« EelmineJätka »
Nov. 25, 1871.]
tended, the proper tribunals to give relief in this case; for multifariousness, for want of parties, &c. The Solicitor-General (Jessel, Q.C.), Sir Richard Baggallay, Q.C., Southgate, Q.C., Roxburgh, Q.C., Bristowe, Q.C., Chapman Barber, Bedwell, Cookson, Fischer, Kekewich, Martineau, Nalder, W. F. Robinson, Cecil Russell, T. C. Wright, supported the demurrers on behalf of the lords of the
Sir Roundell Palmer, Q.C. and W. W. Karslake, for the Attorney-General.
Joshua Williams, Q.C., Speed, and W. R. Fisher, in support of the bill.
Lord ROMILLY said that the question whether the fact that the land enclosed was within the forest rendered it necessary that persons having a right of common in the forest, but not being tenants of the particular manor in which the land was enclosed, should be consenting parties to the making of the enclosure, and the question how far such persons could enforce their alleged rights against the lords of the manor desiring to enclose with the consent of the homage, were questions too important to be decided upon demurrer. As to the question of jurisdiction, if the Forest Courts were not extinct, the Court of Chancery must at all events have concurrent jurisdiction; but the question as to the Forest Courts could not be decided on demurrer. The demurrer on the ground of multifariousness must be overruled, as the bill asserted only one single right, that of common of pasture, though the defendants resisted that right under various titles. But the demurrer for want of parties was fatal. The bill prayed for the abatement of enclosures, and this relief clearly could not be granted in the absence of some of the parties interested in maintaining the enclosures. The demurrers must, therefore, be allowed with costs; but the plaintiffs should have leave to amend by adding the necessary parties. Solicitors for the plaintiffs, Fawcett, Horne, and Hunter, for Nelson, City solicitor.
Solicitors for the defendants, Lee, Collyer, Bristowe, Withers, and Russell; Budd and Son Bothamleys and Freeman; Tamplin and Taylor; Markby, Wilde, and Burra; The Solicitor to Her Majesty's Public Works and Buildings.
V. C. MALINS' COURT. July 10 and 25; Nov. 10 and 17. Re THE EUROPEAN ASSURANCE SOCIETY; Ex parte GREENOUGH; Ex parte HOLT. Life Assurance Company-Winding-up-Provisional liquidators-Life Assurance Companies Act 1870. ss. 21, 22. THESE were two petitions presented under the Companies' Acts 1862 and 1867, and under the Life Assurance Companies Act 1870, for the compulsory winding-up of the European Assurance Society, by two shareholders in the society, one of whom was a policy holder. In 1869, two petitions had been presented for the same purpose, and had been dismissed: (see 22 L. T. Rep. N. S. 785.) Since then the society had continued to carry on business and to receive premiums. It was alleged in the present petitions that the whole of the current premium income was being applied in discharge of the existing liabilities of the society; that no provision was being made to meet prospective liabilities; and further that in fact the society was insolvent, and unable to meet present claims. On the 10th July 1871, the petitions came on to be heard before Malins, V.C., who then expressed his opinion that a prima facie case had been made out to his satisfaction, within the meaning of sect. 21 of the Life Assurance Companies' Act 1870. On the 25th July 1871, the petitions came again before his Honour, who, being of opinion that the society had been proved to be insolvent, ordered the hearing of the petitions to stand over until Nov. 1871, to enable the society to see whether any arrangement could be made under sect. 22 of the Life Assurance Companies Act 1870. Meanwhile the society was to be at liberty to pay out of their assets, current expenses and annuities not exceeding 501.; and all premiums paid on policies a separate account. were to be carried to Proposals had been made by the new York Life Insurance Company, and also by the New York Equitable Assurance Company, to take over the business of the European. The petitions now came before the court again.
Cotton, Q.C. and Higgins, for the petitioners, asked that a winding-up order might be made. It was said that offers had been made to take over the business of the society; but even if there were any scheme for this purpose, a winding-up order would be necessary, (1), because no policy holder could be compelled to accede to any proposition as to the transfer of the business to any other office; (2) in order that the benefit might be obtained of those provisions of the Companies' Act 1862, which protect the assets of a company and stay proceedings in any action or suit against the company.
Sir R. Palmer, Q.C. and Henderson, for the commmittee of policy holders, asked for a compulsory
THE LAW TIMES.
winding-up, and suggested that under sect. 91 of the Companies' Act 1862 the court should order meetings of the policy holders to be held, in order to ascertain their views with regard to the proposals of the New York companies. They also suggested that under sect. 85 of the same Act the court should appoint provisional liquidators of the society's affairs.
Glasse, Q.C. and F. C. J. Millar, for the society, opposed a compulsory winding-up. Such an order was irrevocable; it would have the effect of transforming every policy into a claim; would destroy the goodwill of the business, and render it impossible to sell as a going concern; and would in effect prevent the court from applying sect. 22 of 33 & 34 Vict. c. 61. Provisional liquidators, however, in the nature of receivers, might be appointed to protect the assets.
Lindley, for holders of policies to the amount of 130,000l., took the same view. A winding-up order could be made after the business had been sold as a going concern.
The VICE-CHANCELLOR intimated during the argument, that if any further petitions were presented or bilts filed he should make the parties pay the costs; and said that of the names sug. gested to him as provisional liquidators he approved of those of two actuaries, Messrs. Bunyon and Pattison, and of Mr. Lowe, who was chairman of the committee of the policy holders. Pearson, Q.C., Fooks, Q.C., Anderson, Whitehorne, Jackson, Roupell, and others for other parties.
