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was that the manager, through whose default the accident arose, was not a fellow servant at all in the sense of the rule, but a representative of the respondents, to whom they had delegated their whole power, authority, and duty, in the management of the mine; or, as was said by Mr. Justice Mellor in Feltham v. England (L. Rep. 2 Q. B. 33; 36 L. J. 14, Q. B.), that he was an "alter ego" of the owner, and therefore that the owner was liable. But the objection was overruled. It was clearly established, said Lord Chelmsford, by Feltham v. England and other cases, though it had been otherwise held in the Scotch courts, that there was no distinction as to the exemption of a common employer from liability to answer for an injury to one of his workmen from the negligence of another in the same employment, in consequence of their being workmen of different classes." Lord Colonsay says, "it is of no consequence that the position the person in default occupies in the organisation, implies some special authority, duty, or charge." Foremen, managers, all are fellow workmen in the sense of this rule. All are links in the same chain; each is a fellow-workman of the other, from the highest to the lowest.

The rule, therefore, applying, Lord Cairns (Chancellor) defines very clearly the limits of the immunity and of the responsibility of the master.

As to the general rule which exempt him from liability, his Lordship adopts the words of Lord Cranworth just quoted from the Bartonshill Coal Company v. Reid. He proceeds thus: "The master is not, and cannot be, liable to his servant unless there be negligence on the part of the master, in that which he the master has contracted or undertaken with his servant to do. The master has not contracted or undertaken to execute in person the work connected with his business. . . . . But what the master is, in my opinion, bound to his servant to do in the event of his not personally superintending and directing the work, is to select proper and competent persons to do so, and to furnish them with adequate materials and resources for the work. When he has done this he has, in my opinion, done all that he is bound to do. And if the persons so selected are guilty of negligence, this is not the negligence of the master.... Negligence cannot exist if the master does his best to employ competent persons; he cannot warrant the competency of his servants." To the same effect Lord Colonsay says, "There are duties incumbent on masters with reference to the safety of labourers in mines and factories, on the fulfilment of which the labourers are entitled to rely, and for the failure in which the master may be responsible. A total neglect to provide any system of ventilation for the mine may be of that character. Culpable neglect in supervision if the master takes the supervision himself, or, when he devolves it on others; the heedless selection of unskilful or incompetent persons for the duty; or the failure to provide or supply the means of providing proper machinery and materials-may furnish grounds for liability; and there may be other duties, varying according to the nature of the employment, wherein, if the master fails, he may be responsible."

It appears, therefore, that as to persons, the owner is bound to provide competent persons, and if he does so he is not responsible. As to tacgle and machinery, it is not, it appears, sufficient to make him responsible that as a matter of fact they were not proper and sufficient, he is not bound personally to see that they are so; it is sufficient that he entrust a competent person with the duty of providing it, and afford him the means of doing so properly and sufficiently; provided always that he does not, as a matter of fact, know that it is defective, for in that case, he would be guilty of personal negligence, and would not be able to shelter himself behind his subordinate: (see Mr. Justice Crompton in Ormond v. Holland, quoted above.)

This is quite in accordance with what was said in Feltham v. England, when one argument was that there was evidence of personal negligence in the defendant in the construction of the piers by the faultiness of which the accident happened. The court said: "We can find no evidence of personal negligence to fix the defendant, the master. There was no evidence that he had employed unskilful or incompetent persons to build the piers, or that he did know, or ought to have known, that they were insufficient for the use to which they were applied. He was a master of engines, and therefore in that sense an engineer, but not in the sense that he possessed special knowledge as to the strength or sufficiency of brickwork.”

These necessarily brief and incomplete remarks will suffice to give an idea of the ordinary liability which a mine owner in common with other employers of labour is under to his servants under circumstances such as are generally found in mining accidents. This liability is, of course, on the contract of service. But there is another ground of liability, quite irrespective of contract, which we think mine owners can be shown to be under-viz., liability to damages for the consequence of a breach of statutory duty. Under the present law owners have imposed on them certain statutory duties and penalties with regard to the management of mines with a view to the protection of their servants, and, as we have already stated, the proposed Act imposes upon them fresh ones. It is not unimportant to consider whether those statutory duties and penalties bring with them any, and if so, what, civil liability? This question we propose to treat hereafter.

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THE threatened home and continental political disturbances which were thought by many persons to be looming in the distance a week ago, and which caused uneasiness and depression in these markets, have, at least for the moment, ceased to exercise any adverse effect. The sharp recovery of prices on the continental bourses last Friday told that the rumours so carefully concocted and circulated had been authoritatively repudiated, and as regards the position of our own ministry there is apparently no immediate prospect of a change; while the tendency of public feeling in the United States favours the inference that the view of the indirect claims " ques tion taken by our ministers is gaining ground in that country. The money question offers no point for comment, so that the existing state of affairs is at least favourable to the maintenance of the present level of values. At the same time it is clear that prices generally are high, and there is not much disposition shown by investors to buy, as it must be evident that on any mishap in two or three quarters where danger is not altogether out of the question, a good opportunity would be immediately presented for getting in at lower figures, and there is some evidence to show that the policy of waiting for events is being adopted by not a few. The British Funds are better than last Thursday's price; Metropolitan Three-and-a-Half per Cent.s, 4.

The American market shows no noteworthy movement beyond a rise of 2 in Erie Railway Shares, the greatest part of which has occurred to-day, following the rise to 674 at New York, and of in the United States Funded Loan.

The changes in the prices of British Railway Stocks are divided; but the principal movements are upwards, of which a rise of 2 in SouthEastern Deferred; of 1 in Midland on good traffic receipts; and of 1 in Great Northern A, London and Brighton, and North British, may be mentioned. In the other direction the principal fall is 1 per cent. in SouthEastern Ordinary, which occurred yesterday on the sudden diminution of the "backwardation." Grand Trunk of Canada and Great-Western of Canada have risen for the week, and Lombardo 4.

Apart from a decline of 1 in Paraguay stock, and also in the Egyptian Khedive Loan, foreign stocks show a general rise, although it is immaterial, except in the cases of Egyptian Seven per Cents. of 1868, and Peruvian, which are to 1 per cent. higher for the week. Spanish stocks have been very flat on the Carlist rising, it being feared that the Govern ment will not be able to subdue them without the expenditure of a considerable sum of money, which will be inconvenient if we may judge from the difficulties experienced in renewing the Treasury bills. The prices have, however, partially recovered.

Two or three American railway loans have been recently introduced, besides a variety of other undertakings, the position of the money market being favourable.

In Miscellaneous Securities Native Guano has risen 1 for the week, and Phosphate Sewage ; but Indiarubber and Gutta Percha shares are Lower.

The sum of £60,000 has been sent into the Bank this day, making an influx of £320,000 this week. The demand for discount has been light both at the Bank and in the open market, and the terms outside rule at 3 for first three months' paper.

The Stock Exchange settlement commenced yesterday, and will be finished to-morrow. The contango rates were as nearly as possible the same as upon the last occasion.

