« EelmineJätka »
be granted, he must remain with a serious accusation impending Blots like these upon our judicial system might easily be erased, over him until the Queen's Bench finds time and opportunity to but in law, as in mechanics, there is an unseen agent of great try him-a period not likely to be shortened by the “ economy power-we mean the vis inertio. Surely, with so many lawyers principle applied to the number of Judges in that court. Suppose in the House, this simple reform might be effected. Soonor or à man, totally innocent, is accused, for instance, of an offence later, it will come; and let us add, the man who shall bring it to against the bankruptcy laws taken cognisance of by the 32 & 33 pass will have the satisfaction of knowing he has been instruVict. c. 62, and the case should be one involving large accounts mental in facilitating, improving, and rendering more uniform the and complicated mercantile transactions : jurisdiction is given by administration of justice in this country. 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
LAW LIBRARY. should he succeed in obtaining it, being obliged to wait, maybe a year, before he can clear himself from the charge ? MR. HOMERSHAM Cox, in his “Epitome of the Session of 1871" Surely, persons would not in trivial and simple cases claim (London: Longmans, Green and Co.), is an apologist of the a special jury, when they had to pay the expense themselves Government which recently made him a County Court Judge. unless the Judge“ certified” the case as proper to be so tried. We do not for a moment suggest that his appointment suggested We consider that in the majority of cases, a common jury, aided the Epitome, but it is a little singular that a writer of Mr. Cox's and directed by a pains-taking Judge, can very satisfactorily dis- position as an historian, should differ from the majority of public pose of criminal business. But that does not, in the least, tell writers and speakers, and find the Session of 1871 a successful against the position that a special jury ought to be allowed where session, and a session full of satisfactory legislation. Mr. Cox it is required. A very simple Act of Parliament is all that is neces- goes wrong, in our opinion, by applying the test of work actually sary. It should render the practice uniform both in civil and criminal accomplished; he overlooks altogether that most important cases; and that practice should be, that wherever required either matters much more pressing than either the abolition of purchase by prosecutor or defendant, a special jury might be obtained, sub- in the army or vote by ballot, were altogether put on the shelf. ject to such rules as should be laid down by the Judges. These Mr. Cox's treatise is a bare narrative, and he adds, at the close, rules might be so framed as to exclude any abuse of the permission this remarkable statement: “The survey here attempted is far granted by Parliament. The cost of the special jury should fall from complete; and it makes no pretensions to legal accuracy.” upon the party demanding it, unless the Judge certify that the What on earth was it written for : Quod est eo decet uti: et quidcase justified such demand. And due notice of such demand should quid agas agere pro viribus. And Mr. Cox's omissions are all the be required. We venture to doubt whether the prosecutor would more extraordinary because he is supposed to be supporting an unnecessarily, avail himself of his right, with a fine of twelve assertion opposed a large number of people—that the session guineas hanging over him unless the Judge certified. Nor is it pro- has been fruitful. But he is evidently in doubt as to the extent of bable that defendants, in view of a similar penalty, would consider the reflections cast upon Government, for at the beginning (p. 1) their chance of escape increased, in cases of guilt, by having a says: " It has been frequently asserted that the Parliamentary jury of superior intelligence to investigate their conduct: espe- session of 1871 was comparatively unfruitful.” At p. 78 he says : cially as it is known that special jurors are not easily dazzled by “The statement that the session has been unfruitful is absolutely the eloquence of prisoner's counsel. But where the circumstances untrue.” Does he hereby admit that it was comparatively unreally demand great intelligence on the part of the jury, we unhesi- fruitful ? But whatever he admits or denies is of little moment, tatingly say a special jury should be furnished and paid for by the and as lawyers, we say that a survey of legislation which is not country. Rules properly drawn would check abuse, and we complete and is without legal accuracy, is valueless as a basis upon should then have a jury system in accordance with common sense. which to form any opinion whatever, and we should recommend The circuitous mode certiorari would in such cases be rendered those who are interested in the subject to look at the statute book, unnecessary, and justice would become surer and more prompt. and judge for themselves.
NOTES OF THE WEEK. case, and I have no alternative but to pronounce, to die unmarried, then the share of such daughter
that both parties are to blame for this collision." should accrue and belong to the survivor of his JUDICIAL COMMITTEE OF THE PRIVY From this decision both parties appealed.
said daughters, and be enjoyed by for her life; and COUNCIL Butt, Q.C. and Webster, for the Jesmond.
on her decease the whole should devolve to, and (Present: Sir James Colvile, Sir MONTAGUE Clarkson, for the Earl of Elzin.
The Admiralty Advocate (Dr. Deane, Q.C.) and should be conveyed and transferred to the hus.
band of his said surviving daughter as SMITH, and Sir Joseph NAPIER.)
Their LORDSHIPS (reversing the decision of the thereinbefore directed with regard to her original Tuesday, Nov. 14, 1871.
court below) held that Art. 16 of the sailing rules share. After the testator's death, Lucy married, THE EARL OF ELGIN AND THE JESMOND. only applied when there was a continually ap. and shortly afterwards her husband died, having
Sailing rules-Risk of collision-Steamships. proaching risk of collision, and that in this case given her by will all his interest under the THIS was
the risk of collision was determined by the Jes. testator's will. Subsequently a portion of the an appeal from the High Court of mond's porting her helm. If the Earl of Elgin freehold property comprised in the testator's will Admiralty in cross suits instituted by the respective owners of the above vessels for damage collision, and the vessels would have gone clear, become the purchaser.
had not starboarded there would have been no was put up for sale, and the defendart agreed to by collision. Judgment was delivered by the and therefore the Jesmond was not at any time
He, however, refused judge of that court on the 25th July 1870, and he bound to slacken speed, so as to avoid risk of marry again, and that if her second or any sub
to complete on the ground that Lucy might then found both vessels to blame. From his judg. Collision. They held the Earl of Elgin solely to sequent husband survived her, he would, under ment it appeared the Jesmond was steering N.N.W. blame.
the will of the testator, be entitled to an interest and the Earl of Elgin S.S.E., and that when they first came in sight of each other, at a mile and a
Proctor for the owners of the Earl of Elgin, in the property. Thereupon the present bill was half distance, they were steering end on to each Thomas Cooper.
filed for specific performance, and the defendant other, and that the look-out on the Jesmond
Proctors for the owners of the Jesmond, Lowless, demurred. Wickens, V.C., held that the title was
too doubtful to be forced upon an unwilling pursaw all three lights of the Earl of Elgin. There. Nelson, and Jones.
chaser, and allowed the demarrer. (See 24 L. T. upon the Jesmond ported, whilst the Earl of Elgin held on her course. The Jesmond held off a COURT OF APPEAL IN CHANCERY.
Rep. N. S. 574: L. Rep. 12 Eq. 105.) The plainpoint and a half for some little time, and then
tiffs appealed from that decision.
(Before the LORDS JUSTICES.) came up again to within half a point of her course.
Nov. 7 and 11.
