« EelmineJätka »
of Suffolk and Antrim, to Lady Strachan for life, and after her death he directed it to be equally divided between her three daughters, Matilda, Charlotte, and Louisa Strachan, during their lives and the life of the longest liver of them. Lady Strachan died in 1857. Miss Charlotte Strachan, then the Countess de Zichy Ferraris, died on the 10th Nov. 1851, domiciled in Hungary, having by her will bequeathed her interest in the annuity to her executors on certain trusts. It was decided by Lord Justice James, then Vice-Chancellor, that on their mother's death the three daughters became entitled to the annuity in equal shares as tenants in common. The question in the present case was whether legacy duty was payable in respect of the interest in the annuity given by the will of the Countess. The Vice-Chancellor (see 25 L. T. Rep. N. S. 171) held that no legacy duty was payable, and the Crown appealed. The Solicitor-General Karslake, for the Crown. Schomberg, Q.C., Fry, Q.C., Macnaghten, and J. T. Anderson, for the persons interested under the will of the Countess.
(Jessel, Q.C.) and W. W.
Vaughan Hawkins, for the executors of Lady Strachan.
Amphlett, Q.C. and Owen, for the executors of the Countess.
Lord Justice JAMES, in delivering the judgment of the court, said that they were of opinion that the estate of the Countess was an estate pur autre vie, that by the 6th section of the Wills Act it was 66 an estate pur autre vie, applicable by law in the same manner as personal estate," and was therefore within the words of the 20th section of the Legacy Duty Act of George III. Legacy duty was, therefore, payable. No costs.
Solicitors for the Crown, The Solicitors to the
Solicitors for the respondents, Davies and Williams; Capron, Dalton and Hutchins; Farrer, Ouvry and Co.
Tuesday, Feb. 13.
Re THE LONDON GAS LIGHT COMPANY (LIMITED); Ex parte WEBBER. Practice-Examiner-Witness-JurisdictionCompanies Act 1862, s. 115. THIS was an appeal motion from an order of the Master of the Rolls. The company was ordered to be wound-up in June 1866, and Webber was settled on the list of contributories. In May 1868 Webber executed a deed of composition which was assented to by the requisite number of creditors and duly registered under the provisions of the Bankruptcy Act 1861. In July 1871 the official liquidator, who did not execute the deed, served a summons on Webber under the 115th section of the Companies Act 1862, to attend before the examiner and be examined. Webber having refused to answer the question put by the examiner : "Did you not promise some of your creditors to pay them something more than the composition as an inducement to them to execute the deed ?" the matter came before the Master of the Rolls, who held that the witness must answer the question, although the Court of Bankruptcy had sole jurisdiction as to the composition deed. From this order Webber appealed.
Locock Webb for the appellant.
Lord Justice JAMES said that the witness had no right to refuse to answer the question, on the ground that the court had no jurisdiction in the matter. It was only on the ground that to answer a question would incriminate him or be a breach of professional confidence, that a witness giving evidence before an examiner could refuse to answer. It was questionable whether an appeal
ought ever to be allowed in a case of this kind.
Appeal accordingly dismissed with costs. Solicitors for the appellant, J. W. Snell. Solicitors for the liquidator, Crossley and Burn.
Re PATENT BREAD MACHINERY COMPANY; Ex parte VALPY AND CHAPLIN. Company-Winding-up-Charge-Registration Companies Act 1862, s. 43. THIS was an appeal from a decision of the Master of the Rolls refusing an application on the part of Messrs. Valpy and Chaplin, solicitors, seeking to enforce a charge for costs against certain property of the company. Valpy and Chaplin were not the regular solicitors of the company, but were employed in a certain matter, and the directors gave them a letter charging the costs on certain moneys payable to the company. The Master of the Rolls refused the application on the ground that the letter giving the charge had not been registered in accordance with sect. 43 of the Companies Act 1862, which requires every limited company under the Act to keep a register of all mortgages and charges specifically affecting property of the company, and imposes a penalty on every director,
manager, or other officer of the company wilfully omitting to enter any charge on this register. Messrs. Valpy and Chaplin appealed from this decision.
Wintle for the appellants.
F. J. Wood for the respondents.
Lord Justice JAMES thought that the order of the Master of the Rolls must be confirmed. Sect. 43 of the Act did not make void a mortgage not entered on the register, but his Lordship was of opinion that it was not competent for the solicitor or any officer of a company to enforce a charge which they had neglected to get registered. It made no difference that the appellants were not the habitual solicitors of the company. His Lordship thought it was their plain duty to see that the charge was registered, and it would be most dangerous to allow any one whose duty it was to see charges registered to take advantage of a charge which had not been registered. The decision of the Master of the Rolls was a wholesome and must be affirmed.
Appeal accordingly dismissed with costs. Solicitors for the appellants, Valpy and Chaplin. Solicitors for the respondents, Poole and Hughes.
CITY OF Moscow GAS COMPANY . INTERNATIONAL FINANCIAL ASSOCIATION. Practice-Security for costs-Cross suit-Companies Act 1862, s. 69. THIS was an appeal from an order of the Master of the Rolls directing the plaintiff company to give security for the costs of the suit. The defendant company who were mortgagees of the plaintiff company had filed a bill for foreclosure, and the City of Moscow Gas Company then filed the present bill seeking to cut down the amount of the security and to redeem at a smaller amount. Their property was situated at Moscow and they had no property in this country, and therefore the defendant company took out a summons requiring them to give security for the costs of this suit, under the 69th section of the Companies Act, which provides that where a limited company is plaintiff in any suit, &c., any judge having jurisdiction in the matter may, if it appears by any credible testimony that there is reason to believe that if the defendant is successful in his defence the assets of the company will be insufficient to pay his costs, require sufficient security to be given for such costs. The City of Moscow Gas Company appealed from the order of the Master of the Rolls. Fry, Q.C. and Cookson, for the appellants, contended that this was a cross bill, and merely a defence to the original suit, and that the appellants ought therefore not to be required to give security for costs.
Charles Hall and Davey, for the respondents. Lord Justice JAMES was of opinion that this case was governed by Washoe Mining Co. v. Ferguson (L. Rep. 2 Eq. 371), and that the second suit was not so strictly in the nature of a cross suit to the first as to make the rule applicable which exempts the plaintiff company in a cross suit from giving security for costs. The order of the Master of the Rolls was perfectly right and must be affirmed. Appeal accordingly dismissed with costs. Solicitors for the appellants, Harrison, Beal, and Harrison.