The Directors of the East London Railway Company announce that they are prepared to receive applications for an issue of £400,000 perpetual five per cent. first preference stock of the company, being the first charge on the net receipts of the undertaking, after payment of the interest on the debenture capital of the company. The price of issue is £72 103. per £100 stock. It is stated that this issue constitutes the whole of the preference capital of the company, and takes precedence of the ordinary share capital, amounting to £1,400,000-the whole of which has been issued and called up-and is the first charge on the net profits of the undertaking after payment of interest on 2536,600 debenture capital, and that the debenture stock recently issued is quoted at £115 The proceeds of the preference stock of £400,000 now to be issued, will be applied towards the construction of the fourth section, from Shadwell to Commercial road, Whitechapel-road, and to the junction with the Great Eastern Railway at Bethnal-green. From thence the company have ran ning powers for their traffic over the Great Eastern line to the central Broad-street station, adjoining the station of the North London Railway, and the intended station of the Metropolitan Railway. This section is also intended to be finished within two years. The market quotation is 2 to 2} premium.

The Letters of Allotment of the Welsh Freehold Coal and Iron Company have been posted to-day.

The latest quotations for British Funds are as follows: Consols, for money, 92 to 923: ditto 3rd May Account, 92 13-16ths to 92 15-16ths: Reduced, 91 to 91; New Three per Cents., 91 to 91: Exchequer Bills, 3s. to 8s. prem.; India Five per Cent. Stock, 110 to 110; ditto Four per Cent 102 to 103; ditto Enfaced Paper Four per Cent., 96 to 97; ditto Five and a Half per Cent., 108 to 109; Bank of England Stock, 241 to 243: Metropolitan Three and a Half per Cent., 96 to 97; and French Rentes in this market, 54 to 54.

The last quotation for French Rentes received from Paris was 53f., market undecided.

In the market for American Securities, the United States 5-20 Bonds of 1882 are marked 90 to 904, ; 10-40 Bonds, 89 to 894; Atlantic and Great Western Bonds, 41 to 42; ditto Debentures, 51 to 52); Erie Railway Shares, 55 to 55; Illinois, 109 to 110; and United States Funded Loan 89 to 899

In the Railway Market the prices are:-Caledonians, 113 to 114; Great Eastern, 52 to 52; Great Northern, 135 to 136; ditto, A, 155 to 156; Great Western, 110 to 1104; Lancashire and Yorkshire, 157 to 157; London and Brighton, 82 to 824; London, Chatham, and Dover, 26 to 26; London and North-Western, 150 to 150); London and South-Western. 106 to 107: Manchester and Sheffield, 714 to 751; Metropolitan, 674 to 67; ditto District, 30 to 31; Midland, 145 to 1451; North British,

63 to 64; North Eastern Consols, 1693 to 170; South-Eastern, 104 to 104; ditto deferred, 793 to 80; Grand Trunk of Canada, 20 to 203; Great Western of Canada, 21 to 21; Antwerp and Rotterdam, 18 to 19; Great Luxembourg, 18 to 19; and Lombardo Venetian, 18 to 181.

The Peruvian Loan of 1872 is quoted at # to pm.; and the Russian at 13 to 13 pm.

The prices of the principal Foreign Stocks are as follows: Argentine, 1868, 97 to 97; do., 6 per cent., 1871, 921 to 93; Brazilian, 5 per cent., 1865, 95 to 96; do., 5 per cent., 1871, 94 to 95; Egyptian, 7 per cent., 1868, 88 to 88: do., Viceroy Loan, 91 to 92; do., Khedive Mortgage Bonds 79 to 79; French Morgan 6 per cent. Loan, 97 to 97; do. National 5 per cent. 1871, 54 to 5); Greek 5 per cent., 22 to 23; Italian of 1861, 67 to 673; Mexican, 15 to 15; Paraguay 8 per cent. Loan, 93 to 93; Peruvian, 5 per cent. 1865, 101 to 101; do. 6 per cent. 1870, 81 to 81; Russian per cent. 1871, 90 to 91; do. Nicolai Rail. Bonds, 76 to 77; Spanish, 291 to 30; ditto Quicksilver, 79 to 80;

do. 3 per cent., 1871, 29 to 293; Turkish, 5 per cent. 1865, 523 to 52; do. 6 per cent. 1865, 714 to 71; do. 6 per cent. 1869, 60 to 60; and do. 6 per cent. 1871, 71 to 714.

In the Telegraph Market, Anglo-American Stock is quoted at 116 to 118; Anglo-Mediterranean, 177 to 182; British Australian, 9 to 9; British Indian Extension, 11 to 12; ditto Submarine, 103 to 111; Chinas, 8 to 9!; Cubas, 7 to 8; Falmouths, 11 to 11; Great Northern, 15 to 15; Marseilles, Algiers, and Malta, 8 to 91; Mediterranean Extension, 5 to 6; Reuter's, 10 to 111; French Cables, 22 to 221; and West India and Panama, 64 to 6.

In miscellaneous shares the prices are as follows :-General Credit and Discount, 24 to 2 pm.; International Finance, dis. to pm.; Hooper's Telegraph Works, 2 to 2 pm.; Hudson's Bay, 10 to 10; India Rubber and Gutta Percha, 42 to 44; National Discount, 13 to 13; Telegraph Construction, 32 to 32; Native Guano, 16 to 20; Phosphate Sewage, 31 to 33; New Sombrero Phosphate, 84 to 84; and Phospho Guano, J1 to 11.


Thursday, April 18.

Trade mark-Imitation-Name of place of manu-


THIS was an appeal from a judgment of James, L. J., reversing an order of Malins, V.C. The appellants had been for many years the manufac turers at Glenfield of starch which was described on their packets as " Glenfield Starch," and which had acquired a reputation under that name. 1868, the defendant commenced manufacturing at Glenfield starch, which was made up in packets, labelled "Royal Palace Starch, Currie and Co., Starch Manufacturers, Glenfield." The word "Glenfield" was printed in large and conspicuous letters, and several persons had bought the respondent's starch as "Glenfield starch.' The respondent denied all fraudulent intention in selecting Glenfield as the place of manufacture, and alleged that he selected Glenfield because there was a spring of water there particularly suitable for use in the manufacture of starch; that the word "Glenfield" on the packets was used as a more advertisement; and that his starch had acquired a reputation quite independent of its being made at Glenfield. Malins, V. C. granted an injunction on the ground that the respondent was using the name of "Glenfield," so as to benefit by the reputation acquired by the appellants for their starch: (22 L. T. Rep. N. S. 260). This injunction was dissolved by James, L. J., who considered that the respondent was entitled to act as he had done: (23 L. T. Rep. N. S. 443).

Sir R. Palmer, Q.C. and Fischer for the appellants.

Cotton, Q.C. and Freeling for the respondent.