Greene, Q.C. and H. M. Williams, for the apThe two vessels were approaching each other
pellants. at the rate of about eighteen knots an hour. When
RADFORD v. WILLIS. close to each other, the Earl of Elgin starboarded, Vendor and purchaser - Specific performance –
Shebbeure (with him Dickinson, Q.C.) in support and they came into collision. The learned judge Title-Will-Gift to daughters for life with re.
of the order. held that the Jesmond did not port sufficiently, mainder to their husbands in fee—Marriage of Lord Justice JAMES said that it was a broad rule but further said, “The real blame that attaches daughter-Death of husband,
of construction that a gift to an unmarried woman to the Jesmond and the Earl of Elgin is their not THOMAS DRAPER, by his will dated 26th Jan. for life, with remainder to her husband in fee, easing and stopping their engines before this 1831, gave all his real and personal estate to would, upon her marriage, vest an estate in fee in collision took place. The more it is examined, the trustees, upon trust, to permit his two daughters, her husband. The context in this will did not less defensible it seems, that two steamers should Ann and Lucy, to enjoy the same in equal shares control the general rule, and the title was one that be going at the joint speed of eighteen or nineteen for their own use as tenants in common for their would be forced upon an unwilling purchaser; miles an hour, nearly on opposite courses, seeing lives, independent of any husband; and after but as the question had been raised in the simplest each other a mile and a half off, and
not take the com. their respective deaths, upon trust to convey and and cheapest manner, the defendant would not mon precaution of stopping or easing their engines, transfer the whole thereof unto and equally have to pay any costs. under such circumstances. At all events, we have between the respective husbands of his said arrived at the conclusion, that the order of the daughters, to hold to them respectively and their
Lord Justice MELLISH concurred. 16th article (Sailing Rules), ‘Every steamship when respective heirs, executors, administrators, and Order accordingly discharged without costs. approaching another ship so as to involve risk of assigns, according to the several natures and collision shall slacken her speed, or, if necessary, qualities thereof respectively. Provided always Solicitor for the appellants, W. H. Bishop. stop and reverse,' has not been obeyed in this that if either of his said daughters should happen Solicitor for the respoudent, W. M. Wyatt.
Nov. 8 and 9.
16th Nov. 1870, the day fixed for the completicn, plaintiff's land. The plaintiff's case was that the Ex parte COHEN; Re SPARKE.
the plaintiffs were in a position to transfer the conduit leaked, and that certain pot pipes the Bankruptcy Act 1869, s. 72– Jurisdiction--Bills of licence to the defendant. The plaintiffs were the defendants had improperly inserted in the walls
Sale Act (17 & 18 Vict. c. 36)— Agreement to executors of one George Ross, who died on the of the conduit caused a great loss of water, which renew bill -- Act of bankruptcy.
13th July 1870. His licence was then subsisting, would otherwise be available for a brewery beThis was an appeal from an order of the Chief and expired on the 26th Aug. following, when the longing to the plaintiff. This loss of water Judge affirming an order of the judge of the magistrates of the Romford district. where the amounted, according to the plaintiff's evidence, to County Court at Liverpool. In May 1870, Cohen public house was situated, renewed it in the name 100,000 gallons per diem, but according to the advanced Sparke two sums of 271. 10s. on the of the deceased owner. In Feb. 1871, the licence defendants' evidence, to 10,000 gallons only. The security of two bills of sale, one of which com- was transferred to the testator's widow. The defendants contended that these pipes were merely prised all the debtor's household goods and furni. purchaser refused to complete on the ground that inserted for a necessary and a temporary purpose, ture, and the other all his stock in trade. on the day fixed for completion the vendors were that of relieving their works from the pressure of The property comprised in the two bills was not in a position to transfer a valid licence to him. water during construction. A great quantity of of the value of more than 5001. It was alleged Thereupon the vendors instituted the present suit evidence was adduced on both sides ; on one side that at the time of giving the bills of sale a to enforce specific performance of the contract. The to show that the works, when complete, would be verbal agreement was made that they should be Master of the Rolls held that if the licence had watertight, and on the other side that they would renewed from time to time within the period for been improperly renewed, the defendant would not. It appeared, however, that there was, in registration under the Bills of Sale Act, which not incur any risk on that account, and that he fact, a considerable leakage. The plaintiff alleged provides that bills of sale shall be void unless re- would have an unimpeachable title to carry on that the defendants were fraudulently abstracting gistered within twenty-one days, and that Sparke the public house, and he made a decree for specific his water, and selling it as their own. should pay Cohen 51. on each renewal. The bills performance : (24 L. T. Rep. N. S. 788; 40 L. J. Glasse, Q. C. and Martineau, for the plaintiff. were not registered, but were renewed in June, and 492, Ch.), from which the defendant appealed. Cotton, Q. C. and H. M. Jackson, for defendants. again on the 20th July 1870, no further amount Roxburgh, Q.C. Poland (if the Common Law The VICE-CHANCELLOR said that he was satisbeing advanced by Cohen on either of these oc- Bar), and Marten for the appellant, relied on Day fied that the defendants had no intention of fraud. casions except the 51. Sparke filed a petition for v. Luhke (L. Rep. 5 Eq. 336).
ulently abstracting the water, but that their liquidation by arrangement on the 9th Aug. 1870, Southgate, Q.C. and Horton Smith for plaintiffs. works had not been conducted in a proper and and subsequently to that date the bills of sale of Daniel Jones for the testator's widow.
effective manner, and with a due regard for the the 20th July were registered. The trustee under Their LORDSHIPS were of opinion that the deci. interests of the plaintiff. The plaintiff had, in his the liquidation took possession of the goods como sion of the Master of the Rolls in this case was opinion, established his title to relief. The defenprised in the bills of sale, and an action of trover irreconcilable with his former decision in Day v. dants were bound to construct a proper water. was brought against him for the goods. The judge Luhke (sup.). The licence in the name of a dead | tight conduit, and an order must be made to secure of the Comty Court at Liverpool held that the man was a mere nullity, and the vendors had no- to him such a conduit within a reasonable time. bills were acts of bankruptcy and void as against thing to transfer on the day fixed for coinpletion. The defendants' counsel had offered to complete the trustee under the liquidation, on the ground The purchaser was not bound to wait till the next within a reasonable time, and he (the Vice-Chanthat they amouuted to an assignment of the whole sessions to see whether the vendors could procure cellor) would therefore fix six months as a reason. of the debtor's property to secure a past debt, and a valid licence under the 14th section of the able time, and 3001. as the amount of costs to made an order restraining the fnrther prosecution Licensing Act of Geo. 4, and then make a which the plantiff should be entitled, bnt would of the action. This decision was afterwards affirmed transfer to him under the 11th section of that Act. decline to give him the full costs of the suit, on the by the chief Judge, and Cohen now appealed. The order must therefore be discharged with costs. ground that he had failed to make out the case
De Ger, Q.C. and Bagley, in support of the Solicitors for the appellant, H. J. and T. Child. made by the bill, so far as it charged intentional appenl, contended that the Court of Bankruptcy Solicitor for the plaintiffs, Frederick Mason. abstraction of water, and on the ground that the had no jurisdiction to restrain an action begun
defendants had shown great anxiety to avoid liti. in a common law court, where there was no ques.
gation. tion of ar y equity different from the legal right.