Solicitor for the respondents, Clements.
Jan. 31 and Feb. 13 and 14.
Hardy, Q. C. and Renshaw, Q. C. for the appellant. Greene, Q. C. and Caldecott, for the respondents. Lord Justice MELLISH was of opinion that the
testator intended to devise under the description of Edge Farm the other lands in his occupation in the parish of Crich, as well as the farm purchased by him in 1813. The main difficulty in the way of holding that was that he was only tenant in common of a portion of these lands, and tenant at will of another portion, but those portions were so small that it had probably escaped the testator's memory that he was not owner of all the land in his occupation. The Vice-Chancellor's decision must be affirmed. Costs of all parties out of the estate.
Lord Justice JAMES was of the same opinion. Solicitors for the appellant, Satchell and Chapple, for Jessop and Harris, Crich. Solicitors for the respondents, Dobinson and Geare.
Jan. 31 and Feb. 9.
BUSBY V. THE CORPORATION OF LEEDS. Tramways Act 1870-Repair of road by road authority-Right to stop traffic on tramway. A motion was made in this suit raising a question under the Tramways Act 1870, as to the right of the "road authority" to stop the traffic on a tramway during the repair of the road. The plaintiffs are the owners of a tramway from Leeds to Headingsley, which, for the greater part of the distance, was laid in macadam, with the approval of the Corporation, who are the "road authority' under the Act, and which was opened for public traffic last July. The macadam having worn away leaving the rails projecting above the level of the road, the corporation, in Dec. last, gave the plaintiffs notice to pave the portion of the road between the rails, and a space of 18 inches on each side of the rails, with granite setts, as provided by the 28th section of the Act. The plaintiffs did not comply with this notice, and after considerable negotiation the corporation, on the 3rd Jan., repeated it, with an intimation that if not complied with the corporation would themselves execute the work and recover the expenses from the plaintiffs. On the 18th Jan. the corporation gave notice that they should commence the work on the 25th Jan., and during its progress should stop the traffic upon such portion of the tramway as might be necessary, but with as little inconve nience to the plaintiffs as possible. The plaintiffs then filed their bill, and obtained on an ex parte application, an interim order, restraining the corporation from interfering with the tramway so as to stop or materially interfere with the traffic. Southgate, Q. C. and C. Hall for the plaintiffs. Fry, Q. C. and Graham Hastings for the corpo ration.
Lord ROMILLY said it was clear that the road was in a highly dangerous state, and that being so. the defendants, as the road authority, were entitled to repair it and charge the expenses to the plaintiffs, and the question was whether the defendants had a right to stop the traffic during the repairs. It had been admitted that it would be possible to do the repairs without stopping the traffic, though the expense would be greater, but as this would fall on the plaintiffs, and to stop the traffic would be to impose a vast amount of inconvenience on the tramway passengers, he should continue the interim order until the hearing on the usual undertaking.
Solicitors: Emmets, Watson, and Emmet; Norris, Allens, and Carter.
Jan. 30 and Feb. 10.
PHILLIPS v. SILVESTER. Vendor and purchaser-Specific performanceDeterioration of property sold-Delay. IN August 1865, the Rev. Mr. Nanney, the owner of certain premises in the county of Merioneth, agreed to sell the same to the defendant for £8500. The agreement provided that the purchase should be completed on the 25th March 1866, or, if not then completed, that the purchaser should pay interest at £5 per cent per annum until completion. The title was accepted, and a draft conveyance was prepared, and sent to the defendant's solicitor, but in November 1865 the vendor died, having devised the property agreed to be sold to the plaintiff, a solicitor, who altered the draft con. veyance, excepting certain parcels of land, which were then in the occupation of a tramway company, under a yearly way leave, but the defendant refused to accept this alteration. Subsequently these parcels of land were taken by the Talyllyn Railway Company under their statutory powers, and the question as to the exception of these parcels of land not being settled, after a considerable amount of correspondence between the parties, the plaintiff filed his bill for a speci fic performance of the contract of August 1865. The defendant, by his answer claimed to be entitled to a conveyance of the whole estate, including the parcels of land occupied by the Tramway Company at the date of the agreement, and also to compensation for the de
terioration of the property since the 25th March 1866, which he alleged was considerable.
Sir R. Baggallay, Q.C. and Rowcliffe for the plaintiff.
Roxburgh, Q. C. and Fawcett, for the defendant. Lord ROMILLY said that in his opinion it was a principle of equity that a vendor was bound to deliver the thing sold in the same or as good condition as it was at the date of the contract for sale, when the delay in completion was not occasioned by the purchaser. The plaintiff was entitled to a decree for specific performance of the contract, and for payment of interest on the purchase money remaining due, from the 25th March 1866, but there must be an inquiry what rents and profits had been received by the plaintiff since the 25th March 1866, or what, but for his wilful default, might have been received, and an inquiry what sum would be required to restore the property to the same state in which it then was, and the amount so found due would be set-off against the interest.
Solicitors, Gregory and Co., Tooke, and Holland,
Feb. 10 and 12.
BIGGS v. FOSTER. Will-Misdescription of legatee. PETITION and further consideration. A testator had by his will (inter alia) bequeathed a sum of money "to the children of my sister Elizabeth Colpman, deceased." He had had a sister named Catherine Colpman, and another sister named Elizabeth Catlin. The question now arose, what persons were entitled. There was evidence that the testator was on intimate terms with the children of his sister Catherine Colpman, and that he had frequently declared his intention of benefiting them.
A. E. Miller Q. C., and T. Brett for the children of Catherine Colpman.
Southgate, Q. C., and Methold (representing the Suitor's Fee Fund) for the children of Elizabeth
Stallard and Lee for other parties. Lord ROMILLY held that the circumstances of the case were sufficient to justify him in arriving at the conclusion that the testator had intended to benefit the children of Mrs. Catherine Colpman, and made an order accordingly.
Solicitors: Duncan and Murton; Freshfields.
Monday, Feb. 12.
