« EelmineJätka »
petition under the 23rd section of the Divorce Act. This was the first petition of the kind ever presented to the court.
Searle moved that the damages might be assessed by a common jury.
The COURT made the order.
RAVENSFORD v. RAVENSFORD, SMITH AND WITHEY (QUEEN'S PROCTOR INTERVENING). Matrimonial suit-Decree nisi with costs and damages against the co-respondentueen's Proctor's intervention-Husband found guilty of profligate adultery-Decree reversed and corespondent relieved from the payment of costs and damages-20 & 21 Vict. cap. 85, ss. 51, 52. THIS was originally a husband's suit for a dissolution of his marriage on the ground of his wife's adultery. At the trial a special jury found all the issues in his favour, and assessed the damages against one of the co-respondents at £100. The court pronounced a decree nisi, and condemned the co-respondent in costs. The Queen's Proctor intervened and charged the petitioner with adultery, connivance and collusion. At the trial a special jury found the petitioner guilty of adultery, which was of a very profligate character. The court ordered the question to stand over in order that the petitioner might show cause why that part of the decree condemning the co-respondent in costs and damages should not be reversed.
Dr. Deane, Q.C., and Dr. Swabey now applied that that part of the decree might not be reversed, and that the petitioner might have his costs and damages. They cited Bremner v. Bremner and Brett (3 S. & T. 378; and Bromley v. Wallace (4 Esp. 282.)
Dr. Spinks, contra, for the co-respondent.
The COURT held that the husband's conduct dis. entitled him to the costs and damages, eversed the decree nisi and dismissed the petition.
Monday, Feb. 19.
DAY v. DAY. Matrimonial suit-Death of husband—Dismissal of petition-Payment of costs by executor of hus band. THIS was a wife's petition for a judicial separation, but since the filing of the petition the hus
band had died.
G. Browae, on behalf of the wife, moved that the petition be dismissed, and that the executor who was a co-obligee of the bond securing the wife's costs-might be ordered to pay the costs. He cited Hall v. Hall (3 Swa. & Tr. 390).
The COURT..-The bond is only for the costs of the hearing, and there has been no hearing.
Smith, on behalf of the executor, consented to the motion, on condition that his solicitor might be at liberty to attend the taxation.
Tuesday, Feb. 20.
Solicitor's lien upon proceeds in court-Necessaries
-Priority. THIS was a motion made on behalf of a solicitor for the payment of his costs out of the proceeds of the sale of the ship lying in the registry. The
Heinrich was arrested at the suit of the owners of her cargo for non-delivery, and the cause was heard in the Court of Admiralty and defended by the solicitor, and the Heinrich was dismissed from the suit: (see 24 L. T. Rep. N. S. 914.) The court gave the solicitor, on application under the Attorneys and Solicitors Act (23 & 24 Vict. c. 27, s. 28), a lien upon the ship for his costs. The Henirich was sold in another suit. Necessaries had been supplied to the Heinrich both before and after the institution of the suit of the owners of cargo. The material men having obtained decrees in their suits, contended that they had a maritime lien on the proceeds, and therefore priority over the
Liverpool, who seized them on suspicion that they were to be used in the service of the Cuban insurgents. The Secretary of State ordered their release on Feb. 7, without issuing his warrant stating that there was reasonable and probable cause for the detention.
Milward, Q.C., Clarkson,and Goldney, in support of the motion, contended (in reply to Archibald for the Crown, who submitted that he should have time to answer the affidavits, and that the question of liability should be raised upon petition) that sect. 24 precluded the Crown from going into the merits of the case, and gave a remedy in 66 a summary way," and that motion upon affidavit was the summary way intended, and that the Crown could not be allowed to answer in any way, as the Secretary of State, by releasing the ship without issuing the warrant, himself found that there was no good cause for the detention.
HOUSE OF COMMONS.
THE LAW OF BAKRUPTCY IN IRELAND.
In auswer to Mr. PIM--The ATTORNEY-GENERAL for IRELAND said that there would be no delay on the part of the Government in introducing a Bill to amend the law of bankruptcy in Ireland.
THE AMENDMENT OF THE HIGHWAY ACT.
Mr. S. SACKVILLE asked the Under Secretary of State for the Home Department whether it was his intention during the present session to introduce any measure to amend the Highway Act in accordance with the special report of the Select Committee on Turnpike Trusts Bill 1867.--Mr. WINTERBOTHAM said that, in consequence of other anticipated legislation, no measure such as that referred to by the hon. member would be introduced by the Government during the present
COUNTY COURT JUDGES.
Mr. TREVELYAN asked the First Lord of the Treasury whether it was the intention of the Government to fill up the vacancy caused by the recently announced resignation of a County Court judge until the report of the Judicature Committee has been made public.--Mr. GLADSTONE said he understood that the business of the County Court at Liverpool was very heavy, more heavy than to admit of its being disposed of by one single judge, there being now two judges actually engaged upon it. He was not giving a positive opinion on the matter, but only reporting the information he had received from those who were well acquainted with the subject. He could not say that the office would not be filled up, but it what other changes might be properly made in would not be filled up without consideration as to those arrangements. The intention was to see whether it was possible to effect some adjustment of districts which might lead to improved arrangements for the transaction of that business. He hoped it would not be necessary that there should be any delay in the matter. MUNICIPAL CORPORATIONS (BOROUGH FUNDS)
Mr. LEEMAN obtained leave to bring in a Bill to authorise the application of funds of municipal corporations and other governing bodies in Eng land and Wales in certain cases.
BAR OF IRELAND.
On the motion of Sir COLMAN O'LOGHLEN leave was given to introduce a Bill to repeal an Act passed in the Parliament of Ireland in 1541, requiring attendance at one of the Inns of Court in England as a necessary qualification for admis
sion to the Irish Bar.
BANKRUPTCY (IRELAND) BILL.
The ATTORNEY-GENERAL for IRELAND obtained leave to introduce Bills ** for the amendment of the law of bankruptcy in Ireland;" and another "for the abolition of imprisonment for debt in Ireland, and for the punishment of fraudulent debtors and for other purposes relating thereto." THE REMUNERATION OF LAW OFFICERS OF THE
Mr. FAWCETT.-I beg to ask the First Lord of the Treasury whether it is true, as reported in the public journals, that certain new arrangements
have been made in reference to the remuneration of the law officers of the Crown; whether, if it has been correctly stated that they are in future to be paid by fixed salaries, he will inform the House from what fund the salaries are to be provided, and to what purpose the fees they have previously received will be devoted; and, whether the Government either has attempted or will attempt to introduce any changes into the present system, under which it is possible for the law officers of the Crown to devote nearly the whole of their time to private practice.--Mr. GLADSTONE. I cannot pretend to enter into sufficient detail to give a satisfactory answer to the first two brauches of the question of the hon. member. The new arrangements will involve the salaries being voted annually in the estimates. The House will be asked to vote the salary of the SolicitorGeneral for Ireland for the present year. It is true that the new arrangement has been made, and it will result in a saving to the public. The Government have not made, nor have they attempted to make, any change in the present system with regard to the private business of the gentlemen referred to. (Hear.)