Solicitors for the plaintiff : Emmets, Watson, 1 and that the bills of sale were valid as they had
Tuesday, Nov. 14.
and Emmets, for Wavel and Co., Halifax. been given under a prior agreement and as Cohen's
MELLOR V. MELLOR.
Solicitors for the defendants : Williamson, Hill, forbearing to seize the goods, which he might have Settlement-Maintenance-Immorality— Trustees' and Co., for J. S. Norris, Halifax. done, constituted a valuable consideration for
discretion. the new bills,
By a settlement dated the 14th Feb. 1866, Godfrey Without calling upon
Saturday, Nov. 11. Mellor desiring to make a provision for the widow Reed and W celer, who appeared for the trustee. and three children of his deceased son, vested Re THE GREAT OCEANIC TELEGRAPH COMPANY Lord Justice JAMES said that the Court of Bank. | 60001. in trustees upon trust to apply the income
(LIMITED); HARWARD'S CASE. ruptcy clearly had jurisdiction to make the injunc arising therefrom, or such part thereof as the Company-Unqualified person acting as directortion to restrain the action under the 72nd section trustees should think fit, to the maintenance of the Agreement to take minimum qualification in of the Act of 1869. The bills of sale having been widow and children until the youngest surviving shares. given to secure a past debt were void as against child should attain twenty-one, so long as the ADJOURNED
an appli. the trustee and could not be supported by the widow remained unmarried, with a power of cation by the official liquidator of the above prior agreement for renewal, as that agreement had raising 10001. for each child as they respectively company that Harward's name might be set. evidently been concocted for the express purpose attained the age of twenty-one years, and tled on the list of contributories in respect of evading the provisions of the Bills of Sale Act. out of the income of the residue to pay 501. of fifty shares. The company was registered
Lord Justice MELLISH was of the same opinion, per annum to the widow during her widowhood, in Sept. 1869, and it was provided by the and thought that the element of fraud introduced the balance to be divided among the children. | articles of association that the qualification of by the attempt to evade the provisions of the Bills Subsequently the settlor, by his will, devised a a director should be fifty paid-up shares standing of Sale Act rather aggravated the case against certain house then in the occupation of the widow in his own name. The company never actually the holder of the bills.
and her children to his grandson, Godfrey Mellor, commenced business, but had incurred some debts, Appeal accordingly dismissed with costs. but the widow to be allowed to occupy the same and in 1870 it was ordered by the court to be Solicitors for the appellant, Chinery and Als during his infancy. Since the death of the settlor, wound-up. It appeared from the evidence in sufdridge, for M. Nordon, Liverpool.
the widow, having formed an immoral connection port of the application, first, that Harward's name Solicitors for the respondent, Torr, Janeway with a married man and had three children by was published in the prospectus of the company and Tagart, for Duke and Gojjey, Liverpool. him, an order was made for the removal of the as a director in Feb. 1869; secondly, that on the
grandchildren of the settlor from her custody, and 19th Oct. 1869, he attended a meeting of directors Saturday, Nov. 11.
she persisting in occupying the house with her at which an allotment committee was appointed, Re CHESHIRE.
illegitimate children in opposition to the wishes of who afterwards on the 3rd Nov. 1869 allotted him Leaseholds-Renewal-Statutory power of sale
the trustees, they refused to make her any allow. fifty shares; thirdly, that in Jan. 1870 he signed a
ance out of the income of the trust fund. 23 $: 24 Vict. c. 124, s. 38— Lunatic-Consent.
cheque as director. On the part of Harvard it This was a petition in Lunacy and Chancery pray- for an order directing the trustees to pay her a association, and did not know what the qualification
Jackson, on behalf of the widow, now applied was argued that he had never seen the articles of ing that the trustees in whom certain leaseholds, granted by an ecclesiastical corporation, and in income of the trust fund, and contended that director conditionally, provided that the pros.
sum of not less than 501. per annum out of the of a director was; that he only agreed to become a which a person of unsound mind was interested, by the terms of the settlement she was entitled pects of the company were good ; that the meeting were vested, might sell the same with the sanction of the court. i he leasehods were held for lives, the settlor's bounty being the widow and children, directly after, another meeting of another compans;
to a portion of the income, the objects of he attended was held in the same room as, and one of which had expired, and the Ecclesiastical and that one of these objects could not be entirely of which he was a director, and that he remained Commissioners had refused to renew. Two sisters, excluded from all benefit. The trustees had no in the room to satisfy himself as to the prospects one of whom was of unsound mind, were beneficially entitled to the property in equal moieties, power to exercise a discretion in depriving her of the Oceanic Company, and took no part in the as tenants for life
. The rents amounted to about altogether from participation in the income, which proceedings : that his signature to the cheque was 401., and the trustees had been offered 8001. for the standing her misconduct, and the settlor had him. he had made no express application for shares, and
was intended partly for her maintenance, notwith. not accepted by the company's bankers; and that property. The 38th section of 23 & 24 Vict. c.
self fixed the amount which she was to receive 124, empowers trustees in whom a lease made by after all the children had attained their majority from what he had done. The chief clerk refused
no agreement to take shares could be inferred any ecclesiastical corporation is vested to sell, at the sum of 501. per annum. with the consent in writing of the persons bene.
the application. ficially interested, and if there shall be no person
Beaumont appeared for the trustee.
Glasse, Q.C. and Higgins for official liquidator.
Lord ROMILLY-I think her conduct has de. capable of giving consent, then with the sanction prived her of all right to any benefit. I am clear I
Cotton, Q.C. and Coode for Harward. of the Court of Chancery.
The VICE-CHANCELLOR said that it was not Oliver Saunders for the petitioners.
cannot interfere with the discretion of the trustees. attempted to be be denied that Harward was Their LORDSHIPS directed the petition to be
Solicitors :, Edwards, Layton, and Jaques; present at the meeting of the 19th Oct., and sit
ting at the board in the capacity of director he headed in Chancery only, and not in Lunacy, and Learoyd and Learoyd. made the order asked for.
must be taken to have known that he had no right Solicitors, Clarke, Son and Rawlins.
V.C. MALINS' COURT.
to be there unless he had taken fifty shares and Nov. 7, 8, and 10.
paid all calls upon them. His Honour's view of Monday, Nov. 13.
the law was that a man by acting as a director of WEBSTER v. THE MAYOR &c. CF HALIFAX.
a company must be considered as applying for and Cowles v. GALE.
Right of water-Injunction to restrain inter- contracting to take that number of shares which Vendor and purchaser — Specific performance
was the minimum qualification of a director of Sale of public house-Licence taken out in name This was a suit to restrain the corporation of that company. Harward's name must be placed of deceased ouner.
Halifax, who had an easement through an old upon the list as the holder of fifty shares, and he i This was a vendor's suit for a specific performance water conduit across the plaintiff's land, from must pay the costs of the proceedings both in of a contract for the sale to the defendant of a building a new conduit in such a manner as to chambers and in court. public house, and the question was whether on the intercept the natural flow of water through the Solicitors: John Tucker ; Francis and Bosanquet.