GILCHRIST v. HERBERT. Parol evidence of lost letters containing promise, on faith of which marriage was alleged to have taken place-Specific performance. THE facts in this case were characterised by the Master of the Rolls in his judgment as being "very simple in their outline, but assuming in their details the aspect of a tale of romance." outline is, however, all we can attempt to give on the present occasion. This was a bill filed by a Mrs. Gilchrist against the trustee of her late husband's will, to have it declared that she was entitled to one half of her late husband's property, all of which he had by his will bequeathed to his daughter by a former marriage. In 1861 Mrs. Gilchrist, a widow with five children, had been engaged to be married to a Dr. Evans. Subsequently to this enzagement she became acquainted with her late husband, who wrote her a number of letters, one of which, it was alleged, contained a promise that if she would throw over" the doctor and marry him he would settle £10,000 pin money upon her, and leave her, by his will, which was never to be revoked, one half of his property. On the faith of this promise (the bill stated) the engagement with Dr. Evans was broken off, and the marriage took place in Calcutta in 1862. Soon after, the parties returned to this country, but the marriage did not turn out happily, and in about five or six weeks Mr. Gilchrist left his wife. A suit was then instituted for restitution of conjugal rights and alimony, which was compromised by a settlement, whereby Mrs. Gilchrist was to have £400 a year during the joint life of her husband and herself, and £200 a year after his decease for her own life. A number of letters were put in evidence written about this time from Mrs. Gilchrist to her husband, asking him to provide for her and her children more liberally, and it was contended that such letters were inconsistent with the idea of her considering that he was under a binding engagement to leave her half his property by will. Mrs. Gilchrist afterwards returned to India in the ship Candia. The ship met with a terrific cyclone (this was proved by the vessel's log-book). and Mrs. Gilchrist's luggage, with the letters which contained the alleged promise, was lost. A number of witnesses were produced (among them the lady's former suitor, Dr. Evans) to depose from their recollection as to the contents of the letters, and were cross-examined in court. The objection was taken that the letters had never been stamped.
The Solicitor-General, Serjt. Parry, A. Bathurst,
J. M. Howard, Hon. W. T. Massey, for the plaintiffs.
Lord ROMILLY, in an elaborate judgment,
V. C. MALINS' COURT.
Friday, Feb. 9.
LETHERIDGE v. ADAMS; ex parte THE LIQUI-
Assurance company. Winding-up Claim by
THIS was a claim by the official liquidator of the
was the holder of 200 shares of £20 each in the
society, which was not registered under the
Glasse, Q. C. and Higgins for the official liqui-
Cotton, Q. C. and Ince for the executors of
The VICE-CHANCELLOR said that having regard
Saturday, Feb. 10.
DEANES V. KITCHIN.
THIS was a suit instituted to administer the
P. B. Abraham now applied for an order dispensing with service of notice of motion decree on the heir-at-law, on the ground that by his conduct he had practically disclaimed all interest in the estate. In the alternative. he asked that service on the administratrix might be deemed good service on the heir-at-law.
The VICE CHANCELLOR made an order that service of notice of motion for decree upon the administratrix should be deemed good service upon the heir at-law.
Solicitor: C. J. Gratton.
alleged had been lost in consequence of the auctioneer who they had employed having become bankrupt. This surcharge was disallowed by the chief clerk who stated that he would submit the facts for the consideration of the court. Edward Ellison then served a notice upon John Ellison, one of the executors, to attend before the examiner, to be cross-examined upon six affidavits filed in the cause. John Ellison attended before the examiner, but refused to be sworn and examined, on the grounds that the examination, if any was required. should have taken place in chambers, and before the chief clerk had given his decision on the surcharge. The accounts had been completed and the draft certificate made out but not settled. Edward Ellison now moved that John Ellison might be ordered to attend at his own expense and be examined before one of the examiners of the court, and produce the books and doccuments mentioned in the subpœna and pay the costs of the application.
Amphlett, Q.C. and Ingle Joyce were in support of the motion.
Kay, Q.C. and Finch were for John Ellison. The VICE-CHANCELLOR said that the applicant should have expressed his desire to have crossexamined the executor before the Chief Clerk came to a decision; but as he was unwilling to exclude any evidence, he would give him leave to cross-examine Mr. John Ellison relative to the surcharge of £350. Costs of this application and of the examination reserved.
Solicitors for the applicant, Ingle, Cooper, and Holmes.
Solicitors for the respondent, Norris, Allen, and Carter.
Jan. 9, 10, and 13.
PRESTON V. THE CORPORATION OF GREAT
Corporation-Special Act-Mortgage of rates-
ment mentioned in the Act was that the corpo
ration should yearly and every year pay off and discharge the sum of £100 at the least, of the moneys borrowed on the credit of that Act; and the particular mortgage to be paid off was to be ascertained by ballot. On the 9th August 1869, required them at the expiration of six months to the plaintiff gave the defendants notice that he pay him the principal and interest due to him on his mortgage. This the defendants refused to do on the grounds that, according to the provisions of their local Act, they were not bound to pay off more than £100 yearly of the principal moneys borrowed on the credit of that Act. The interest on the money borrowed had always been regularly paid.
Eddis, Q.C. and Wm. Pearson were for the plaintiff.
Kay, Q.C., Lindley, Q.C., and Rodwell were for the defendants.
The VICE-CHANCELLOR was of opinion that this was not a case in which he could appoint a receiver. If the plaintiff was not satisfied to wait until he was paid off in the manner prescribed by the local Act he should have transferred his mortgage. The proceedings were whey misconceived, and the bill must be dismissed with costs. Solicitors for the plaintiff, Sharpe, Parker, Pritchard, and Sharpe.
Solicitors for the defendants, Andrew Storey, agent for Charles Diver, Great Yarmouth; F. T. Dubois.
V. C. WICKENS' COURT.
PHILLIPS V. THE GREAT WESTERN RAILWAY
Railway Compony-Contract to stop trains at refreshment station Postmaster General · Breach of contract-“ Public policy”—Injunc.
tion. restrain the defendants from permitting certain THIS was a motion for an interim injunction to trains from passing the Swindon station without stopping a sufficient time to enable the pas sengers to procure refreshments. The facts of the refreshment rooms were these: the plaintiff was the proprietor at Swindon. By the terms of his lease from the Great Western Railway Company, it was covenanted on the part of the company "that all trains carrying passengers, not being goods trains, or trains to be sent express, or for special purposes, or trains not under the control of the company," which should
pass the Swindon Station either up or down, should, save in cases of emergency or unusual delay arising from accidents, stop there for a reasonable period of about ten minutes for refreshments. In Nov. last the Postmaster-General, in pursuance of the powers vested in him, by the "Act to provide for the conveyance of the mails by railways," served a notice upon the company requiring them to carry the mails by trains leaving Paddington at 9.15 a.m. and Exeter at 2.45 p.m., and prohibiting these trains from stopping at Swindon for more than five minutes. Up to this time these trains had been used for the conveyance of passengers, and had always stopped ten minutes at Swindon. The company acquiesced in the requirements of the post-office, but still continued to carry passengers by the same trains. The plaintiff considering this a violation by the company of their covenant with him, instituted this suit. He now moved as above.
