Page images
PDF
EPUB
[ocr errors]

be granted, he must remain with a serious accusation impending over him until the Queen's Bench finds time and opportunity to try him-a period not likely to be shortened by the "economy principle applied to the number of Judges in that court. Suppose a man, totally innocent, is accused, for instance, of an offence against the bankruptcy laws taken cognisance of by the 32 & 33 Vict. c. 62, and the case should be one involving large accounts and complicated mercantile transactions: jurisdiction is given by sect. 20 to the Quarter Sessions to try him. Why should he not, at his own expense, be allowed to claim trial by a special jury at that tribunal, instead of having to apply for certiorari, and should he succeed in obtaining it, being obliged to wait, maybe a year, before he can clear himself from the charge ? Surely persons would not in trivial and simple cases claim a special jury, when they had to pay the expense themselves unless the Judge "certified" the case as proper to be so tried. We consider that in the majority of cases, a common jury, aided and directed by a pains-taking Judge, can very satisfactorily dispose of criminal business. But that does not, in the least, tell against the position that a special jury ought to be allowed where it is required. A very simple Act of Parliament is all that is necessary. It should render the practice uniform both in civil and criminal cases; and that practice should be, that wherever required either by prosecutor or defendant, a special jury might be obtained, subject to such rules as should be laid down by the Judges. These rules might be so framed as to exclude any abuse of the permission granted by Parliament. The cost of the special jury should fall upon the party demanding it, unless the Judge certify that the case justified such demand. And due notice of such demand should be required. We venture to doubt whether the prosecutor would unnecessarily avail himself of his right, with a fine of twelve guineas hanging over him unless the Judge certified. Nor is it probable that defendants, in view of a similar penalty, would consider their chance of escape increased, in cases of guilt, by having a jury of superior intelligence to investigate their conduct: especially as it is known that special jurors are not easily dazzled by the eloquence of prisoner's counsel. But where the circumstances really demand great intelligence on the part of the jury, we unhesitatingly say a special jury should be furnished and paid for by the country. Rules properly drawn would check abuse, and we should then have a jury system in accordance with common sense. The circuitous mode of certiorari would in such cases be rendered unnecessary, and justice would become surer and more prompt.

Blots like these upon our judicial system might easily be erased, but in law, as in mechanics, there is an unseen agent of great power we mean the vis inertia. Surely, with so many lawyers in the House, this simple reform might be effected. Sooner or later, it will come; and let us add, the man who shall bring it to pass will have the satisfaction of knowing he has been instrumental in facilitating, improving, and rendering more uniform the administration of justice in this country.

LAW LIBRARY.

MR. HOMERSHAM COX, in his "Epitome of the Session of 1871 " (London: Longmans, Green and Co.), is an apologist of the Government which recently made him a County Court Judge. We do not for a moment suggest that his appointment suggested the Epitome, but it is a little singular that a writer of Mr. Cox's position as an historian, should differ from the majority of public writers and speakers, and find the Session of 1871 a successful session, and a session full of satisfactory legislation. Mr. Cox goes wrong, in our opinion, by applying the test of work actually accomplished; he overlooks altogether that most important matters much more pressing than either the abolition of purchase in the army or vote by ballot, were altogether put on the shelf.

Mr. Cox's treatise is a bare narrative, and he adds, at the close, this remarkable statement: "The survey here attempted is far from complete; and it makes no pretensions to legal accuracy." What on earth was it written for? Quod est eo decet uti: et quidquid agas agere pro viribus. And Mr. Cox's omissions are all the more extraordinary because he is supposed to be supporting an assertion opposed by a large number of people-that the session has been fruitful. But he is evidently in doubt as to the extent of the reflections cast upon Government, for at the beginning (p. 1) he says: "It has been frequently asserted that the Parliamentary session of 1871 was comparatively unfruitful." At p. 78 he says: "The statement that the session has been unfruitful is absolutely untrue." Does he hereby admit that it was comparatively unfruitful? But whatever he admits or denies is of little moment, and as lawyers, we say that a survey of legislation which is not complete and is without legal accuracy, is valueless as a basis upon which to form any opinion whatever, and we should recommend those who are interested in the subject to look at the statute book, and judge for themselves.

NOTES OF THE WEEK. JUDICIAL COMMITTEE OF THE PRIVY COUNCIL.

(Present: Sir JAMES COLVILE, Sir MONTAGUE

SMITH, and Sir JOSEPH NAPIER.)
Tuesday, Nov. 14, 1871.

THE EARL OF ELGIN AND THE JESMOND. Sailing rules-Risk of collision-Steamships. THIS was an appeal from the High Court of Admiralty in cross suits instituted by the respective owners of the above vessels for damage by collision. Judgment was delivered by the judge of that court on the 25th July 1870, and he then found both vessels to blame. From his judgment it appeared the Jesmond was steering N.N.W. and the Earl of Elgin S.S.E., and that when they first came in sight of each other, at a mile and a half distance, they were steering end on to each other, and that the look-out on the Jesmond saw all three lights of the Earl of Elgin. Thereupon the Jesmond ported, whilst the Earl of Elgin held on her course. The Jesmond held off a point and a half for some little time, and then came up again to within half a point of her course. The two vessels were approaching each other at the rate of about eighteen knots an hour. When close to each other, the Earl of Elgin starboarded, and they came into collision. The learned judge held that the Jesmond did not port sufficiently, but further said, "The real blame that attaches to the Jesmond and the Earl of Elgin is their not easing and stopping their engines before this collision took place. The more it is examined, the less defensible it seems, that two steamers should be going at the joint speed of eighteen or nineteen miles an hour, nearly on opposite courses, seeing each other a mile and a half off, and not take the common precaution of stopping or easing their engines, under such circumstances. At all events, we have arrived at the conclusion, that the order of the 16th article (Sailing Rules), 'Every steamship when approaching another ship so as to involve risk of collision shall slacken her speed, or, if necessary, stop and reverse,' has not been obeyed in this

case, and I have no alternative but to pronounce, that both parties are to blame for this collision." From this decision both parties appealed.

Butt, Q.C. and Webster, for the Jesmond. Clarkson, for the Earl of Elșin. The Admiralty Advocate (Dr. Deane, Q.C.) and

Their LORDSHIPS (reversing the decision of the court below) held that Art. 16 of the sailing rules only applied when there was a continually approaching risk of collision, and that in this case mond's porting her helm. If the Earl of Elgin the risk of collision was determined by the Jes

had not starboarded there would have been no

collision, and the vessels would have gone clear, and therefore the Jesmond was not at any time collision. They held the Earl of Elgin solely to bound to slacken speed, so as to avoid risk of

blame.

Proctor for the owners of the Earl of Elgin, Thomas Coover.

Proctors for the owners of the Jesmond, Lowless, Nelson, and Jones.

COURT OF APPEAL IN CHANCERY.
(Before the LORDS JUSTICES.)
Nov. 7 and 11.