Nov. 13 and 14.
strain them from demolishing any part of his five minutes only, or for any less period than ten BRUTTON v. THE PARISH OF ST. GEORGE, building, with the costs of the suit.
minutes. The plaintiffs were the persons entitled HANOVER-SQUARE. Solicitor for the plaintiff, Boydell.
to the benefit of a covenant contained in an indenMetropolis Local Management Act (25 & 26 Vict. and Hitchins.
Solicitors for the defendants, Capron, Dalton, ture entered into between the company and c. 102) – Projection beyond line of street-Order
Messrs. Rigby in 1841, on the faith of whicha
Messrs. Rigby erected refreshment rooms at to pull down-Notice to occupier or builder. This was a suit to restrain the Vestry of St.
V. C. BACON'S COURT.
Swindon, at a cost of 25,0001. Under an assignGeorge's, Hanover-square, from pulling down a
Nov. 9 and 11.
ment, dated the 8th Aug. 1848, the plaintiffs beconservatory erected by the plaintiff over the
Re GREENING AND COMPANY (LIMITED);
came entitled to the benefit of that agreement. Ex parte MARSH.
The clause was to this effect-that the company portico of his house in Queen-street, Mayfair. The plaintiff, having taken a lease of 'the house Company-Winding-up-Costs of — Liability of would give every facility to Messrs. Rigby for in 1869, employed a builder named Rudkin, to past member-Companies Act 1862, ss. 38, 102, enabling them to obtain an adequate return by erect the conservatory for the sum of 1291., and in
means of rents and profits to be derived from the pursuance of that contract the framework was put MESSRS. MARSH, who were shareholders in the said refreshment rooms, and that all trains carryup on the 23rd or 24th Aug., and the building was above-named company, transferred all their shares ing passengers, not being goods trains, or trains
be sent express or for special purposes, completed on the 20th Sept. 1869. On the 26th in Jan. 1869 to Mr. Greening, and in the following
under the control Aug. some one on behalf of the vestry called at the October the company was ordered to be wound, and except trains not house, inspected the works, and took down the up. The present members being unable to meet of the company, which should pass the Swindon names and addresses of Rudkin and the plaintiff. all the liabilities of the company, a call was made Station, either up or down, should (save in case of The plaintiff then called upon the vestry clerk, on such past members as still remained liable to emergency or unusual delay, arising from acci. and stated that if the vestry had any objection to contribute. Mr. Greening having become bank. dents) stop there for the refreshment of passengers the proposed erection he should maintain his rupt, Messrs. Marsh were settled on the list of for a reasonable period of about ten minutes; rights and fight the question whether it did extend contributories, and a call was made upon them for and that, as far as the company could influence beyond the line of the street within the meaning the amount of the capital still unpaid on the the same, trains not under their control should be of the Metropolis Local Management Act 1862 shares which they had transferred to Mr. Greening. induced so to stop for the like purpose. This (25 & 26 Vict. c. 102). On the 4th March 1870 the After the call had been made Messrs. Marsh covenant became the subject of litigation in 1846, defendants took out a summons against Rudkin, bought up the debts for the payment of which between the company and Messrs. Rigby, in the
case of Rigby v. T'he Great Western Railway Com. the builder, who had in the mean time sold his they were liable to contribute to the company. business and gone away to Australia, requiring The question now was whether Messrs. Marsh pany, and the result of that litigation was that it him to appear before the magistrate to show having been settled on the list of contribntories, was held that it was binding upon the company. cause why the conservatory should not be pulled and a call having been made upon them, although Ever since, until recently, the company had acted down. A copy of the summons was left at there were now no debts for which they were in pursuance of the covenant, but at the comRudkin's foriner place of business, and was liable, were still liable to contribute in respect of mencement of the present month the time-table afterwards, on
showed that the two trains in question were March 10th, brought to the the costs of the winding-up. plaintiff by Rudkin's successor. On that day
Amphlett, Q.C. and Brooksbank, were for Messrs. intended to stop for five minutes only, which the plaintiff appeared before the magistrate, Marsh.
practically was useless. The defence was, that but his appearance upon the
Kay, Q.C. and Ford were for the official liqui. these trains were not under the control of the objected to on the ground that he had not dator.
company, but, by virtue of the Act of Parliabeen served with the notice, and an order was
The VICE-CHANCELLOR was of opinion that the ment, were under the control of the Postmaster. made upon Rudkin to demolish the conservatory,
summons making the call must be dismissed, but General. By the 1 & 2 Vict. c. 98, it was proaccompanied by a notice that if he failed to obey that Messrs. Marsh must pay the costs of settling vided that the Postmaster-General, with regard the order, the officers of the vestry would them the B list of contributories, unless the liquidators to all railways, by writing, under his hand, may selves proceed to demolish it. The vestry after had, remaining in their hands, sufficient assets of require that mails from the day after a day wards gave a positive order for the demolition of the company to pay them. The liquidators to to be fixed being not less than twenty-eight days the building on the 3rd Aug., and thereupon the have their costs of these proceedings out of the from delivery thereof, shall be conveyed, &c., by plaintiff filed this bill, and obtained an interim in estate.
ordinary or special trains, at such hours of day or junction to restrain the demolition till the hearing.
Solicitor for Messrs. Marsh, A. Pulbrook. night, and subject to all such regulations and By sect. 75 of the Metropolis Local Management Solicitors for the official liquidators, Merriman, restrictions as to speed of travelling, places, times, Act, under which the vestry proceeded, it is Powell, and Co.
and duration of stoppages and times of arrival as enacted that no building or erection shall, without
the Postmaster-General should order. But, assue
Wednesday, Nov. 15. the consent, in writing, of the Metropolitan Board
ming that this Act took the control the trains of Works, be erected beyond the general line of
SMITH V. GIBSON.
out of the hands of the company, it was only on a building in any street or row of houses, the Construction of will—Precatory trust-Special
written order by the Postmaster-General, after a general line to be decided by the superintending
notice of twenty-eight days. There was no evi. architect of the Board ; and in case any building GEORGE SMITH, by his will dated the 20th Feb. dence that any such notice had been given-and,
was clear that no such notice had been be erected or begun to be erected without such 1861, gave, devised, and bequeathed all his real indeed, consent, it shall be lawful for the vestry or Board and personal estate and effects whatsoever and given, because what the defendants relied on was of Works for the district to cause complaint to be wheresoever“ unto and to the absolute use of my
a letter written apparently by the order of the made before a justice of the peace, who shall dear wife Harriet Smith, her heirs, executors, Postmaster.General. Moreover, it was clear that thereupon issue a summons requiring the owner administrators, and assigns, in full confidence the company had not represented to the Postor occupier of the premises, or the builder, or
that she will do what is right as to the absolute master-General that they were under a covenant. person engaged in” the work, to appear before disposal thereof between my children, either in Even assuming that the Postmaster-General in
sisted on the mail trains keeping the time fixed, him, and, if the complaint shall be proved to his her lifetime or by her will after her decease, satisfaction, shall make an order upon such per- and the testator appointed his sons G. H. Smith the company might send them by special trains son directing the removal of the erection. And and S. S. Smith his executors. The testator not within the covenant. Under these circum. sect. 107 of the Act enacts that no person shall be died on the 20th Feb. 1861, leaving his wife stances the plaintiffs were compelled to seek the liable for any offence made cognisable before a Harriet Smith and six children surviving. The aid of this court. justice, unless the complaint respecting such widow entered into possession of the testa- Sir Roundell Palmer, Q.C., Dickinson, Q.C., and offence shall have been made before a justice tor's property, and from time to time made ad- Montague Cookson, appeared in support of the within six months after the commission or dis- however, arose, and all the parties being now vances to some of the children. Difficulties, motion.