Sir Roundell Palmer, Q.C., Osborne Morgan, Q.C., and Montague Cookson, for the plaintiff. The Solicitor-General, Mackeson, Q.C., and H. A. Giffard, for the defendants.
The VICE-CHANCELLOR held that the trains, so far as they were passenger trains, were under the control of the company. The demands of the post office, and the rights of the plaintiff might conflict, but they were not irreconcilable. No doubt the company might be put to expense, but they must fulfil their engagements. He should, therefore, grant an injunction to restrain them from carrying passengers past Swindon station by trains which might for the time be lawfully required to stop there for any shorter time than ten
Solicitors: Carter and Bell; Young, Maples, Teesdale, Nelson, and Co.
Saturday, Feb. 10. DIXON v. ENOCH.
Demurrer-Libel-Bill of discovery-6 & 7 Will. 4 c. 76, s. 19.
THIS was demurrer; the question was whether the defendant, the publisher of a newspaper, could be compelled, by a bill in equity, to discover the names of the proprietors, in order to enable the plaintiff to proceed against them by action at law for libel. The bill which was filed in pursuance of the provisions of 6 & 7 Will. 4, c. 76, s. 19, and 32 & 33 Vict. c. 24, prayed relief accordingly. The defendant demurred generally for want of equity, principally on the ground that he was a perfect stranger to the proposed action, and not a party to it; that if he could thus be compelled to make discovery in equity, anyone whom an interested plaintiff at law might suspect, however slightly, of matters relating to the action, might be forced to say almost anything; and lastly, because the bill did not state that the plaintiff was going to bring an action at law against the defendant.
Horace Davey for the demurrer.
COURT OF QUEEN'S BENCH. Tuesday, Feb. 13.
METROPOLITAN BOARD OF
Evidence of negligence-Injury caused by third party.
THIS was an action tried before Blackburn, J., in Kent. The defendants had constructed a sewer, with a man-hole, in a street. The hole was fas. tened with a lock, which, however, was not suffi ciently secure to prevent its being opened by anyone who tried. Some person unknown unfastened the lock and left the hole open; the plaintiff passing in the dark fell in. The Judge at the trial ruled that there was no evidence of negligence against the defendants, but he allowed the case to proceed in order to fix the amount, should the court think it was a case for a jury. The verdict for plaintiff was found at £300, and leave was reserved to enter that verdict accordingly. Hawkins, Q.C. and Philbrick, for the defendants, showed cause against the rule obtained in pur
annum, and that he had been duly rated to, and had paid all poor rates. In Feb. 1871 he moved into, and occupied, 7, Taylor's-court, for which he agreed to pay an annual rent of 81, his landlord agreeing to pay the rates. A poor rate was made in April 1871 in which the claimant's name did not appear; he did not claim to be rated; he was not entitled to the benefit of the Poor Rate Assessment and Collection Act 1869 (32 & 33 Vict. c. 41); but all rates in respect of 7, Taylor'scourt up to July 1871, were paid by the landlord. The revising barrister disallowed the claim. Saunders for the claimant.
Gorst for the respondent.
The judgment of the COURT was delivered by Brett, J. It was held (1) that in a case of two successive occupations the occupier may be registered, if he has been rated and has paid all rates in respect of the first house, and has paid all rates payable in respect of the second house, though he has not been rated in respect of it; and (2) that it would properly be said that the claimant had paid the rates: (Cook v. Tucket, 2 C. B. 168.) Judgment for the claimant. Attorneys for the claimant, Rogerson and Ford.
COURT OF EXCHEQUER.
Issue directed to County Court-Joinder of several
McCall for the plaintiff, supported his rule. The COURT (Bramwell, Channell, and Pigott, BB.), made the rule absolute for a new trial, on the ground that the County Court judge had power to amend under the Common Law Procedure Act 1852, sect. 37, and their Lordships directed that the parties should discuss the terms of the amendment and of the new trial, before a judge at chambers.
Rule absolute accordingly. Attorney for the plaintiff, Apps, 7, South-square, Gray's-inn, W.C. Attorney for the defendant, Evan Hare, 2, Johnstreet, Bedford-row, W.C.
EXCHEQUER CHAMBER. ERRORS FROM THE EXCHEQUemises at Thursday, Feb. 1. cure under a BURROWS V. THE MARCH Cssor; the mortCOMPANY (LIMvided for forfeiture Negligence-Accident from us, one of which was butory negligence of thier, should not permit a jointly with defende place in the house; another dent-Remoteness oald be paid within a certain of contract. claimed upon breach of both THE plaintiff em defendant paid the rent due, necessary workaxed costs, into court upon an premises, the under the Common Law Procedure custom, supaintiff however refused to accept it. leading fros found for the plaintiff, but leave the plained to enter for the defendant, on the and layin first, that there had been no breach fittings. venant concerning a sale by auction, and, that by claiming a forfeiture for nondants of rent the plaintiff waived the forfeiture che other breach. The Court of Queen's gasligh Prentice, Q.C. and Warton, supported the rule. The COURT (Blackburn, Mellor, and Hannen, the refused a rule on the first ground, and subJJ.), considered that the verdict was rightly theintly discharged the rule which they granted tura the second ground. entered for the defendants. Rule discharged. Attorney for plaintiff, J. Jones. Attorney for defendants, W. W. Smith.
suance of the leave.
thaylis (with Prentice), Q. C. argued for defennt, the appellant.
Brown. Q.C. (with Rose), for the plaintiff, was not heard.