RADFORD v. WILLIS. Vendor and purchaser-Specific performance Title-Will-Gift to daughters for life with remainder to their husbands in fee-Marriage of daughter-Death of husband, THOMAS DRAPER, by his will dated 26th Jan. 1831, gave all his real and personal estate to trustees, upon trust, to permit his two daughters, Ann and Lucy, to enjoy the same in equal shares for their own use as tenants in common for their lives, independent of any husband; and after their respective deaths, upon trust to convey and transfer the whole thereof unto and equally between the respective husbands of his said daughters, to hold to them respectively and their respective heirs, executors, administrators, and assigns, according to the several natures and qualities thereof respectively. Provided always that if either of his said daughters should happen

to die unmarried, then the share of such daughter should accrue and belong to the survivor of his said daughters, and be enjoyed by for her life; and on her decease the whole should devolve to, and should be conveyed and transferred to the husband of his said surviving daughter as was therein before directed with regard to her original share. After the testator's death, Lucy married, and shortly afterwards her husband died, having given her by will all his interest under the freehold property comprised in the testator's will testator's will. Subsequently a portion of the become the purchaser. was put up for sale, and the defendart agreed to to complete on the ground that Lucy might He, however, refused sequent husband survived her, he would, under marry again, and that if her second or any sub

the will of the testator, be entitled to an interest in the property. Thereupon the present bill was filed for specific performance, and the defendant demurred. Wickens, V.C., held that the title was too doubtful to be forced upon an unwilling_purchaser, and allowed the demurrer. (See 24 L. T. Rep. N. S. 574: L. Rep. 12 Eq. 105.) The plaintiffs appealed from that decision.

Greene, Q.C. and H. M. Williams, for the appellants.

Shebbeare (with him Dickinson, Q.C.) in support of the order.

Lord Justice JAMES said that it was a broad rule of construction that a gift to an unmarried woman for life, with remainder to her husband in fee, would, upon her marriage, vest an estate in fee in her husband. The context in this will did not control the general rule, and the title was one that would be forced upon an unwilling purchaser; but as the question had been raised in the simplest and cheapest manner, the defendant would not have to pay any costs.

[ocr errors][merged small]

Nov. 8 and 9.

Ex parte CоHEN; Re SPARKE. Bankruptcy Act 1869, s. 72-Jurisdiction-Bills of Sale Act (17 & 18 Vict. c. 36)-Agreement to renew bill-Act of bankruptcy. THIS was an appeal from an order of the Chief Judge affirming an order of the judge of the County Court at Liverpool. In May 1870, Cohen advanced Sparke two sums of 271. 10s. on the security of two bills of sale, one of which comprised all the debtor's household goods and furniture, and the other all his stock in trade. The property comprised in the two bills was of the value of more than 500l. It was alleged that at the time of giving the bills of sale a verbal agreement was made that they should be renewed from time to time within the period for registration under the Bills of Sale Act, which provides that bills of sale shall be void unless registered within twenty-one days, and that Sparke should pay Cohen 51. on each renewal. The bills were not registered, but were renewed in June, and again on the 20th July 1870, no further amount being advanced by Cohen on either of these occasions except the 51. Sparke filed a petition for liquidation by arrangement on the 9th Aug. 1870, and subsequently to that date the bills of sale of the 20th July were registered. The trustee under the liquidation took possession of the goods comprised in the bills of sale, and an action of trover was brought against him for the goods. The judge of the County Court at Liverpool held that the bills were acts of bankruptcy and void as against the trustee under the liquidation, on the ground that they amounted to an assignment of the whole of the debtor's property to secure a past debt, and made an order restraining the further prosecution of the action. This decision was afterwards affirmed by the hief Judge, and Cohen now appealed.

De Gex, Q. C. and Bagley, in support of the appeal, contended that the Court of Bankruptcy had no jurisdiction to restrain an action begun in a common law court, where there was no question of any equity different from the legal right, and that the bills of sale were valid as they had been given under a prior agreement and as Cohen's forbearing to seize the goods, which he might have done, constituted a valuable consideration for the new bills.

Without calling upon

Reed and Wheeler, who appeared for the trustee. Lord Justice JAMES said that the Court of Bankruptey clearly had jurisdiction to make the injunction to restrain the action under the 72nd section of the Act of 1869. The bills of sale having been given to secure a past debt were void as against the trustee and could not be supported by the prior agreement for renewal, as that agreement had evidently been concocted for the express purpose of evading the provisions of the Bills of Sale Act. Lord Justice MELLISH was of the same opinion, and thought that the element of fraud introduced by the attempt to evade the provisions of the Bills of Sale Act rather aggravated the case against the holder of the bills.

Appeal accordingly dismissed with costs. Solicitors for the appellant, Chinery and Aldridge, for M. Nordon, Liverpool. Solicitors for the respondent, Torr, Janeway and Tagart, for Duke and Goffey, Liverpool.

Saturday, Nov. 11.

Re CHESHIRE. Leaseholds-Renewal-Statutory power of sale23 & 24 Vict. c. 124, s. 38-Lunatic-Consent. THIS was a petition in Lunacy and Chancery pray ing that the trustees in whom certain leaseholds, granted by an ecclesiastical corporation, and in which a person of unsound mind was interested, were vested, might sell the same with the sanction of the court. he leaseholds were held for lives, one of which had expired, and the Ecclesiastical Commissioners had refused to renew. Two sisters, one of whom was of unsound mind, were beneficially entitled to the property in equal moieties, as tenants for life. The rents amounted to about 401., and the trustees had been offered 8007. for the property. The 38th section of 23 & 24 Vict. c. 124, empowers trustees in whom a lease made by any ecclesiastical corporation is vested to sell, with the consent in writing of the persons bene. ficially interested, and if there shall be no person capable of giving consent, then with the sanction of the Court of Chancery.

Oliver Saunders for the petitioners.

Their LORDSHIPS directed the petition to be

16th Nov. 1870, the day fixed for the completicn,
the plaintiffs were in a position to transfer the
licence to the defendant. The plaintiffs were the
executors of one George Ross, who died on the
13th July 1870. His licence was then subsisting,
and expired on the 26th Aug. following, when the
magistrates of the Romford district, where the
public house was situated, renewed it in the name
of the deceased owner. In Feb. 1871, the licence
was transferred to the testator's widow. The
purchaser refused to complete on the ground that
on the day fixed for completion the vendors were
not in a position to transfer a valid licence to him.
Thereupon the vendors instituted the present suit
to enforce specific performance of the contract. The
Master of the Rolls held that if the licence had
been improperly renewed, the defendant would
not incur any risk on that account, and that he
would have an unimpeachable title to carry on
the public house, and he made a decree for specific
performance: (24 L. T. Rep. N. S. 788; 40 L. J.
492, Ch.), from which the defendant appealed.

Roxburgh, Q.C. Poland (of the Common Law
Bar), and Marten for the appellant, relied on Day
v. Luhke (L. Rep. 5 Eq. 336).
Southgate, Q.C. and Horton Smith for plaintiffs.
Daniel Jones for the testator's widow.
Their LORDSHIPS were of opinion that the deci-
sion of the Master of the Rolls in this case was
irreconcilable with his former decision in Day v.
Luhke (sup.). The licence in the name of a dead
man was a mere nullity, and the vendors had no-
thing to transfer on the day fixed for completion.
The purchaser was not bound to wait till the next
sessions to see whether the vendors could procure
a valid licence under the 14th section of the
Licensing Act of Geo. 4, and then make a
transfer to him under the 11th section of that Act.
The order must therefore be discharged with costs.
Solicitors for the appellant, H. J. and T. Child.
Solicitor for the plaintiffs, Frederick Mason.

