« EelmineJätka »
voters, and may be designated by some distinguishing addition in the list of voters for such part of a parish.
Edwards, for the appellant, contended that the effect of the two last mentioned enactments was to make it necessary for an objector to specify, beyond what is required by 28 & 29 Vict. c. 36, to what particular polling district he belongs, in any case in which the parish to which he belongs has been divided into polling districts. The objector ought to have added to the words "township of Spotland" the words "Rochdale polling district."
No one appeared for the respondents.
The COURT (Willes, Keating, Brett, and Collier, J.J.) held the description sufficient and dismissed the appeal. Appeal dismissed.
Attorneys for the appellant, Horne and Hunter.
Saturday, Nov. 18.
FRITH V. THE OVERSEERS OF WIDDECOMBE-ONTHE MON.
County vote-Notice of claim for "land occupied" -Claim as 121. occupier. APPEAL from the decision of the revising barrister for the Northern Division of Devon. The appellant, on the 25th Aug., sent in a claim to be put on the list of voters for the division of the county in respect of land occupied." He had a good claim as a 121. occupier. Separate lists are made in counties for the 12'. occupiers. It was objected that the notice of claim was bad, as it did not specify the particular list on which the claimant claimed to be put. The revising barrister was of this opinion, and struck the claimant's name off the list. This was an appeal from that decision. G. Lewis, for appellant.
The respondent did not appear.
The COURT (Willes, Keating, Brett, and Collier, JJ.) held the motice sufficient, and reversed the revising barrister's decision. Decision reversed.
Attorneys for appellant, Coode, Kingdon, and Cotton.
Monday, Nov. 20.
the increased rent of 11. 8s. 6d. being occasioned by the bringing into the dwelling houses a supply of water, and such bringing in of water was a convenience to the tenants, who were charged an increased rent in respect of it. The houses were managed by an agent, who was paid by commission, which I found to be necessary, and who expended during the year, between 31st July 1870 and 31st July 1871, in repairs and otherwise, the following amounts, which I held to be necessary expenses and proper to be deducted from the gross annual rental.
which being deducted from the gross rent of 1431. 2s. 10d., left a net annual rental of 811. 5s. 7., which sum being equally divided between the forty-eight tenants in common, did not leave 40s. for each. Upon this the revising barrister disallowed the votes of the forty-eight tenants in common. The question for the court was whether he was right in deducting the sum of 21l. 19s. 1d. from the gross rental. If he was wrong in so doing, the votes of the forty-eight tenants in common were to be reinstated on the register. C. Bowen for appellant.
Pickering, Q.C. for the respondent.
The COURT (Willes, Keating, and Brett, JJ.), thought the revising barrister was wrong, and reversed his decision.
Attorneys for appellant, Rickards and Walker. Attorneys for respondent, Baxter, Rose, and Norton.
Tuesay, Nov. 21.
REGISTRATION APPEAL. WADMORE v. DEAR.
WADMORE. . THE OVERSEERS OF PUTNEY. County vote-Equitable freehold interest-Shares in a bridge.
THESE two appeals from the revising barristers for Middlesex and Mid Surrey, involving precisely ther. It appeared that by an Act 12 Geo. 1. c. 36, the same question, were taken and argued toge bridge across the Thames from Fulham to Putcommissioners were appointed for building a ney, after compensating the proprietors of the granted to and vested in the commissioners to be then existing ferries, and a pontage or toll was applied as directed by the Act. By a subsequent Act of Geo. 2 for more effectually enabling the commissioners to complete such work, they were empowered to convey in perpetuity the tolls and income of the said bridge or ferries to such per. sons as would undertake to erect and maintain
TYSON v. LORD MAYOR OF LONDON. Notice to treat-Lands Clauses Act-Notice under special Act—11 & 12 Vict. c. cclxxx-Mandamus to compel. THE plaintiff was tenant of a house to the Corporation of London, by virtue of an agreement for a lease for three years from Midsummer 1867. The corporation served the plaintiff, on Jan. 25, 1869, with a notice to treat, and also with a precept signifying that they should require his premises for the Holborn Valley Improvements at six months from the date of such notice. On Feb. 19, 1869, the plaintiff sent in the amount of his claim, which, not being paid, he commenced an action for a mandamus to compel them to treat for the assessment of compensation to him. The plaintiff the bridge. The commissioners accordingly in would be entitled to have his damages assessed 1728 contracted with thirty persons, who subbefore a jury if his interest in his premises was scribed the necessary funds and became the sharegreater than a yearly one, if not, it would be holders of the bridge, to build and maintain the assessed by the city justices. The question there-bridge, and compensate the proprietors of the fore was, whether the date at which the six months notice was given, was to be taken from the date of the notice, or from the termination of the six months when he would have to deliver up possession. The action had been turned into a special case for the opinion of the court.