THE TRANSLATION OF SIR R. COLLIER. Mr. CROSS moved his Vote of Censure on the appointment, declaring that it is a violation of the intention of the Statute and of all evil example in the administration of judicial patronage. At the outset he stated that he did not intend to question Sir Robert Collier's fitness except for this particular promotion, nor the actual legality of the appointment. He maintained that, whereas everybody believed the Act to provide a safeguard for the qualifications and judicia! experience of the persons promoted, without which Parliament would not have passed the Act, the Government had broken faith with Parliament by doing away with that safeguard. Tracing the history of the Judicial Committee from its first foundation, and through the various changes in its constitution, and dwelling specially on the Bill of 1870, he maintained that Parliament had always pronounced against elevating practising barristers to the Judicial Committee. The intention of the Act of last year was not to change the qualification of the persons selected, but simply to provide salaries which would induce certain memhers of the committee to attend more regularly. As was shown by the language, which he quoted, of Sir Robert Collier and other members of the Govern ment, the Government meant that the persons selected should have the special qualifications mentioned in the statute. Moreover, from their acts under the statute, which he referred to, he contended that the Government knew they were wrong in appointing Sir R. Collier, and that he himself knew it was wrong, the only point on which he found fault with Sir R. Collier being that he had offered himself to the LORD CHANCELLOR. Canvassing next the terms of the amendment, he challenged Sir Roundell Palmer, or any one else, to ask Parliament to approve the appointment, and wound up by comparing the transaction to the Royal Warrant of last year, the Ewelme Rectory affair, and other acts of arbitrary power. Mr.GOLDNEY seconded the motion, characterising the appointment as a revival of the dispensing power, and contending that the Government was bound to regard the qualifications prescribed by the Act, or else to ask Parliament to repeal them.- -Sir ROUNDELL PALMER moved, as an amendment, that the House Replying, first to the criticisms on the language sees no just cause for censure in the appointment. of his amendment, Sir Roundell said he should consider it a just cause of censure if the Government had violated the Act in its substance or in
its letter, if they had broken faith with Parliament, if they had exercised legal powers for a wrong purpose, or if they had appointed an incompetent person. But he denied that they had committed any one of these offences, and, though there might have been indiscretion and a wrong view of the statute, there was no canse for Parliamentary qualification had always been associated in his censure. Sir Roundell admitted that judicial mind with these appointments, and that at first he hal doubted whether the Government would find the appointment consistent with the stitute. But when it came to a matter of Parliamentary censure, the test must not be any man's private idea of the meaning of the statute, but the statute itself. Then, discussing the statute, Sir Roundell denied that judicial experience was embodied in it as a qualification for these appointments; it was judicial status alone which was required. Moreover, judicial experience had never been reCourt. Under the old system, the Vice-Chanquired as a qualification for the Appellate cellors became members of the Judicial Committee when they were raised to the Bench. Lord Cairns, Sir J. Rolt, Sir J. Selwyn, and Lord Justice Mellish had been sent to the Court of Appeal straight from the Bar, and Lord Kingsdown never had any judicial experience at all. Proceeding next to deal with the assertion of the resolution, that the appointment was a violation of the spirit
"The voter may vote for candidates.
"The voter will go into one of the compartments, and, with the pencil provided in the com partment, place a [insert cross, line, or tick,' or otherwise, stating kind of mark] on the righthand side, opposite the name of each candidate for whom he votes, as is shown in the example of the ballot paper csntained in this notice.
"The voter will then fold up the ballot paper so as to show the official mark on the back, and, leaving the compartment, will, without showing the front of the paper to any person, show the official mark to the presiding officer, and then, in the presence of the presiding officer, put the paper into the ballot box, and forthwith quit the polling station.
"If the voter inadvertently spoils a ballot paper he can return it to the officer, who will, if satisfied of such inadvertency, give him another paper.
and intention of the statute, Sir Roundell ex- inferred that the motion was not only a party" take proper precautions" for the security of the pounded at length, with many quotations from motion, but a personal motion, from the hands in ballot papers, and place them under his own seal Story, Lord Brougham, and Lord Cranworth and which it had been placed. Mr. HARDY, after and the seal of such of the agents as desire to affix others, the rules for construing statutes, and some observations in defence of the Lord Chief their seals. The exact details are obviously of maintained that Parliament would not be justified Justice, argued that the Government by its con- the essence of the Bill, but the following general in going outside of the statute for the purpose of duct had shown its sense that limitations had sketch of the scheme for Parliamentary elections passing a censure. As to the simultaneous been imposed on their choice, and it was clear that may be acceptable :-The "time appointed for the appointment to the Common Pleas and the Privy the Lord Chancellor would have gone on appeal-election" is to be two hours between 10 a.m. and Council, he admitted that if it were done wan- ing to the judges if Mr. Gladstone had not sug. 3 p.m., and during that time the returning officer tonly and capriciously, and over and over again, gested to him a way out of the limitations. But "shall attend at the place of election, and candihe would not defend it. But this objection of if limitations could thus be got rid of by the dates may be nominated in writing by two regiscumulation could only apply if the man appointed executive at their will he agreed that the "dis-tered electors as proposer and seconder, but eight were unfit for the first place to which he was pensing power" was revived. Recent experience other registered electors must sign the nomination appointed, or if, according to the true intention -the presentation to the rectory of Ewelme, for paper as assenting to the nomination. The paper of the Act, judical experience was necessary. instance-made him very apprehensive as to Mr. is to be delivered to the returning officer during The Government, he asserted, might legally ap- Gladstone's dealings with Acts of Parliament, that time by the candidate, or his proposer or point a man to a post if he were fit before he had and disclaiming party motives, he urged the House seconder, and during that time a candidate may the qualification, provided they intended, and to adopt the resolution for the protection of the withdraw by giving a written notice to the effect were able to give him, the qualification. Sir la.--Mr. GLADSTONE reminded the House that to the returning officer. The candidates and their Robert Collier was fit to be made a Judge of the this was a judicial motion, and protested therefore proposers and seconders, and no other person Common Pleas, and the Queen made him; he against the introduction of irrelevant topics, (except to assist the returning officer), will be then was qualified for the Judicial Committee, and for the sake of prejudice, such as the rec- entitled to attend the proceedings during the time the Queen promoted him. The process was right, tory of Ewelme. He complained of the am- appointed for the election. If there is to be a poll because the end was right, and the means legal. biguity of the resolution, for if it was the returning officer is to give public notice of the With regard to the Indian qualification, however, mere error or misconstruction of a statute candidates, and the names of their nominators, Sir Roundell admitted that to have made a man the extinction of the Government too and of the order in which the names of the candian Indian Chief Justice not to go to India, but severe a punishment. But he accepted the dates will be printed in the ballot paper. The merely to qualify him, would have been objec- charge as much more serious-the knowing and ballot paper is to contain an alphabetical list of tionable. Finally, he vindicated the motives wilful violation of a statute-and if he had been the candidates, with space opposite each name for of the Government, which, whether they had guilty of that, he should deserve not merely ex- the voter to make a mark against the names of made a mistake or not, did not deserve Parlia- clusion from office, but from Parliament altogether. the candidates voted for. A paper of directions mentary censure; and touching on the results In discussing this charge he pointed out the ad. is to be placarded outside (and in every compart which must follow the adoption of the motion, missions made in debate-that the statute had ment of) every polling station. The directions he pointed to the consequences to Sir R. Collier, been obeyed and that a competent man had been are as follows:and the danger of lowering the dignity and use- appointed-in fact, a more than competent man, fulness of the office. Mr. GOLDSMID seconded looking to the presumptive right of an Attorneythe amendment, and Mr. S. HILL spoke in favour General. He added that, before taking any public of the motion.