The LORD CHANCELLOR, Lord CHELMSFORD, and Lord WESTBURY now reversed with costs the judgment appealed from, on the grounds that the appellants had acquired a right to the name "Glenfield" as a trade mark for their starch, and that the respondent, in choosing Glenfield as his place of manufacture, acted with the design of getting a colourable excuse to use that name on his labels, and so to make a profit from the reputation gained for "Glenfield Starch" by the appel


Solicitors for the appellants, Willoughby and



Monday, April 22.

were carried over to meet the annuities granted | had already been much astonished at the juris-
to the wife and sister. The sister died in Oct. diction assumed by the Court of Bankruptcy
1870, and a petition was thereupon presented throughout the country, under sect. 72 of the Act
for a division of the fund set apart to answer of 1869, and it was necessary to be very careful
her annuity. The question was raised upon about extending that jurisdiction. His Lordship
this petition, whether succession duty was pay- was not disposed to say whether the court had
of Ireland domiciled in Portugal, and he made the hands of the receiver, but here the receiver
able upon this fund. The testator was a native power to tax costs, while something remained in
whither he came shortly before his death for therefore right in holding that he had no juris-
his will and died during a residence in London, had paid away everything. The registrar was
surgical advice. He had no property in the United diction to order taxation.
Kingdom, except the personal effects in his pos
were domiciled in Portugal, but the executor and
three out of four trustees of the will were English-
men, residing in England. Lord Romilly, on the
L. T. Rep. N. S. 480; L. Rep. 1 Ch. 1), held, that
authority of Wallace v. Attorney-General (13
no succession duty was payable on the sum set
apart to answer the annuity: (24 L. T. Rep. N. S.
The Solicitor-General and W. W. Karslake for
the Crown.

session at the time of his death. His children


The respondents did not appear.


Lord Justice MELLISH was of the same opinion.
Appeal accordingly dismissed with costs.
Solicitor for the appellant, Sydney.
Solicitors for the respondent, Stocken and Jupp.

Ex parte WILSON; Re DOUGLAS. Bankruptcy Act 1861, s. 152-Double_proof-Distinct estates-Sole trader trading under two firms. THIS was an appeal from a decision of the judge of the Liverpool County Court. William Douglas was a sole trader carying on business at Liverpool under the firm of Douglas and Co., and at Bahia, in Brazil, under the firm of Douglas, Latham, and Co. In July and Aug. 1869, bills of exchange for sums amounting to about £2000 were drawn by Douglas, Latham, and Co. upon and accepted by Douglas and Co. in favour of Messrs. Beatty and Co. of Manchester. On the 14th Dec. 1869, Douglas executed in favour of his creditors a deed of assignment, which was registered under the Bankruptcy Act 1861. The assets of Douglas in Brazil Marcourts, by the law of which country the creditors were thereupon administered by the Brazilian

Lord WESTBURY, and Lord COLONSAY now reversed
the decision appealed from. The circumstances in
this case differed from those in Wallace v. At
torney-General. The fund here was really a
British fund, and succession duty must be paid
upon it.

Solicitor for the appellant, Solicitor to the In-
land Revenue.

Solicitors for the respondents, Walker and

(Before the LORDS JUSTICES.)
Thursday, April 18.

Ex parte LYONS; Re LYONS. Liquidation by arrangement Composition Trustee and receiver-Bill of charges-Taxation -Jurisdiction of Court of Bankruptcy-Bankruptcy Act 1869, s. 72. THIS was an appeal from a decision of Mr. Registrar Spring-Rice, sitting as Chief Judge in Bankruptcy. On the 5th May 1871 Lyons filed his petition for liquidation by arrangement, and on the 9th of that month Brett was appointed receiver. On the 9th June a general meeting of the creditors was held at which they agreed to accept a composition of 7s. 6d. in the pound, and Solicitors for the respondent, Roberts and Simp-On the 2nd Aug. Brett sent in to the debtor his Brett was appointed trustee in the liquidation. bill of charges amounting to £408 6s. 7d., and required that security should be given to him for the payment of it before he parted with certain promissory notes which had been handed to him for payment of the composition. Accordingly the debtor gave him a bill of sale on his stock in trade, &c., to secure payment of the amount. The bill of sale recited the liquidation proceedings, and that the sum of £408 6s. 6d. was due to Brett in respect of his bill of charges. Subsequently Brett paid the composition to all the creditors in accordance with the resolution of the 9th June. On the 16th March last the debtor moved the Court of Bankruptcy that Brett might be ordered to bring in his bill of charges for taxation, and to deliver up the bill of sale to be cancelled. Mr. Registrar Spring-Rice having held that as it was a case of composition the court had no jurisdiction to deal with the matter, the debtor appealed from his decision.

ATTORNEY-GENERAL v. CAMPBELL AND OTHERS. Will-Succession duty-16 & 17 Vict. c. 51, s. 5Bequest upon trust-Annuity--Foreign domicil. THIS was an appeal from a judgment of Lord Romilly, M.R., in a suit for the administration of the estate of William Callanane, of Oporto. By his will he gave his residuary estate to trustees on trust to invest in Three per Cent. Consols, and to pay out of the dividends annuities to the testator's wife and sister; and he authorised and directed the trustees to set apart such an amount of Consols out of the residuary estate as they should think fit for payment of the said annuities, such appropriations, when made, to exonerate the rest of the personal estate therefrom; and he directed that, as and when the annuities should determine, the amount set apart in respect of each annuity should revert to and become part of the residuary estate; and, subject as aforesaid, he gave the whole of the residuary estate in trust for his children equally. The testator died in Sept. 1853, and the present suit was instituted in 1863; and by orders made in the suit two sums of Consols

Swanston, Q.C., and Robertson Griffiths for the appellant.

of the Brazil firm were entitled to be paid out of the assets in that country in priority to the other creditors of Douglas. Beatty and Co., having thus obtained £285 out of the Brazil assets, in part payment of the bills, claimed also to prove on the bills against the assets in this country on the ground that there were two distinct contracts within the meaning of the 152nd section of the Bankruptcy Act 1861, and that the fact of the two firms being "in whole, composed of the same individuals," did not prevent proof and receipt of dividend in respect of such distinct contracts against the estates respectively liable upon such contracts. The judge of the County Court having allowed the claim, the trustees of the deed appealed.

Swanston, Q.C. and Bagley, for the appellants. De Gex, QC. and Robertson Grifiths, for the respondents.

were not two distinct estates, but only one estate of one person carrying on business in two countries. The 152nd section only applied where there were two separate and distinct estates to be wound-up. It was of the essence of that section that there should be two distinct estates. Here, however, there was only one estate, which, if it had been all in England, would have been distributable amongst all the creditors. A distinct portion of the assets had been administered by the Brazilian courts, and the respondents could not prove against the assets in this country without bringing into account what they had received in Brazil.

Lord Justice JAMES said that in this case there

Lord Justice MELLISH was of the same opinion. This was a case in which the same estate was being distributed, partly in Brazil and partly in England, and the Brazilian law gave a preference to certain creditors over the assets in Brazil. Those creditors must bring into account what they had received there before being allowed to prove against the assets in this country. The order of the County Court judge must, therefore, be discharged.