ROLLS COURT.
Tuesday, Nov. 14.

MELLOR V. MELLOR.

plaintiff's land. The plaintiff's case was that the conduit leaked, and that certain pot pipes the defendants had improperly inserted in the walls of the conduit caused a great loss of water, which would otherwise be available for a brewery belonging to the plaintiff. This loss of water amounted, according to the plaintiff's evidence, to 100,000 gallons per diem, but according to the defendants' evidence, to 10,000 gallons only. The defendants contended that these pipes were merely inserted for a necessary and a temporary purpose, that of relieving their works from the pressure of water during construction. A great quantity of evidence was adduced on both sides; on one side to show that the works, when complete, would be watertight, and on the other side that they would not. It appeared, however, that there was, in fact, a considerable leakage. The plaintiff alleged that the defendants were fraudulently abstracting his water, and selling it as their own.

Glasse, Q. C. and Martineau, for the plaintiff. Cotton, Q. C. and H. M. Jackson, for defendants. The VICE-CHANCELLOR said that he was satisfied that the defendants had no intention of fraudulently abstracting the water, but that their works had not been conducted in a proper and effective manner, and with a due regard for the interests of the plaintiff. The plaintiff had, in his opinion, established his title to relief. The defendants were bound to construct a proper watertight conduit, and an order must be made to secure to him such a conduit within a reasonable time. The defendants' counsel had offered to complete within a reasonable time, and he (the Vice-Chancellor) would therefore fix six months as a reasonable time, and 300l. as the amount of costs to which the plantiff should be entitled, but would decline to give him the full costs of the suit, on the ground that he had failed to make out the case made by the bill, so far as it charged intentional abstraction of water, and on the ground that the defendants had shown great anxiety to avoid litigation.

Solicitors for the plaintiff: Emmets, Watson, and Emmets, for Wavell and Co., Halifax. Solicitors for the defendants: Williamson, Hill,

Settlement-Maintenance-Immorality-Trustees' and Co., for J. S. Norris, Halifax.
discretion.

By a settlement dated the 14th Feb. 1866, Godfrey
Mellor desiring to make a provision for the widow
and three children of his deceased son, vested
60001. in trustees upon trust to apply the income
arising therefrom, or such part thereof as the
trustees should think fit, to the maintenance of the
widow and children until the youngest surviving
child should attain twenty-one, so long as the
widow remained unmarried, with a power of
raising 1000l. for each child as they respectively
attained the age of twenty-one years, and
out of the income of the residue to pay 501.
per annum to the widow during her widowhood,
the balance to be divided among the children.
Subsequently the settlor, by his will, devised a
certain house then in the occupation of the widow
and her children to his grandson, Godfrey Mellor,
but the widow to be allowed to occupy the same
during his infancy. Since the death of the settlor,
the widow, having formed an immoral connection
with a married man and had three children by
him, an order was made for the removal of the
grandchildren of the settlor from her custody, and
she persisting in occupying the house with her
illegitimate children in opposition to the wishes of
the trustees, they refused to make her any allow-
ance out of the income of the trust fund.

Jackson, on behalf of the widow, now applied
for an order directing the trustees to pay her a
income of the trust fund, and contended that
sum of not less than 501. per annum out of the
by the terms of the settlement she was entitled
to a portion of the income, the objects of
the settlor's bounty being the widow and children,
and that one of these objects could not be entirely
excluded from all benefit. The trustees had no
power to exercise a discretion in depriving her
altogether from participation in the income, which
standing her misconduct, and the settlor had him-
was intended partly for her maintenance, notwith-

self fixed the amount which she was to receive

after all the children had attained their majority
at the sum of 50l. per annum.

Beaumont appeared for the trustee.

Lord ROMILLY.-I think her conduct has de

prived her of all right to any benefit. I am clear I
cannot interfere with the discretion of the trustees.
Solicitors: Edwards, Layton, and Jaques;

headed in Chancery only, and notiin Lunacy, and Learoyd and Learoyd.

made the order asked for.

Solicitors, Clarke, Son and Rawlins.

Monday, Nov. 13.

COWLES v. GALE.

Vendor and purchaser― Specific performance · Sale of public house-Licence taken out in name of deceased owner.

THIS was a vendor's suit for a specific performance of a contract for the sale to the detendant of a public house, and the question was whether on the

V.C. MALINS' COURT.
Nov. 7, 8, and 10.

WEBSTER V. THE MAYOR &C. CF HALIFAX.
Right of water-Injunction to restrain inter-
ference with.

THIS was a suit to restrain the corporation of
Halifax, who had an easement through an old
water conduit across the plaintiff's land, from
building a new conduit in such a manner as to
intercept the natural flow of water through the

Saturday, Nov. 11.

Re THE GREAT OCEANIC TELEGRAPH COMPANY
(LIMITED); HARWARD'S CASE.
Company-Unqualified person acting as director—
Agreement to take minimum qualification in
shares.
ADJOURNED summons. This was an appli
cation by the official liquidator of the above
company that Harward's name might be set-
tled on the list of contributories in respect
of fifty shares. The company was registered
in Sept. 1869, and it was provided by the
articles of association that the qualification of
a director should be fifty paid-up shares standing
in his own name. The company never actually
commenced business, but had incurred some debts,
and in 1870 it was ordered by the court to be
wound-up. It appeared from the evidence in sup-
port of the application, first, that Harward's name
was published in the prospectus of the company
as a director in Feb. 1869; secondly, that on the
19th Oct. 1869, he attended a meeting of directors
at which an allotment committee was appointed,
who afterwards on the 3rd Nov. 1869 allotted him
fifty shares; thirdly, that in Jan. 1870 he signed a
cheque as director. On the part of Harward it
was argued that he had never seen the articles of
association, and did not know what the qualification
director conditionally, provided that the pros-
of a director was; that he only agreed to become a
pects of the company were good; that the meeting
he attended was held in the same room as, and
directly after, another meeting of another company,
of which he was a director, and that he remained
in the room to satisfy himself as to the prospects
of the Oceanic Company, and took no part in the
proceedings; that his signature to the cheque was
he had made no express application for shares, and
not accepted by the company's bankers; and that
no agreement to take shares could be inferred
from what he had done. The chief clerk refused
the application.

Glasse, Q.C. and Higgins for official liquidator.
Cotton, Q.C. and Coode for Harward.

The VICE-CHANCELLOR said that it was not attempted to be be denied that Harward was present at the meeting of the 19th Oct., and sitting at the board in the capacity of director he must be taken to have known that he had no right to be there unless he had taken fifty shares and paid all calls upon them. His Honour's view of the law was that a man by acting as a director of a company must be considered as applying for and contracting to take that number of shares which was the minimum qualification of a director of that company. Harward's name must be placed upon the list as the holder of fifty shares, and he must pay the costs of the proceedings both in chambers and in court.

Solicitors: John Tucker; Francis and Bosanquet.

Nov. 13 and 14.