- Mr. WATKIN WILLIAMS, speak- steps towards appointing Sir R. Collier, the ing from the Liberal benches, regretted that the Government had applied unsuccessfully to three Ministerial explanation had confirmed his first im- Judges, and without such a resource as Sir R. pression-that the Government had deliberately Collier' would have been brought into serious violated and strained the declared intention of the practical difficulty, having regard to the dignity of Legislature in order to extricate themselves from the office. This, however, he admitted, did not a fancied practical difficulty. According to all the justify them in violating a statute: but this, he rules governing the interpretation of statutes-maintained, they had not done. There was no from which he quoted Puffendorf and Grotius-dispute as to the letter of the statute; it was judicial experience was required. Mr. Serjt. SIMON, on the contrary, maintained that the spirit of the Act included no reference to judicial experience; while Mr. CHARLEY supported the motion.- -The LORD ADVOCATE asked whether he complaint and the occasion were worthy of the attention of Parliament. No imputation of jobbery and corruption had ever been advanced, the legaltty of the transaction was admitted, and Sir R. Collier's fitness was not denied. At some length and amid many signs of impatience the Lord Advocate went on to argue that Sir R. Collier's qualification was not merely colourable, but was consonant with the intention of the Act in the broadest sense. Mr. DENMAN, who supported the Vote of Censure from the Liberal benches, prefaced his reasons by some references to his personal position. He had been pressed by his friends not to speak or vote lest it should be ascribed to disappointment, but he held it to be the basest cowardice to prefer interest to duty, and to refrain from doing right from fear of wrong motives being attributed. For many sessions he had been Mr. Gladstone's zealous supporter, and for this he appealed to the former experience of the Speaker. The Lord Chancellor, he insisted, had been guilty of a grave dereliction of duty, and if not actually censured, it ought to be understood to be censured, lest it should become a precedent to future high-handed Governments with a majority behind them. He did not THE Government Bill "to amend the law relating admit, as some supporters of the motion had, the to procedure at Parliamentary and municipal legality of the act. At any rate, Parliament had elections has been printed. It contains twenty. a right to say that an act was a violation of the eight clauses, and is divided into three parts. spirit of the statute, if it was contrary to the in- Part 1 relates to Parliamentary elections, and tention of Parliament when it passed the statute. comprises eighteen sections, classed as follows:He reviewed at length the history of the Act and Procedure at elections; offences at elections: the speeches of the Lord Chancellor and Sir R. amendment of the law; duties of returning and Collier to show that it was always contemplated election officers; miscellaneous; application to that the selection should be from a limited class, Scotland; application to Ireland. Part 2 relates and that there should be judicial experience. As to municipal elections, and comprises four secone negative proof of this he mentioned that when tions. Part 3 contains miscellaneous provisions, the Bill was in committee he had been asked to chiefly definitions of terms used. The schedules move a clanse making Attorney-Generals and ex- are longer than the Bill. The method is adopted Attorney-Generals eligible, and it was suggested of placing "Rules for Elections" in a schedule. to him that Sir Roundell Palmer thought this The draughtsman, however, has retained some in ought to be done. (Sir Ronndell Palmer here in the Bill. For instance, the Bill provides in the terposed, and said such a thing had never entered body of it that "after the close of the poll" the his mind.) Examining the various excuses ballot boxes shall be sealed up and taken charge offered for the Government, Mr. Denman of by the returning officer, and he, in the prosaid he knew of two Judges, old Liberal sence of the candidates' agents in attendance, M.P.s, and one of whom had been Soli- is to open them and count the votes given to citor-General, who were much hurt that no each candidate, and forthwith declare what canoffer had been made to them, and also that no didates are elected. Afterwards the schedule offer had been made to any of the Queen's Bench provides that the returning officer is to "make Judges. Discerning in recent acts a disposition arrangements for counting the votes as soon as on the part of the Government to break down practicable after the close of the poll," and give some of the securities for liberty involved in the notice to the agents; and so far as practicable independence of the courts of justice, he urged he is to proceed continuously with counting the the House to mark its sense of the appointment votes, allowing only time for refreshment, and in a manner which would prevent its repetition. excluding (except so far as he and the agents Mr. CRAUFURD maintained that the appoint- otherwise agree) the hours between seven p.m. and ment was within the purview of the statute, and nine a.m. During the excluded time he is to
merely somebody's idea of the intention of
THE BALLOT BILL.
"If the voter votes for more than candidates, or places any mark on the paper by which he may be afterwards identified, his ballot paper will be void and will not be counted.
"If the voter takes a ballot paper out of the polling station, or deposits in the ballot-box any other paper than the one given him by the officer, he will be guilty of a misdemeanour, and be subject to imprisonment for any term not exceeding two years, with or without hard labour.
Note.-These directions shall be illustrated by examples of the ballot paper, and may be altered or added to if the returning officer thinks it desirable."
On the application of any voter "incapacitated by blindness or other physical cause" from voting in this manner, the presiding officer will cause the vote to be secretly marked on a ballot paper as directed by the voter, and to be placed in the ballot box. There is to be at least one compartment for every 150 electors entitled to vote at the polling station. Just before the commencement of the poll the presiding officer is to lock and seal the ballot box, first showing it to be empty in the sight of the agents of the candidates present. The ballot paper is to be delivered to the voter within the polling station; and on such delivery the name and description of the elector are to be called out and a mark placed in the register against his number, to denote that he has received a ballot paper. If a person representing himself to be a particular elector applies for a ballot paper after another person has voted as such elector, the applicant shall, upon duly answering the questions and taking the oath permitted by law to be asked of, and to be administered to, voters at the time of polling, be entitled to mark a ballot paper in the same manner as any other voter, but the ballot paper (called a tendered ballot paper) shall be of a colour differing from the other ballot papers, and, instead of being put into the ballot box, shall be given to the presiding officer and endorsed by him with the name of the voter and his number in the register of voters, and set aside in a separate packet, and shall not be counted by the returning officer. The candidates may appoint agents to attend the counting of the votes. Before they are counted the ballot papers in all the ballot boxes are to be mixed together. The returning officer may, in addition to clerks, appoint competent persons to assist him in counting the votes. He is to give public notice as soon as possible of the result, and the number of votes for each candidate. If there is "a tie," he may, if a registered elector, give his vote, but shall not in any other case be entitled to vote at an election for which he is returning
officer. He is to forward to the Clerk of the Crown in Chancery the counted papers, the rejected, the "tendered," and the unused, and the marked registers. At the expiration of a year the Clerk of the Crown is to destroy all the documents unless otherwise ordered by the House of Commons or one of the Superior Courts. All the documents other than ballot papers are to be open to public inspection while in the hands of the Clerk of the Crown. There are other incidental provisions in the Bill, such as clauses for the punishment of persons tampering with the ballot papers, and of officials or agents failing to maintain the secrecy of the voting in the station, or communicating, without due authority, before the poll is closed any information, as to the name of an elector who has or has not voted, and for the punishment of any person attempting to obtain in the polling station information as to the candidate voted for by any voter, or communicating at any time to any person any information there obtained as to the candidate for whom a voter votes. No person who has voted shall, in any legal proceeding to question the election, be required to state for whom he has voted. No person is to be appointed by a returning officer for the purposes of an election who has been employed by any other person in or about the election. The presiding officer may do, by the clerks appointed to assist him, any act which he is required or authorised to do by this Act at a polling station, except ordering the arrest, exclusion, or ejection from the polling station of any person. The short title of the Bill, when passed, is to be, The Ballot Act 1872, but at present it is, Parliamentary and Municipal Eleetions Bill.