The Solicitor-General (Jessel, Q.C.), Mackeson, covery of such offence.
Cottrell and Hume Williams (of the Common sui juris, concurred in stating a special case for Q.C., and H. A. Gijard, contra.
the opinion of the court. The questions were (1) The VICE-CHANCELLOR said that he did not at
whether under the will the widow took an abso- present see how he could decide the question by Schomberg, Q. C. and F. T. Streeten (of the Com- lute or other and what beneficial estate and in- granting an injunction. To do so would decide mon Law Bar), for the defendants.
terest in, or any and what power of disposal over, nothing. What he felt important was, that no The VICE-CHANCELLOR said that in his opinion the real and personal estate and effects of the application had been made to the Postmaster. the portico must be taken as the front line of the testator; (2) whether the testator's children took General, and the better course would be to allow house. It was clear that on Aug. 26, the defen- any and what beneficial estate and interest in his the matter to stand over until proper steps had dants knew what the plaintiff was doing, and they real and personal estate and effects as cestui que been taken. should at once have taken steps if they meant to trusts under his will.
It was ultimately arranged that on the defen. do so. On that day the offence was committed, Kay, Q. C. and J. T. Humphry for the widow. dants giving the undertaking required by the and on that day, therefore, time began to run Amphlett, Q.C. and Busk for some of the Lord Chancellor in Rigby's case, the matter against the vestry. The six months expired on testator's children.
should stand over till the first motion day in Feb. 26, and the vestry were too late. It was a W. C. Harvey for other children of the testator. Hilary Term. singular circumstance that, had it not been for The VICE-CHANCELLOR said that for the present Solicitors : Park and W. B. Nelson. the accident of the summons being brought to he could not decide more than that the widow the plaintiff, an order might have been made on was entitled to the property, and that no one Rudkin in Australia, to pull down part of the could interfere with her possession., All the
Re WOODCOCK'S SETTLED ESTATE. plaintiff's house in London, without the plaintiff parties were sui juris, and if they wished to dis- Practice — Non-investment of moneys paid into having heard a word about it, or having had an pose of the property at once, could concur in court-Motion for leave to bring action against opportunity of objecting. It was almost incredible doing so. Difficulties which might arise as to the Accountant-General. that such a proceeding should be possible. It had their respective rights in the future, must be This was a motion for leave to bring an action been argued that the vestry were right in proceed. decided when the proper time came.
against the Accountant-General of the Court of ing against the builder, and that his liability con- Solicitors, Brown and Williams; Algernon Wells Chancery, or that the plaintiff's damages in nontinued for six months after the completion of the and Sykes.
investment of moneys paid into court might be work, but the words of the section were, “builder
otherwise ascertained. The facts were these: engaged in any work," and here the builder was
V. C. WICKENS' COURT. .
On the 22nd Dec. 1865, an order was made directno longer tho builder; he had gone away, and
Thursday, Nov. 9.
ing 12001. to be paid into court under the 25th been paid, and had no further connection with the PHILLIPS v. THE GREAT WESTERN RAILWAY seotion of the Settled Estates Act, which probuilding. When there was a known occupier, he
vides that money paid in shall, until an investwas the proper person to be served, although a Railway company-Contract to stop trains at re- ment in land can be found, be converted into builder might be employed and might be served freshment station--Breach of contract-Motion Exchequer bills or Consols. The money was paid while so engaged, though not afterwards. The for injunction.
into court in 1866, but on being required in 1870, six months from the discovery of the offence This was a motion for an injunction to restrain it was ascertained that it had never been inhaving expired on the 26th Feb. the summons the defendants from directing or permitting the vested. The ground on which the neglect was against Rudkin on the 4th March was a mere trains which are fixed to leave Paddington at 9.15 sought to be justified was that it was not the nullity, and the plaintiff was entitled to a per- a.m. for Exeter, and to leave Exeter for Paddington practice in the Accountant-General's office to petual injunction against the defendants to re- at 12.25, from stopping at Swindon Station for 'invest funds paid in without a request to do so.
Hinde Palmer, Q.C. and Langley appeared in | tance of about 40ft., of which about 18ft.was paved. (Signed) "Murton and Webb, Brokers.”. At the support of the motion.
Since that time upwards of 100 houses had been trial before Blackburn, J., and a special jury at Dickinson, Q.C. and Methold, contra, were not built, and the board, at the request of the inhabi. Guildhall, it appeared that the defendants pur.
tants, had constructed a sewer, and made and kept chased the currants as brokers of one Demetrius The VICE-CHANCELLOR said that the order of the in repair a footpath, and a broader carriage-way Pappa, who has since been convicted of felony, court did not compel or authorise an immediate than that which the parish had previously re- and is now undergoing a sentence of imprison. investment in land by the Accountant-General, paired. The board had defrayed the expense out ment. The learned judge ruled that in the absence and it was, therefore, allowed to remain in sus. of the general rates, and now claimed to appor- of any usage of trade, the defendants were not pense. The practice was recognised by the tion the whole amount upon the owners and occu. liable, but allowed evidence to be given for the general order, and was convenient, as an imme- piers of the houses and land forming and bounding purpose of showing a custom to exist in the fruit diate investment in land might be very injurious. l or abutting on the street, according to 18 & 19 trade, and also a similar usage in the colonial The Settled Estates Act must be taken to have been Vict. c. 120, s. 105, and 25 & 26 Vict. c. 102, s. 77. trade, that where a broker does not disclose the passed recognising the established practice of the Willis argued for the appellant, Mr. Pound, who name of his principal on the face of the contract, court. The motion must be refused, with costs. was the owner of a large number of the houses on he, the broker, is personally liable. The jury Solicitor, H. A. Maude, solicitor to the Suitors' each side.
found that there was such a custom. Verdict for Fee Fund.
Tayler, for the appellant, Lord Northbrook, who plaintiff. Leave to move to enter a nonsuit, or for
was assessed as an owner of land for some private a new trial. A rule having been obtained accordCOURT OF QUEEN'S BENCH.
roads which opened into the street, and were his ingly on the ground that the defendants were not Thursday, Nov. 9. property.
personally liable, and that the evidence of usage WOODHAMS v. WOODHAMS.