The VICE-CHANCELLOR at the close of the argument said, that at first he was under the impression that it would be equally beneficial for all parties that he should at once make a compulsory winding-up order. But the arguments of Mr. Millar and Mr. Lindley had shown that there might be some disadvantage in that course. He should, therefore, order the petitions to stand over, and should appoint provisional liquidators himself, without referring their appointment to chambers. Solicitors: John Tucker; G. L. P. Eyre, and Co.; Baxter, Rose, and Norton; Rooks, Kenrick, and Harston.
Nov. 14 and 15.
ABBOTT . THE BAKERS' AND CONFECTIONERS'
The VICE-CHANCELLOR said that no doubt a defendants' person carefully examining the wrappers would perceive that they were different from those of the plaintiffs; but the public did not carefully examine such things, and the question was, were the two so much alike that a purchaser, looking at the wrappers in the way in which purchasers of tea usually did look at such things, was likely to be deceived into thinking that he was buying the plaintiffs' tea when he really was buying the defendants'? It was wholly immaterial whether he got a better bargain or not. The rule of the court was that a man who had adopted a distinguishing mark had a right to be protected against any other person adopting one sufficiently like it to mislead an unwary public. He must hold that the case came within the rule. There was a general resemblance sufficient to mislead, which he could not think was the result of accident. He should therefore make the injunction perpetual, restraining the defendants from any colourable imitation of the
plaintiffs' wrappers; the defendants to pay the costs of the suit.
Solicitors for the plaintiffs, Thomson and Son. Solicitors for the defendants, G. S. and H. Brandon.
Friday, Nov. 17.
Re BARRETT'S ESTATE. Construction of will-Absolute interest, or estate for life. THIS was a petition for the payment out of court of the sum of 4371., which had been paid in under the provisions of the Columbia Market and Approaches Act 1866, with which the Lands Clauses Consolidation Act 1845 was incorporated. The title of the petitioners depended on the construction of a dated the 17th April 1841, which was as follows: devise contained in the will of William Barrett, "I give, devise, and bequeath my freehold estate
.. at Burrows, in the parish of Hendon, unto my dear wife Elizabeth Barrett, for her own sole use and benefit, and to be at her sole, separate, and entire disposal. I also give, devise, and for and during the term of bequeath unto my beloved wife E. Barrett . . . all and every other freehold or leasehold that I may die possessed of her natural life, and for her sole separate use, and at her absolute and entire disposal." The fee was the purchase-money, formed part of the tessimple in the land, of which the fund in question tator's residuary estate. E. Barrett died in 1855, will. If E. Barrett, under the above devise, took and the petitioners were the devisees under her a life interest in this property, together with an absolute power of disposing of it after her death, the title of the petitioners was complete. If, on the other hand, E. Barrett took only a life interest, The petition came before there was an intestacy after her death as to this property, and the heir-at-law of William Barrett would be entitled. Malins, V. C. on the 15th July 1870, when the court directed advertisements and inquiries to be made for the heir-at-law. These advertisements and inquiries had been made, but without success; law could not be found. The petition now came before the court again. and an affidavit was filed stating that the heir-at
Alexander for the petitioners, contended, on the authority of Leefe v. Saetingston (Freem. 176), that E. Barrett, under the will, took a life interest together with a power of absolute disposal over the fee, and asked that the money might be paid to the petitioners.
W. F. Robinson for the Baroness Burdett Coutts, offered no opposition.
The VICE-CHANCELLOR, after referring to Lambe v. Eames (23 L. T. Rep. N. S. 135), said that he was of opinion, on the construction of the will that Elizabeth Barrett took a life interest for her separate use, and a power of disposing of the fee absolutely. The petitioners were therefore entitled to the money.
Solicitors: Farrer, Ouvry, and Co.; William Horsley.
Saturday, Nov. 18. CASE. Re THE EUROPEAN BANK (LIMITED); MASTERS' -Bona fides-Misrepresentation. Company-Transfer of shares to a man of straw ADJOURNED summons on an application by the liquidator of the European Bank to rectify the list of contributories by placing William Masters On the 4th May 1866, thereon instead of Robert Deering, as liable in respect of 280 shares. Masters, who was the holder of 280 shares in the bank of the nominal value of 50l., on which 151. had been then paid up, executed a transfer of these to be 5s., and Deering was described in the transshares to Deering. The consideration was expressed gentleman." The transfer was passed fer as a by the directors on the 8th May, and on the 9th a certificate of proprietorship in Deering's name was issued to Masters' brokers, and was subsequently handed by them to Masters. The bank stopped payment on the 16th May; on the 9th June a winding-up order was made, and Deering's name was placed on the list. A call was made by the liquidator in Nov. 1867, but nothing was recovered from Deering, who was a person of no means. Masters was a meat salesman, and Deering was a journeyman butcher in Masters' employment, gave of the transaction was that the transfer was who had married his daughter. The account they made in performance of a promise made by Masters to Deering (on the occasion of the latter's marriage) to give him some money; and inasmuch as the bank had paid a dividend of 71. per cent. on the paid up capital in Feb. 1866, and as at the time of the transfer the shares could have been sold in the market for 61. or 81. apiece, they contended that it was really a transfer not of liability, but of valuable property. According to their evidence, it was an out-and-out transfer of a perfectly bona fide character. It was contended on the other hand by the liquidator that the transac tion was a colorable one, to enable Masters to avoid loss should the bank fail, while retaining his profit should the bank continue prosperous. The
description of Deering in the transfer as a "gentle
Cotton, Q.C. and Higgins for Masters.