NOTES OF NEW DECISIONS. SET-OFF-EXECUTOR RESIDUARY LEGATEEBQUITABLE CLAIM-BANKRUPT.-Defendant was left executor and residuary legatee of Mrs. A., who died in 1869, leaving a balance of £600 in the hands of H. and H., a banking firm, which balance was at once transferred to an account headed with the name of the defendant, as executor of the late Mrs. A." The defendant drew several cheques on this account, and also paid in several sums of money to the same account, before the banking firm became bankrupt in July 1870, at which time there was a balance in the defendant's favour of over £500. At the date of the bankruptcy, the defendant had paid several legacies, but had not specifically provided for all, nor for an annuity charged on the real and personal estate of Mrs. A. After all bequests had been provided for, there would have remained in the hands of defendant a surplus of £1900, to which he was entitled as residuary legatee. The defendant having overdrawn his own private account at the time of the bankruptcy, an action was brought against him by the trustee of the bankrupt's estate to recover the amount so overdrawn. Held, that the defendant was entitled to set-off against this claim the balance standing in his favour on the executorship account at the date of the bankruptcy: (Bailey v. Finch, 25 L. T. Rep. N. S. 871. Q. B.) DISSOLUTION SUIT-RESPONDENT'S ANSWER, ALLEGING CRUELTY-PARTICULARS NOT CORRESPONDING WITH THE CHARGES-PRACTICE PLEADINGS-A wife, in her answer to her husband's petition for dissolution, made certain general charges of cruelty. In obedience to an order of the court, she filed particulars, and subsequently she spontaneously filed further particulars, which did not agree with the original charges. The court treated these further particulars as new charges, and ordered them to be expunged: (Sanderson v. Sanderson, Stephens v. Hiscox, 25 L. T. Rep. N. S. 857. Div.)
MOTION TO TAKE BILL OFF FILE-UNAUTHORISED SUIT BY AGENT OF FOREIGN GOVERNMENT IN ITS NAME.-A subordinate officer of a foreign Government cannot without its authority file a bill in the name of his Government against the superior officer in this country: (The Republic of Liberia v. The Imperial Bank (Limited) and Chinery, 25 L. T. Rep. N. S. 866. V.C. M.)
ACTION ON BOND-" ALE AND PORTER MER CHANT"-"COMMON BREWER"-DISTINCTION BETWEEN-CONSTRUCTION.-A brewer who brews and sells his own ale and porter is not an "ale and porter merchant" in the common and ordinary sense of that term, and therefore a bond given by A., on his entering the service of B., & porter, ale, and spirit merchant," as a traveller, conditioned that he would not, within a specified time after leaving such service, travel for any "ale, porter, or spirit merchant," within a specified locality, is not forfeited by his, subsequently to his leaving B., entering within the specified time into the service of C., a common brewer within the specified locality, as his traveller and agent. So held (dubitante Martin, B.) by Bramwell and Pigott, BB.: (Josselyn v. Parson and others, 25 L. T. Rep. N.S. 912. Ex.)
COPYRIGHT IN A SONG-INFRINGEMENT OFACTION FOR-5 & 6 VICT. c. 45, ss. 2, 11, 24"Book"-"DRAMATIC PIECE". DEFINITION AND DISTINCTION BETWEEN - PUBLICATION— REGISTRATION "MUSICAL OR DRAMATIC ENTERTAINMENT."-The plaintiff was the proprietor, by assignment from the author, with the right of singing it when and where he pleased, of the words of a comic song, called "Come to Peckham Rye," which he sang, to a well-known air, for profit, at public music halls, dressed in character, and accompanying his singing with gesture and expression. The plaintiff had never registered the song, or printed it, nor, otherwise than by singing it as above mentioned, had he ever published it. The defendant, unknown to and without the consent of the plaintiff, printed and published, in a penny book or sheet of songs, a song called, "Down at Peckham Rye," the words of which closely resembled and imitated the words of the plaintiff's song. In an action against the defendant for so doing, the plaintiff obtained a verdict, and upon a rule to set that verdict aside and enter it for the defendant, on the ground that the plaintiff had published the song within the meaning of the Act of Parliament, and, not having registered it, was not entitled to recover, it was Held, by Kelly, C.B. and Channell and Cleasby, BB. (discharging the rule) that the plaintiff's song was not a book" within the meaning of sect. 2 of the Act (5 & 6 Vict. c. 45), but came within the definition of a "dramatic piece," as a "musical or dramatic entertainment," in the same section, and consequently did not require registration under sect. 24 of the Act, which applied to "books only. Martin, B. doubted whether an action would lie at common law against the defendant, and, though he thought the song was not a "book" within the meaning of the Act, he was of opinion that the defendant had not, by merely printing it, infringed the plaintiff's right in it as a "dramatic piece :" (Clark v. Bishop, 25 L. T. Rep. N. S. 908.Q. B.)
APPOINTMENTS UNDER THE JOINT-STOCK WINDING-UP ACTS.
PURE LINSEED AND COMPOUND FEEDING CAKE COMPANY (LIMITED. Creditors to send in by March 11 their names and addresses and the particulars of their claims, and the names and addresses of their solicitors (if any), to J. G. Snell, 85, Cheapside, E.C., the official liquidator of the said company. March 25, at 11 o'clock at the chambers of the M. R., is the time appointed for hearing and adjudicating upon such claims.
CREDITORS UNDER E STATES IN CHANCERY. LAST DAY OF PROOF.
BAKER (Daniel), 17, Anthony-street, Commercial-road,
Middlesex, stevedore. March 1; Carritt and Son, solicitors, 45, Fenchurch-street, E.C. March 11; V.C. B., at twelve o'clock. BANHAM (Geo.), Chadwell-heath, near Ilford, Essex, yeoman. March 21; Wm. Crick, solicitor, Maldon, Essex. March 27: V.C. W. at twelve o'clock. CADDICK (Isaac), Wednesbury Oak, Sedgley, Staffordshire, maltster. March 9; Caddick and Caddick, solicitors, West Bromwich. March; V.C. W. at twelve o'clock.
CHIVERS Hester), Devizes, Wilts, March 16; Henry H.
Hulbert, solicitor, Devizes. April 13; M. K., at twelve o'clock.
COOKE (Conrade, G.). 5. Myra-villas, King Henry-road, Hampstead, N.W. March 1; Lyne and Holman, solicitors, GA, Austin-friars, E.C. March 20; V.C. W., at ten
FOORD (Geo.), Ashford, Kent, auctioneer and estate agent. March; E. Norwood, solicitor, Charing, Kent. March
23; M. R., at twelve o'clock.
GORING Dame Mary E.), 13, Sussex-square, Hyde-park, W. March 1: Pritchard and Sons, Llwydiarth Esgol, Anglesey. March 16; M.R., at twelve o'clock.
HALL (Ana), Farndon, near Newark. March 11; F. J. Tucker, solicitor, 4, Serle-street, Lincoln's-inn-fields, W.C. March 21; V.C. M., at twelve o'clock.
CREDITORS UNDER 22 & 23 VICT. c. 35.