BRUTTON V. THE PARISH OF ST. GEORGE, HANOVER-SQUARE.

strain them from demolishing any part of his five minutes only, or for any less period than ten
building, with the costs of the suit.
minutes. The plaintiffs were the persons entitled
to the benefit of a covenant contained in an inden-

Solicitor for the plaintiff, Boydell.
Solicitors for the defendants, Capron, Dalton, ture entered into between the company and
and Hitchins.

V. C. BACON'S COURT.
Nov. 9 and 11.

Re GREENING AND COMPANY (LIMITED);
Ex parte MARSH.
Company-Winding-up-Costs of — Liability of
past member-Companies Act 1862, ss. 38, 102,

144.

MESSRS. MARSH, who were shareholders in the above-named company, transferred all their shares in Jan. 1869 to Mr. Greening, and in the following October the company was ordered to be woundup. The present members being unable to meet all the liabilities of the company, a call was made on such past members as still remained liable to contribute. Mr. Greening having become bankrupt, Messrs. Marsh were settled on the list of contributories, and a call was made upon them for the amount of the capital still unpaid on the shares which they had transferred to Mr. Greening. After the call had been made Messrs. Marsh bought up the debts for the payment of which they were liable to contribute to the company. The question now was whether Messrs. Marsh having been settled on the list of contributories, and a call having been made upon them, although there were now no debts for which they were liable, were still liable to contribute in respect of the costs of the winding-up.

Metropolis Local Management Act (25 & 26 Vict. c. 102)-Projection beyond line of street-Order to pull down-Notice to occupier or builder. THIS was a suit to restrain the Vestry of St. George's, Hanover-square, from pulling down a conservatory erected by the plaintiff over the portico of his house in Queen-street, Mayfair. The plaintiff, having taken a lease of the house in 1869, employed a builder named Rudkin, to erect the conservatory for the sum of 1291., and in pursuance of that contract the framework was put up on the 23rd or 24th Aug., and the building was completed on the 20th Sept. 1869. On the 26th Aug. some one on behalf of the vestry called at the house, inspected the works, and took down the names and addresses of Rudkin and the plaintiff. The plaintiff then called upon the vestry clerk, and stated that if the vestry had any objection to the proposed erection he should maintain his rights and fight the question whether it did extend beyond the line of the street within the meaning of the Metropolis Local Management Act 1862 (25 & 26 Vict. c. 102). On the 4th March 1870 the defendants took out a summons against Rudkin, the builder, who had in the mean time sold his business and gone away to Australia, requiring him to appear before the magistrate to show cause why the conservatory should not be pulled down. A copy of the summons was left at Rudkin's former place of business, and was afterwards, on March 10th, brought to the plaintiff by Rudkin's successor. On that day the plaintiff appeared before the magistrate, but his appearance upon the summons objected to dator. on the ground that he had not been served with the notice, and an order was made upon Rudkin to demolish the conservatory, accompanied by a notice that if he failed to obey the order, the officers of the vestry would themselves proceed to demolish it. The vestry afterwards gave a positive order for the demolition of the building on the 3rd Aug., and thereupon the plaintiff filed this bill, and obtained an interim injunction to restrain the demolition till the hearing. By sect. 75 of the Metropolis Local Management Act, under which the vestry proceeded, it is enacted that no building or erection shall, without the consent, in writing, of the Metropolitan Board of Works, be erected beyond the general line of building in any street or row of houses, the general line to be decided by the superintending architect of the Board; and in case any building be erected or begun to be erected without such consent, it shall be lawful for the vestry or Board

was

Amphlett, Q.C. and Brooksbank, were for Messrs. Marsh.

Kay, Q.C. and Ford were for the official liquiThe VICE-CHANCELLOR was of opinion that the summons making the call must be dismissed, but that Messrs. Marsh must pay the costs of settling the B list of contributories, unless the liquidators had, remaining in their hands, sufficient assets of the company to pay them. The liquidators to have their costs of these proceedings out of the estate.

Solicitor for Messrs. Marsh, A. Pulbrook. Solicitors for the official liquidators, Merriman, Powell, and Co.

Wednesday, Nov. 15. SMITH V. GIBSON. Construction of will-Precatory trust-Special case-Future rights. GEORGE SMITH, by his will dated the 20th Feb. 1861, gave, devised, and bequeathed all his real and personal estate and effects whatsoever and

Messrs. Rigby in 1841, on the faith of which Messrs. Rigby erected refreshment rooms at Swindon, at a cost of 25,0001. Under an assignment, dated the 8th Aug. 1848, the plaintiffs became entitled to the benefit of that agreement. The clause was to this effect-that the company would give every facility to Messrs. Rigby for enabling them to obtain an adequate return by means of rents and profits to be derived from the said refreshment rooms, and that all trains carrying passengers, not being goods trains, or trains be sent express or for special purposes, to under the control and except trains not of the company, which should pass the Swindon Station, either up or down, should (save in case of emergency or unusual delay, arising from accidents) stop there for the refreshment of passengers for a reasonable period of about ten minutes; and that, as far as the company could influence the same, trains not under their control should be induced so to stop for the like purpose. This covenant became the subject of litigation in 1846, between the company and Messrs. Rigby, in the case of Rigby v. The Great Western Railway Company, and the result of that litigation was that it was held that it was binding upon the company. Ever since, until recently, the company had acted in pursuance of the covenant, but at the commencement of the present month the time-table showed that the two trains in question were intended to stop for five minutes only, which practically was useless. The defence was, that these trains were not under the control of the company, but, by virtue of the Act of Parliament, were under the control of the PostmasterGeneral. By the 1 & 2 Vict. c. 98, it was provided that the Postmaster-General, with regard to all railways, by writing, under his hand, may require that mails from the day after a day to be fixed being not less than twenty-eight days from delivery thereof, shall be conveyed, &c., by ordinary or special trains, at such hours of day or night, and subject to all such regulations and restrictions as to speed of travelling, places, times, and duration of stoppages and times of arrival as the Postmaster-General should order. But, assu ming that this Act took the control of the trains out of the hands of the company, it was only on a written order by the Postmaster-General, after a notice of twenty-eight days. There was no evi

dence that any such notice had been given-and, indeed, it was clear that no such notice had been given, because what the defendants relied on was a letter written apparently by the order of the

of Works for the district to cause complaint to be wheresoever "unto and to the absolute use of my Postmaster-General. Moreover, it was clear that made before a justice of the peace, who shall dear wife Harriet Smith, her heirs, executors, the company had not represented to the Post

thereupon issue a summons requiring" the owner or occupier of the premises, or the builder, or person engaged in" the work, to appear before him, and, if the complaint shall be proved to his satisfaction, shall make an order upon such person directing the removal of the erection. And sect. 107 of the Act enacts that no person shall be liable for any offence made cognisable before a justice, unless the complaint respecting such offence shall have been made before a justice

within six months after the commission or discovery of such offence.

Cottrell and Hume Williams (of the Common

Law Bar) for the plaintiff. Schomberg, Q. C. and F. T. Streeten (of the Common Law Bar), for the defendants.