The VICE-CHANCELLOR said that to enable the
court to arrive at the true nature of the transaction it was necessary to look at the surrounding circumstances. It was said that Masters had promised money to his son-in-law Deering on the occasion of the latter's marriage. But the former was a meat salesman of substantial means, while the latter was a journeyman butcher. He could and-out to Deering shares which had cost himself 4000, which were producing 300l. a year, and which could have been sold for 2000l. at the time of the transfer. There must have been an under standing that if the company went wrong Deering was to bear the loss, and if the company went right Masters was to have the benefit. Further, by describing Deering in the transfer as a " gentleman, ," Masters had deceived the directors; no weight, therefore, could be attached to the fact that the directors had accepted Deering. Masters' name must be placed on the list, and he must pay
not believe that Masters intended to transfer out
V. C. BACON'S COURT.
KEMP V. THE GREAT EASTERN RAILWAY
of the previous agreement. There must be a
Solicitor for the plaintiff, J. Henry Johnson.
Thursday, Nov. 16.
CORCORAN v. WITT.
ing-Dismissal of bill-Costs of motion.
in the cause.
Amphlett, Q. C. and C. A. Holmes were for the the plaintiff.
Kay, Q. C. and Nalder for the defendant.
The VICE-CHANCELLOR said the motion for a
Railway Company-Agreement to take land-sent application must be dismissed with costs.
Waiver of agreement.
THIS was a suit to restrain the company from continuing in possession of certain lands belonging to the plaintiff until the amount of the purchasemoney should be ascertained by arbitration under the provisions of the Lands Clauses Act 1845. By an Act passed in June 1862 the company were empowered to take land for the purposes of their line, but the compulsory powers for the purchase of land were not to be exercised after the expiration of three years, and the works thereby authorised were to be completed within five years from the passing of the Act. By an agreement dated the 4th Sept. 1863, and made between the owners of the land in question and the company, the company agreed to purchase certain lands at the price of 2000l., and to erect and maintain a station on certain lands not included in the above agreement, and thac one acre of ground shall be considered as covered by the sum of 20001. for the site and purposes of such station, and if the company shall require more than one acre of ground
Solicitors for the plaintiff, Clowes, Hickley, and
Solicitors for the defendant, W. and J. Flower
Nov. 16 and 18.
Re THE UNITED PORTS AND GENERAL INSURANCE COMPANY (BROWN AND TUCKER'S CASES.) Company-Amalgamation - Ultra vires-ShareTHIS was an application on behalf of the official holders-Notice of allotment. liquidator of the above named company that the names of Messrs. Brown and Tucker might be settled upon the list of contributories to the comrespectively allotted to them in the United Ports pany, in respect of the shares which had been Company. Shortly after the incorporation of the United Ports Company an agreement was entered into with the Bristol Marine Insurance Company (Limited), in which company Messrs. Brown and Tucker were shareholders, whereby the Ports Company agreed to purchase the business and goodwill of the Bristol Company, part of the consideration for such sale being that the sharefor the site or purposes of the said station. holders in the Bristol Company were to receive or any additional ground for any purpose beyond that specified in the said schedule paid up in the Ports Company to that which an equal number of shares of 11. each, fully hereto they shall pay for the same, at the rate of 1001. per acre.' The agreement was to be they held in the Bristol company. The Bristol supplemental to and not in substitution of the 21. being paid up; the Ports Company was, on was a limited company, with shares of 201. each, Lands Clauses Consolidation Act 1845, and any the other hand, unlimited, although the shares differences touching the premises were to be rewere nominally only 11. each. The following form ferred to arbitration. On the 26th May 1865 the company served on the plaintiffs a notice under the Company and filled up by, among others, Messrs. of application for shares was sent by the Ports Lands Clauses Consolidation Act to treat for the Brown and Tucker respectively:"Shareholder's purchase of certain lands, amounting to 3a. Or. 1p., form of application for exchange of shares from which included the one acre mentioned in the the Bristol Marine Insurance Company (Limited), agreement for the purposes of the station. In May to the United Ports and General Insurance 1867 the company entered into possession of the lands mentioned in the notice to treat, and also of Company, in accordance with the agreement certain other lands not mentioned in the notice, two companies duly approved at shareholders for amalgamation entered into between the but they neither paid the purchase-money into the meetings: To the Directors of the United Ports bank, nor gave a bond as required by the Lands and General Insurance Company. Gentlemen, I Clauses Act. A correspondence ensued, as to request you will allot me shares in the abovewhat the company intended doing with so large a named company of 11. each, fully paid up, piece of land, and also as to the purchase-money. and I agree to accept the same, and I hereby In the course of this correspondence Mr. Porter, authorise and empower you to insert my name who it was alleged was the company's agent, in the register of shareholders of the wrote to the plaintiff, that the company are prepared to refer the compensation for the pany for the number of shares allotted to whole of the extra land taken to arbitration me, and I accept the same, pursuant to the under the Lands Clauses Act, as you suggest.' agreement with the Bristol Marine Insurance ComThe plaintiff and the company accordingly pany (Limited), and I further hereby declare that I appointed two gentlemen arbitrators, but the accept the same in full discharge of all claims and company subsequently refused to proceed with the ment, as per agreement, of 10s. per share, returndemands, subject, nevertheless, to the cash payarbitration, alleging that, under the agreement of able on the shares held in the Bristol Marine Inthe 4th Sept. 1863, they were entitled to any surance Company (Limited)." Accompanying this quantity of the plaintiff's land that they might form of application was a letter from the manager require at the price of 100l. per acre. of the Ports Company, in which he said "In carrying out this amalgamation this company requests you to sign the annexed form of application for shares... and return the same immediately in the accompanying envelope." Notice of allotment and share certificates had been sent to Mr. Brown, who had also voted at subsequent meetings, but Mr. Tucker disputed the fact of any notice of allotment having been given him, and his share certificates were still in the possession of
Kay, Q. C. and Lawson, for the plaintiff.