They contended that this was not a new street should not have been received, or, at all events, Award upon matters in difference-Costs to each within the meaning of the Metropolis Manage that the evidence as to the usage in the colonial party.
ment Act; a "new street” is defined by sect. 112 trade was not admissible, Action for trover and debt. To the claim for of the Act of 1862, to apply to and include all Henry James, Q.C. and Cohen, showed cause, debt defendant set-off an amount he alleged was streets the maintenance of the paving and roadway contending that the question was concluded by due from the plaintiff to him. The action and all whereof had not previously to the passing of that Humphrey v. Dale (7 Ę. & B. 266, s. c. in error; matters in difference between the parties were re
Act been taken into charge by authorities of the 1 E. B. & E. 1004), and other cases. ferred to the master, the costs of cause, reference, parish. They also contended that the apportion. Murphy argued in support of the rule. and award, to abide the event. The master held ment was badly made according to Whitchurch v. The Court (Cockburn, C.J., Blackburn, and that the defendant had proved a set-off of the Fulham Board of Works (L. Rep. 1 Q. B. 233); Mellor, JJ.) held that the case was governed by same amount as the plaintiff's claim, and that and that Lord Northbrook was not an owner of the authorities cited for the plaintiffs, that the evi. plaintiff owed the defendant a sum of 21. 10s. He land according to the definition in sect. 250 of the dence was rightly received, and, therefore, that also held that the plaintiff was entitled to Act of 1855.
the rule must be discharged. 431. 9s. 7d. from the defendant, on the count for Brown, Q.C. (with him Barrow), was heard for
Rule discharged. trover. The result was, therefore, an amount of the respondents on the second and third points. Attorneys for the plaintiff, Lowther and Co. 401. 198. 7d. due to the plaintiff. The costs were
The Court (Cockburn, C.J., Blackburn, and Attorneys for the defendants, Stibbard and taxed in favour of the plaintiff upon the action, Mellor, JJ.) decided the first and third points Beck. and of the defendant upon the plea of set-off. against the appellants, and held that the facts The master gave neither party the costs of refe- found in the case were not suffiient to enable them
Wednesday. Nov. 15. rence or award. to say whether the apportionment was good.
SECOND COURT, Forbes, for plaintiff, moved to set aside the Brown admitted that part of the respondents' master's certificate for costs, on the ground that claim could not be substantiated; and therefore Wilson (app.) v. Mayor, &c., OF BOLTON
(resps.). the plaintiff's claim having overtopped that of the the whole apportionment was bad. defendant, the plaintiff was entitled to the whole
Judgment for appellants without costs.
Public Health Act 1848, s. 69–Alternative mode costs of the action, reference, and award : (Dun
Attorneys for appellant, Mr. Pound, Eagleton
of recovering apportionment-Time for issuing
summons-Privae improvement expenses. hill v. Ford, L. Rep.3 C. P. 36; Stevens v. Chap. and Mason. man, L. Rep. 6 Ex. 213.)
Attorneys for appellant Lord Northbrook, Parker Case stated by justices at petty sessions. The Per Curiam. (Cockburn, C. J., Blackburn, and Son.
appellant appeared on the 25th Feb. 1871, before Mellor, and Hannen, JJ.).— Rule refused.
Attorneys for respondents, Newman, Dale, and the justices, in obedience to a summons at the
instance of the respondents, who are the local Attorneys for plaintiff, Singleton and Tatter. Stretton. shali.
board of health for Bolton. Appellant was owner
of premises fronting a street, not a highway
Tuesday, Nov. 14.
repairable by the parish ; and, after notice to
CRONSHAW v. THE WIGAN BURIAL BOARD. sewer and pave the said street, served upon him Quo warranto-Clerk to a school board-Office New parish–Incumbent's right to burial fees, on the 3rd July 1858, he neglected so to do. The held at pleasure of the board.
20 & 21 Vict. c. 81, s. 5.
corporation executed the works, and assessed the Gane moved for a writ of quo warranto calling SPECIAL case stated by consent. Plaintiff, the
amount to be paid by appellant at 131. 6s. 8d., and upon the defendant Sylvester to show cause why ineumbent of the church of St. Thomas, in Wigan,
summoned him for the same. The works were he should continue to hold the
post of clerk to sued for the fees paid to defendants for the burials completed by the respondents on the 30th Nov: the school board of the borough of Castleford. of persons who had lived in the plaintiff's dis. 1860, and the apportionment was made on the 21st By 33 & 34 Vict. c. 75, s. 35, “A school board may triet. In 1852 an Order of Council under 59 Geo. 3, Jan. 1861. On the last-mentioned
day the followappoint a clerk and a treasurer and other neces.
c. 134, s. 16, authorised services to be performed ing notice was delivered to appellant :-“Unless sary officers, including the teachers required for in this church, assigned a district to it out of the the amount of this account is paid within fourteen any school provided by such board, to hold office parish of Wigan, and granted the incumbent the days after delivery, interest at the rate of 5l. per during the pleasure of the board, and may assign fees. At that time there was no burying ground cent. per annum will be charged thereon until them such salaries or remuneration (if any) as they may think fit, and may from time to time in the assigned district. In 1854 the plaintiff was fully liquidated. 1860. Nov. 30.-To proportion of
sewering, levelling, paving, flagging, channelremove any of such officers; but no such appoint- appointed incumbent. In the same year 1854 a ment shall be made, except'at the first meeting of burial board was appointed for the whole of the ling, &c. 500 frontage, 58. 41., 131. 6s. 81." such board, unless notice in writing has been sent parish of Wigan. In 1856 the burial board pro- on the 25th Aug. 1870, the respondents resolved to every member of the board.” It was alleged vided a common burying ground for the whole that the said amount should be private improve
parish. The district of St, Thomas, as part of ment expenses. It was contended by the apthat the majority by which the defendant was appointed had been improperly obtained by one for the provision of the burying ground. By selves of both the alternative proceedings to
the parish, contributed to the rates raised pellant that the respondents could not avail themmember's voting twice, and also that the meeting the 20 & 21 Vict. c. 81, s. 5, the incumbent of recover this apportionment which are provided at which the appointment was made, although
a parish is entitled to the fees for the burial of for by sect. 69 of the Public Health Act, 1848 not the first that took place, was held without parishioners, if the parish has contributed to a (11 & 12 Vict. c. 63); that the cause of complaint due notice to every member. The writ of quo burial ground for the use of the inhabitants. It arose upon the delivery of the notice on the 21st warranto was held applicable to an office, similar to that of the defendant, viz., to the clerkship of having been a district chapel under 59 Geo. 3, by Jervis's Act, and also by 24 & 25 Vict. c. 61, s. 23.
was contended by the plaintiff that St. Thomas Jan. 1861, and therefore the summons was barred a board of guardi ins in Reg. v. St. Martin's-in. the-Field (17 Q.B. 149).
c. 134, s. 10, was converted into a new parish by The respondents maintained that the said notice The Court, without expressing an opinion as and therefore came within the provision of sect. 5 Lord Blandford's Act (19 & 20 Vict. c. 104), s. 14, was not a demand of payment, and also that there
was nothing in the Public Health Acts to prevent to whether the writ would apply, refused a rule in of 20 & 21 Vict. c. 81. By the defendants it was the respondents from adopting either or both the the exercise of their discretion, on the ground that maintained that St. Thomas was not a new parish alternatives of which the option was given them. the office was held during the pleasure of the
Baylis argued for the appellant. board, and the majority might put the defendant under Lord Blandford's Act; and further that
sect. 5 of 20 & 21 Vict. c. 81, only made a tem- J. Edwards for the respondents. out, or re-appoint him without the assistance of the court.
The Court (Lush and Hannen, JJ.), considered
porary provision for burying the dead during the
that the order of justices was invalid.
