or Sheriff of Jersey; and Mr. Peter John Simon, Queen's Receiver for the island. The claim was for dinners supplied to the judges of the court during the past six years, on the occasion of the opening of the assize of Heritage. The case for the plaintiff was briefly as follows: From a very remote date the Crown had been in the habit of paying for a dinner to the judges on these occasions, the cost being defrayed out of the revenues of Her Majesty in Jersey. Six years ago Her Majesty's Treasury gave instructions that no more dinners should be paid for out of the fund. The judges, on each occasion of the opening of the assize, asserted their right to dine as before, and ordered the Viscount to have the usual meal prepared. This was done regularly, the Viscount being compelled to obey on pain of imprisonment. peated applications were made for payment to

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the Queen's Receiver, and at length the present action was brought. One of the judges (Mr. David de Quetteville) was challenged by the Attorney-General, who objected to his sitting on account of the public manner in which he had in open court expressed his opinion as to the conduct of the Crown in refusing to pay for the dinners, designating it as "scandalous." The other judges overruled the challenge, and Mr. De Quetteville took his seat. The point before the court was whether the ancient custom of the Crown in giving these dinners was to be looked upon as a right or an act of courtesy. The oldest document that could be produced relative thereto was an entry in the Royal Court records in June 1616, when it was ordered that the dinners "should be provided as heretofore." The Attorney-General, who defended himself and Mr. Simon, contended that this was no proof of an engagement on the part of the Crown to give the dinners, and even if so, Her Majesty's Treasury having given orders to discontinue payment of them was a sufficient reason why the judges ought not afterwards to have ordered them. After hearing the parties and consulting for an hour, the court deferred judgment till a future day.

REAL PROPERTY AND
CONVEYANCING.

NOTES OF NEW DECISIONS. WILL-CONSTRUCTION.-By his will, made in 1835, a testator gave the H. Hill estate to his grandson A.; and should A. die without an heir he desired that the said H. Hill estate should be given to his grandsons B. and C.: Held, that A. took an estate tail and not the fee simple, for the words "without an heir" must mean "without an heir of his body," inasmuch as the persons to whom the gift over was made were capable of being A.'s col

ENCY

MARITIME LAW.

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NOTES OF NEW DECISIONS. CHARTER PARTY-DEED FREIGHT-DEFICIOF CARGO-INDORSEES OF BILLS OF LADING.-The term "dead freight" means "not freight, but an unliquidated compensation for the loss of freight recoverable in the absence and place of freight : (per Lord Ellenborough in Phillips v. Rodie, 15 East 254, approved.) The shipowner, therefore, is entitled to be paid for a deficiency of cargo, not at the rate assigned per ton in the charter party for actual cargo, but a reasonable sum, deductions being made for charges saved to the shipowner in consequence of the deficiency. No consideration of inconvenience can prevent a right of lien where a charter party has expressly created that right. Where in dorsees of a bill of lading are also the charterers of a ship, they are bound by a stipulation as to lien in the charter party. Bills of lading signed by the master are prima facie evidence that the quantities named therein were received on board by him; the onus of rebutting this presumption and of showing that a less quantity than that specified was received lies on a shipowner: (McLean v. Fleming, 25 L. T. Rep. N. S. 317. H. of L.)

MERCANTILE LAW.

NOTES OF NEW DECISIONS. SALE-SPECIFIC ARTICLE-MISTAKE OF BUYER AS TO AGE-SILENCE OF SELLER.-On buying a specific article, without warranty expressed or implied, after having had full opportunity of inspecting the whole, or a sample the same as the bulk, caveat emptor; for the vendor is not bound to dispel false impressions as to the value or quality of the thing sold, which may, through no