The VICE-CHANCELLOR said that upon the face of the agreement it was clear that the company were intended only to acquire a small quantity of land, and not such a quantity as they had taken possession of, besides which the notice to treat under the Lands Clauses Act was a distinct waiver
the company, never having been sent him. On behalf of Messrs. Brown and Tucker it was contended that the agreement for the sale of the Bristol to the Ports was ultra vires of both companies, and that the allotment being part of a void agreement, was also void.
Amphlett Q. C. and Brooksbank were for the official liquidators.
Fry Q. C., Lindley, and Cracknall were for the respondents.
The VICE-CHANCELLOR said, that even if the
amalgamation was bad, of which he was not at tract by these gentlemen that they would take all clear, there was a complete and binding conshares. The offer had proceeded from the company, and as soon as these gentlemen had accepted that offer by filling up the form of application, there was a contract binding on them to become shareholders. Their names must therefore be placed upon the list of contributories.
Solicitor for the official liquidator, A. Pulbrook. Solicitors for the respondents, T. White and Sons.
Re THE BRITISH COLUMBIA, AND VANCOUVER
Fry, Q.C. appeared for the claimant.
Mr. Stamp was entitled to a moiety of the profits The VICE-CHANCELLOR was of opinion that on each contract, deducting only such expenses as were necessary on account of the cargoes, but not deducting any of the expenses incidental to the management of the company.
Solicitors for the official liquidators, Bischoff, Bompas, and Bischoff.
Solicitors for the claimant, Roberts and Simpson.
V. C. WICKENS' COURT.
THIS suit was instituted for the purpose of setting aside a mortgage deed executed in Oct. 1848 in favour of Messrs. John Lake and Henry Lake, solicitors, of Lincoln's-inn, of a reversionary interest in trust funds in court, in the suit of Rowley v. Adams. The plaintiff and his brother and three sisters had by that deed joined in mortgaging their reversionary interests. Their mother was tenant for life. The mortgage deed was expressed to be made in consideration of a cash advance of 550l. made to the plaintiff's father, whereas it was admitted by the answer that about half of that sum was retained by Messrs. Lake on account of antecedent debts of the father due to them. The
father was at the date of the transaction involved in difficulties, and in May, 1849, he became bankrupt. The deed was impeached on the ground of the misstatement of the consideration in the deed-of the fact that Messrs. Lake were gors had no independent advice, and of the parental the mortgagors' solicitors, and that the mortga influence of the father over the plaintiff, who had then only nine months attained the age of twentyone. John Lake and Henry Lake were now dead. The tenant for life having died on the 12th May, 1868, the personal representatives of Messrs. Lake presented a petition praying for a division of the fund and payment of their charge. The plaintiff had appeared on this petition, and had confined his objection to asking the court to direct an account of the mortgage. That account was directed on the 18th July 1868, and in the course of it the plaintiff having found that he would be bound by the statement of the construction in his deed, on
the 30th April 1869 filed the bill in this suit to set the Vice-Chancellor. The case now came before aside the deed.
Dickinson, Q.C. and Colt for the plaintiffs.
The VICE-CHANCELLOR said that he was clearly of opinion that the deed which it was sought to set aside was voidable. The plaintiff at the time he executed it was a young man, twenty-one and nine months, and not beyond his father's control. It was said that his elder brother executed it at the same time; but that was no protection. It was said that he had legal advice, because his elder brother was a lawyer; but that was not that sort of protection which the court required. Then the defendants contended that the plaintiff was barred by the lapse of time, but the reversion only fell in in 1868, and no objection therefore could be taken on the score of lapse of time. But in July 1868, a petition was presented which impeached the very deed. The plaintiff was served with it and appeared on it. The parties were then at arm's length, and yet the plaintiff on that solemn opportunity made no objection to the deed. It might be that he preferred his chance of the account, but however that might be, he (the Vice-Chancellor) must hold that he had by his deliberately abstaining from taking the objection, confirmed that deed, and the bill must be dismissed without costs. Solicitors, W. W. Orchard; Lake and Co.
ALLSOP v. WHEATCROFT. Contract-Breach of Restraint on trade-Motion for injunction. THIS was a motion for an injunction to restrain the defendant from selling Burton beer at certain places near Chesterfield, other than the Burton beer brewed and supplied by the plaintiffs. The defendant in 1866 signed an agreement to become for two years the agent of the plaintiffs for Chesterfield and the neighbourhood, and to sell their beer only, at a certain salary. After the expiration of the two years the agency was discontinued, and it was contended that the terms of the agreement
still bound the defendant, who left the plaintiff's employment in April last, and had become the agent of another firm for the sale of their beer. Dickinson, Q. C. and Montague Cookson, for the motion.
W. Pearson, for the defendant, contended that the agreement was obtained under such circumstances as that the court would not enforce it. Assuming that it had been properly obtained, it was void at law, as being a restraint on trade. The two years stipulated for had long since expired moreover, the plaintiffs had, by commencing an action at law to recover damages, barred themselves from seeking a remedy in equity. The VICE-CHANCELLOR said that the point raised in reference to the new contract had not been determined by any decision, and as it was an important one, he would not decide it then, but would order the motion to stand over until the hearing of the cause.
Solicitors: F. J. and G. T. Brackenbridge, for Richardson and Small, Burton-upon-Trent; Burt, Stevenson, and Cave, for G. E. Gee, Chesterfield.
the court on the hearing, and the question prin-
Karslake, Q.C. and Ayrton for the plaintiff.
Solicitors, Senior, Attree, and Johnson; Henry
Friday, Nov. 17.
Re CRAMER AND Co.; Ex parte SANGSTER.