Judgment for appellant.
for Taylor and Son, Bolton. POUND (app.) v. THB BOARD OF WORKS FOR THE
The COURT was against the defendants on both Attorney for respondents, C. E. Abbott.
points. Lord NORTHBROOK (app.) v. SAME (resps.)
Judgment for plaintiff. Metropolis Management Acts—New street-Er- for J. Park, Wiend, Wigan. Attorneys for plaintiff, Beli, Brodrick, and Gray, Metropolitan Building Act 1855, ss 3 $ 51 –Owner
CAUDWELL (app.) v. HANSON (resp.) penses of draining and paving-Apportionment. CASE stated by a stipendiary magistrate. The and Co.,
for T. F. Taylor, Wigan. Attorneys for defendants, Gregory, Rowcliffe, Case stated by justices at petty sessions. Ap
-Liability for fees of district surveyor. respondents had obtained summonses against the
pellant is seised in fee of land at Battersea. appellants who wore the owners of houses and
Wednesday, Nov. 15.
Respondent is the surveyor of that district. On land for the payment of their contribution towards
the 18th Feb. 1870, the appellant entered into an the draining and paving of a street in the respon.
FLEET V. MURTON AND ANOTHER.
agreement with James Loud, a builder, by which dents' district. Orders had been made in pursu. Principal and agent-Personal liability of broker. the latter was to construct certain houses, and ance of the summonses for payment by the appel- Custom of fruit trade-Evidence of similar cus upon their being covered in, the appellant agreed lants of the respondents' claim.
tom in colonial traile-Admissibility of.
to let to the builder or his nominees the plots At the time of the passing of the Metropolis Action against the defendants for not accepting upon which they stood for ninety-nine years from Management Act 1855, Burnt Ash-lane, on each goods sold. The note given on the bargain bore the 29th Sept. 1865, at the rent of a peppercorn side of which the said houses and land formed the date 30th Oct. 1869, was addressed to the plain until the 27th June 1870, and from thence at alleged new street, was a highway repaired by the tiff, and ted, that: “We have this day sold for the yearly rent of 281. Loud agreed to completely parish, with but few houses near. Between the your account to our principal, to arrive per finish the houses by the said 24th June 1870, but hedges which bordered the adjacent fields was a dis-' steamer from Trieste,” forty tons of currants. he did not do so, and the appellant extended the
time. The houses were roofed in during Sept. | tors in entering into such a compromise as they expenses of the deed, and next to pay the credi. 1870, and were duly surveyed by the respondent, did, were not strictly within the articles of asso- tors rateably; provided, amongst other things, who delivered to Loud, on the 26th Oct. 1870, ciation, yet that the shareholders had so ratified that any resolution signed by the majority in a proper bill specifying the amount of his fees their acts by not in any manner taking proceed number, and three-fourths in value of the creditors to be 81. 10s. Loud never paid the fees, and ings for so long a period, and also in profiting by of the assignor, should be binding on all the several subsequently made an arrangement with his the increased dividend which accrued, owing to the parties thereto, and should be effectual for the creditors under the Bankruptcy Acts. On the cancellation of defendant's shares, that they must allowance and passing of the trustee's accounts. In 6th March 1871 respondent duly delivered be considered to have adopted the compromise consideration of the premises, and of the arrangeto the appellant as the alleged owner of the and ratified the directors' acts.
ment hereinbefore contained, the creditors, subject houses his bill for surveying, and, upon his re- Attorneys for plaintiff Mercer and Mercer. to the proviso next hereinafter mentioned, acquitted, fusal to pay, obtained the summons upon which Attorneys for defendant Stevens, Wilkinson, and released, and for ever discharged the assignor this case was stated under provisions of 18 & 19 Harries.
from all debts ; provided always that any creditor Vict. c. 122 (the Metropolitan Building Act 1855).
who had any specific lien or security for his deUnder sect. 51, the surveyor is entitled to his fees
Thursday, Nov. 9.
mand, or to the payment whereof any person was from the "builder, owner, or occupier.” The WHITMORE AND ANOTHER v. HUMPHRIES. liable as surety for the said assignor, might exemagistrate convicted the appellant, who now con. tended that he was not liable, according to the Encroachment-Inclosure by tenant of adjoining cute these presents without prejudice to the same cases of Tubb v. Good (L. Rep. 5 Q. B. 413), and
land of landlord-Assent of landlord-Statute of security, or to the claim against any surety, and Evelyn v. Wychcroft (27 L. J. 211, M. C.)
Frauds, scct. 1--Statute of Limitations (3 84 with the consent of the said trustees might con-
vert the same security into money, or make any Wadby argued for appellant.
On W. B. Cooper for respondent.
APPEAL from the decision of the Judge of the allowance out of his demand for the same.
an action of the proof of this deed, a verdict was directed for The Court (Lush and Hannen, JJ.) were of ejectment. Plaintiffs derived their title from F. the
, with leave to the defendant to move. pinion that the respondent's claim was properly Trotman, who, in 1812, by indenture made between A rule having been obtained, against the builder. Judgment for appellant. Attorneys for appellant, Ingle, Cooper, and and a yearly rent demised to J. Woodington a
Quain, Q.C. and Foard showed cause. him and J. Woodington, in consideration of a fine
F. Turner, in support of the rule, contended Holmes. Attorney for respondent, F. Jacobs.
cottage and the garden adjoining for the term of that, looking at the whole deed, the release ninety-nine years, if four persons named in the operated as an absolute release extinguishing the
indenture should so long live. The last of such debt, and, that being so, the proviso reserving CORE (app.) v. JAMES (resp.). Adulteration of bread-Guilty knowledge-Con- 1835, and
on his death the premises comprised JJ.) did not think that the release was so absolute persons died in 1867. J. Woodington died in remedies against sureties was void.
The Court (Willes, Keating, Brett, and Collier, viction–6 & 7 Will. 4, c. 37, s. 8.
in the indenture, were divided among his personal CASE stated by justices at Wigan: The appellant, representatives. One part of the garden, on
as to extinguish the debt, and so discharged the a baker, had been convicted of using alum in which stood a pigstye and privy, passed to Thomas
rule. bread made and sold by him. There was Woodington. This Thomas Woodington in 1835
Pittman for plaintiff. evidence of guilty knowledge of the presence of asked and obtained permission of Trotman to
W. F. Stokes for defendant. alum in the bread, either on the part of the enclose a small piece of the waste ground (which appellant or his journeyman, but the justices also belonged to Trotman) adjoining this pigstye considered that proof of that knowledge was not and privy, and he thereupon enclosed this piece.
.Wednesday, Nov. 15. necessary for a conviction under sect. 8 of 6 & 7 In 1845 the defendant, who had married a
COOKE v. GUERRA. Will. 4, c. 37.
daughter of this Thomas Woodington, entered and Landlord and tenant-Rent paid in advanceBaylis for appellant. built a cottage, partly on the site of the pigstye
Mortgagee. J. Edwards for respondent.
and privy and partly on the piece thus newly In an action for rent brought by a mortgagee The Court quashed the conviction, consider. enclosed. Whether the defendant entered with against the defendant, it appeared that the defening that the statute required proof of intention the permission or under a demise from Thomas dant bad entered into an agreement with one on the part either of master or servant.