Mr. Welford's decision. The question raised by plaintiff's advocate, although of considerable interest to married ladies whose husbands have deserted them, was settled nearly forty years ago by higher authority than Mr. Welford. He has in fact, taken upon himself, by a mode of reasoning obviously wrong, to overrule the unanimous decision of four eminent judges (sitting together) of the Court of Common Pleas, viz., Chief Justice Tindal, and Justices Gaselee, Bosanquet, and Alderson, in Williamson v. Dawes, reported at page 292 of 9 Term Reports. A comparison of the facts of that case with those in Wood v. Roberts can scarcely to bring any mind of ordinary capacity to the conclusion that, according to the decision of the Superior Court, Mrs. Roberts was not liable to be sued. In Williamson v. Dawes, the husband (Dawes) was adjudged bankrupt in 1824. He did not surrender for examination, but absconded to France, and remained abroad till 1832. a period of eight years. Shortly after he left this country he was proclaimed for not appearing under his bankruptcy, and for which he then rendered himself liable, on his return to this country, to be arrested and punished for a felony. Mrs. Dawes remained in this country, and contracted the debt for which she was sued by Mr. Williamson. Then, in what respect do the two cases differ? Substantially, the facts are alike. In Wood v. Roberts, the husband left Scotland in 1865, and has been abroad ever since he was made bankrupt, and, not appearing for examination, a warrant was issued for his arrest. In Williamson v. Dawes, the husband was liable to be arrested the moment he set his foot in this country, although no warrant had been issued against him. In Wood v. Roberts the warrant was issued simply to enforce his appearance for examination under the bankruptcy. Whereas in Williamson v. Dawes, the husband after being arrested was liable to a severe punishment. Mr. Welford's statement of the law is that where the absence abroad of the husband

66

lateral heirs: (Hancock v. Clavey, 25 L. T. Rep. fraudulent act of the seller, have formed in the mind is voluntary, although he does not intend to return,

N. S. 323. M.R.)

LANDLORD AND TENANT-NOTICE TO QUIT CUSTOM.-A tenant from year to year of a stone quarry in Yorkshire received from his landlord six months' notice to quit. The tenant claimed the right, under an alleged custom of the district, to be allowed to continue in possession a reasonable time after the expiration of the notice, to enable him to "get" the stone he had "bared." At the expiration of the notice, the landlord brought an action of ejectment against the tenant, who thereupon filed a bill to restrain the action, and setting up the custom as against the landlord. Held, that the evidence failed to prove the existence of the custom as alleged; and that, even if it had existed, the proper remedy of the tenant would have been at law: (Vint v. Constable, 25 L. T. Rep. N.S. 321. V.C. M.)

MAGISTRATES' LAW.
HAMMERSMITH POLICE-COURT.
Thursday, Nov. 2.

(Before Mr. INGHAM.) Ferocious dog-Keeping unmuzzled-Evidence of

ferocity-Locality.

Mr. Casella, of Phillim re-gardens, South Kensington, was summoned for unlawfully keeping in a public thoroughfare an unmuzzled ferocious dog.

Martin was attorney for the complainant. F. O. Crump was counsel for the defendant. The dog in question was a Dalmatian carriage dog, which for four years had run loose in some mews at Kensington. In July last a child, be longing to one of seven families residing in the mews, pulled the dog by the tail, whereupon the dog turned upon the child and bit it in the forehead. For the complainant, evidence was given of a bite inflicted upon the same child on one peevious occasion, and once also the dog had been seen to catch hold of the trousers of some boys running through the mews.

The evidence for the defence went to show that unless irritated, the dog was perfectly quiet and docile; and it was contended that the two bites inflicted after provocation, during the course of four years, could not prove the dog to be ferocious. The learned counsel submitted, citing the dictum of Erle, C. J., in Worth v. Gilling (L. Rep. 2 C. P., at p. 3), that it must be distinctly proved that the dog was of a fierce and savage nature, which the particular dog certainly was not. The fact that a dog bit when it was worried, did not prove that it was savage by nature.

Mr. INGHAM said he was of opinion that, although the dog might be a very good-natured dog in the country, nevertheless for the locality in which it lived he must consider it a ferocious dog within the meaning of the Act of Parliament. He should not, however, inflict a fine, but adjourn the case to enable Mr. Casella to compensate the father of the child. If the dog bit anyone again he should order it to be destroyed.