Jackson; Karslake, Q. C and Napier Higgins;
The VICE-CHANCELLOR said he was inclined to
to act with Mr. Peach.
Kimber and Ellis; Vallance and Vallance; Cook-
Monday, Nov. 20.
Land sold for erection of public-house-Brewer's
tiff had paid calls amounting to 9701. Symons died in Aug. 1870, intestate. The defendants were his legal personal representatives. This bill was filed in April 1871, praying for a declaration that the estate of Symons was liable for the amount of the calls, and for accounts. To this bill the defendants pleaded as above.
Greene, Q. C. and Maidlaw for the plea.
Dickinson, Q. C. and E. Cutler, for the plaintiff The VICE-CHANCELLOR said the question raised was whether the composition deed barred the plaintiff's claim. After examining the cases and the clauses of the Act of 1861, he had come to the conclusion that it had not done so, and the plea must therefore be overruled. The costs would be costs in the cause.
Solicitors, J. and R. Gole; H. J. Godden.
COURT OF QUEEN'S BENCH.
REG. v. JUSTICES OF FLINTSHIRE.
Affiliation order - Quashed on appeal - Subsequent application for new summons-Res judicata.
RULE calling on justices to show cause why a mandamus should not issue commanding them to adjudicate upon an affiliation summons issued by Louisa Jackson against William Smith, the alleged father of her bastard child. It appeared that the child was born in Jan. 1871. The mother obtained an order, adjudging Smith to be the putative father, on the 9th Feb. He appealed to quarter sessions. At the hearing on appeal his counsel submitted at the close of the respondent's case that there was no corroborative evidence. The justices were of that opinion, and quashed the order. The woman again applied to justices in petty sessions for a new affiliation summons against Smith, but the justices considered the matter to be res judicata by the decision of the court of quarter sessions, and declined to entertain the application.
The Attorney-General (Sir John D. Coleridge, Q.C.) and M'Intyre showed cause.
Merewether in support of the rule.
The COURT (Blackburn, Mellor, Lush, and Hannen, JJ.) held, that the adjudication of the quarter sessions was a final decision upon the merits of the case, which operated as a bar, and that, therefore, the justices acting in petty application. sessions were right in refusing the subsequent Rule discharged. Attorneys for the appellant, Blakeley and Beswick.
Attorneys for the respondent, Meredith and Co.
Friday, Nov. 17.
Clippings from yew trees-Duty to keep on one's
that defendant was possessed of certain yew trees, DEMURRER to a declaration. Declaration alleged on certain lands in his occupation, the clippings of poisonous to horses, &c., whereupon it became and which trees were, to defendant's knowledge, was defendant's duty to take due and proper care to prevent said clippings from being put or placed on land belonging to any other person, where the horses of his neighbours might be enabled to eat that behalf, did not take due and proper care, &c., them; yet defendant, disregarding his duty in where they lawfully might be, were enabled whereby the horses of the plaintiff, being on land to eat said clippings, and did eat of the same, and were thereby poisoned and killed, &c.
Herschell in support of the demurrer. held the declaration bad; the only duty alleged Quain, Q.C. (with him A. L. Smith) contra. The COURT (Mellor, Lush, and Hannen, JJ.) being one that did not result from the premises. Judgment for defendant. Attorneys for defendant, Phelps and Sidgwick.
JOYCE v. KENNARD. Insurance-Proportionate liability of underwriters SPECIAL case. Plaintiffs, lightermen, effected an insurance for the purpose of insuring themselves against losses in the way of their business. The policy was in the ordinary form of a Lloyd's policy, but concluded thus: "To cover and include all losses, damages, and accidents, amounting to 201. or upwards, on each craft, to goods carried by Messrs. Joyce and Son, as lightermen, or delivered to them to be water-borne, either in their own or other craft, and for which losses, damages, and accidents they may be liable to the owners or others interested." The policy was subscribed by different underwriters to the amount of 20007., the liability of each underwriter not to exceed the amount of his subscription. Defendant underwrote for 1001. A loss of goods on board a barge of the plaintiffs having happened for which plaintiffs had to pay to the owners of the goods 11007., the total value of the goods in the barge, being 29007., plaintiffs claimed from defendant 551. as his proportion of the loss actually sustained. Defendant contended that he was liable to pay only such a
proportion of the loss actually sustained, as the sum cf 1001., for which he subscribed, bore to the whole value of all the goods on board all the plaintiff's crafts, which were covered by the policy, i.e., to 20,000l., in which case his liability would be only 61.
Quain, Q. C. (A. L. Smith with him), for the plaintiffs.
Sir G. Honyman, Q.C. (Watkin Williams with him) for the defendant.
The COURT (Mellor, Lush, and Hannen, JJ.) held that the policy was not to be considered as a marine policy, and that the plaintiffs were entitled to recover the amount claimed from the defendant. Judgment for the plaintiffs. Attorneys for plaintiffs, Plews and Irvine. Attorneys for defendant, Parker and Clarke.
Saturday, Nov. 18.
GAINSBOROUGH UNION (apps.) v. WELCH (resp.) The Parochial Assessment Act, 1836 (6 & 7 Will. 4. c. 96), s. 1-Expenses necessary to command rent -Drainage rate under local Act-Taxes payable by landlord.