Without calling upon De Ger, Q.C. and Finlay Knight, who appeared for the trustee. Solicitors for the appellants, Phelps and Sidg Lord Justice JAMES said that this was in sub-wick, for Sale, Shipman, and Seddon, Manchester. stance an attempt to set aside a deed, which had no connection with the liquidation. The world for Cobbett, Wheeler, and Cobbett, Manchester.

Solicitors for the respondents, Le Riche and Son,

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April 18 and 19.


Parol trust-Statute of Frauds (29 Car. 2, c. 3), s. 7-Illegal transaction-Pleading. THIS was an appeal from a decision of the Master of the Rolls. By an indenture dated the 8th Dec. 1860, the plaintiff conveyed certain real estate to the defendant, who was his brother-in-law, the conveyance being expresed to be made in consideration of £850. The plaintiff gave the defendant the money to pay for the property in order to give it the semblance of a real sale, but it was understood that the defendant should hold the property in trust for the plaintiff, and should pay the rents and profits to him. The defendant having after some years refused to pay the rents or to reconvey the property, the plaintiff instituted the present suit to compel him to do so. The defendant, in his answer, stated that the conveyance was executed for the purpose of avoiding the loss of the property in the event of a certain suit being decided against the plaintiff. It was urged on behalf of the defendant that as the conveyance was executed with the intention of defrauding a third party, the plaintiff could not obtain relief in equity, and that the alleged trust was void by the 7th section of the Statute of Frauds, as it was not manifested or proved by any writing. The Master of the Rolls having ordered the defendant to reconvey the property, the defendant appealed.

Sir Richard Baggallay, Q.C. and Charles Hall, for the appellant.

Without calling upon

Fry, Q.C. and T. C. Wright, who appeared for the respondent,

Lord Justice JAMES said that the defendant vaguely alleged in his answer that the conveyance was executed in order to defraud a third person. To make such a defence valid, the immorality or illegality of the transaction must be plainly stated. and a defendant who wished to avail himself of such a defence must state the illegality in clear terms. The defendant in this case not having done so, that objection to the snit failed. As to the objection that the trust was void under the Statute of Frauds, that statute was never intended to give relief to a person who had been party to a fraud. The decision of the Master of the Rolls must, therefore, be affirmed.

Lord Justice MELLISH was of the same opinion. Solicitors for the appellant, Gregory, Rowcliffes, and Rawle.

Solicitors for the respondent, Edwards, Layton, and Jaques.

Monday, April 22.

Railway company-Railways Clauses Consolida.
tion Act, ss. 13 & 14-Special Act-Power to
block up streets-Deposited plans.
THIS was a bill and information at the relation of
the commissioners of sewers of the city of London,
who were also plaintiff's in the suit, for the pur-
pose of restraining the Great Eastern Railway
Company from stopping up or interfering with the
public traffic through Sun-street, one of the great
thoroughfares from east to west, in the city of
London. By their Act of 1864, the company were
empowered to make a railway, commencing at
Liverpool-street, which was to the south of Sun-
street, and terminating at Commercial-street,
which was to the north of Sun-street. According
to the deposited plans, the level of Sun-street was
to be unaltered, and the railway was to cross it on
an arch 35ft. wide and 16ft. high. By the 8th
section of the Act the company were empowered
to stop up and cause to be discontinued as
public highways all streets and highways within
the area thereinbefore described as the site of the
intended station, and may appropriate the site of
such streets and highways to the purposes of such
station." Sun-street was within this area. In
1870 the company, who had done nothing under
the Act of 1864, obtained another Act, enabling
them to alter the level of the intended works, and
to make thom below the level of the ground
instead of above. The deposited plans showed
that the railway was to pass 18ft. below Sun-
street instead of above it. The 38th section of
this Act provided that nothing in the Act
should repeal or affect any of the provisions of
the Act of 1864 contained in the 8th and following
sections so far as they were applicable and capable
of being carried into effect consistently with the
alterations by this Act authorised to be made in
the works. The company, being about to stop up
Sun-street, and to build a station on part of the
site of it, the present suit was instituted to re-
strain them from doing so. Bacon, V.C., granted
an injunction till the hearing of the cause: (See
25 L. T. Rep. N. S. 867.) From this order the
company appealed, and it was then arranged that,
as the Vice-Chancellor had based his decision on
the merits of the case, the Lords Justices should
take the hearing in the first instance: (See LAW

TIMES, Notes of the Week, Feb. 24.) The cause now came on to be heard.

The Solicitor-General (Sir G. Jessel, Q.C.), Amphlett, Q.C. and Pontifex, for the relators. Sir Roundell Palmer, Q.C., Kay, Q.C., and Smart, for the defendants.

Lord Justice MELLISH said that it was perfectly settled law that the mere fact that a representation had been made by the company in their deposited plans, did not in any way bind the company, except so far as the plans were incorporated in their Act. The whole case against the company depended upon the 13th and 14th sections of the Railways Clauses Consolidation Act. But the universal rule was that if any contradiction existed between the provisions of the general Act and those of the special Act, the provisions of the special Act must prevail. In his Lordship's opinion, the provisions of the 13th and 14th sections of the Railways Clauses Consolidation Act were expressly varied by the provisions of the special Acts in this case. The 8th section of the Act of 1864 enabled the company to stop up Sunstreet, and to appropriate the site of it for their station, and the powers given by that section were expressly continued by the 38th section of the Act of 1870. The information must, therefore, be dismissed with costs.

Lord JUSTICE JAMES was of the same opinion. He should have wished to hold the company bound by the representation made in their deposited plans, but it was quite settled that he could not do so.

Solicitor for the relators, A. J. Boylis.
Solicitor for the defendants, W. H. Shaw.

ROLLS COURT. March 18 and April 17.


Voluntary settlement-13 Eliz. c. 5. THIS was a suit by a creditor to set aside the dispositions made by his debtor of his property. James Clark was, in the month of June 1868, indebted to the plaintiffs in the sum of £3503s. 10d., and also indebted to other creditors. At that time he was the owner of three steam threshing machines of the value of about £200 each. He was also possessed of a sum of £300 in a bank, and a sum of £200 on a note of hand, and was entitled to a sum of £350 secured by mortgage. Except a few articles of household furniture he had no other property to meet the demands of his creditors. On the 13th June 1868 he entered into three several agreements with his three sons respectively by which he gave a threshing machine to each son in consideration of three several annuities of £20 each, but it was alleged that he remained in possession of the machines, and continued to use and employ them for the purposes of his business. About the same time he drew the sum of £300 from the bank and distributed the same among his children, and by an indenture of the 12th Nov. mortgage, to trustees in trust for himself 1868 he assigned the sum of £350, secured by for life, with remainder to his children. April 1869 the plaintiffs obtained a judgment against James Clark for the amount of their debt, and subsequently issued execution, which realised £16, the only goods upon which execution could be levied being the articles of household furniture. The plaintiffs then filed their bill, praying that it might be declared that the gifts by James Clark to his children and the assignment of the mortgage to the trustees were severally fraudulent and void as against his



Southgate Q. C. and Begg, for the plaintiffs. defendants. Fischer Q. C., Martineau, and Cutler, for the

dispositions of the property had been arranged by Lord ROMILLY held that as it appeared that the the children, they could not benefit by them, and that the annuities of £20 were not sufficient consideration to allow the transactions to stand, and declared that the gifts and assignment must be set aside.