The COURT (Kelly, C.B., Bramwell and Channell, BB, Byles and Keating, JJ., Pigott, B., Brott, J. Cleasby, B. and Grove, J.) considered that the first breach of covenant had been established, and that there was no waiver of the forfeiture on the grounds stated by the court below, as reported in L. Rep. 6 Q. B. 215.
Judgment affirmed. Attorneys for plaintiff, Reed and Lovell. Attorney for defendant, J. Ellerton.
lighted candle; and also that the defendants were negligent in not having tested the service pipe. A verdict was thereupon entered for the plaintiff for 4041. damages, and, on a rule being subsequently obtained to set that verdict aside and enter it for the defendants, on the evidence, or to reduce the damages on the gr ound that the injury resulted from the workman's negligence, and not from the defendants' breach of contract, it was held by the Court of Exchequer (Kelly, C.B., and Martin, Channell, and Pigott, BB.) discharging that rule, that the defendants were liable in substantial damages for a negligent breach of contact in supplying a defective pipe, and were not exone from their liability by the negligence of the fitter's workmen : (see report 22 L. T. Rep. N. S.· 24; L. Rep. 5 Ex. 67; 39 L. J. 33, Ex.) The defendants appealed from this decision.
O'Malley, Q.C. (with him W. Graham) argued for the defendants.
Holker, Q.C. (C. G. Merewether with him) for the plaintiffs, was not called on, and
The COURT (Cockburn, C.J., and Willes, Blackburn, Mellor, Brett, and Grove, JJ.), gave judgment affirming the decision of the court below. Decision affirmed. Attorneys for the plaintiff, Chester and Urquhart, 11, Staple-inn, W.C., agents for Lace, Banner, and Co., Liverpool.
Attorneys for the defendants, Merdediths and Roberts, New-square, Lincoln's-inn, W.C., agents for Wise and Dawbarn, March.
CASTLE AND OTHERS v. PLAYFORD. Vendor and purchaser-Marine contract-Vendor to ship cargo and forward bills of lading-Purchaser on receipt of bills to take on himself all risks and dangers of the seas, &c.—Agreement to buy and receive cargo on arrival-Payment on delivery-Loss of cargo-Liability of purchaser -Construction of contract-Condition precedent. DECLARATION on an agreement made between the dant (described as plaintiffs (described as "vendors ") and the defen"purchaser") whereby the vendors agreed to ship a cargo of fresh water ice in square blocks, say cargo per result 170 register tons, more or less, at vendor's option," to be dispatched with all speed to any ordered port, &c., the vendors forwarding bills of lading to the purchaser, and upon receipt thereof "the said purchaser takes upon himself all risks and dangers of the seas, rivers, and navigation of whatever nature or kind soever." And the defendant agreed to buy and receive the said ice on its arrival at ordered port, and to pay for the same in cash on delivery, at the rate of 20s. per ton, weighed on board during delivery. The declaration then averred shipment of the cargo and forwarding of the bills of lading, and receipt of the said bills by the defendant, and that the cargo was afterwards lost during the voyage "by the risks and dangers of the seas," yet the plaintiff had not paid the value of the said cargo; and further, he had not taken upon himself the risks and dangers of the seas," &c., whereby, &c., (allegation of damage). Plea (amongst otheres adatvora always ready against Sir P. Tait, in the Court of Sequer in Ireland, on the ground that Lynch, being one of the creditors whose name appeared as a creditor under a deed of inspectorship entered into between Sir Peter Tait and Co. and their At the time this injunction creditors in the year. was granted an action had been commenced against Lynch by certain members of another firm, viz., Tait, Abraham, and Co., of which Sir P. Tait was also a member, and the Chief Judge granted an injunction to restrain the further prosecution of that action also.
Thesiger now moved, on behalf of the firm of Tait, Abraham, and Co., to dissolve the last-mentioned injunction, in order that they might proceed in their action. He argued that the deed of inspectorship placed Sir P. Tait in such a position with regard to his liabilities, that from the moment it was signed he was as free to act as if it had never been entered into, provided that he did nothing to compromise any interests which were protected by the deed. Moreover, this debt, in respect of which the action was brought against Lynch, was a debt incurred subsequently to the deed, and to a totally
Bagley appeared for Lynch, and contended that
would be a great hardship if the action by Lynch were to be restrained, and the action against him permitted. He cited the Bankruptcy Repeal Act (32 & 33 Vict. c. 83), s. 20.
Little, Q.C. appeared for the inspectors, and asked for their costs of the motion.
The CHIEF JUDGE said that there was no kind of connection between the circumstances under which the two actions respectively were brought. Mr. Lynch became indebted to Tait, Abraham and Co. two years after the deed of inspection was settled. Consequently, no sum which he could claim under that deed could be set off againgst the latter debt. The inspectors were entitled to their costs of the motion, but there would be no other order as to costs.
Solicitors for Sir P. Tait and Co., Linklater, Hackwood and Co.
Solicitors for Mr. Lynch, Bignall and Horton. Solicitors for the inpectors, Sampson and Cullingford.
Monday, Feb. 12.
Ex parte BROWN; Re SCRIVENER. Bankruptcy Act 1869, s. 15, el. 5-Order and dis.
position-Reputed ownership. THIS was an appeal by the trustee of the bankrupt's estate against an order of the Judge of the County Court of Bedford, declaring that certain agricultural machines were not in the order and disposition of the bankrupt at the time of his bankruptcy with the consent of the true owner. The bankrupt and a person named Shepherd had for some time prior to the year 1868 carried on a partnership business for the purpose of letting out for hire to the neighbouring farmers thrashing and other agricultural machines, &c. During the continuance of the partnership the partners had purchased from an agricultural engineer named Perkins, residing at Hitchin, several machines, with which the partners proposed to carry on their business. Upon the dissolution of the partnership; in 1868, there was owing to Perkins, who still owed about £670 for machines previously purchased; and as a security for this debt the bankrupt gave him a bill of sale over the machines in question, whereby the mortgagee was enabled to take possession of the property in default of payment by the mort. gagor upon the service of a written notice; but that in the mean time, and until default, the mortgagor was to have the use of the machines for the purposes of his business. There was also the usual clause in the deed for redemption of the property, and a covenant for repayment by the mortgagor. This bill of sale was duly registered, and the mortgagor was not indebted at the time he executed it. Perkins also held as a further security the written guarantee of a Mr. Hanscomb, a large farmer in the neighbourhood, who made considerable use of the machines; and it was agreed between him and the bankrupt that the
LEGISLATION AND JURIS-
HOUSE OF LORDS.