SPECIAL case granted by justices at quarter sessions, upon appeal from special sessions concerning a poor rate. By the Everton Drainage Act 1860 (23 & 24 Vict. c. cliv.), s. 58 power is given to a commissioner "to assess, tax, and charge upon the owners or proprietors for the time being of the lands and grounds specified such sums of money as he shall find to be necessary, not exceeding in the whole the total amount set forth;" and by sect. 62, "the tenant or occupier of any lands and grounds, embanked and drained, or intended to be embanked and drained, by virtue of this Act, is hereby authorised and required to pay such sum and sums of money, not exceeding half a year's accruing rent, as shall be assessed, taxed, or charged upon the owner or proprietor of any such lands and grounds in his occupation, and to deduct the same out of his rent then due or accruing due; and every tenant or occupier who shall make such payment shall be acquitted and discharged for so much money as the sum he shall so pay shall amount unto, as if the same had been actually paid unto the person to whom his rent was due and payable." The lands occupied by the respondents were rated under this Act in the annual sum of 291. 5s., which was paid by the owner, the Duke of Portland. The assessment committee made no allowance for this drainage rate in the assessment of the respondent to the poor rate. Upon appeal, the justices at petty sessions decided that the respondent was entitled
to a deduction of this sum from his rent in the computation of the net annual value of his lands. Upon appeal to the quarter sessions, the decision of the justices at petty sessions was upheld, subject to a case for the opinion of this court.
Cave and Mellor argued for the respondent, that the cost of this drainage, although paid by the landlord, was an expense necessary to maintain the land in a state to command the rent within the Parochial Assessment Act 1836, s. 1.
Lawrance and Horace Smith, for the appellants, contended that this was not an expense ejusdem generis with repairs and insurance, of which the above section expressly provides for the deduction. They cited Reg v. Vange (3 Q. B. 242), Reg. v. Hall Dare (5 B. & S. 785), Reg. v. Adams (4 B. & Ad 61), and Reg. v. Sherford (L. Rep. 2 Q. B. 503).
The COURT (Blackburn and Mellor, JJ.) were of opinion that this deduction ought to have been made.
Judgment for respondent. Attorneys for appellants, Thos. H. and A. R. Oldman.
Attorneys for respondents, C. and J. Allen and Son, for Newton and Jones, East Retford.
KNARESBOROUGH UNION (apps.) v. PATELEY BRIDGE UNION (resps.) Order of removal-Status of irremovability Animus revertendi. APPEAL against an order of removal from the respondents' to the appellants' union. The quarter sessions for the West Riding of Yorkshire confirmed the order. The appellants opposed the order, on the ground that the pauper, Alice Slinger, had obtained a status of irremovability, in the respondents' union. On the 22nd June 1868 the pauper came, with some of her furniture, to the house of her brother-in-law, in the respondents' union. Her furniture was stowed in an empty room, and she was entertained gratuitously. She remained there, with the exception of short intervals, in which she paid visits to relations and friends, until the 1st May 1870, when she took a cottage in the respondents' union, and removed her furniture to it. On the the 20th June 1870 she became chargeable to the respondents' union. It was not contended on behalf of the respondents, that the pauper had not actually lived sufficiently long in their union to give her a status of irremovability by construction, if she were under the
circumstances capable of possessing such an animus revertendi as would give rise to a constructive residence during the periods of absence above set forth. But it was argued that the pauper, not having before May 1870 had any abode of her own or place of residence in the union to which she had a right to return, had not resided there within the meaning of the Acts creating and defining irremovability, and could not have such animus revertendi thither.
Maule, Q.C. and Waddy for the respondents.
find as a fact whether, upon the occasions of the The COURT sent the case back to the justices to pauper's going away from the house of her brotherin-law, he had an intention to receive her back. They held that it was not necessarily a legal right to return which the pauper must have in order to obtain a status of irremovability.
Binney, for Powells, Knaresborough.
Attorney for respondents, John Scott.
THE MUTUAL TONTINE WESTMINSTER CHAMBERS ASSOCIATION (LIMITED) (apps.) v. THE ASSESSMENT COMMITTEE OF ST. GEORGE's UNION (resps.)
Separate rating of rooms in a house-Structural severance-Control of outer door. SPECIAL case granted by the Court of General Assessment Sessions of the Metropolis, under the Valuation (Metropolis) Act 1869 (32 & 33 Vict. c. 67) of buildings called the " Westminster Chambers," 8. 40. Appellants are owners of seven adjacent blocks which contain in all 117 sets or suites of rooms. Each set had been assessed in the valuation list by the respondents as a separate hereditament. To this the appellants objected, and the Court of General Assessment Sessions directed the valuation list to be altered according to their objection, and a valuation of each of the seven blocks to be inserted instead of the 117 sets of rooms. They granted, however, a case for the opinion of this court as to whether they were right in so deciding. Each block of buildings has an entrance, and is divided into two ranges by an internal staircase. The buildings are structurally divided into 117 different suites or sets of rooms, which are quite distinct from each other. The outer or street door to each block of building is kept locked at night, and a porter, who is hired by the appellants, resides in a distinct set of rooms in the basement of each block of buildings, and has a key of and access to the rooms in such building for the purpose of a general superintendence, and as the servant of the occupiers respectively; by whom he is in some cases employed in and paid for looking after the
Poland for the appellants, contended that the test for the separate rating of the rooms in a house was the control of the landlord over the front door; that in this case the appellants through the porter reserved that control, and therefore there ought to be only seven assessments in the valuation list.
Manisty, Q.C., and Streeten, for the respondents, were not heard.
The COURT (Cockburn, C.J., Blackburn and Mellor, JJ.), reversed the decision of the Court of General Assessment Sessions, upholding that of the Assessment Committee of St. George's Union, the respondents.
Judgment for respondents. Attorney for appellants, Burchells. Attorneys for respondents, Capron, Dalton, and Hitchins.
EASTON (app.) v. RICHMOND HIGHWAY BOARD (resps.)
Highway Act 1864 (27 & 28 Vict. c. 101), s. 51— Encroachment within 15ft. of centre-Dedication of sides to the public.