to the same
said ferries; and afterwards, the bridge having been built, the commissioners in 1729, by a deed which recited the above Acts and their powers thereunder, conveyed the said bridge and tolls, and all such grounds adjacent and belonging as they had power to convey, by virtue of the said Acts, to certain trustees in fee, in trust to permit the said thirty shareholders to receive the said tolls and income, and have the sole management thereof. The present appellants deduced their claim from these thirty persons, and were respectively the holders of a share or part of a share, the sufficiency of the money value whereof was not in dispute. The management of the property was vested in a committee of management, appointed annually by the shareholders. On the facts, as they have been
COURT OF EXCHEQUER.
PALMER AND OTHERS v. Fox. Action on covenant to pay money on request-Plea, a composition deed under Bankruptcy Act 1861, whereby the cause of action vested in trusteesProof of plea-Affidavit of execution by majority of creditors-Evidence in contradiction-Plaintiffs inserting themselves in deed as creditors of THIS was an action on a covenant for the payment themselves-Vatidity of deed-Estoppel. to the plaintiffs of 150l. upon request, which was tried before Pigott, B., in Middlesex, when a verdict was found for the plaintiffs, leave being reserved to the defendant to move for a new trial on the ground of misdirection. The question turned on the third plea which alleged the execution by the plaintiffs of a composition deed under the Bankruptcy Act 1861, by which, as the defendant alleged, the cause of action became vested in the trustees under that deed. To prove the plea the defendant put in the deed itself, and an affidavit of the plaintiffs, as required by the Act upon registering the deed, that the necessary majority in number and value, &c., of the creditors had executed or become bound by the deed, which the learned Baron held to be good evidence of proof of the plea. To answer that evidence the plaintiffs called the attorney's clerk, who proved that the plaintiffs had put themselves down in the schedule to the deed as creditors to themselves, and so there was not, in fact, a proper and valid majority of creditors in value, &c., and thereupon the learned Baron ruled that the verdict must be for the plaintiffs.
Aspland (by leave) now moved accordingly, and contended that the plaintiffs were estopped from setting up anything in opposition or contradiction to their own deed, and from alleging that their own affidavit, filed in pursuance of the statute with the registrar, was untrue There was no case closely analogous, for the reason that generally debtors sought to uphold these deeds; but it was somewhat like recent cases, where it had been held that joint-stock companies' certificates could not be derogated from in the hands of persons who had taken and acted on them.
you acted on this deed?] In consequence of it BRAMWELL, B.-Ah! that is the point. Have the defendant was led to defend the action.
[BRAMWELL, B.-That won't do. KELLY, C.B. You cannot deny that the deed is vitiated.] It is submitted that that is another point. If this deed registering it asserted it to be, the defendant were what the plaintiffs by their public act in
would have had a good answer to the action. The deed was executed in 1868, and had been acted on for several years; nor could the defendant know that it was other than what the plaintiff's had sworn it to be. He cited Pearson v. Pearson, in the Exehequer (14 L. T. Rep. N. S. 596; 35 L. J. 172, Ex.; L. Rep. 1 Ex. 308; 12 Jur. N. S. 589.)
The COURT (Kelly, C. B., and Bramwell, Channell, and Cleasby, BB.) refused to grant a rule. The question, they said, turned on whether it was a valid deed giving a right of action to the trus tees under it. It was clearly not such, and neither parly could sue on it. It was not a case of estoppel at all. Rule refused. Attorneys for defendant, Neal and Philpot, Doctors'-commons, E.C.