The VICE-CHANCELLOR said that in his opinion the portico must be taken as the front line of the house. It was clear that on Aug. 26, the defendants knew what the plaintiff was doing, and they should at once have taken steps if they meant to do so. On that day the offence was committed, and on that day, therefore, time began to run against the vestry. The six months expired on Feb. 26, and the vestry were too late. It was a singular circumstance that, had it not been for the accident of the summons being brought to the plaintiff, an order might have been made on Rudkin in Australia, to pull down part of the plaintiff's house in London, without the plaintiff having heard a word about it, or having had an opportunity of objecting. It was almost incredible that such a proceeding should be possible. It had been argued that the vestry were right in proceeding against the builder, and that his liability continued for six months after the completion of the work, but the words of the section were, "builder engaged in any work," and here the builder was no longer the builder; he had gone away, and been paid, and had no further connection with the building. When there was a known occupier, he was the proper person to be served, although a builder might be employed and might be served while so engaged, though not afterwards. The six months from the discovery of the offence having expired on the 26th Feb. the summons against Rudkin on the 4th March was a mere nullity, and the plaintiff was entitled to a perpetual injunction against the defendants to re

administrators, and assigns, in full confidence that she will do what is right as to the absolute disposal thereof between my children, either in her lifetime or by her will after her decease," and the testator appointed his sons G. H. Smith The testator and S. S. Smith his executors. died on the 20th Feb. 1861, leaving his wife Harriet Smith and six children surviving. The widow entered into possession of the testator's property, and from time to time made advances to some of the children. Difficulties, however, arose, and all the parties being now sui juris, concurred in stating a special case for the opinion of the court. The questions were (1) whether under the will the widow took an absolute or other and what beneficial estate and interest in, or any and what power of disposal over, the real and personal estate and effects of the testator; (2) whether the testator's children took any and what beneficial estate and interest in his real and personal estate and effects as cestui que trusts under his will.

Kay, Q. C. and J. T. Humphry for the widow. Amphlett, Q. C. and Busk for some of the testator's children.

W. C. Harvey for other children of the testator. The VICE-CHANCELLOR said that for the present he could not decide more than that the widow was entitled to the property, and that no one could interfere with her possession. All the parties were sui juris, and if they wished to dispose of the property at once, could concur in doing so. Difficulties which might arise as to their respective rights in the future, must be decided when the proper time came. Solicitors, Brown and Williams; Algernon Wells and Sykes.

V. C. WICKENS' COURT. Thursday, Nov. 9. PHILLIPS v. THE GREAT WESTERN RAILWAY COMPANY.

Railway company-Contract to stop trains at refreshment station-Breach of contract-Motion for injunction. THIS was a motion for an injunction to restrain the defendants from directing or permitting the trains which are fixed to leave Paddington at 9.15 a.m. for Exeter, and to leave Exeter for Paddington at 12.25, from stopping at Swindon Station for

master-General that they were under a covenant. Even assuming that the Postmaster-General insisted on the mail trains keeping the time fixed, the company might send them by special trains not within the covenant. Under these circumstances the plaintiffs were compelled to seek the aid of this court.

Sir Roundell Palmer, Q.C., Dickinson, Q.C., and Montague Cookson, appeared in support of the motion.

The Solicitor-General (Jessel, Q.C.), Mackeson, Q.C., and H. A. Giffard, contra.

The VICE-CHANCELLOR said that he did not at present see how he could decide the question by granting an injunction. To do so would decide nothing. What he felt important was, that no application had been made to the PostmasterGeneral, and the better course would be to allow the matter to stand over until proper steps had been taken.

It was ultimately arranged that on the defendants giving the undertaking required by the Lord Chancellor in Rigby's case, the matter should stand over till the first motion day in Hilary Term.

Solicitors: Park and W. B. Nelson.

Re WOODCOCK'S SETTLED ESTATE.

Practice - Non-investment of moneys paid into court-Motion for leave to bring action against the Accountant-General. THIS was a motion for leave to bring an action against the Accountant-General of the Court of Chancery, or that the plaintiff's damages in noninvestment of moneys paid into court might be otherwise ascertained. The facts were these: On the 22nd Dec. 1865, an order was made directing 1200l. to be paid into court under the 25th section of the Settled Estates Act, which provides that money paid in shall, until an investment in land can be found, be converted into Exchequer bills or Consols. The money was paid into court in 1866, but on being required in 1870, it was ascertained that it had never been invested. The ground on which the neglect was sought to be justified was that it was not the practice in the Accountant-General's office to invest funds paid in without a request to do so.

Hinde Palmer, Q.C. and Langley appeared in support of the motion. Dickinson, Q.C. and Methold, contra, were not called upon.

The VICE-CHANCELLOR said that the order of the court did not compel or authorise an immediate investment in land by the Accountant-General, and it was, therefore, allowed to remain in suspense. The practice was recognised by the general order, and was convenient, as an immediate investment in land might be very injurious. The Settled Estates Act must be taken to have been passed recognising the established practice of the court. The motion must be refused, with costs. Solicitor, H. A. Maude, solicitor to the Suitors' Fee Fund.

COURT OF QUEEN'S BENCH.
Thursday, Nov. 9.
WOODHAMS v. WOODHAMS.

Award upon matters in difference-Costs to each
party.
ACTION for trover and debt. To the claim for
debt defendant set-off an amount he alleged was
due from the plaintiff to him. The action and all
matters in difference between the parties were re-
ferred to the master, the costs of cause, reference,
and award, to abide the event. The master held
that the defendant had proved a set-off of the
same amount as the plaintiff's claim, and that
plaintiff owed the defendant a sum of 21. 10s. He
also held that the plaintiff was entitled to
431.9s. 7d. from the defendant, on the count for
trover. The result was, therefore, an amount of
401. 19s. 7d. due to the plaintiff. The costs were
taxed in favour of the plaintiff upon the action,
and of the defendant upon the plea of set-off.
The master gave neither party the costs of refe-
rence or award.

Forbes, for plaintiff, moved to set aside the master's certificate for costs, on the ground that the plaintiff's claim having overtopped that of the defendant, the plaintiff was entitled to the whole costs of the action, reference, and award: (Dunhill v. Ford, L. Rep. 3 C. P. 36; Stevens v. Chap. man, L. Rep. 6 Ex. 213.)

Per CURIAM. (Cockburn, C. J., Blackburn, Mellor, and Hannen, JJ.).— Rule refused. Attorneys for plaintiff, Singleton and Tattershali.

BRADLEY V. SYLVESTER.

Quo warranto-Clerk to a school board-Office held at pleasure of the board. Gane moved for a writ of quo warranto calling upon the defendant Sylvester to show cause why he should continue to hold the post of clerk to the school board of the borough of Castleford. By 33 & 34 Vict. c. 75, s. 35, "A school board may appoint a clerk and a treasurer and other necessary officers, including the teachers required for any school provided by such board, to hold office during the pleasure of the board, and may assign them such salaries or remuneration (if any) as they may think fit, and may from time to time remove any of such officers; but no such appointment shall be made, except at the first meeting of such board, unless notice in writing has been sent to every member of the board." It was alleged that the majority by which the defendant was appointed had been improperly obtained by one member's voting twice, and also that the meeting at which the appointment was made, although not the first that took place, was held without due notice to every member. The writ of quo warranto was held applicable to an office, similar to that of the defendant, viz., to the clerkship of a board of guardians in Reg. v. St. Martin's-inthe-Field (17 Q.B. 149).