CASE stated by justices at petty sessions. The appellant had been convicted under 27 & 28 Vict. c. 101, s. 51, of encroaching upon a highway within the respondents' district by building a stone wall within 15ft. of the centre thereof. The appellant was lord of the manor in which the highway was situate, and owner of the village green through which it passed, and also of the property around. The metalled road across this green was 8ft. wide, and there was no difference between the grass which came up to both sides of this metalled road, and that of the whole green, which extended about 100 yards each side of the road. The appellant had built a wall each side of the highway at a distance of 4ft from the edge of the metalled road; the walls were therefore about 16ft. apart. It was contended by the appellant that there was nothing in the Highway Acts to prevent his building on his own land within 15ft of the centre of the highway, providing that he did not build upon the highway or boundaries thereof; and that as there had been no dedication to the public of any more of the green than the road, he had not encroached on the highway or the sides thereof. The justices however convicted the appellant.
Field, Q.C. (with him Herschel), argued for the appellant.
Manisty, Q.C. (with him Cave), for the respondents.
The COURT were of opinion that as there was no evidence of the dedication to the public of more than the highway itself, the magistrates had misinterpreted the Highway Acts, and they quashed the conviction.
Judgment for appellant. Attorneys for appellant, Pattison, Wigg, and Co. Attorney for respondents, J. L. Tomlin for J. R. Tomlin, Richmond, Yorkshire.
Monday, Nov. 20. MALLOCK v. BULLOCK.
Interrogatories-Trover for title deeds by heir-atlaw against person in possession of lands-Dis closure of title.
M'Intyre moved for a rule calling on the defendant in an action of trover brought to recover title-deeds to show cause why he should not answer interrogatories as to particulars of the deeds in question. The plaintiff, heir-at-law of ! his brother deceased, claimed to be entitled to certain freehold estates, of which the latter died seised, and of which the widow of the deceased was in possession. He brought an action of trover to recover title deeds held by the widow, before bringing ejectment, and applied to Martin, B. at chambers, to allow interrogatories to be administered, one of which was as follows: "Have house at Little Over, in the county of Derby, you in your possession and control any and what title deeds or muniments of title relating to the which your late husband occupied at the time of his death. If yea, describe them by dates or parties, or otherwise sufficient for their identifica tion." The learned judge refused to allow the interrogatory.
The COURT (Cockburn, C. J., Mellor, Lush, and Hannen, JJ.) held that the proper course for the plaintiff to pursue was to bring ejectment for the estate claimed by him; that he could not, by suing for the title deeds and administering interroga tories respecting them, evade the rule of law that a person seeking to recover lands in an action of ejectment cannot compel the detendant in possession to disclose his title; and that, therefore, the interrogatories were rightly disallowed. Attorneys for the plaintiff, Williamson, Hill, and Co.
CROSS demurrers to a plea, a replication, and a rejoinder. Action for money due from defendant to plaintiff. Plea setting out a deed under the Bankruptcy Act 1861, by which plaintiff covenanted to pay his creditors 16s. in the pound, and for security assigned all his property and debts to trustees. There was a clause enabling the trustees to re-assign the property to plaintiff upon pay. ment of the composition. The plea averred that all things were done necessary to render the deed valid under sect. 192 of the Act, and to assign all plaintiff's debts to the trustees. Replication setting out a deed made in 1870, by which the plaintiff's trustees re-assigned the property to plaintiff according to the clause of the previous deed which was recited in this. It also recited payment of the composition to all the creditors except one, who was a party to the deed, and who accepted bills of exchange in satisfaction. The replication averred plaintiff's right upon the strength of this deed to sue for this debt. Rejoinder, that the deed set out in the replication was not made under any of the Bankruptcy Acts, and had not received the sanction of the Court of Bankruptcy.
Baylis, for plaintiff, contended that the object of the first deed was the composition to the creditors, and that the assignment was only by way of security. The debtor continued to have an equitable right to his property, and upon the fulfilment of the object of the deed and the execution of the second deed, the right to the surplus of his property and to sue for his debts became revested in him. It was said that this assignment | bore an analogy to the case of a mortgage.
Field, Q.C. (with him Kemplay), for defendant, argued from the 197th section of the Bankruptcy Act 1861, and from the same section of the Bankruptcy Consolidation Act 1849, that this revestment required the sanction of the Court of Bankruptcy.
Baylis, in reply, maintained that the provision to re-convey in the first deed did away with that necessity.
The COURT (Cockburn, C.J., Mellor, Lush, and Hannen, JJ.), held that the plaintiff had no right to sue in his own name. The assignment of his debts by the first deed took effect only under the Bankruptcy Acts, and it was absolute and indefea- | sible except by the provisions of those Acts. The
second deed not being by force of any statute the
LEIGH V. ADAMS.
Concealment by insurer Liability of underwriters. SPECIAL case stated by an arbitrator. Action against underwriters upon a policy of assurance of cochineal on the voyage from the Canaries to London. This and other policies of the same kind were entered into by the plaintiff in London on cargoes, of the shipping of which he was advised; no ship was named when the policies were made, but plaintiff declared the assurance to be on a particular ship, when he was informed of its sailing. These are known by the name of floating policies. On the 9th Dec. 1863 plaintiff received bills of lading of large quantities of cochineal on board the ship Azorian, and information that if there were further quantities to forward, they would go by the Candida. On the same day an anonymous letter was received at Lloyd's, in which it was stated that this cargo alleged cochineal in the Candida was really barley,
that the intention was to lose the vessel in order that the underwriter should pay, and that the shippers were ruined and desired to save themselves. A notice of this letter was affixed to a board at Lloyd's, but in point of fact the defendant never observed the notice or saw the letter. On the 11th Dec. 1863, plaintiff entered into other policies, and among them that now in dispute. He never mentioned to the underwriters his information that probably the subject of his insurance would be shipped in the Candida, nor did he mention the said anonymous letter, which, however, he had seen, but boni fide disbelieved. He subsequently declared this policy to be on the cargo by the Candida, and in consequence of disasters sustained by that ship on her voyage, a large quantity of cochineal on board was jettisoned.