Friday, Nov. 17.
HEAD V. TATTERSALL AND ANOTHER. Sale of a horse-Warranty-Conditions for return of horse within certain time-Horse not answering warranty-Action for breach of warrantyCondition of horse at time of purchase and of return-Difference between.
W. G. Harrison, for the plaintiff. Hon. A. Thesiger for the corporation. The COURT (Willes, Keating, Brett, and Collier. JJ.) were of opinion that reading the 121st section of the Lands Clauses Act, with the City Improvement Act (11 & 12 Vict. c. cclxxx.), s. 33, that the period of time when the tenant's interest determined was upon notice being served upon him, and that the plaintiff was entitled to have his damages assessed by a jury. The Court ordered a mandamus to go. hitherto stated, it was held, in Tepper v. Nichols Minie, bought by the plaintiff at a sale by auction
Judgment for plaintiff. Attorney for defendants, Nelson.
Tuesday Nov. 21.
BUCKLEY (app.) v. WRIGLEY (resp.)
County vote-What necessary expenses to be deducted from gross annual rental-Expense of laying on water.
revising barrister for the southern division of the
(34 L. J. 61, C. P.), that the shareholders were not entitled to a county vote in respect of their shares. But, since the decision of that case, the Thames Navigation Act 1870 (33 & 34 Vict. c. 149) was passed, by sub-sect. 6 of sect. 10 of which, the bridge and the lands thereunto belonging, and the tolls, &c., were vested in the committee time being subject to the trusts on which of management, and their successors for the Act. It was contended, before the revising bar were held at the passing of this risters, that by this Act the shareholders were barristers in each case decided against the claim, and the land thereunto belonging. The revising and this was an appeal against their decision. E. G. Clarke for the appellants.
THIS was an action brought by the plaintiff for the breach of warranty on the sale of a mare called
being that the mare had been "hunted with the at the defendants' establishment, the warranty Bicester and Duke of Grafton's hounds." The facts were as follows: The plaintiff attended March last, and received one of their usual a sale at Tattersall's on Monday, the 13th printed catalogues, describing the various animals for sale on that day, and amongst them described in the catalogue as follows: "The folthe mare in question, which was one of a lot lowing horses, which have been hunted with the Bicester and Duke of Grafton's hounds, the property of J. C. Dunbar, Esq.," &c. ... "87. Minie,
CONSOLIDATED appeal from the decision of the West Riding of Yorkshire. It appeared that the names of the appellant and of forty-six other entitled to an equitable freehold in the bridge by Longrange, dam by Harkaway, with good
M'Intyre for the respondents.
persons were in the list of voters for the southern division of the West Riding of Yorkshire for qualifications described as "share of freehold houses and lands in the township," &c. The conveyance of the property was in fee simple to the The COURT (Willes, Keating, and Brett, JJ.) appellant and another person in trust for them- held that the shareholders were not entitled to selves and the forty-six other persons in forty-such an equitable freehold, but only to a share in eight equal undivided shares, as tenants in common. the tolls. The gross annual rental up to June 1871 was Decision affirmed, 141l. 14s. 4d.; but for the year between 31st July, 1870 and 31st July, 1871, it was 1431. 2s. 10d.
Attorney for appellants, Evan Hare. Attorney for respondent, Gardiner.