Last day of Claim, and to whom Particulars to be sent. BOWDEN (Clara V.), Butt Ash Cottage, Widicombe and Lyncombe, Somerset. March 25; Young and Co., solici tors, 6, Frederick's-place, Old Jewry, E.C. BRODIGAN (Francis), Esq., Piltown House, Drogheda, Meath. March 25; M. Larkin, solicitor, 51, Dame-street. Dublin. BURSTALL (Edward), Esq., Palace Hotel, Buckingham-gate, Middlesex, and Fulmer-place, near Slough, Bucks. March 26; Bischoff and Co., solicitors. 4, Great Winchesterstreet-buildings, E.C.
BULL (James), 71, Coleman-street, Bunhill-row, Middlesex, oilman. April 15; F. Broughton, solicitor, 48, Finsburycircus, E.C. CHESTERFIELD (Right Hon. Geo. A. Philip, Earl of), Bretbypark, Derby. April 1; Barlow and Co., solicitors, 26, Essexstreet, Strand, W.C. FILLON Jas. E.), Archbishop's-walk, Lambeth, Surrey, gentleman. March 9; E. B. Jupp, solicitor, Carpenter's hall, London-wall, E.C. FISH (Jas.), Stogumber, Somerset, and Water-street, St. Paul, Bristol, maltster. March 8; Parnell and Salt, solicitors, Bristol.
FITCH (Frances), 8. Lambridge. Walcot, Bath, April 27; Stone and Co., solicitors, 13, Queen-square, Bath. HAWKENWORTH (Thos.), Hunslet-lane, Leeds, currier, April 9; Hick and Jones, solicitors, 1, Bond-strect, Leeds. HINDLEY (Chas.), Esq., East Acton, Middlesex, March 25; W. H. Oliver, solicitors, 61, Lincoln's-inn-fields, W.C.
JACOBS (Bethel), 7, Whitefriar-ente, Kingston-upon-Hull, goldsmith and jeweller. March 31; J. L. Jacobs, solicitors, 2, County-buildings, Hull, JONES (Charlotte), 12, More-park-road, Walham-green, Fulham, Middlesex. March 25; F. W. Phamphilon, solicitor, 5, John-street, Adelphi, W.C. LEAF (Wm. L.), Old-change, EC.; Woodlands, Clapham New-park, Surrey; and Kilmington-house, Eastbourne, Sussex, merchant. March 25; Davidson and Co., solicitors, 70, Basinghall-street, E.C. MILLARD (Ann), Worcester-house, Clifton. March 30 Clarke and Sons, solicitors, 28, Broad-street, Bristol. MURRAY (Isabella), 62, George-street, Euston-road, Middlesex, March 18; J. W. Moore, solicitor, 6, George-street. Euston-road, Middlesex.
NOTT (Jas,), Southend-street, Ledbury, gentleman. March 25; Matthew and Barber, solicitors, Ledbury, PLOWDEN Col. Jas. C.), New Park House, Chale, Isle of Wight. Feb. 29; Blake and Snow, solicitors, 22, Collegehill, Cannon-street, E.C.
QUICK (John), 2, North-hill-terrace, Plymouth, rag merchant. April 10; Wedlake and Letts, solicitors, 3, Mitrecourt, Temple, E.C.
ROSTRON (Sarah A.), Green bank-terrace, Henton Chapel, Lancaster, March 15; Reddish and Lake, solicitors, Great Underbank, Stockport.
Row (Elizabeth A.), Royal Victoria Hotel, Swanage, Dorset March 25; R. D. Marshfield, so icitor, Wareham, Dorset. SWANN (David, L.), 19. Lloyd-square, and 222, Gray's-innroad, Middlesex, dyer. March 31; Merediths and Co., solicitors, S, Lincoln's-inn, W.U. TAYLOR (Mary, Noak-hill, Romford, Essex. March 11: Hilearys and Tunstall, solicitors, 5, Fenchurch-buildings,
Tuesday, Feb. 20.
By Messrs. D. SMITH, Sox, and OAKLEY, at the Mart. Horselydown, freehold waterside premises-sold for £850. By Messrs. HARDS, VAUGHAN, and LEIFCHILD. Chelsen, No. 3, Hasxar-street, term 70 years-sold for £255. No. 51 adjoining, same term-sold for £250,
No. 10, Halsey-terrace, term 71 years-sold for £500.
Old Brompton, No. 27, Bute-street, term 74 years-sold for
Wednesday, Feb, 21.
By Messrs. VENTOM, BULL, and COOPER, at the Mart. Edmonton, the lease of a residence known as Bury Hall, term 23 years-sold for £150.
NOTES OF NEW DECISIONS. ARSON-OWNERSHIP OF THE HOUSE - ATTEMPT TO DEFRAUD.-An indictment under 24 & 25 Vict. c. 97, s. 3, for setting tire to a house, shop, &c., need not allege the ownership of the house. The evidence in support of the intent to injure was, that the prisoner N. was under notice to quit, and a week before the fire was asked to leave, but he did not. And of the intent to defraud, the evidence was that in 1867 he called on an agent abont effecting an insurance, and that in 1871 he called on him again and said he had come to renew his policy for £500, and paid 10s. Held, that the above evidence was
LLEWELLIN (David), Holden-terrace, Buckingham Palace-sufficient to prove the intent to injure and deroad, Middlesex, gentleman. March 5; E. Hilder, solicitor, Jermyn-treet, St. James's, Middlesex. March 15: V.C. B., at twelve o'clock.
LLOYD (Hugh), Penllwyn-cottage, Penrell Canal, Llanbadarnfawe, Cardigan, gentlemau. March 12; John J. Atwood, solicitor, Aberystwith. March 25; V.C.B., at twelve o'clock.
MEERS (Isnac), Wisbeach, St. Peter's, Isle of Ely, Cambridge: March 20. Young and Jackson, solicitors, 12, Essex-street, Strand. April 9; V.C.W., at twelve o'clock.
at e even o'clock.'"
PRYCK Francis), Reduth, Cornwall, miue agent. Marcu 12: Geo. A. Jenkins, solicitor, Penryn, Cornwall. March 23; M.R., at twelve o'clock. SOAR (Thos.), Newark-upon-Trent, Notts, yeoman. March 1; Win. Newton, solicitor, Newark. March 17: M. K.. STREET (W., Shalford, Surrey, farmer. March 12; J. and M. Pontifex, solicitors, St. Andrew's-street, Holborn, E.C. TOVEY (Henry), 81, Albany-street, Regent's-park, N.W.. gentleman. March 14; J. L. Dale, solicitor,, Furnival's inn, Middlesex. March 18; V. C. W., at twelve o'clock. TURNER (John), Stack-teads, Forest of Rossendale, Lancas ter, stone proprietor, March 9; Hall and Baldwin, solitor, Clitheroe. March 23; M. R., at eleven o'clock. UZIELLI Theodosius), Brighton, gentle man.
March 19. V. C. B., at twelve o'clock.
fraud: (Reg v. Newboult, 25 L. T. Rep. N. S. 883. Cr. Cas. Res.)
TURNPIKE TOLL-TAXED CART-LOCAL ACT. -A local Turnpike Act of the year 1852 allowed a higher toll upon a "taxed cart" than, upon gig, or chair, or such like carriage with a single seat only, and with two wheels only." The appellant, the toll-collector, demanded and took the higher toll from the respondent for a butcher's cart, with one seat and two wheels, for which he had taken out an excise licence under 32 & 33 Vict. c. 14, and was convicted by justices under the local Act for so doing: Held, that the conviction was right; for the words "taxed cart" must refer to the particular kind of cart so called an i defined in 43 Geo. 3, c. 161, and 43 Geo. 3, c. 55; and not to every cart upon which a tax had been paid, as was decided in Purdy v. Smith (23 L. J. 150, M. C.): (Williams v. Lear, 25 L. T. Rep. N. S.