Solicitors: Stretton; White and Sons; W. G. Brighten.

March 22 and April 18. KIMBER V. BARBER.

Principal and agent-Agent both vendor and purchaser-Suit to set aside transaction. THE plaintiff in this suit sought relief in respect of 264 shares in the Colonisation Insurance Corporation, which he had instructed the defendant to purchase for him. At an interview between the plaintiff and defendant it was arranged that the defendant should endeavour to purchase on behalf of the plaintiff certain shares in the company at the price of £2 per share. At a subsequent interview the defendant stated to the plaintiff that he was unable to procure shares at that price, but that he could obtain 264 shares at £3 per share, and the plaintiff authorised him to purchase them at that price, and accordingly 264 shares were transferred to the plaintiff, for which he paid at

the rate of £3 per share. It turned out that the defendant was at that time the real vendor of the shares, he having bought them under an agree ment not fully competed for £2 per share, and the plaintiff now filed his bill praying that he might be declared entitled to 254 shares at the price of £2 per share, and that the defendant might be directed to repay the sum of £261, or that the transaction might be set aside. It ap peared that the plaintiff was not now possessed of all the shares, he having transferred a certain number to other parties.

Fry, Q.C. and Woodroffe for the plaintiff. Sir R. Baggallay, Q.C. and Shebeare for the defendant.

Lord ROMILLY held that he could not compel the defendant to sell at £2 per share or any other price, but that the whole transaction might have been set aside had the plaintiff been in a position to return the shares, but as the plaintiff by parting with some of the shares had precluded himself from obtaining the relief prayed for, he should dismiss the bill, but without costs, the suit having been occasioned by the misconduct of the defen dant.

Solicitors: Kimber and Ellis, A. P. Hewitt.

Friday, April 19. HAYES . OATLEY.

Liability of trustees-Transfer of fund


of donee of power of appointment. BY a settlement dated the 11th Dec. 1838, a sum of £10,000 was vested in trustees in trust for Mrs. Stubbs for life, with remainder to her husband for life, with remainder as Mrs. Stubbs should by deed or will appoint. By her will she appointed £5000 to her husband absolutely, directed various legacies to be paid out of the trust fund, and bequeathed the residue to her husband, and appointed him sole executor. Mr. Stubbs proved £10,000 to him as such executor, to £5000 of the will, and the trustees handed over the whole which he was entitled absolutely. He subsequently retransferred £3000 into the names of the relating thereto had been administered by the trustees without their knowledge, and the trusts court. He became insolvent and died, and this suit was instituted by one of the legatees under Mrs. Stubbs's will, to make the representatives of the trustees of the settlement liable for £2000,

the balance of the trust fund.

Sir R. Baggallay, Q. C. and W. R. Fisher, for the plaintiff.

Southgate, Q. C. and Phear, for the defendants. the trustees were discharged on payment of the Lord ROMILLY.-I am clearly of opinion that £10,000 to Mr. Stubbs. When the sum of £3000 was re-transferred, the trusts as to that sum arose, and they have been administered in this court. I must, therefore, dismiss the bill with costs. Wilkins, Blyth, and Marsland; Wil

liam Potts. Solicitors

April 20 and 22. Will-Construction-Division among children per Re NOTT'S TRUSTS. SARAH NOTT, by her will dated the 10th July stirpes or per capita. 1853, after giving the interest of certain property bequeathed the interest of the same property, from to her brother, Samuel Copsey, for life, gave and and immediately after his decease, unto her two nieces, Sarah Chatters and Elizabeth Freeborn, during the term of their natural lives, and from and after their decease, she gave and bequeathed the property to the children of the said Sarah Chatters, and likewise to the children of the said Elizabeth Freeborn, to be divided between them, share and share alike, her will being that Samuel Chatters, should Copsey, the natural son of her niece Sarah the other children. Samuel Copsey, the tenant have his equal share with died leaving six children, and subsequently Eliza for life, died on the 28th Sept. 1855, Sarah Chatters beth Freeborn leaving ten children. The question property was divisible among the children of to be decided on this petition was whether the Sarah Chatters and Elizabeth Freeborn per stirpes or per capita.

Dauney for the petitioners.

Shebbeare for the respondents. Lord ROMILLY held that on the death of Sarah Chatters one moiety of the property became divisible among her six children, and that the dividends on the other moiety were payable to Elizabeth Freeborn for the remainder of her life, and on her death the principal was divisible among her ten children.

Solicitors: D. E. Forbes; Watson and Sons.


Mortgagee of policy of assurance-Bankruptcy of mortgagor-Payment of premiums by mortgagor -Lien on policy.

THOMAS POCKNALL, on the 20th Oct. 1863, deposited two policies, effected on his own life, with

the plaintiff, by way of equitable mortgage to secure the repayment of a sum of 1507., and, subsequently, a further advance of 100l. was made by the plaintiff to Thomas Pocknall on the same security. Thomas Pocknall was adjudicated bank rupt on the 21st Oct. 1865, and on the 30th of the same month the plaintiff, at the request of Thos. Pocknall, paid the premium which was then due on one of the policies, and the other policy was shortly afterwards surrendered to the assurance company, and the surrender value received by the plaintiti, he having written to Thomas Pocknall that he would not pay any further premiums on either policy, but should surrender them to the office. From Oct. 1865, until July 1870, when Thomas Pocknall died, having by his will appointed his wife his executrix, the premiums on the second policy were paid by Thomas Pocknall, but the policy remained in the hands of the plaintiff. The policy money was now claimed by the plaintiff, and by the executrix of Thomas Pocknall. Methold for the plaintiff.

E. B. Cooper for Mrs. Pocknall. Lord ROMILLY held that the plaintiff was entitled to the benefit of the policy, on repaying the amount of the premiums paid since the bankruptcy

of Thomas Pocknall.

Solicitors: T. Sismey; Hope.

Thursday, April 18.

Re THE EUROPEAN ASSURANCE SOCIETY. Company-Motion to stay winding-up proceedings pending Bill in Parliament - Companies Act 1862, s. 89.

THIS was a motion by the liquidators of the

1860 to 1871, when the European became insolvent. He now presented his petition, with a view to making the India Company liable. It was contended on behalf of the petitioner that the case was governed by the Family Endowment Society (21 L. T. Rep. N. S. 775), and that the petitioner had not relinquished his hold upon the company by accepting his annuity from the society. It was contended on behalf of the company that the company was discharged, inasmuch as the deed of settlement gave the directors power to hand over the policy holders of the company to any other office; and that at all events Col. Dyke was bound by acquiescence, having first objected to the transfer of the business, and then accepted his annuity from the European. Glasse, Q.C. and Graham Hastings for the petitioner.