The COURT, without expressing an opinion as to whether the writ would apply, refused a rule in the exercise of their discretion, on the ground that the office was held during the pleasure of the board, and the majority might put the defendant out, or re-appoint him without the assistance of the court. Rule refused. Attorneys for relator, Blakeley and Beswick.

Saturday, Nov. 11. POUND (app.) v. THE BOARD of Works for THE PLUMSTEAD DISTRICT (resps.).

LORD NORTHBROOK (app.) v. SAME (resps.) Metropolis Management Acts-New street-Expenses of draining and paving-Apportionment. CASE stated by a stipendiary magistrate. The respondents had obtained summonses against the appellants who were the owners of houses and' land for the payment of their contribution towards the draining and paving of a street in the respondents' district. Orders had been made in pursuance of the summonses for payment by the appellants of the respondents' claim.

At the time of the passing of the Metropolis Management Act 1855, Burnt Ash-lane, on each side of which the said houses and land formed the alleged new street, was a highway repaired by the parish, with but few houses near. Between the hedges which bordered the adjacent fields was a dis

[ocr errors]

tance of about 40ft., of which about 18ft.was paved. Since that time upwards of 100 houses had been built, and the board, at the request of the inhabitants, had constructed a sewer, and made and kept in repair a footpath, and a broader carriage-way than that which the parish had previously repaired. The board had defrayed the expense out of the general rates, and now claimed to apportion the whole amount upon the owners and occupiers of the houses and land forming and bounding or abutting on the street, according to 18 & 19 Vict. c. 120, s. 105, and 25 & 26 Vict. c. 102, s. 77. Willis argued for the appellant, Mr. Pound, who was the owner of a large number of the houses on each side.

Tayler, for the appellant, Lord Northbrook, who was assessed as an owner of land for some private roads which opened into the street, and were his property.

They contended that this was not a new street within the meaning of the Metropolis Manage ment Act; a "new street" is defined by sect. 112 of the Act of 1862, to apply to and include all streets the maintenance of the paving and roadway whereof had not previously to the passing of that Act been taken into charge by authorities of the parish. They also contended that the apportionment was badly made according to Whitchurch v. Fulham Board of Works (L. Rep. 1 Q. B. 233); and that Lord Northbrook was not an owner of land according to the definition in sect. 250 of the Act of 1855.

Brown, Q.C. (with him Barrow), was heard for the respondents on the second and third points.

The COURT (Cockburn, C.J., Blackburn, and Mellor, JJ.) decided the first and third points against the appellants, and held that the facts found in the case were not suffiient to enable them to say whether the apportionment was good.

Brown admitted that part of the respondents' claim could not be substantiated; and therefore the whole apportionment was bad."

Judgment for appellants without costs. Attorneys for appellant, Mr. Pound, Eagleton and Mason.

Attorneys for appellant Lord Northbrook, Parker and Son.

Attorneys for respondents, Newman, Dale, and Stretton.

Tuesday, Nov. 14.

CRONSHAW v. THE WIGAN BURIAL BOArd.

New parish-Incumbent's right to burial fees 20 & 21 Vict. c. 81, s. 5. SPECIAL case stated by consent. Plaintiff, the ineumbent of the church of St. Thomas, in Wigan, sued for the fees paid to defendants for the burials of persons who had lived in the plaintiff's district. In 1852 an Order of Council under 59 Geo. 3, c. 134, s. 16, authorised services to be performed in this church, assigned a district to it out of the parish of Wigan, and granted the incumbent the fees. At that time there was no burying ground in the assigned district. In 1854 the plaintiff was appointed incumbent. In the same year 1854 a burial board was appointed for the whole of the parish of Wigan. In 1856 the burial board provided a common burying ground for the whole parish. The district of St, Thomas, as part of the parish, contributed to the rates raised the 20 & 21 Vict. c. 81, s. 5, the incumbent of for the provision of the burying ground. By a parish is entitled to the fees for the burial of parishioners, if the parish has contributed to a burial ground for the use of the inhabitants. It was contended by the plaintiff that St. Thomas having been a district chapel under 59 Geo. 3, c. 134, s. 16. was converted into a new parish by Lord Blandford's Act (19 & 20 Vict. c. 104), s. 14, of 20 & 21 Vict. c. 81. By the defendants it was and therefore came within the provision of sect. 5 maintained that St. Thomas was not a new parish under Lord Blandford's Act; and further that sect. 5 of 20 & 21 Vict. c. 81, only made a temporary provision for burying the dead during the time of preparation of a burial ground.

Manisty, Q.C. (with him Forbes), for plaintiff. Holker, Q.C. (with him McConnell), for defendants.

The COURT was against the defendants on both points.

Judgment for plaintiff. for J. Park, Wiend, Wigan. Attorneys for plaintiff, Beli, Brodrick, and Gray, Attorneys for defendants, Gregory, Rowcliffe, and Co., for T. F. Taylor, Wigan.

Wednesday, Nov. 15.

FLEET v. MURTON AND ANOTHER. Principal and agent-Personal liability of brokerCustom of fruit trade-Evidence of similar cus tom in colonial trade-Admissibility of. ACTION against the defendants for not accepting goods sold. The note given on the bargain bore date 30th Oct. 1869, was addressed to the plaintiff, and stated, that: "We have this day sold for your account to our principal, to arrive per steamer from Trieste," forty tons of currants.

(Signed) "Murton and Webb, Brokers." At the trial before Blackburn, J., and a special jury at Guildhall, it appeared that the defendants purchased the currants as brokers of one Demetrius Pappa, who has since been convicted of felony, and is now undergoing a sentence of imprisonment. The learned judge ruled that in the absence of any usage of trade, the defendants were not liable, but allowed evidence to be given for the purpose of showing a custom to exist in the fruit trade, and also a similar usage in the colonial trade, that where a broker does not disclose the name of his principal on the face of the contract, he, the broker, is personally liable. The jury found that there was such a custom. Verdict for plaintiff. Leave to move to enter a nonsuit, or for a new trial. A rule having been obtained accordingly on the ground that the defendants were not personally liable, and that the evidence of usage should not have been received, or, at all events, that the evidence as to the usage in the colonial trade was not admissible,

Henry James, Q.C. and Cohen, showed cause, contending that the question was concluded by Humphrey v. Dale (7 E. & B. 266, s. c. in error; 1 E. B. & E. 1004), and other cases.

Murphy argued in support of the rule. The COURT (Cockburn, C.J., Blackburn, and Mellor, JJ.) held that the case was governed by the authorities cited for the plaintiffs, that the evidence was rightly received, and, therefore, that the rule must be discharged.

Rule discharged.

Attorneys for the plaintiff, Lowther and Co. Attorneys for the defendants, Stibbard and Beck.

Wednesday. Nov. 15. SECOND Court.