M. Barnard, so itor, 39, St. James's-street, Piccadilly, 900. N. P.)
W. April 17; V.C. W., at twelve o'clock.
LANDS CLAUSES ACT-SPECIAL ACT INCORPORATED-LANDS INJURIOUSLY AFFECTED.-The effect of incorporating the Lands Clauses Consolidation Act 1845 in a local Act is to entitle all persons whose lands are injuriously affected by the operations authorised by the special Act to compensation, without any special provision being contained in the local Act for that purpose. By certain sections of a local Act, which incorporated so much of the Lands Clauses Consolidation Act as was not modified by or inconsistent with the provisions of the special Act, commissioners were empowered to remove from houses projections into the streets which were existing at the time of
passing the Act, and on the rebuilding of pro-
BOROUGH QUARTER SESSIONS.
Friday, April 5
JOINT TENANCY OR TENANCY IN COMMON.A will contained a gift to such of the nephews and nieces of A., and the children of A.'s deceased niece B., thereinafter named (then followed the names of the nephews and nieces and children of the deceased niece) as should be living at the time of the decease of the testatrix, to be dividea between and among them, per stirpes, equally, and not per capita, the children of B. taking between them only the equal share to which B. would have been entitled if named in that bequest, instead of her children, and living at the time of the decease of the testatrix: Held, that the children of B. took as tenants in common: (Attorney-General v. Fletcher, 25 L. T. Rep. N. S. 892. M. R.)
NOTES OF NEW DECISIONS. TRANSFER OF SHARES-INFANT TRANSFEREE NOTES OF NEW DECISIONS. -USAGE OF STOCK EXCHANGE.-A holder of MARRIED WOMAN-POWER TO DISPOSE shares in a company sold them in the ordinary REAL ESTATE BY WILL. A separation-deed manner through his brokers to a jobber, who, on between husband and wife contained the recital of the name day, gave the name of a person who an agreement that the wife should enjoy her afterwards turned out to be an infant, as pur-present and future real and personal estate to her chaser, and a transfer was executed to him. This separate use, and in all respects free from her husname had, according to the usage of the Stock Ex- band's debts, liabilities, engagements, dispositions, change, passed through the hands of several control, and interference; and the deed contained a jobbers, and had been originally furnished by a covenant by the husband to the like effect, but it member of the Manchester Stock Exchange, who contained no conveyance by the wife of the real afterwards refused to disclose the name of his estate to which she was entitled in fee. The wife principal. An order was made to wind-up the disposed of the real state by will, and died in the company; therefore the transfer to the purchaser lifetime of her husband. Held (affirming the could not be registered, and the name of the vendor decision of the Master of the Rolls), that the wife was retained on the list of contributories, and he could contract as to her real estate by deed under was compelled to pay the calls, which were subse- the statute, and that on the agreement of the quently made. On a bill filed by the vendor husband with her to forego his claims, she became against the jobber, to whom his brokers sold the entitled to the property for her separate use, and shares: Held, that the defendant, not being could deal with it as any other person, unfettered chargeable with any fraud, was not liable to by a marriage contract or any other contract, indemnify the plaintiff, and the bill was dismissed could do: (Pride v. Bubb, 25 L. T. Rep. N. S. 890. with costs. The customs and usages of the Stock L. C.) Exchange, when they do not contravene the laws of the realm, are to be observed and enforced in equity: Semb'e, that no intermediate broker or jobbber is liable, if innocent of frand, unless he refuse to disclose the ame of his principal or to give all the requisite information in his power: (Rennie v. Morris, 25 L. T. Rep. N. S. 862. M. R.) WINDING-UP-JURISDICTION-FOREIGN COMLIABILITY OF ALLOTTEE. In April 1871, a prospectus was published of a company, to be called the Imperial Anglo German Bank, the head office to be in Berlin, with a branch in London. The name of the secretary was published, and also of twelve directors. five being resident in Berlin, and seven (of whom some were Germans) being resident in England. The prospectus stated, that by the provisions of the German law under which the company was to be incorporated, applicants for shares could not be made liable before the incorporation of the company, and their money must therefore be returned in full if the undertaking should not be proceeded with. It further stated, that a moiety of the shares had been subscribed in Germany, and 10 per cent. paid thereon (which was requisite according to German law), and subscriptions were invited for the remaining moiety. The company was promoted by O., and a temporary office taken in London. On 20th May, a large order for advertisements was given at the office to R., an advertising agent, by the secretary in the presence of O. R. entered the company as his debtor in his books, and alleged that he executed the order on the credit of the names of the directors, but he had sent in a bill for the advertisements to O. The remaining moiety of the shares was allotted in England, and deposits of 10 per cent. paid theroon. But it having turned out subsequently that the first moiety of shares had not been, in fact, subscribed for in Germany, nor the requisite deposits paid, the company was never incorporated. Upon a winding-up petition presented by R., Held that R.'s debt was binding upon those who had associated themselves to gether to form the company; that this association was within sect. 199 of the Companies Act 1862; and a winding-up order was accordingly made: (Re The Imperial Anglo-German Bank, 25 L. T. Rep. N. S. 895. V.C. M.)
WILL-CONSTRUCTION.-A testator gave certain property to trustees upon trust for sale and in vestment, and directed that the proceeds of such sale and the investments thereof should constitute the fund thereinafter called the general trust fund; and he directed that his trustees should appro priate one-sixth of the said general trust fund as a maintenance fund for his son J., which, on his death, was to fall into and again become part of the general trust fund, and that subject thereto his said general trust fund should be held upon trust as to one moiety thereof for his wife for life, and upon her death upon the trusts and subject to the provisions thereinafter contained relative to the other moiety thereof, and as to the other moiety in trust as to three-fifths for his daughters, E. C. and S., each to take one-fifth part, and as to the remaining two-fifth parts thereof in trust for his son A., provided that if any of his sail daughters should die in his lifetime, without leaving issue living at the death of the testator, the shares thereinbefore provided in the said general trust fund for each daughter so dying as aforesaid should not lapse, but should sink into and form part of the same general trust fund and maintenance fund in the same manner as if the same share had never been so provided, and the name of the said daughter had accordingly been omitted in the gift and disposition and trusts thereinbefore contained of the same general trust fund. One of the said daughters died in the lifetime of the testator: Held, that the one-fifth was undisposed of by the will: (Smith v. Stone, 25 L. T. Rep. N. S. 893. M. R.)
NOTES OF NEW DECISIONS. GUARANTEE-MISTAKE-EQUITABLE DEFENCE -LIABILITY.-Plaintiffs' agent entered into a contract to supply bricks to a builder at certain prices "to be taken within four months from the date thereof. Month's account, and bill at five months from the date thereof. The due perform ance of this contract by" the builder being gua. ranteed by the defendant. This was signed by the defendant, but he and the plaintiff's agent both understood and agreed that he was thereby guaranteeing only the acceptance of bills by the builder. The plaintiff always believed the defendant had guaranteed the payment of the bills, and heard nothing of the agreement of their agent with the defendant. The agent had received no authority from the plaintiffs to assent to such a gua rantee as the defendant intended, and the plain. tiffs supplied the bricks on the faith of the guarantee, as they interpreted it. Held, that the contract was a guarantee for the payment of these bills, and that this was not, such a mutual mistake between the parties as to constitute an equitable ground of defence to an action upon the guarantee: (Haymen v. Gover, 25 L. T. Rep. N. S. 903. Q.B.)