H. M. Jackson for the directors of the India and London Company.

Pearson, Q.C. and George Murray for the liquidators of the European Society.

The VICE-CHANCELLOR held that the deed of settlement did not give the directors of the India Company power to hand over the creditors of the company to another office against their will; and that there had been no such acquiescence on the part of Col. Dyke as deprived him of his right to claim his annuity from the company. A winding up order was accordingly made. Solicitors, Dangerfield and Fraser; Upton, Johnson, Upton, and Budd.

V. C. BACON'S COURT. April 17 and 19.


railway company, were allowed to build their premises so as to stop up Little Conduit-place. The plaintiffs claimed the right to turn their waggons, &c., as incident to their right, in common with the public, of using Little Conduit-place as a public highway, and they now moved for an injunction to restrain the defendants from interfering with that right.

Amphlett, Q.C. and Bagshawe were for the plaintiffs.

Kay Q.C. and Osler for the defendants. The VICE CHANCELLOR was of opinion that the railway company had a right to stop up and appropriate the street, and therefore refused to grant the injunction.

Solicitors for the plaintiffs, Lee, Pemberton, and Reeves. Solicitors for the defen lants, Field and C).

Tuesday, April 23.

HEWITT . JARDINE. Construction of will-Hotchpot clause. DAVID JARDINE, by his will dated in 1862, gave real and personal property to trustees upon trust for sale and conversion, and directed that the proceeds after the death or second marriage of his wife should be in trust for his child or children living at that time, and the issue then living of his child or children dying before that period, such objects to take as tenants in common according to the stocks, and he directed that his real estate should be considered as converted from his death, and he declared that no child to whom or to whose husband he should have paid any portion in his lifetime, should participate in his said trust property, without

British Nation Life Assurance Association to stay Mutual Insurance Society-Policy-Mortgage of bringing the portion so paid in the testator's life

all proceedings in the winding-up of the European Assurance Society pending a Bill which had been introduced into Parliament for settling the affairs of the European by arbitration. The Bill had

passed a committee of the House of Commons.


due on a policy of insurance on a ship which had THIS suit was instituted to recover the money been lost. The ship had been insured in a mutual

time into hotchpot. One of the testator's daughters married in his lifetime, and shortly nanted that he would stand seised of a freehold before her marriage, the testator by deed covedwelling-house and premises to the use of his said

contended that as in all probability the Bill would Glasse, Q.C. and F. C. J. Millar, for the motion, able mortgagee by deposit of the policy. By the daughter, her heirs and assigns for ever. The ultimately pass both Houses of Parliament, it was unnecessary for the present to proceed in the winding-up, and that the court had jurisdiction under s. 89 of the Companies Act 1852, to make

the order.

The Solicitor-General, Pearson, Q.C. and G. Murray, for the European, opposed the motion, and contended that the court had no jurisdiction to make such an order except upon proof, which was wanting in the present case, that it was expedient that the winding-up proceedings should be stayed. The VICE-CHANCELLOR said that he could not assume that the Bill would become law. The court

insurance society, and the plaintiff sued as equitrules of the society, which were incorporated in the policy, it was provided that if the ship should at any time be mortgaged the policy should be void, unless the mortgagee became personally liable to pay the premium, or the mortgagor paid a quarter's premium in advance; it was also provided The defendants by their answer alleged that the that all disputes should be settled by arbitration. owner of the ship at the time of obtaining the stating that the ship was metalled in 1867 whereas policy had made a material mis-representation by she was metalled in 1865, and only overhauled and new metal put, where required in 1867, and that the matters in dispute ought to be referred to

several infant children. testator's daughter predece ised him, leaving A suit having been instituted for the administration of the testator's estate, a question was raised as to the effect of the hotchpot clause with regard to the children of

the deceased daughter.

Swanston Q. C. and Ellis, for the widow and one of the sons of the testator.

Kay Q. C. and Methold, for the daughter's children.

Horton Smith, for the trustees.

The VICE-CHANCELLOR held that the children of the testator's daughter who should be living at the decease or second marriage of the testator's

had power, under the 89th section, to stay the arbitration. From the ship's registry it appeared widow, could not be compelled to bring into hotch

proceedings either altogether or for a limited period, but he thought that to exercise that

power in the present case would be attended with great mischief. because it would prevent the liqui dators from getting in the assets. The motion must be refused, with costs.

Solicitors: Mercer and Mercer; Lewis, Munns, and Longden.

April 19 and 20.


that the plaintiff was a mortgagee of the ship, but this defence was not raised by the pleadings, and

was only set up at the bar..

Kay, Q.C. and A. G. Marten were for the plain


Swanston, Q.C. and A. E. Miller, Q.C. for the defendants.

The VICE-CHANCELLOR was of opinion that the evidence as to the plaintiff being a mortgagee of the ship, must be rejected, as the objection was not raised by the pleadings, that there was no such material misrepresentation as would vitiate the company-policy, and that the arbitration clause did not refer to a dispute upon a legal point like the question at issue. There would, therefore, be an inquiry as to what was due to the plaintiff in respect of the policy.

Annuity granted by life assurance Amalgamation of companies - Novation Acquiescence.


THIS was a petition presented for winding-up the above company under the following circumstances: In Oct. 1854, Col. Dyke purchased from the company for £4000 an annuity of £276, payable during his own life; and this annuity he received from the company regularly down to 1860. It was then discovered that the company had incurred a loss amounting to more than one-tenth of its nominal capital; and in accordance with the deed of settlement the directors made arrangements for the dissolution of the company. On the 21st Feb. 1860, an agreement was entered into between the India and London Life Assurance Company and the European Assurance Society, for the transfer of the business of the former to the latter. On the 4th April and the 14th May 1860, meetings of the shareholders of the India Company were held, at which the agree ment for the transfer of the business to the European was confirmed, and a resolution passed for the dissolution of the company. Col. Dyke objected to being transferred to the European Society, and insisted that the India Company were bound either to repurchase his annuity or to set apart, in the name of trustees, a specific sum of money to answer the annuity. This, however, was refused by the directors of the India Company, and an offer was made to Col. Dyke that a new policy of the European should be issued to him, or that an indorsement of the liability of the European to pay the annuity should be made upon his existing policy. Neither of these courses was actually taken, but Col. Dyke continued to receive his annuity from the European from

Solicitors for the plaintiff, Thomas and Hollams. Solicitors for the defendants, Stocken and Jupp.

April 19, 20, and 23. TEMPLE v. FLOWER. Railway company-Right to stop up streetsSpecial injury.

THE Metropolitan Railway Company were, by a special Act passed in 1861, empowered to stop up certain streets and passages therein named, including Little Conduit-place, and to appropriate and use such streets and passages, or parts thereof, so stopped up, for the purposes of their railways and works. By a subsequent Act they were empowered to grant building leases of superfluous lands. The company took the whole of Little Conduit-place, and pulled down the houses thereon, and on the northern part thereof built a station, whereby they blocked up that end of Little Conduit-place, and at the southern end they erected a hoarding with a gate opening into Conduit-place. The plaintiffs were builders, carrying on business in premises exactly opposite the southern end of Little Conduit-place, and they alleged that they and their predecessors in title had, since 1850, made use of the facilities afforded by Little Conduit-place to turn their waggons and to bring in and out of their premises ladders and long building materials, which they would be unable to do, and thereby sustain special damage, if the defendants, who were the lessees of the

pot the value of the freehold property, as the hotchpot clause could not be extended so as to

include the issue of a child of the testator. Solicitors: De Jersey and Micklem; Johnson and Master.