WILSON (app.) v. MAYOR, &c., OF BOLTON (resps.). Public Health Act 1848, s. 69-Alternative mode of recovering apportionment-Time for issuing summons-Privae improvement expenses. CASE stated by justices at petty sessions. The appellant appeared on the 25th Feb. 1871, before the justices, in obedience to a summons at the instance of the respondents, who are the local board of health for Bolton. Appellant was owner of premises fronting a street, not a highway repairable by the parish; and, after notice to sewer and pave the said street, served upon him on the 3rd July 1858, he neglected so to do. The

corporation executed the works, and assessed the amount to be paid by appellant at 131. 6s. 8d., and summoned him for the same. The works were completed by the respondents on the 30th Nov. 1860, and the apportionment was made on the 21st Jan. 1861. On the last-mentioned day the following notice was delivered to appellant:-" Unless the amount of this account is paid within fourteen days after delivery, interest at the rate of 51. per cent. per annum will be charged thereon until fully liquidated. 1860. Nov. 30.-To proportion of sewering, levelling, paving, flagging, channelling, &c., 500 frontage, 5s. 4d., 13l. 6s. 8d." On the 25th Aug. 1870, the respondents resolved that the said amount should be private improvement expenses. It was contended by the ap

pellant that the respondents could not avail themselves of both the alternative proceedings to recover this apportionment which are provided for by sect. 69 of the Public Health Act, 1848 (11 & 12 Vict. c. 63); that the cause of complaint arose upon the delivery of the notice on the 21st Jan. 1861, and therefore the summons was barred by Jervis's Act, and also by 24 & 25 Viet. c. 61, s. 23. The respondents maintained that the said notice was not a demand of payment, and also that there was nothing in the Public Health Acts to prevent the respondents from adopting either or both the alternatives of which the option was given them. Baylis argued for the appellant.

J. Edwards for the respondents. The COURT (Lush and Hannen, JJ.), considered that the order of justices was invalid. Judgment for appellant. Attorney for appellant, Chester and Urquhart, for Taylor and Son, Bolton. Attorney for respondents, C. E. Abbott.

Metropolitan Building Act 1855, ss 3 & 51-Owner CAUDWELL (app.) v. HANSON (resp.)

CASE stated by justices at petty sessions. Ap-Liability for fees of district surveyor. pellant is seised in fee of land at Battersea. Respondent is the surveyor of that district. On the 18th Feb. 1870, the appellant entered into an agreement with James Loud, a builder, by which the latter was to construct certain houses, and upon their being covered in, the appellant agreed to let to the builder or his nominees the plots upon which they stood for ninety-nine years from the 29th Sept. 1865, at the rent of a peppercorn until the 24th June 1870, and from thence at the yearly rent of 281. Loud agreed to completely finish the houses by the said 24th June 1870, but he did not do so, and the appellant extended the

time. The houses were roofed in during Sept. 1870, and were duly surveyed by the respondent, who delivered to Loud, on the 26th Oct. 1870, a proper bill specifying the amount of his fees to be 81. 10s. Loud never paid the fees, and subsequently made an arrangement with his creditors under the Bankruptcy Acts. On the 6th March 1871 respondent duly delivered to the appellant as the alleged owner of the houses his bill for surveying, and, upon his refusal to pay, obtained the summons upon which this case was stated under provisions of 18 & 19 Vict. c. 122 (the Metropolitan Building Act 1855). Under sect. 51, the surveyor is entitled to his fees from the "builder, owner, or occupier." The magistrate convicted the appellant, who now contended that he was not liable, according to the cases of Tubb v. Good (L. Rep. 5 Q. B. 443), and Evelyn v. Wychcroft (27 L. J. 211, M. C.)

Wadby argued for appellant. W. B. Cooper for respondent. The COURT (Lush and Hannen, JJ.) were of opinion that the respondent's claim was properly against the builder. Judgment for appellant. Attorneys for appellant, Ingle, Cooper, and Holmes. Attorney for respondent, F. Jacobs.

CORE (app.) v. JAMES (resp.).

Adulteration of bread-Guilty knowledge-Con

viction-6 & 7 Will. 4, c. 37, s. 8. CASE stated by justices at Wigan: The appellant, a baker, had been convicted of using alum in bread made and sold by him. There was no evidence of guilty knowledge of the presence of alum in the bread, either on the part of the appellant or his journeyman, but the justices considered that proof of that knowledge was not necessary for a conviction under sect. 8 of 6 & 7 Will. 4, c. 37.

Baylis for appellant.

J. Edwards for respondent.

The COURT quashed the conviction, considering that the statute required proof of intention on the part either of master or servant. Judgment for appellant Attorneys for appellant, Chester and Urquhart, for Taylor and Son, Bolton.

Attorney for respondent, C. E. Abbott.

GILL (app.), v. BRIGHT (resp.) 33 & 34 Vict. c. 29, s. 15-Order to seize and to sell exciseable liquors-Right of owner to be heard. CASE stated by justices of Devon, upon an information, under 33 & 34 Vict. c. 29, sect. 15, by the respondent, a police constable, a magistrate, on the 29th April, 1871, issued a warrant to seize certain cider on the premises of appellant. The cider was seized, and on the 3rd May a summons was served upon appellant, calling upon him to appear and show cause why the cider should not be sold. On the 10th May appellant accordingly appeared before justices, but they refused to hear him on the ground that the statute did not require them to do so, and ordered the cider to be sold. Collins argued for the appellant against this order, and contended that although the statute did not expressly provide for the appearance and answer of the person on whose premises exciseable liquors are found, the magistrates are bound by the principle of natural justice: (Cooper v. Wandsworth Board of Works, 32 L. J. 185, C. P.). No one appeared for the respondent. The COURT quashed the order.

Judgment for appellant. Attorneys for appellant, Church, Sons, and Clarke, for Francis and Baker, Newton Abbott.

COURT OF COMMON PLEAS.
Nov. 8, 10, and 11.

PHOSPHATE OF LIME COMPANY v. GREEN AND

ANOTHER.

Public company-Act of directors-Ultrâ viresRatification by shareholders. THE defendant, being indebted to the plaintiffs' company to a considerable extent, and holding a large number of shares in the company, it was agreed between the directors of the company and the defendant that he should surrender up all the shares in his possession to be cancelled, in satisfaction and discharge of the claim of the company against him. The fact of such cancellation of shares was notified in a circular at a general meet ing of the company, and every shareholder had means of making inquiries as to the transaction. The company, three years afterwards, brought an action against the defendant for the debt alleged to be due, when a verdict was found for the defendant, subject to the question whether the act of the directors of the company in entering into a compromise with the defendants was illegal and beyond their powers.

Giffard, Q. C., Harrison, and Benjamin, for the defendant.

Hawkins, Q. C., Sir George Honyman, Q. C., and Lanyon for the plaintiffs.

The COURT (Willes, Keating, and Brett, JJ.) decided that, although the acts of the direc

[ocr errors][merged small][merged small]

WHITMORE AND ANOTHER v. HUMPHRIES.