Pollock, Q. C. (with him F. M. White), for the plaintiff, argued that this was not such a concealment on the plaintiff's part as to vitiate the policy.
Honyman, Q. C. (with him J. C. Mathew) appeared for the defendant, but was not heard. The COURT, without expressing an opinion about the effect of concealing the fact of the said anonymous letter, held that the plaintiff's reticence, concerning his information of the probable shipment of cochineal in the Candida, was sufficient to vitiate the policy.
Judgment for defendant. Attorneys for plaintiff, Hillyer and Fenwick. Attorneys for defendant, Waltons, Bubb, and Walton.
Wednesday, Nov. 22.
EVANS v. SUMMERS. Racing-Forfeit list-Disqualification-Finality of decision of racing committee. THIS was an action to recover the amount of stakes won by plaintiff at certain races run last year at Petherton, near Taunton, but which defendant refused to pay him on the ground that the racing committee had decided that plaintiff was disqualified, his name being in the forfeit list in respect of an unpaid forfeit incurred in 1859. By the local rules and the Newmarket rules, which were incorporated in them, no person whose name appeared in the forfeit list is entitled to run until the forfeit is paid; all objections are to be made before the succeeding race, and in writing to the committee, except charges of fraud; the decision of the committee to be final. In the present case the objection to plaintiff's right to get the stakes was not made till two days after the race, when it was referred to the committee, who decided against the plaintiff. Plaintiff did not, before the committee, rely on the fact that the objection was not made till too late. The case was tried before Blackburn, J., without a jury, who ordered a verdict to be entered for plaintiff, with leave to defendant to move. A rule nisi having been obtained,
Parry, Serjt. and Lanyon now showed cause against the rule, and argued that the committee had no jurisdiction, the objection to plaintiff's right not having been made within the specified time.
James, Q. C. and Thesiger, in support of the rule, contended that the committee had jurisdiction, and the objection as to time was not taken before them.
The COURT (Cockburn, C. J., Blackburn and Mellor, JJ.), held that the plaintiff was not entitled to recover, on the ground that his appearance before the committee and entering into the merits of the question, without at all relying on the objection as to time, amounted to a waiver of that objection. Rule absolute.
COURT OF COMMON PLEAS.
J. H. Fawcett for respondent.
versed his decision.
JONES (app.) v. MARSHALL (resp.)
H. James, Q.C. (M'Intyre with him) for the respondent.
The COURT (Willes, Keating, Brett, and Collier, JJ.) held that this was a case in which the revising barrister not only had power to have amended, but that he ought to have amended, as it was not but only in the local description; and they rean error in the description of the qualification, The COURT (Willes, Keating, Brett, and Collier, Decision reversed. JJ.) held, that it had no jurisdiction to entertain Attorneys for appellant, Carter and Bell. the appeal, as the decision was already in the Attorneys for respondent, Gray, Johnstone, and | appellant's favour. Appeal dismissed. Mouncey. Cunliffe and Beaumont, for Churton, Chester, for appellant. Milne and Co., for Thos. Brown, Chester, for respondent.
TOWNSEND v. THE OVERSEERS OF THE POOR
Gorst for appellant.
The COURT (Willes, Keating, and Collier, JJ.,
Per BRETT.-That as the error was in the nature
CALVER v. ROBERTS.
Saturday, Nov. 18.
FORD (app.) v. Boon (resp.) Registration-Notice of claim-Description of nature of qualification as "house"-Power of revising barrister to amend. CONSOLIDATED appeal from the revising barrister for the city and county of Exeter. It was proved that the respondent duly sent in to the overseers of the parish in Exeter, in which he resided, a notice of claim to be put on the list of voters, in which he described the nature of his qualification "6 as 'house," and the overseers duly published a list in which the respondent's name appeared, the nature of his qualification being there described as "house." The respondent duly proved his claim as a 101. householder. Exeter is a city and county, having reserved rights of voting as freeholders and freemen, and therefore the overseers of each parish make out two lists-one of occupiers, the other of persons entitled to vote by virtue of other rights except as freemen, which, after being revised, are amalgamated into one list. It was contended that the claimant had insufficiently described his claim, as the word "house" did not express any qualification, and the claimant did not indicate the list in which he claimed to have his name inserted. It was further contended that the revising barrister had no power to amend the notice of claim by inserting the words "occupation of" before the word "house." On the other side it was urged that the notice of claim was sufficient, and that the revising barrister had power to amend the list of claimants if necessary. The revising barrister held (1) that the form of the notice was sufficient; (2) that he was justified, under the circumstances, in amending the notice of claim; (3) that if he had the power of amendment, under 6 Vict. c. 18, s. 40, he ought, under the circumstances, to use it. This was an appeal from that decision.
Kingdon, Q. C. for the appellant.
Lopes, Q. C. for the respondent, was not heard. The COURT (Willes, Keating, Brett, and Collier, JJ.) held that the notice was sufficient; that the revising barrister had power to amend it, and that he was right in doing so.
Attorney for appellant, J. E. Fox, for H. and B. Ford, Exeter.
THE appellant had objected to the vote of one
E. Clarke, for appellant, cited Knowles v. Brooking (2 C. B. 226).
Shield for respondent.
The COURT (Willes, Keating, Brett, and Collier,