Saturday, April 20.

FOULGER (app.) v. STEADMAN (resp.) Wilfully trespassing-Premises connected with a railway station-3 & 4 Vict. c. 97, s. 16. THE respondent, a cab-driver, had been charged under 3 & 4 Vict. c. 97, s. 16, before one of the aldermen of the City of London, upon the information of the appellant, the inspector of police of the Great Eastern Railway Company, for that he unlawfully and wilfully did trespass upon certain premises connected with the Fenchurch-street Railway Station. The magistrate found, in the special case stated under 20 & 21 Vict. c. 43, that the respondent refused to move away his cab from a place, for the use of which, as a cabstand, certain other cabdrivers paid the railway company 4s. a week each: that this place presented the appearance of a public street, was opposite certain shops, and although stated to belong to, was not proved to be the private property of, the company. He also found that the respondent was not wilfully trespassing, and dismissed the information.

Giffard, Q.C. (with him Marriott), for the appellant, argued that the respondent ought to have been convicted, or the magistrate should have held that his jurisdiction was ousted upon a claim of right.

Brown, Q.C., contra, contended that as he considered the respondent was not wilfully trespassing, the magistrate was justified in dismissing the summons, and that he found in effect that the place was not part of the premises connected with the station.

The COURT (Blackburn, Hannen, and Quain, JJ.), held that notwithstanding the case of Jones v. Taylor (1 E. & E. 20), the appellant might have been wilfully trespassing, although he honestly believed he had a right to keep his cab standing at this place; and that if he claimed a right the ma

gistrate ought to have stayed his hand, and not dismissed the information.

Case remitted for further statement of facts. Attorney for appellant, W. H. Shaw. Attorneys for respondent, Lewis and Lewis.


Order of removal-Status of irremovability-river Break of residence. THIS was a case reserved by the Middlesex Quarter Sessions, which court had confirmed an order of removal of a pauper from the parish of St. Matthew, Bethnal-green, to the union of St. Ives, in the counties of Huntingdon and Cambridge. The only question was whether the pauper's status of irremovability in the parish of St. Matthew had been destroyed by her absence from the parish for six days. The pauper, an old woman of seventy, had lived twenty-eight years in this parish, parts of the time in the workhouse. She obtained employment for six weeks in the parish, but found herself too old to go on with her work. She went for a holiday to stay with her son and another person out of the parish, but they were too poor to entertain her, and she came back after six days to the St. Matthew workhouse: the guardians of that parish obtained her removal to St. Ives, her place of legal settle


Poland argued for the parish of St. Matthew that, the pauper having no place of residence to which to return, her departure from the parish was a break of residence, according to Reg v. Glossop Union (L. Rep. 1 Q. B. 227).

was not heard.

Metcalf, who appeared for the union of St. Ives, The COURT followed the case of The Guildford Union v. The St. Olave Union (25 L. T. Rep. N. S. 803), in which they had modified the decision of Reg. v. Glossop Union, and held that this was not such a break of residence as to destroy the pauper's status of irremovability.

Orders quashed. Attorneys for appellants, Neal and Philpot. Attorney for respondent, W. J. Howard.

COURT OF COMMON PLEAS. Wednesday, April 24.


Negligence-Public nuisance-Ice on the highway -Remoteness of damage. ACTION brought to recover damages sustained by the defendant wrongfully causing a van to be washed in a public highway, whereby large quantities of water collected and became frozen, and the plaintiff's horse stepping upon the ice fell down and was injured. It was proved that after the van had been washed, the water used for the purpose ran down the road and found its way into the gutter from whence it ran to the grating of the sewer; but the sewer being stopped up the water again overflowed upon the road, and became frozen; when the plaintiff's horse having stepped upon the ice fell down and was injured.

Keating, J., at the trial, nonsuited the plaintiff on the ground that the action was too remote, reserving leave to the plaintiff to move to enter a verdict for him if the court should be of opinion

that the action was maintainable.

Henry James, QC. (Lanyon with him), showed cause against the rule, adiritting that although the defendant was acting illegally in washing the van in the public street, yet, that as the water had flowed back into its normal course, the defendant was exonerated from further liability.

Metcalfe in supporte of the rule.

The COURT (Bovill, C.J., Keating, and Grove, JJ.) were of opinion that the action was not maintainable, neither was it incumbent upon the defendant to investigate the course of the water after it had returned to the public kennel, and they refused the rule accordingly. Rule refused. Attorney for plaintiff, Holmes. Attorneys for defendant, Mills and Lockyer.

COURT OF EXCHEQUER. OVENS . THE LONDON AND ST. KATHERINE'S DOCK COMPANY. Negligence Servant Common employmentMisreception of evidence-Contributory negligence-Misdirection.

THIS was an action to recover damages for injuries sustained by the negligence of the defendants. The cause was tried before Kelly, C. B., at the sittings in Middlesex, after last Term, when the damages were assessed by consent at £300, leave being reserved to the defendants to move to enter a verdict for themselves, or for a nonsuit. The rule was moved also for a new trial, on the ground of the improper admission of evidence, and for misdirection. It appeared that vessel named the Pallas having been sunk in St. Katherine's dock, a person of the name of Reeves was employed by the owner to raise her. Reeves engaged the plaintiff, who it appears was a person continually employed in various duties about the

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docks, but not in the service of the defendants, to do the necessary work, and he, Ovens, employed other men. To effect the object of raising the Pallas, four barges were sunk, and by means of chains and other appliances, the barges were raised together with the Pallas. Upon being so raised, it was necessary that the barges and Thames, and for that purpose a tug belong. vessel should be towed out of the dock into the ing to the defendants, and managed by one of their servants as master of such tug, was engaged by Reeves of the defendants. The tug was at barges, there being on each barge two men, all, tached by ropes or chains to each of the four however, being under the directions of the master of the tug. Check ropes were attached to each barge, one end being held by men at the pier, and the other by the men on the barges. The tug took all the barges into the lock. One of the piermen suggested that the rope of one of the barges in which the plaintiff was, should he shifted from one side to the other; this was barge was forced against the knuckle of the dock, done, but as the tug went forward too rapidly the whereby it was forced up, whereupon one of the men jumped ashore and escaped unhurt, but the other man, the plaintiff, in doing so, injured his leg, which was the injury complained of in the contended: First, that the plaintiff could not reHuddleston, Q.C., now moved accordingly, and defendants, being under the command and direccover, inasmuch as he was acting as servant of the tions of the master of the tug, and was engaged, defendants: Wiggett v. Fox (11 Ex. 832) ; Abratherefore, in one common employment with the ham v. Reynolds (5 Hur. & Nor. 103, 147); Morgan 1 Q. B. 145); secondly, that evidence was improv. The Vale of Neath Railway Company (L. Rep. perly admitted of a statement made by the comferred to the surgeon by the secretary of the pany's surgeon to the plaintiff upon his being recompany; thirdly, misdirection in not leaving it to the jury, whether or not, as the plaintiff saw that the tug was going too fast, and it was within calling distance of the plaintiff he ought not to have called out to the master of the tug to have lessened the speed.