NOTES OF NEW DECISIONS. SALVAGE-APPORTIONMENT-SAILING VESSEL AS SALVOR. In apportioning salvage reward among the owners, master, and crew of a sailing vessel which has rendered salvage services, the Court of Admiralty will not allot to the owners the same proportion of the reward as in the case of services rendered by a steamship (usually one. half), unless the circumstances show that the vessel itself, as where the services are effected by steam power, was the chief agent in effecting the salvage. In apportioning the sum of £1500, where the services were mainly the personal exertions of the master and crew of a sailing vessel, the court awarded £500 to the owners, £650 to the crew, and £350 to the master: (Re Palmyra, 25 L. T. Rep. N. S. 884. Adm.)
COLLISION-PRACTICE.-The court will not, at
the hearing, allow the amendment of the prelimi nary act in a cause of damage by collision: (The Frankland, 25 L. T. Rep. N. S. 809. Adm.)
PRACTICE-TENDER.-A tender must be made with costs, or the ground for refusing costs must appear on the face of it: (The Thracian, 25 L. T Rep. N. S. 889. Adm.)
Final Examination. AT the examination of candidates for admission on the roll of attorneys and solicitors of the Superior Courts, the examiners recommended the following gentlemen, under the age of twenty-six, as being entitled to honorary distinction:
1. Edgar Lubbock, who served his clerkship to Messrs. Reyroux and Phillips, of London.
2. Edward Powell, who served his clerkship to Mr. Edward Maurice Jones, of Welchpool. Beaumont Shepheard, who served his clerkship to Messrs. Shepheard and Son, of London.
3. John Cook, who served his clerkship to Messrs. Thompson and Cook, of Hull. 4. Walter Reginald Collins, who served his clerkship to Messrs. Bridger and Collins, of London.
5. George Ashmall, who served his clerkship to Mr. Arthur Barnes, of Lichfield.
The Council of the Incorporated Law Society have accordingly awarded the following prizes of books :
To Mr. Lubbock, the prize of the Hon. Society of Clifford's-inn.
To Mr. Powell, the prize of the Hon. Society of Clement's-inn.
To Mr. Shepheard, Mr. Cook, Mr. Collins, and Mr. Ashmall, prizes of the Incorporated Law Society.
The examiners have also certified that the fol lowing candidates, under the age of twenty-six, whose names are placed in alphabetical order, passed examinations which entitle them to commendation
Arthur George Boulton, who served his clerkship to Messrs. Mullings, Ellett, Hampton, and Tudway, of Cirencester; and Messrs. Peacock and Goddard, of London.
Samuel Chester, who served his clerkship to Messrs. F. and E. Chester, of London.
George John Coldham, who served his clerkship to Messrs. Andrews and Canham, of Sudbury; and Messrs. Pawle and Fearon, of London.
Edwin Gray, who served his clerkship to Mr. William Gray, of York; and Messrs. Bell, Brodrick, and Gray, of London.
Henry Edward Herman, who' served his clerkship to Mr. Herbert Henry Poole, of London. George Edward Lake, who served his clerkship to Messrs. G. and B. G. Lake, of London. Charles Herbert Owen, who served his clerk ship to Messrs. Rutter, Neve, and Rutter, of Wolverhampton; and Messrs. Sharp and Ullithorne, of London. Samuel Pilley, jun., who served his clerkship to Messrs. Staniland and Wigelsworth, of Boston; and Messrs. Tooke and Holland, of London. Frederick Vaughan, who served his clerkship to Mr. Robert James Cathcart, of Newport, Monmouthshire; and Messrs. Jones and Starling, of London.
The council have accordingly awarded them certificates of merit.
The examiners further announced that the answers of the following candidates were highly satisfactory:
William Henry Herington.
That Mr. Ockerby, Mr. Herington, and Mr. Craven would have been entitled to prizes, and Mr. Rawlinson to a certificate of merit, if they had not been above the age of 26.
The number of candidates examined in this term was 157; of these 143 passed, and 14 were postponed.-By order of the council,
E. W. WILLIAMSON, Secretary. Law Society's Hall, Chancery-lane, London. Feb. 1872.
HEDON COUNTY COURT. (Before W. RAINES, Esq., Judge.) Friday, Feb. 9.
BEAL v. BATTY.
Freemen-Rights of pasturage. THIS case was tried some two or three courts since, when it lasted two days, and was argued on behalf of the plaintiff by G. C. Roberts, and on behalf of the defendant by A. K. Rollit. His HONOUR said.
The facts are shortly these: The mayor, bailiffs, and burgesses of Hedon have been from time immemorial owners of a common pasture, known as the Westlands, containing thirty-eight acres. The field was formerly the property of the Holy Rood, and passed into the hands of the mayor, bailiffs, and burgesses of Hedon, in whose possession it has since remained. By charter of Edward III. and other confirmatory charters, the lands of the corporation are held by the mayor, bailiffs, and burgesses of the town of Heden, their heirs and successors. In addition to the title to the lands thus obtained by the corporation by charter, a prescriptive title to the Westlands by user of upwards of sixty years was proved by several old inhabitants of Hedon; and it was shown that the corporation had been in the habit of using it by means of letting summer gates for cattle, which had been entirely restricted to the ancient freemen of the borough. In the year 1860, the Hedon Improvement Act was passed, which enlarged the corporation by creating a large num. ber of new burgesses, but a clause was inserted in the Act carefully protecting the interests of the old burgesses with reference to the common pastures. From the year 1860 until the present time no attempt was made to deprive the ancient burgesses of their rights, but some few months since a claim was asserted by certain new bur. gesses to the use of the pastures, and party feeling was excited in the borough. The plaintiff in the case was one of such new burgesses, and prevailed upon the corporation to grant him a summer gate for a cow. The gate was granted, and he placed his cow in the common pasture known as the Westlands. The right of the corporation to let to a non-freeman was at once denied by certain of the ancient burgesses; and in order to test the question the defendant in the present case, acting under the advice of Dr. Rollit, distrained the plaintiff's cow while it was in the Westlands damage feasant. Upon this being done, the present action was brought by the plaintiff to recover £20, the sum claimed as damage caused by the distraint of his cow. The case having been entered, it was fully argued before the judge, who reserved his decision, and to-day pronounced the following judgment: This is a case of replevin in which William Beal is the plaintiff and John Batty the avowant (whom I shall afterwards call the defendant). The plaintiff complains that the defendant unlawfully seized and impounded his cow, and the defendant states that the cow was found damage feasant on lands on which he and other freemen of he borough of Hedon had exclusive right of pasturage, and that he distrained and impounded
her as he had a right to do. It is not disputed is, that the freemen have, by usage or prescripthat the plaintiff is not a freeman of the borough, tion, enjoyed the privileges claimed, viz., to be and that the defendant is. The defendant claims exclusively entitled to the pasturage of the Westa right by custom or usage (which are synonymous lands, by the granting of summer gates for a terms), or by prescription, to the exclusive right certain time of the year to the ancient freemen of pasturage, so far as summer pasturage goes, from time immemorial, and if that is established, for himself and brother freemen in certain lands it is sufficient to establish that right. It is no called the Westlands, the property of the mayor, answer to it to say that in some respects the aldermen, and burgesses of the borough of freemen and the mayor and aldermen have, in Hedon; and it is contended that this right is relation to the land in question, been in the posisecured to them by the Municipal Corporation tion of landlord to tenant. That position may be Act, 5 & 6 Will. 4, c. 76, and the Hedon Corpora- governed by certain conditions and restrictions. tion and Borough Improvement Act, 36 Vict., 1860, I find, from the evidence before me, that the usage and the case of Hulls v. Estcourt (32 L. J. as to the summer gates has existed for more than 193, Ex.) is cited to show that the Court of sixty years, as spoken to by living witnesses; in Exchequer put the same construction on the addition there is the evidence that old people