the mare for 431. 10s., and paid the money action.' The plaintiff bid for and purchased It appeared that after the purchase the plaintiff (the purchaser) became aware that the mare had Duke of Grafton's hounds, yet he nevertheless sent never been hunted with either the Bicester or the his groom, an experienced horseman and rider, to take her away from the defendants' stables. On her way home from the stables to the plaintiff's stables in Manchester-square, she took fright in South Audley-street, and, rushing forward, she ran
against a carriage which was in front of her, and passing on came against the splinter bar of another carriage and cut her chest, and getting free from that she got into Grosvenor-square, round which she galloped at a furious pace some five or six times before the groom, who was on her (and who was riding her with a gag snaffle," as recommended by the groom of the former owner), could stop her. Upon being pulled up the mare was found to be much injured in the chest in consequence of her having came in contact with the above-mentioned carriage, and the plaintiff returned her the next day in accordance and compliance as he considered and contended with the printed conditions of sale at Tattersall's, which says that, "Horses not answering the description must be returned before five o'clock on Wednesday evening next, otherwise the purchaser shall be obliged to keep the lot with all faults." The defendants received her under protest, contending that she was rot then in the same condition as when she left the stables. It was admitted that the mare had never been hunted with either the Bicester or the Duke of Grafton's hounds, and that the statement in the catalogue that she had been was attributable to the mistake or inadvertence of a clerk of the defendants. Upon the facts, at the trial before Kelly, C. B. and a special jury, at the sittings for Middlesex, after last Trinity Term, a verdict was found for the plaintiff for 43. 18., the jury finding that the plaintiff had been induced by the description in the catalogue to buy the horse, and that the accident had not been occasioned by any fault or negligence or bad riding on the part of the plaintiff's groom, and leave was reserved to the defendants to move to enter a verdict. A rule was accordingly obtained by H. James, Q.C. on the part of the defendants, in the present term, to set aside the verdict for the plaintiff, and to enter a verdict for the defendants, on the ground that the sale of the mare was not under the warranty, and that the mare could not be returned in the same condition as at the time of sale; or to enter the verdict for nominal damages; or for a new trial on the ground that the plaintiff was only entitled to recover nominal damages, and not the price paid by him, and against that rule.
Denman, Q. C. and E. C. Willoughby now showed cause; and
H. James, Q. C. and H. R. Graham supported it.
The COURT (Kelly, C. B., Bramwell and Cleasby, BB.) gave judgment in favour of the plaintiff, discharging the defendants' rule. Rule discharged. Attorneys for the plaintiff, Willoughby and Cox, 13, Clifford's-inn, E.C. Attorneys for the defendants, Markby and Tarry, 57, Coleman-street, E.C.
Saturday, Nov. 18.
MONFLET v. COLE.
Covenant not to carry on a trade within a certain
distance-The principle of admeasurement. THIS was a rule calling upon the plaintiff to show cause why a verdict should not be entered for the defendant upon the ground that upon a true construction of the defendant's covenant he is entitled to have the verdict entered for him, subject to the award of the arbitrator agreed on between the parties, the court to determine the principle upon which the arbitrator is to proceed, otherwise a verdict to be entered for the plaintiff for 500l. The declaration stated that by a certain deed dated the 10th Feb. 1871, between the plaintiff and defendant, after reciting that the defendant had ⚫ontracted with the plaintiff for the sale to him of the leasehold premises and goodwill of the business of a licensed victualler carried on by the defendant, called the Lord Holland public-house, the defendant covenanted with the plaintiff that in case the defendant should take, keep, or be in any way concerned in the trade or business of a licensed public-house, beershop, or place for the sale of wines or spirits within the distance of onehalf of a mile of the said premises, so called the Lord Holland, that he, the defendant, should repay to the plaintiff the sum of 500., as liquidated damages. The declaration then alleged that the defendant broke his agreement, and kept a place and was concerned in the trade and business of a licensed public-house within the distance of one-half of a mile of the said premises. The defendant pleaded that he did not keep, and was not concerned in the trade and business of a licensed public-house within the distance of onehalf of a mile of the said premises called the Lord Holland. It appeared that shortly after the defendant sold to the plaintiff the premises and goodwill of the Lord Holland, he took and kept a public-house called the Duke of Cambridge, which house was alleged by the plaintiff to be within the distance of half a mile from the Lord Holland. The actual distance had been measured, and it appeared that taking the nearest walking distance, that is, cutting off corners, the distance between the two houses was twenty-five yards short of half a mile; that taking
the distance in a straight line, as a crow flies, the distance is seventy-five yards short of half a mile; but that taking the centre of the road, that is, following the course a carriage would take, the distance was nineteen yards over half a mile. At the trial, before Martin, B., he expressed his opinion that the distance should be measured in a straight line, or as the crow flies, and a verdict was accordingly taken for the plaintiff with 500l. damages, the defendant having leave to move as to the proper mode of admeasurement.