THE APPOINTMENT OF SIR ROBERT COLLIER.
Lord PORTMAN gave notice that he would move an amendment to the motion of Earl Stanhope. The amendment would be to this effect:-" That this House finds no good cause for the passing of a Parliamentary censure on the conduct of the Government in the recent appointment of Sir Robert Collier to a Judgeship of the Common Pleas and subsequently to a seat in the Judicial Committee of the Privy Council."
THE ECCLESIASTICAL COURTS.
Lord CAIRNS, for the Earl cf SHAFTESBURY, reintroduced two Bills having reference to the Ecclesiastical Courts.
HOUSE OF COMMONS.
THE TRANSLATION OF SIR R. COLLIER.
Sir ROUNDELL PALMER gave notice that on Monday the 19th, when the hon. member for SouthWest Lancashire brought on his motion with reference to the appointment of Sir Robert Collier, he would move as an amendment, "That this censure on the conduct of the Government in the House finds no just cause for Parliamentary recent appointment of Sir Robert Collier to a judgeship in the Court of Common Pleas and to a seat upon the Judicial Committee of the Privy
PRIVATE BILLS (IRELAND).
siderable reduction should be made in the number of high bailiffs and registrars. 5. That a reduc. tion should be made in the number of County Court Judges, and a new arrangement made of the districts of County Courts, and of the circuits of County Court Judges, and offices substituted for courts, where the amount of business is not sufficient to justify the continuance of a court.
RESOLUTIONS PASSED 8TH MARCH, 1871. SUPERIOR COURTS.-6. That a branch of the
two districts to be formed out of the counties of
High Court of Justice be established for each of Lancaster and York, and the parts of Cheshire adjacent to Lancashire, and the counties north of Lancashire and Yorkshire, such districts to be styled respectively the north-west and north-east districts of the High Court. 7. That two judges of the High Court (who shall, unless any other ar rangement be made among the judges of the High Court, be the junior judges for the time being) shall discharge the duties connected with the said districts, and shall each be paid a sum of £ in addition to salary, to meet the extra expenses connected with residence in either of the said districts. 8. That if, and as may be, necessary, in order to meet the requirements of judicial service in the said districts, one more judge, or two more judges, of the High Court should be appointed. 9. That the plaintiff in any cause in the High moval for sufficient cause), and thereupon the trial Court may mark or lay the venue of the same for or in either of the said districts (subject to reof the said cause, and all interlocutory and other rules of the High Court be heard before one judge, proceedings therein, which can according to the and also the Admiralty business, if any, in the said district, and all criminal business within the Mr. PIM (in the absence of Mr. Maguire) asked district, which would be tried at present on cirthe First Lord of the Treasury whether the cuit, shall be disposed of by the judge of the High Government intended to propose any measure Court in such district. 10. That any cause not with the object of having private Bills dealt with marked for or of which the venue is not laid in in Dublin? Mr. GLADSTONE: It is the inten- either of the said districts, may nevertheless be tion of the Government to make proposals, as I sent for trial, or for any other specified purpose, hope in the present Session, with a view to facili- to one of the said district courts, by order of a tate the progress of such business as is usually judge. 11. That, with the exception of the times dealt with by private Bills in the case of Ireland, of vacation and of the circuits after mentioned, not upon the ground that there is anything in the courts in each of the said districts shall sit the case of Ireland which is in principle distinct continuously, the court of the north-west district from the case of the other portions of the United at Liverpool, Manchester, or Preston, and the Kingdom, but on the ground that it is extremely court of the north-east district at Sheffield, Leeds, desirable to lighten, wherever it can unobjec- or York, and that at the times of circuit the two tionably be done, the hands of this House, and to judges of the said district shall join and become promote and expedite the transaction of business. judges of assize for all the assize towns to the (Hear, hear.) I am not prepared to say how far north of Preston and York respectively. 12. That it will be in the power of my noble friend (the rules should be made for the trial or hearing of Chief Secretary of Ireland) to carry his measure, cases in the said districts, and of interlocutory because the subject is one which goes into a good applications therein, at the places and in the mises, they were seized under an execution issued deal of detail, and I don't wish to raise any premanner most convenient to the suitors. 13. That against the bankrupt, and upon the trial at the mature or excessive expectations. But it is not a re-arrangement of the circuits, omitting the said County Court upon an interpleader summons the proposed to proceed until my hon. friend the districts and that of the metropolis, be made. machines were awarded to Hanscomb. Upon this Chairman of Committee (Mr. Dodson) has given state of facts, the judge of the County Court de- effect to the pledge which he has entered into with cided that Hanscomb was entitled to retain these the House of Commons-namely, that he will on machines as against the trustee under the bank-business for consideration and discussion in this a very early day raise the whole subject of private ruptcy. Against this decision the trustee ap- House. After that has been done, we think it pealed. will be possible for us to see our way in this matter better than at present; but until then we shall not arrive at any positive decision as to the mode of proceeding.
latter should hand to Hanscomb the amounts
received for the hire of the machines should be paid to the mortgagee in reduction of the mortgage debt and interest; and whenever Hanscomb hired the machines he should debit himself with the amount of the hire. The machines generally travelled about under the charge of a servant of the bankrupt, who took the money for their hire, the bills being made out and headed in the bankrupt's name. Upon one occasion, when
some of the machines were in Hanscomb's pre
De Gex, Q.C. and Cooper, for the trustee.-There was no evidence to show that the property in these machines was vested in Hanscomb. They cited Harnsby v. Miller, 1 Ell. & Ell. 192; Freshney v. Carrick, 1H. & N. 653; Stackman v. Miller, 12 C. B., N. S., 659.
Bagley and Webster appeared for Hanscomb.They contended that the bill of sale was held by
Perkins as a trustee for Hanscomb. It was the interest of Hanscomb to keep the machines in the neighbourhood. The bankrupt was perfectly solvent when he executed the bill of sale, which therefore ought to be protected: Ex parte Homan, re Broadbent (L. Rep. 12 Eq. 598).