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of the buyer; nor will the mere passive acquiescence of the one in the tacit self-deception of the other render the contract between them void. But, nevertheless, they must be ad idem as to the terms of sale, unless the circumstances are such as to preclude either from denying that he agreed to the terms of the other. The plaintiff, a farmer, having good new oats, asked the manager of the defendant, a trainer of racehorses, if he wanted to buy oats, and, on being answered by the manager that he was always ready to buy oats, gave him a sample, and told him the price. The manager took away the sample, and next day bought the bulk, but afterwards refused to accept the oats, because they were new, whereas, he said, he had thought to buy old. The defendant being sued by the plaintiff in the County Court, there was a conflict of testimony a to whether "old" oats had been mentioned at the bargaining; and whether trainers always used old oats only, to the plaintiff's know. ledge. The judge told the jury to consider. first, whether the word "old" had been used in the conversation; if so, their verdict should be for the defendant; if not, secondly, whether the plaintiff believed the defendant believed, or to be under purchase of old oats; if so, the defendant was the impression, that he was contracting for the entitled to the verdict. They found for the defendant. Held, that there must be a new trial. Per Cockburn, C.J.-Because it was doubtful upon which of the two grounds the verdict was based, and it might have been founded on the second question, which ought not to have been left to the jury. Per Blackburn and Hannen, JJ.-Because it seemed likely that the jury did not understand from the latter question that, in order to relieve the defendant, it was necessary they should find, not merely that the plaintiff believed the defendant to believe that he was buying old oats, but that he believed the defendant to believe that he, the plaintiff, was contracting to sell old oats; and there was no sufficient evidence to support such a 329. Q. B.) finding: (Smith v. Hughes, 25 L. T. Rep. N. S.

CORRESPONDENCE OF THE

PROFESSION.

NOTE. This department of the LAW TIMES being open to free discussion on all professional topics, the Editor is not responsible for any opinions or statements contained in it.

THE LIABILITY OF MARRIED WOMEN TO BE SUED.-WOOD v. ROBERTS.-The judgment of the Judge of the Birmingham County Court in the above case, of which a report appears in your last week's issue, being, as I conceive, radically wrong, and having occasioned much surprise amongst many legal practitioners in this district, I take the liberty of asking the insertion of this letter in your paper so that the Profession generally may be able to form an opinion as to the soundness of

such absence will not invest the wife with the legal attributes of a feme sole; but where the adjuration or exile is such that the husband could not return to the realm, that it would have been contrary to law for him to do so, then the wife must be treated as a single woman, and capable of binding herself by her own contracts." The grounds on which Mr. Welford holds Mrs. Roberts to have acquired the status of a feme sole are, that her husband "was liable to be arrested the moment he sets his foot in the United Kingdom, and the letter he wrote proves that he is fully aware of the legal, I need not say the penal, consequences which will occur to him on his return by reason of his flight from justice." Accepting Mr. Welford's view of the law, the liability of Mrs. Roberts depended upon the answers to two questions. 1st. Did Roberts go abroad voluntarily or not? 2nd. Was he prevented from returning because it would have been contrary to law for him to do so? It would have been well if Mr. Welford had directed his attention more particularly to these points, so that his views might be contrasted with those of the four judges in Williamson v. Dawes. As to the first question, it is not manifestly the fact that Roberts left Scotland entirely of his own accord? He was not expelled or taken out of the country under sentence of the law, as in the case of transportation, but he ran away, and his going away did not depend upon the will of any. one else but himself. The answer to the first question being a negative, a very slight examination of the second will prove how untenable Mr. Welford's decision is. The learned judge says that Roberts's absence (i. e., his remaining abroad) was involuntary, because "his returning to this country would have been 'contrary to law;'" and he explains the latter by saying that "Roberts would be liable to arrest the moment he returns, and to avoid the legal or penal consequences he remains abroad." odd logic. To my mind this is very A warrant is issued to arrest a man, in order to enforce his compliance with the law (to which it is the bounden duty of every man to submit), and because he, of his own free will, remains out of the country to avoid arrest, it is said that his " remaining abroad is involuntary, because his returning would be contrary to law." Mr. Welford's own answer to the question, how would his returning be contrary to law? would expose the fallacy of the reasoning. If the warrant had been issued for the express purpose of expelling him from the country, or to prevent his coming back, then his returning would have been " contrary to law," but the object of the warrant was the very reverse of that, viz., to enforce his submission to the law by his arrest the moment he came within reach. If Roberts was an involuntary exile, the husband in Williamson v. Dawes must have been, for the latter had far greater cause than Roberts for remaining abroad; he was guilty of felony, and punishable with great severity, whereas Roberts was only liable to arrest, and temporary imprisonment until he had passed an examination under

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