Parry, Serjt. and F. Turner, showed cause, and contended that the true mode of admeasurement was that by a straight line between the premises, or, as the crow flies, and cited: Leigh v. Hind (9 B. & C. 774), Atkyn v. Ward and Dennett (2 Star. N. P. 89), Stokes v. Grissell (23 L. J. 41, C. P.), Reg. v. Saffron Walden (9 Q. B. 76), Jewell v. Stead (25 L. J. 294, Q. B.), Lake v. Butter (24 L. J. 273, Q. B.), Wing v. Earle (Cro. Eliz.), Dingman v. Walker (28 L. J. 867, Ch.).
Garth, Q.C. and A. L. Smith, for the defendant, argued that the true principle of admeasurement was the distance a person would have to traverse in going from the one house to the other, and that that is the principle which is uniformly adopted by the trade in such cases. They relied upon Leigh v. Hind (9 B. & C. 774).
The COURT said the question involved was so very important that the court would consider it and give a written judgment.
Cur. adv. vult.
Attorneys for the plaintiff, Stileman and Neate. Attorneys for the defendant, Shum and Crossman.
ACKFORD V. BARELLI AND ANOTHER.
Agreement to pay money in consideration of forbearance to take legal proceedings-Absence of legal right to take such proceedings. THIS was a rule obtained on the part of the defendants to enter a nonsuit pursuant to leave reserved. The action was brought upon a contract entered into under the following circumstances: The two defendants were sons of the father of the plaintiff by a former wife, the plaintiff being his second wife and his widow. The former wife had been living separate from her husband for many years prior to her death, and (as the plaintiff alleged) the plaintiff, believing her husband to be a widower, married him. It also appeared that she was her husband's niece. She had a famliy of three children by him, and they, together with the two defendants, lived together as one family, At the death of her husband, who died intestate (the former wife having been dead some years), she claimed a share of his property, whereupon the defendants entered into the following agree ment in writing with her: "In consideration of your abstaining from making and forbearing to make any claim against our late father's estate, we hereby respectively undertake to pay you over one-third part of the net value and proceeds of the estate up to the time of his decease." Having refused to fulfil this contract, the present action was brought. In her evidence, she stated that she honestly believed that she had the claim that she made; and the jury stated that they believed her evidence throughout.
Manisty, Q. C. and Joyce showed cause, tended that there was a good consideration for the agreement, there being no fraud, and the plaintiff honestly believing that her claim was just. They cited Callisher v. Bischoffcheim (L. Rep. 5 Q. B. 449).
Dr. Kenealey, Q, C. and Macrae Moir, in support of the rule, argued that the agreement was void, as being wholly without consideration, for that the plaintiff had no pretence of any legal claim. They cited Comyn's Dig. art., Action on the Case; Edwards v. Ball (11 M. & W. 641), Greenleaf v. Barker (Cro. Eliz. 194), Jones v. Ashburner (4 East, 461), Wade v. Simeon (2 C. B., N. S., 548), Burn v. Tucker (4 Taunt. 117), Longridge v. Dorville (5 B. & Ald. 117), The Duke de Cadaval v. Collins (4 Ad. & Ell 858), Graham v. Johnson (38 L. J. 374, Ch.)
Cur adv. vult.
BAIL COURT. Wednesday, Nov. 22. FELL v. WHITTAKER. distress-Right to sue for-Property in goods-Husband and wife. ACTION for excessive distress and for money had and received by the defendant to the use of the plaintiff. Pleas: Not guilty by statute 11 Geo. 2, c. 19, s. 21. Issue. The plaintiff occupied a house as tenant to the defendant. He became in arrear with his rent, whereupon the latter distrained goods on the premises, which were the property of the plaintiff's wife, vested in trustees for her use under a deed of assignment. The plaintiff, his wife, and one of the trustees lived together. The sum claimed by the landlord was double the amount of rent really due, and goods to a far greater value were seized by the bailiff, who declined to withdraw until a guarantee was given to him for payment of the whole sum demanded.