Woodington is uncertain ; but he had ever since Lamb to take a house for five years, the rent being Judgment for appellant resided in the house which he then built. No payable quarterly. At the request of Lamb, the Attorneys for appellant, Chester and Urquhart, rent has been paid to the plaintiffs or their defendant paid three years' rent in advance. No for Taylor and Son, Bolton.
predecessors in title beyond that reserved notice was given to the defendant of a mortgage Attorney for respondent, C. E. Abbott,
by the original lease of 1812, and no evi. existing until shortly before action was brought,
dence was produced to show in respect of what when the plaintiff sued for rent which the defenGILL (app.), v. BRIGHT (resp.)
premises in particular that rent was paid. dant claimed to have paid in advance to Lamb. 33 f. 34 Vict. c. 29, s. 15-Order to seize and to sell In 1870 plaintiffs brought ejectment in the Montague Chambers, Q.C. and Gibbons for exciseable liquors-Right of owner to be heard. Gloucestershire County Court, holden at Bristol, plaintiff.
Paterson for the defendant. Case stated by justices of Devon, upon an infor. to recover the house and ground occupied as mation, under 33 & 34 Vict. c. 29, sect. 15, by the above-mentioned by the defendants. The County The Court (Willes, Keating, Brett, and Collier, respondent, a police constable, à magistrate, on
Court judge gave a verdict for the plaintiffs for JJ.) decided that no rent could be claimed untis the 29th April, 1871, issued a warrant to seize so much of the house as stood on the site of the the notice of the assignment of the reversion was eertain cider on the premises of appellant. The pigstye and privy, and a verdict for the defendant proved to be brought to the plaintiff's knowledge ; cider was seized, and on the 3rd May a summons
for the remainder of the house and the land and also that the rent paid by the defendant in was served upon appellant, calling upon him to inclosed as aforesaid, by Thomas Woodington ; advance and before it was due to Lamb was only appear and show cause why the cider should not holding that this part of the premises was not an a loan to him, which, immediately the rent became be sold. On the 10th May appellant accordingly encroachment, but a taking, by consent of the due, would be converted into a payment of rent, appeared before justices, but they refused to hear landlord, under the parol agreement; that such but which would not prevent the defendant being him on the ground that the statute did not require consent amounted to an immediate parol demise, liable to the mortgagee after notice of the assignthem to do so, and ordered the cider to be sold.
which, being for the residue of the term of ninety- ment. Collins argued for the appellant against this nine years, by the 1st section of the Statute of Attorney for plaintiff, F. Arnold. order, and contended that although the statute Frauds, created only a tenancy at will, so that the Attorneys for defendant, Walker, Tuyford, and did not expressly provide for the appearance and right to recover the premises then first accrued Belwood. answer of the person on whose premises exciseable and was now barred by the 7th section of the liquors are found, the magistrates are bound by Statute of Limitations.
COURT OF EXCHEQUER. the principle of natural justice : (Cooper v. Wands. Against the latter part of this judgment, plain.
Saturday, Nov. 11. worth Board of Works, 32 L. J. 185, Č. P.). tiffs appealed.
BUXTON v. Rust. No one appeared for the respondent.
Manisty, Q.C. (Norris with him) for the appel-
Statute of Frauds-Sect. 17—What is a sufficient
note or memorandum in writing to satisfy the Attorneys for appellant, Church, Sons, and
The Court (Willes, Keating, and Brett. JJ.) Tuis was an action for damages for not delivering Clarke, for Francis and Baker, Newton Abbott. gave judgment for the appellants.
Judgment for appellants.
a quantity of wool sold by the defendant to the Solicitor for the plaintiffs, Freshfield.
plaintiff. There were also counts for detaining COURT OF COMMON PLEAS.
Solicitor for the defendant, G. E. Spencer, for and converting the said wool. At the trial the
defendant took an objection that inasmuch as PHOSPHATE OF LIME COMPANY V. GREEN AND
the purchase was for a sum amounting to 101. and
upwards, there was, in the absence of delivery, or Public company-Act of directors-Ultrâ vires
Tuesday, Nov. 14.
part payment, no note or memorandum in writ. Ratification by shareholders.
BATESON v. GOSLING.
ing within the meaning of sect. 17 of the The defendant, being indebted to the plaintiffs' Release in composition-deed operating as exlin. Statute of Frauds. The learned Judge (Pigott, B.), company to a considerable extent, and holding a guishment of debt or no-Reservation of remedies declined to nonsuit the plaintiff, but reserved leave large number of shares in the company, it was against sureties.
to the defendant to move to set aside the verdict, agreed between the directors of the company and Action by indorsee against indorser of bill of and to enter a nonsuit or a verdict for the defenthe defendant that he should surrender up all the exchange. The bill was drawn by Charles Gos- dant. The jury returned a verdict for the plainshares in his possession to be cancelled, in satis. ling on one Green, indorsed by Charles Gosling to tiff, with 1501. damages. The present rule was faction and discharge of the claim of the company the
defendant and by defendant to plaintiff. Plea, accordingly obtained pursuant to the leave re. against him. The fact of such cancellation of that while plaintiff was holder of the bill, Green, served. It appeared that the plaintiff, whọ dealt shares was notified in a circular at a general meet the acceptor, made a composition deed, to which in wool, had, on the 11th Jan. 1871, a deal with the ing of the company, and every shareholder had plaintiff assented, whereby plaintiff released the defendant, who is a farmer, for a quontity of wool, means of making inquiries as to the transaction. said debt without reservation of remedies against over 101. in value, and upon that occasion the The company, three years afterwards, brought an the sureties. Issue thereon. At the trial, before plaintiff wrote out and signed the following action against the defendant for the debt alleged Brett, J., on 31st May last, the composition deed bought note which he delivered to the defendant: to be due, when a verdict was found for the defen- | made by Green under the Bankruptcy Act 1861, and
Bot. Mr. E. J. Rust's wool as examined, at 15d. dant, subject to the question whether the act of to which plaintiff assented, was proved. By this deed net cash, to be weighed and paid for on the premises the directors of the company in entering into a Green assigned all his real and personal estate to one-half, and the whole to be cleared in about twentycompromise with the defendants was illegal and trustees, to have and to hold the same absolutely, one days; the wool to be delivered at Chelmsford rail. beyond their powers.
on trust to collect and receive, sell and dispose of way station free of charge. Net weight. By cheque to Giffard, Q.C., Harrison, and Benjamin, for the the same, and for the purpose of improving or
hold till paid for if required. Little Leigh's wool to defendant.
be sent on receipt of cash, and the uther to follow after benefiting the said estate, the trustees were em•
W. BUXTON. Hawkins, Q. C., Sir George Honyman, Q. C., and powered to pay or advance any moneys that might
The 15d. net cash means 15d. per Ib., one-half and the Lanyon for the plaintiffs.
be necessary for converting the prepared earth whole, &c., means that the wool is to be delivered and The Court (Willes, Keating, and Brett, JJ.) ! (part of the property assigned) into bricks, and paid for in two lots--one-half first, and then the remaindecided that, although the acts of the direc- for selling the same; and upon trust to pay the 'ing half.