The COURT refused a rule, holding that the plaintiff was not the servant of or in the common employment of the defendants; that, under the circumstances, the evidence was admissible, and

that there was no r isdirection. Rule refused. Attorney for the defendants, W. M. Hacon.

April 16 and 23.

(Before Lord PENZANCE, J.O.)


Matrimonial suit-Adultery and cruelty-Jury agreed on issue of cruelty, and disagreed as to adultery-Motion for new trial as to adulteryRule to show cause why the verdict as to cruelty

should not stand.

THIS was a wife's suit for a dissoultion of her marriage on the ground of her husband's adultery, coupled with cruelty. The case was tried before the court by a common jury, and the jury, after being locked up for some time, found a verdict for the petitioner on the issue of cruelty, and were unable to agree on the issue of adultery. Webster moved (April 16) for a new trial of the issues on which the jury had not agreed.

Cur. adv. vult. April 23.-Lord PENZANCE, J.O. said, the Court took time to consider what order it ought to make in relation to the circumstances which took place at the time. The jury was absent for some hours, and after an order had been given that they should be discharged, they came into court and said that though they had made up their minds on the question of cruelty, they could not agree on the question of adultery. Thereupon the registrar took note of the circumstance that they were agreed to find a verdict on the issue of cruelty, but could not agree on the other issue. The petitioner then applied for a new trial of the issues on which the jury had not been able to agree. Notice was given of this to the respondent, but he did not appear. At common law, a verdict could not have been taken in that form-a jury must either agree or disagree-they cannot give a verdict which would constitute a verdict at common law, upon a portion of the matter only. The same course has been followed in this court subject to this exception that in one or two cases where there had been submitted to the jury subordinate questions of such a character that it was not necessary for them to decide at all, a verdict has been allowed to stand on the main matter, the jury being discharged on the subordinate part. In the present case, the application is to grant a new trial on the second part of the issue. That is quite contrary to anything that has taken place in this court. It seems to me that there should be a rule to show cause why, on the jury being discharged, the verdict on the

ground of cruelty should not be allowed to stand. If Mrs. Godrich chooses to take that view of the matter, and to take her stand on the issue of cruelty, she ought to have a rule to show cause why it should not stand. But if she is minded to try the issue of adultery over again, I see nothing for it but to put the case down again in its entirety.

Webster, for Mrs. Godrich, asked that the order should also be for a rule to show cause why the respondent should not pay the costs of all the proceedings.

the form prayed for. The COURT ordered the rule to be drawn up in


NOTES OF NEW DECISIONS. TRUSTEE ACT 1850 RETIRING TRUSTEE · APPOINTMENT OF CONTINUING TRUSTEES IN TEES.-A testator by his will appointed three PLACE OF CONTINUING AND RETIRING TRUS trustees. It contained no power to appoint new trustees, relying upon the statutory power, but provided that upon any appointment of new trustees, the number might be increased or reduced. One of the trustees being desirous of retiring, and no person being willing to take his place, upon the petition of the cestui que trust, an order was trustees of the will in the place of the three made appointing the two continuing trustees to be trustees: (Re Stokes's Trusts, 26 L. T. Rep. N. S. 181. Rolls.)

PRACTICE-TRUSTEE- POWER OF APPOINTMENT INCAPABLE TO ACT"-TRUSTEE GONE The court has power under the 32nd section of the TO RESIDE ABROAD-TRUSTEE ACT 1850, s. 32.Trustee Act 1850, to appoint a new trustee in place tion. In a power to appoint new trustees in the of one who has gone to reside out of the jurisdic place of trustees "dying, disclaiming, or desiring to be discharged, or refusing, declining, or becoming incapable to act:" Semble, that incapacity to act means personal incapacity, and that a trustee who has gone to reside permanently abroad is not "incapable to act" within the meaning of the power: (Re Bignold's Settlement Trusts, (26 L. T. Rep. N. S. 176. Chan.)

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MORTGAGEES OF TESTATOR - BALANCE IN HAND- PRIVATE DEBT- RIGHT TO TACK.Mortgagees of a policy of insurance, on the death of the mortgagor, received the money from the insurance office, and, after satisfying their mortgage debt, claimed to retain the balance on account of a private debt due to them from the deceased mortgagor: Held, that they were entitled to retain the amount of their debt out of the balance in their hands: (Ke Haselfoot's. Estate 26 L. T. Rep. N. S. 146. Rolls.).



NOTICE.-When the mortgagee has notice of an prior to the execution of the mortgage deed, the act of bankruptcy committed by the mortgagor title of the trustee prevails. An assignment by partners of all the partnership property, by way bankruptcy. This case came before the court on of mortgage, to secure a past debt, is an act of appeal and cross appeal from the decision of the judge of the County Court of Sunderland: (E parte Greener, Re J. Douglas and Company; Es parte Snowball, Re Same, 26 L. T. Rep. Ñ. S. 295; Bank).

ARTICLED CLERK-FORM OF BINDING-TWO MASTERS.-Articles whereby a clerk is bound to more than one partner of a firm of attorneys are valid, and may be enrolled under 6 & 7 Vict. c. 73. s. 8: (Re Holland, 26 L. T. Rep. N. S. 289. Bail.) INTERROGATORIES - EJECTMENT-LANDLORD AND TENANT- ESTOPPEL - EXPIRATION OF LANDLORD'S TITLE.-The court will not grant an order for interrogatories to enable a tenant, with holding possession of demised premises after the determination of the tenaney, to defend an action of ejectment brought by his landlord, by interrogating the plaintiff for the purpose of proving that the interest of the latter was leasehold, and has also expired: (Wallen and others v. Forest and others, 26 L. T. Rep. N. S. 290. Bail.)

PRACTICE-PARTITION ACT 1868 (31 & 32 VICT. c. 40). The court refused to allow money pro duced by a sale under the Partition Act 1868, which had been paid into court, to be paid out to trustees, where some of the persons were married women: (Aston v. Meredith, 26 L. T. Rep. N. S. 281. V.C. B.)

SOLICITOR AND CLIENT-FAMILY SUIT-PROPERTY "PRESERVED"-CHARGE FOR COST23 & 24 VICT. c. 127, s. 28.-An infant plaintiff who on attaining majority adopts a suit instituted on his behalf during his minority, puts himself in the same position with regard to costs, and in other respects, as if he had been an adult and had originated the proceedings. A suit was instituted on behalf of an infant plaintiff, by his next friend, for the purpose of obtaining the appoint

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