This was, however, given, and he went away after having been in possession a little while. The action was tried in the Salford Hundred Court, the judge of which nonsuited the plaintiff. A rule having been obtained to set aside the nonsuit and for a new trial:
Herschell showed cause, and contended that the plaintiff had no right to the goods, was not dam. nified by the seizure, and could not maintain the action.
Heywood in support of rule.
The COURT (Hannen and Lush, JJ.) held, that the plaintiff's right to the enjoyment of the goods was such as entitled him to sue, and that the case, therefore, should have been left to the jury. Rule absolute. Attorneys for the plaintiff, Williams for T. W. Evans, Manchester.
Attorneys for the defendant, Cunliffe and Co., for Brown, Manchester.
COURT OF PROBATE.
Will-Wife nominated executrix for life, and failing her other executor nominated-On the death of wife probate granted to substituted executors, S. H. FORSTER, late of Holme, Regent's-park, in and not to wife's representatives.
the county of Middlesex, died 1st Dec. 1858, leaving a will dated 24th July 1857, which concluded thus: "I do hereby authorise my executrix and executors, hereinafter nominated, to continue any security or securities which I may die possessed of, for any term in their discretion not exceeding trusts aforesaid in this my will contained. Ånd I five years from my death, notwithstanding any nominate and appoint my said wife sole executrix of this my will, and in default of her I nominate and appoint the said John Knowles and R. Forster to be the executors of this my will." Probate of the will was granted to the wife, Maria Isabella Forster on 27th Dec. 1858, and she died 25th May 1871, leaving a will duly executed, of which she appointed the said John Knowles and R. Forster, together with Topman Moreley, Benjamin Haigh Allen, Christopher Procter, and John Rae Campbell, the executors. The question at issue was whether the executors of Maria Isabella Forster were the personal representatives of the deceased S. H. Forster, or whether John Knowles and R. Forster were not entitled to probate of his will as substi tuted executors, Maria Isabella Forster failing howsoever.
executors named, moved that probate be granted Dr. Swabey, on behalf of the two substituted to them with the consent of the wife's executors.
The COURT held that the executorship was given to the wife for her life, and, failing her, to the other two executors, and directed probate to issue as if she had been Lominated executrix for
Solicitors, Tatham and Procter.
THWAITES V. TIBBITS.
Testamentary suit - Aministrator pendent lite refused on security being given to the amount of the plaintiff's interest.
THE plaintiff in this case propounded a will of the late Mrs. Thwaites, under which he took a legacy of 10,000l. The value of the estate bequeathed by the late Mrs. Thwaites was between 400,000l. and 500,000l., and it had formed the subject of a previous suit, in which a subsequent will had been pronounced against as the result of a compromise to which the present plaintiff was not a party. Ballantine, Serjt. (Bayford with him) moved on behalf of the petitioner for the appointment of an administrator pendente lite.
The Attorney-General, (Sir J. D. Coleridge) (Dr. Tristram with him) objected. The defendants were willing to give security in any way to cover the plaintiff's legacy.
The COURT.-The court certainly would not think of appointing an administrator pendente lite in a case like this, where there have been previous proceedings, and where the only person interested in this cuit can have ample security for the amount of his legacy.
Motion refused, on condition that the defendant give security for the amount of the plaintiff's legacy with interest in such manner as may be satisfactory to the registrar.
India, had since the decree obtained his promotion from the rank of captain to that of major.
Poulter, for the wife, now applied for an increase in the permanent alimony corresponding with the increase in his pay. Notice of the application has been given to the husband's attorney who acted for him in the suit.
Lord PENZANCE, J.O.-I do not think the court can make an order of this kind behind a man's back. It is not as if the suit were going on, and this were alimony pendente lite. The suit being concluded there may be no communication between the attorney and the respondent. You had better serve some of his relations with notice. Poulter also applied for an order on the husband to pay the arrears of alimony amounting to 6501. Lord PENZANCE, J.O.-You have an order on him to pay the alimony. What more can you have?