The CHIEF JUDGE said that he could only differ from the decision arrived at by the judge of the County Court upon clear and distinct evidence. In all the previous proceedings in bankruptcy, Perkins had treated the bankrupt as sole debtor; the expenses connected with the repairing of the machines had been charged to the bankrupt as the true owner. As long as the partnership subsisted, there was no question that the property in the machines was vested in the partners, and since the dissolution there was no plain notorious fact from which it could be inferred that the property in them had passed into other hands. This fact alone would be sufficient to decide the question. The guarantee given by Hanscomb was inconsistent with his claim of ownership. With regard to the interpleader summons, the sole question decided by it was that the executioncreditor was not entitled to the goods. The case came within the terms of the statute; the goods were within the order and disposition of the bankrupt at the time of his bankruptcy. The order of the County Court judge must therefore be discharged.
Tuesday, Feb. 14.
Mr. M'LAGAN asked the Secretary of State for the Home Department whether it was his intention to move for the appointment of a Select Committee to inquire into the operation of the Game Laws this session. Mr. BRUCE feared it would not be in his power to undertake the charge of this heavy inquiry, but a motion for a Committee on the subject would not be objected to by the Government.
THE JUDICATURE COMMISSION.
RESOLUTIONS PASSED 1ST MARCH, 1871. County Court, in addition to his present powers, COUNTY COURTS.-1. That the registrar of the should have power to dispose of the following viz:-(a) Claims under £5. (b) Cases in which business (subject to exceptions for special cause), That all other business up to the present limit both parties agree that the registrar may decide. should be disposed of by the judge; and that plaintiffs should be allowed to commence proceedings in the County Court, whatever be the nature of the suit, and whatever the amount, shown into the Superior Court, if it involves a leaving it for the defendant to remove for cause court fees should be revised, and should be colsum exceeding the present limit. 2. That the lected by stamps. 3. That the parties should be allowed to serve their own process, other than Solicitors for the trustee, Scargill. writs of execution. 4. That arrangements should Solicitors for Mr. Hanscomb, Hare, agent for be made for the speedy abolition of the office of Wades, Hitchin. treasurer of the County Courts; and that a con
RESOLUTIONS PASSED 8TH JAN. 1872. COUNTY COURTS.-14. That the report be for the present registrers of paid registrars adopted so far as it recommends the substitution at fixed salaries to perform the duties in and the report mentioned, SO far as it recommends the consolidation of County Court districts, which, in the opinion of the commission, is practicable and desirable, although the exact amount of consolidation and consequent saving will have to be determined hereafter in detail in any legislative measure introduced for carrying the report into effect. 15. That the County Courts in future should administer common law, equity, and Admiralty jurisdiction as one system, in accordance with the recommendations made in relation to the supreme court by the first report of this commission.
RESOLUTIONS PASSED 23RD JAN. 1872. COUNTY COURTS.-16. That the County Courts be annexed to and form branches of the High Court, and the judges and registrars of the County Courts respectively be attached to and be officers of the High Court, and (subject to general rules) respectively continue to have and exercise all such jurisdiction as they respectively now possess, together with such further and other jurisdiction as recommended. 17. That in any action for the recovery of debt or damages exceeding £20, proor of any County Court, although the appearance cess may be issued at any office of the High Court formed, elsewhere. 18. That where the existing of other matter required is to be, or to be per£20, the same should be extended to £50. 19. limit of the jurisdiction of the County Court is That where the existing limit of the jurisdiction of the County Court is £10, the same should be extended to £50. 20. That such jurisdiction of the County Court as last mentioned shall not be limited to certain kinds of torts, but should extend to all actions of tort.
RESOLUTIONS PASSED 26TH JAN. 1872. COUNTY COURTS.-21. That if in any action in the High Court the plaintiff shall recover a sum not exceeding £50, the costs (if any) allowed him shall not exceed the amount which he would have been allowed if the action had been commenced
and prosecuted in the County Court, unless a judge shall otherwise order. 22. That a judge may order the plaintiff to compensate the defendant for any additional costs incurred by him in consequence of the action not having been commenced and prosecuted in the County Court. 23. That in all actions commenced and prosecuted in the High Court, in which he amount recovered, or sought to be recovered, does not exceed £100, the costs (if any be recoverable) shall be taxed on a lower scale than that from time to time applic. able to other actions in the High Court, unless a judge shall otherwise order.
LOCAL COURTS.-24. That the jurisdiction of the Chancellor's courts of the Universities of Oxford and Cambridge should be abolished, in respect of all actions, suits, or matters cognisible in the Superior or County Courts. 25. That the jurisdiction of the Court of the Vice. Warden of the Stannaries should be transferred to the courts or judges exercising bankruptcy jurisdiction within the Stannaries of Devon and Cornwall. 26. That the jurisdiction of the Mayor's Court of the City of London, the Passage Court of Liverpool, the Tolzey Court of Bristol, and the Salford Hundred Court of Record should be abolished in respect of all actions, suits, or matters cognisable in the superior or County Courts. 27. That all other local and inferior courts of civil jurisdiction should be abolished.
RESOLUTIONS PASSED 31ST JAN. 1872.
23. That the Court of Common Pleas at Lancaster and the Court of Pleas at the County Pala tine of Durham should be abolished. 29. That the Admiralty Court of the Cinque Ports should be abolished. 30. That it is desirable that registries or offices of the High Court for the transaction of interlocutory and other business to be defined should be established in certain places to be named from time to time. The registrars or officers at such registries or offices to be the registrars of the County Courts when thought fit, or persons specially appointed for such pur31. That the district registries of the Probate Court be abolished, and their business transferred to the registries established under the foregoing resolution, and when so such registry is established, then to the registry of some County Court.
By Messrs. FAREBROTHER, CLARK, and Co., at the Mart. Hants, near Lyndhurst, freeaold residential estate of 594. tr. 13p-sold for £300.
Freehold farm of 21a. Or. 19p.-sold for £1700.
A plot of land, containing a. Ir. 5p.-sold for £200.
A dit o of 2a. br. 1p.-sold for £8).
A dito, containin 3a. Ir. 35p.-sold for £130.
Hill Farm, containing 25la. Ir. 9p., freehuld-sold for £500).
By Messrs. NORTON, TRIST, WATNEY, and Co., at the Mart.
Oak Cottage, with garden, &c.-old for £130.
A plot of building land-sold for £155.
Nos. 1 and 2, Oak-cottages-sold for £135.
The Oak Dairy-sold for £170.
Nos. 13, 19 to 55, Clarence-street-sold for £1323.