Encroachment-Inclosure by tenant of adjoining land of landlord-Assent of landlord-Statute of Frauds, sect. 1-Statute of Limitations (3 & 4 Will. 4, c. 27), s. 7.

a

APPEAL from the decision of the Judge of the Bristol County Court. This was an action of ejectment. Plaintiffs derived their title from F. Trotman, who, in 1812, by indenture made between him and J. Woodington, in consideration of a fine and a yearly rent demised to J. Woodington a cottage and the garden adjoining for the term of ninety-nine years, if four persons named in the indenture should so long live. The last of such persons died in 1867. J. Woodington died in 1835, and on his death the premises comprised in the indenture, were divided among his personal representatives. One part of the garden, on which stood a pigstye and privy, passed to Thomas Woodington. This Thomas Woodington in 1835 asked and obtained permission of Trotman to enclose a small piece of the waste ground (which also belonged to Trotman) adjoining this pigstye and privy, and he thereupon enclosed this piece. In 1845 the defendant, who had married daughter of this Thomas Woodington, entered and built a cottage, partly on the site of the pigstye and privy and partly on the piece thus newly enclosed. Whether the defendant entered with the permission or under a demise from Thomas Woodington is uncertain; but he had ever since resided in the house which he then built. No rent has been paid to the plaintiffs or their predecessors in title beyond that reserved by the original lease of 1812, and no evidence was produced to show in respect of what premises in particular that rent was paid. In 1870 plaintiffs brought ejectment in the Gloucestershire County Court, holden at Bristol, to recover the house and ground occupied as above-mentioned by the defendants. The County Court judge gave a verdict for the plaintiffs for so much of the house as stood on the site of the pigstye and privy, and a verdict for the defendant for the remainder of the house and the land inclosed as aforesaid, by Thomas Woodington; holding that this part of the premises was not an encroachment, but a taking, by consent of the landlord, under the parol agreement; that such consent amounted to an immediate parol demise, which, being for the residue of the term of ninetynine years, by the 1st section of the Statute of Frauds, created only a tenancy at will, so that the right to recover the premises then first accrued and was now barred by the 7th section of the Statute of Limitations.

Against the latter part of this judgment, plaintiffs appealed.

Manisty, Q.C. (Norris with him) for the appellants.

C. W. Wood for the respondent.

The COURT (Willes, Keating, and Brett. JJ.) gave judgment for the appellants.

Judgment for appellants. Solicitor for the plaintiffs, Freshfield. Solicitor for the defendant, G. E. Spencer, for W. H. Pigeon, Bristol.

Tuesday, Nov. 14.

BATESON v. GOSLING.

Release in composition-deed operating as exlinguishment of debt or no-Reservation of remedies against sureties.

ACTION by indorsee against indorser of bill of exchange. The bill was drawn by Charles Gosling on one Green, indorsed by Charles Gosling to the defendant and by defendant to plaintiff. Plea, that while plaintiff was holder of the bill, Green, the acceptor, made a composition deed, to which plaintiff assented, whereby plaintiff released the said debt without reservation of remedies against the sureties. Issue thereon. At the trial, before Brett, J., on 31st May last, the composition deed made by Green under the Bankruptcy Act 1861, and to which plaintiff assented, was proved. By this deed Green assigned all his real and personal estate to trustees, to have and to hold the same absolutely, on trust to collect and receive, sell and dispose of the same, and for the purpose of improving or benefiting the said estate, the trustees were em powered to pay or advance any moneys that might be necessary for converting the prepared earth (part of the property assigned) into bricks, and for selling the same; and upon trust to pay the

expenses of the deed, and next to pay the creditors rateably; provided, amongst other things, that any resolution signed by the majority in number, and three-fourths in value of the creditors of the assignor, should be binding on all the several parties thereto, and should be effectual for the allowance and passing of the trustee's accounts. In consideration of the premises, and of the arrangement herein before contained, the creditors, subject to the proviso next hereinafter mentioned, acquitted, released, and for ever discharged the assignor from all debts; provided always that any creditor who had any specific lien or security for his demand, or to the payment whereof any person was liable as surety for the said assignor, might execute these presents without prejudice to the same security, or to the claim against any surety, and with the consent of the said trustees might convert the same security into money, or make any allowance out of his demand for the same. On the proof of this deed, a verdict was directed for the plaintiff, with leave to the defendant to move. A rule having been obtained,

Quain, Q. C. and Foard showed cause.

F. Turner, in support of the rule, contended that, looking at the whole deed, the release operated as an absolute release extinguishing the debt, and, that being so, the proviso reserving remedies against sureties was void. JJ.) did not think that the release was so absolute The COURT (Willes, Keating, Brett, and Collier, as to extinguish the debt, and so discharged the rule.

Pittman for plaintiff.

W. F. Stokes for defendant.

.Wednesday, Nov. 15. COOKE v. GUERRA. Landlord and tenant-Rent paid in advanceMortgagee. IN an action for rent brought by a mortgagee against the defendant, it appeared that the defendant had entered into an agreement with one Lamb to take a house for five years, the rent being payable quarterly. At the request of Lamb, the defendant paid three years' rent in advance. No notice was given to the defendant of a mortgage existing until shortly before action was brought, when the plaintiff sued for rent which the defendant claimed to have paid in advance to Lamb. Montague Chambers, Q. C. and Gibbons for plaintiff.

Paterson for the defendant.

The COURT (Willes, Keating, Brett, and Collier, JJ.) decided that no rent could be claimed until the notice of the assignment of the reversion was proved to be brought to the plaintiff's knowledge; and also that the rent paid by the defendant in advance and before it was due to Lamb was only a loan to him, which, immediately the rent became due, would be converted into a payment of rent, but which would not prevent the defendant being liable to the mortgagee after notice of the assignment.

Attorney for plaintiff, F. Arnold.

Attorneys for defendant, Walker, Twyford, and Belwood.

COURT OF EXCHEQUER. Saturday, Nov. 11.

BUXTON v. RUST.

Statute of Frauds-Sect. 17-What is a sufficient note or memorandum in writing to satisfy the statute.

THIS was an action for damages for not delivering a quantity of wool sold by the defendant to the plaintiff. There were also counts for detaining and converting the said wool. At the trial the defendant took an objection that inasmuch as the purchase was for a sum amounting to 101. and upwards, there was, in the absence of delivery, or part payment, no note or memorandum in writing within the meaning of sect. 17 of the Statute of Frauds. The learned Judge (Pigott, B.), declined to nonsuit the plaintiff, but reserved leave to the defendant to move to set aside the verdict, and to enter a nonsuit or a verdict for the defendant. The jury returned a verdict for the plaintiff, with 1501. damages. The present rule was accordingly obtained pursuant to the leave reserved. It appeared that the plaintiff, who dealt in wool, had, on the 11th Jan. 1871, a deal with the defendant, who is a farmer, for a quantity of wool, over 101. in value, and upon that occasion the plaintiff wrote out and signed the following bought note which he delivered to the defendant:

Bot. Mr. E. J. Rust's wool as examined, at 15d. net cash, to be weighed and paid for on the premises one-half, and the whole to be cleared in about twentyone days; the wool to be delivered at Chelmsford railway station free of charge. Net weight. By cheque to hold till paid for if required. Little Leigh's wool to be sent on receipt of cash, and the other to follow after paid for.

W. BUXTON.

The 15d. net cash means 15d. per lb., one-half and the whole, &c., means that the wool is to be delivered and paid for in two lots-one-half first, and then the remaining half.

« EelmineJätka »