Municipal Reform Act as is contended for here. have been heard to say that it was the same aforeIt is contended that if this case can be brought time. I therefore come to the conclusion that within the case of Hulls v. Estcourt defendant it has existed from time immemorial. This right must succeed. It appears that it has been the having been established to my mind, has it practice of the corporation to let the lands in been protected by recent legislation? question in gates, the summer gates for cows and Municipal Corporation Act provides for the a certain number of horses, to the freemen, and rights of freeemen, and the case of Hulls v. the winter gates to freemen and other persons who Estcourt in constructing it decides that when were not freemen; and it was strongly contended their rights are proved no burgess under that Act that this established the relation of landlord and has a right to participate in them, but the Hedon tenant, and that the case must consequently be Corporation and Borough Improvement Act goes governed by the ordinary rules applicable to that further than the Municipal Corporation Act; and position. It was also urged that as there was the 6th section, as if to meet this very case, some evidence of the existence of title deeds, no enacts, "Provided always that notwithstanding prescription could be established without their anything in this Act, or the Municipal Corporation production. Neither party chose to produce Acts contained to the contrary, the resident these deeds, and I am therefore totally ignorant freemen or burgesses of the borough, and the of their contents, but from what fell from the resident widows of freemen or burgesses of the witness they probably were mere mortgage deeds borough, who have been or might hereafter have and may not at all affect the matter now in dis- been admitted a freeman or burgess of the borough, pute. The case of Constable v. Nicholson (32 if this Act had not been passed; and any person L. J. 240, C. P.) was cited on behalf of the plain-who is, or hereafter may be, a son of a freeman or tiff to show that there could be no custom or pre- burgess, or who has been, or hereafter may be, scription, but it was a very different case from bound an apprentice to a resident freeman or this. The case arose in this immediate neighbour- burgess, shall have and enjoy, and be entitled to hood, and was an action brought by Sir Clifford acquire and enjoy, the same rights and benefits of Constable against the defendant for taking stones occupation, use, and depasturing of the common and gravel from the beach; and the defendant and pasture lands and other lands within the justified his doing so inasmuch as he was an in- borough, as the burgesses and the widows of habitant of Owthorne, the inhabitants of which burgesses while so resident heretofore have had had been accustomed from time immemorial to get used and enjoyed the same, or would or could stones and gravel from the beach. The court have used and enjoyed the same if this Act had held that the right of the inhabitants to get stones not been passed." I think it has clearly been and gravel from the land of another person is a made out that the rights and benefits of occupaprofit à prendre, and could not therefore be tion, use, and depasturing by summer cow gates claimed by custom, neither could it be claimed by and horse gates, according to certain by-laws, of prescription, as inhabitants are incapable by the the lands of Westlands in the summer portion of description of taking such an easement unless the year belong to the ancient freemen and no under a grant which would incorporate them. other, and that the case comes within the 6th Now, in this case, the freeman does not seek to section of the Hedon Corporation and Improvetake anything from the land of another, for it ment Act; there must, therefore, be a verdict for is admitted the land belongs to him and his fel- the defendant. low burgesses, coupled with the mayor and alder. men, and together they are a corporation, the successors of the former corporation, to which the defendant says the grant was made. Then to return to the case of Hulls v. Estcourt which decides that the burgesses created by the Municipal Corporation Act are not entitled to participate in common lands and public stocks held ard applied before this Act for the particular benefit of freemen burgesses of this borough, it will be found that that case is not so dissimilar from the case in question, as was contended for on behalf of the plaintiff. It was an action of replevin for taking two colts of the plaintiff's from a close called "St. Catherine's Meadow" in the city of Gloucester. The plaintiff, in that case, was a citizen of Gloucester, under the Municipal Corporation Act, but not one of the ancient freemen. The defendant was an ancient freeman, and as such justified his distraining the horses, and avowed that from time whereof the memory of man was not to the contrary, the said close had been and still was a certain common field, and that it had been used, and of right ought to be used, for every burgess admitted a freeman of the city giving "right of pasture every year for a certain number of his own beasts, from such time in each year as the said field should be mown and the hay carried away, unto the 2nd Feb. in every succeeding year." Now the limitation of the time for stock ing, till the field was mown and the hay carried away, showed an interference with the rights of pasturage, but as such did not prove that certain rights of freemen did not still continue to exist. What was done with the hay, or for whose benefit it was taken, the case does not state; but it shows an interference and an appropriation of part of the proceeds of the land. It is not very far different in principle to the taking, in this case, something from each freeman in the shape of a moderately imposed charge for a cow or a horse gate; in the case I am citing, the second justification for taking the horses was, that the common of pasture was granted by deed by the Abbot of St. Peter's, in Gloucester. The avowries were demurred to, therefore the facts were not disputed. The court decided that the statute preserved the rights of the ancient freemen, and that a burgess created by the Act had no right to participate in their privileges. The case of the defendant in this suit
Rollit applied for costs, which were allowed.
SWANSEA COUNTY COURT. (Before THOMAS FALCONER, Esq., Judge.) THE LLANELLY RAILWAY AND DOCK COMPANY .
WILLIAM GILBERTSON. Railway and Canal Traffic Act-Undue preferenc -What is?
His HONOUR said: This is a special case agreed upon respecting the facts between the parties, and heard here by consent. The defendant is the proprietor of the works at Pontardawe, situate near to the Swansea Vale Railway. He sends a considerable portion of tin plates, manufactured at the Pontardawe Works, to Liverpool. He, the defendant, is charged 12s. 6d. per ton for the carriage of tin plates from Pontardawe to Liverpool, passing via the Swansea Vale Railway, on to the plaintiffs' line, and thence by other railways to Liverpool. This rate is, calculating for the entire distance traversed, below the rate authorised by the Company's Act. Other manufacturers, whose tin plates are carried over the same and other portions of the Swansea Vale Railway to the plaintiffs' line, and thence by the same route to Liverpool, from works which are more distant from Liverpool than the defendant's works at Pontardawe, are charged, by the plaintiffs, a lower rate. This is done on account, as alleged by the plaintiffs, of the competition for the traffic, via Swansea, by steam and other vessels. The rate charged, is governed, as alleged by the plaintiffs, by the cost of conveyance by sea from Swansea, and, as the plaintiffs also allege, because those works nearest to Swansea can, at the least expense, send their traffic there for shipment. They further allege that they have been accustomed to make the rate by rail lower from those works than from works further removed from the port. The rates charged by the plaintiffs for the carriage of tin plates from the various works in the Swansea Valley to Liverpool, via the Swansea Vale, and via the plaintiffs' and other railways, have, as alleged by them, been from time to time reduced to meet the competition by vessels, and ultimately fixed in August 1870, as they allege, 11s. 4d. per ton from works within six miles, and 12s. 6d. per ton from works more than six miles from the port of Swansea, though nearer to Liver