Thursday, Feb. 8.
By Mo srs.WINSTANLEY and HORWOOD, at the Mart.
By Messrs. NEWBON and HARDING.
By Messrs. C. C. and T. MOORE. Stepner-Nos. 39 to 55, St. James's-place, term 67 yearssoll for £159. No. 191, Oxford-street, term 30 years-sold for £205. Limehonse.-Nos. 13 ani 14, George-street, copyhold-sold for £26).
NOTES OF NEW DECISIONS. WILL-LEGACY-FORFEITURE CLAUSE-PETIFORFEITURE. FOR LIQUIDATION legacy was bequeathed to trustees upon trust to pay the income to F. B. C. for life, with remainder to his children, with a proviso that if the said F. B. C. should "at any time. . . . assign over, assure, mortgage, or in any manner encumber, or by any instrument in writing, parol agreement, or otherwise howsoever, part from the income of the trust fund, "or any part thereof, until the same are actually due, upon any pretence or in any manner whatsoever," then his interest in the same should cease, and the fund go over as if he
were actually dead. Held, that by presenting a
RESTITUTION SUIT-NO ANSWER OF RESPON-
no answer. On the application of the husband the
RUSHгORTH (John), Fir Grange-house, near Harrogate,
SMITH Rev. Ebenezer), Barton St. David, Somerset, clerk,
CREDITORS UNDER 22 & 23 VICT. c. 35.
AUSTIN (GO), Shefford, Bedford, attorney-at-law. March 4;
BAYLISS (Elizabeth), Clevedon-cottage,
S. R. Davies, solicitor, Ross.
BUXTON (Chas.), Esq., M.P., Fox Warren, Cobham, Surrey.
JUDGMENT CREDITOR-27 & 28 VICT. c. 112, 8. 4-WRIT OF ELEGIT-SEIZURE OF SUPERFLUOUS LANDS OF A RAILWAY COMPANY.-A railway company incorporated by an Act passed in 1859, employed a contractor to construct their line of railway, and became indebted to him in a large amount. In 1869 the contractor recovered judgment in an action for the sum remaining due to him, and in the following year he issued a writ of elegit, under which he seized certain superfluous lands belonging to the company. These lands had been acquired by the company under an Act passed BUSSELL Henry T.), Ross, Hereford, corn factor. March 2; in 1863, whereby they were empowered to extend their line of railway, and whereby it was provided that the works thereby authorised to be constructed, should, for financial purposes, form a separate undertaking, and that the capital and new shares created under the powers thereof, should constitute a separate capital. On a petition presented by the contractor under the 4th section of the 27 & 28 Vict. c. 112, praying for a sale of the lands seized under the writ, and for payment of the judgment debt out of the proceeds of sale: Held, that the objection that the lands seized under the writ had been acquired by the company under their Act relating to an undertaking of the company distinct from that in respect of which the debt was incurred, was no defence to the petition. Order of Wickens. V.C., directing the usual inquiries, accordingly affirmed: (Re Ogilvie, 25 L. T. Rep. N. S. 869. Chan.)
UNCLAIMED STOCK AND DIVIDENDS IN THE
Transferred to the Commissioners for the Reduction of the
BERRY (Geo.), yeoman, and WINDYBANK (Ga.), labourer,
FORBES (Chas.). Esq.. Chichester, Sussex. £159, 1d., Three
CALTON (James), Brenchley, Kent, farmer, March 1; Pryke
DEWSNAP (Mark. Chaudfontaine, Liege, in Belgium, bar-
FRINNEBY (Frederick R.). 27. London-roa·l, Croydon,
KAIN (James P.), Morecambe, Lancaster, contractor. March
MOCATTA (Emanuel). Esq., 21. Bloomfield-road, Maida-hill,
CANTOR (Israel), 27, Raven-street, Whitechapel, Middlesex,
barrel naker. March 1; Saunders and Bradbury, solici-
GILBERT Francis. Park-cottage, Camborne, Cornwall, mine agent. March 1; F. V. Budge, solicitor, Princes-street, Truro.
Goss (George), Esq., 3, East India-avenue, Leadenhallstreet, E.C. March 30; G. Carew, solicitor, 9, Lincoln'sinn-fields, W.C.
GOULDER (Helena), Rock-heath, Norfolk, and 34, Canterbary-place, Lambeth-road, Surrey.
HIGGINSON (Edmund). Esq, Saltinarshe Castle, Hereford and Lansdowne-grove, Bath. April 26; Walters and Co.. solicitors. 9, Lincoln's-inn. W.C.
HILLMAN (Frances), 9, Denbigh-road, Bayswater, Middlesex. March 25; Kinsey and Ade, solicitors, 9, Bloomsburyplace, W.C.
Christiana M.), 7, Stapleton-place, Stapleton-road, Bristol, May 7; R. S. Carr, solicitor; 7, St. Mildred'scourt, Poultry, E.C.
KERMOCK (Edwin, Kingston-upon-Thames, auctioneer, &c.
MAISTER (Eweretta C.), Sheet, near Ludlow, March 5;
MATTHEWS (Deborah), Lowther-street, Carlisle. April 1;
NEVILL WIn.), Esq., Winchester, Rear Admiral in Her Ma
NORTEN John E., M.D., Chester. March 31; W. and W.
PARLBY (Lient. Col. Geo. F., 31, Westbourne-place, Mid-
PIKE Wm., 45, Well-street, Camberwell, Surrey, contractor and dairyman. March 25; P. Wood, solicitor, 45, Fenchurch-street, E.C.
PRICE (Sarah, P. Glengall-terrace, Old Kent-road, Surrey.
STEPHENS (Robert), 13, The Paragon, Bath, gentleman.
STEPHENS (Robert), 13, The Paragon Bath, gentleman. March 1; Anderson and Salmon, solicitors, 50, Broadstreet, Bristol.
STIRLING (Lient-Col. Wm.), 2, Mount-le-Grand, Heavitree, Devon. March 1; T. J. Bremridge, solicitor, Bampfyldestreet, Exeter.
STRIBLEY Martin P.), Bassett-street, Camborne, Cornwall,
TINGEY Geo., Henlow, Bedford, grocer. March 11; A. S.
Aaron'. Pendleton, near Manchester, teadealer. March 1: Parry and Son, solicitors, 2A, King. street, Manchester.