Poulter.-If there were an order of court on him to pay the arrears, specifying the amount, the India Office would recognise it, and take steps to compel him to pay.
Lord PENZANCE, J.O.-If it is of any use there may be a further order on him to pay the arrears.
WILSON. WILSON AND STOWELL. Matrimonial suit-Alimony pendente lite-Commission to examine witness in Scotland-Wife's costs.
THIS was a husband's petition for dissolution, and the wife had presented a petition for alimony. Inderwick, on her behalf, now moved for a commission to examine witnesses in Scotland, and for an order on the husband to produce his books before the commissioner.
Searle, contra.-This is the first time such a commission has been asked for in a matter of alimony.
Lord PENZANCE.-The court, in these matters always considers what would be the least expense to the husband, and it certainly would be less expense to him to have these witnesses examined in Scotland than to bring them up to this court. The commission may go.
Inderwick asked that, in accordance with the usual practice when a commission was granted, the wife might have a certain sum secured to her for the costs of the commission.
Searle, contra.-The costs ought to abide the event. If the husband's answer to the petition for alimony turned out to be correct, he ought not to be called on to pay the costs of an unnecessary inquiry.
Lord PENZANCE, J.O.-The court has never been accustomed to make an order on the husband to furnish the wife with costs for an intermediate inquiry into alimony.
Newman, Dale, and Stretton for petitioner.
AUSTIN v. AUSTIN.
Judicial separation-New charge of cruelty. THIS was a wife's petition for a judicial separation on the ground of cruelty. The citation was served Nov. 23, 1870, and the husband's answer denying the cruelty was filed Jan. 12, 1871. The case was set down for trial at the sittings after last term, but was then postponed at the instance of the wife, and it stood for trial at the present sittings. Inderwick now moved to add two new charges of cruelty.
Lord PENZANCE, J. O.-It would be opening the
(Before the Full Court, Lord PENZANCE, J.O.,
Dr. Spinks, Q.C. and Inderwick on her behalf, now contended that the Judge Ordinary had exceeded is powers in making this order without the con
sent of the other judges of the court. The order
Searle for the petitioner, was not called on, and
COURT OF BANKRUPTCY.
Ex parte ROBERTS; Re Burdett.
his credit by Roberts; in fact, he made the pay-
By Mr. BEADELS, at the Mart. Essex, near Witham. An estate, known as Latneys," with residence, homestead, and 56a. 3r. 18p.-sold for 30007. By Messrs. FAREBROTHER, LYE, and WHEELER. for 22007.
Hyde-park. No. 34, Connaught-square, term 52 years-sold
By Messrs. C. C. and T. MOORE.
Friday, Nov. 17.
By Messrs. NORTON, TRIST, WATNEY, and Co., at the Mart.
Tuesday, Nov. 21.
By Messrs. DRIVER, at the Mart.
Wednesday, Nov. 22.
By Messrs. EDWIN Fox and BorsFIELD.
-sold for 5101. ench.
De Gex, Q. C. and Day appeared for the appellant. The only question was whether the bankrupt No. 64A, Harriet-mews, stabling, same term-sold for 8102. had any right to complain of the seizure made by Roberts. The only ground upon which he could have sustained a bill for an injunction to restrain the appellant from seizing was that he had fulfilled his covenant by indemnifying Roberts, or that Roberts had not made these advances upon the faith of the bill of sale. In the present case the payments, though nominally made by the bankrupt, were really made by Roberts, and these were covered by the bill of sale, and formed the consideration of that deed, payments which were not covered thereby. They cited Vaughan v. Leslie (2 Ba. & Be. 509), Curtis v. Rush (2 V. & B.) Little, Q. C., and Reed, for the respondent, contended that the bill of sale was absolutely void at law, that the notes accepted by Roberts constituted a new security; and that by accepting the new security Roberts abandoned the old. Moreover the default upon which the bill of sale was to come into operation had never taken place. They cited Chitty on Contracts 677-8; Jarman on Mortgages, vol. 4, pp 529, 534.
De Ger in reply.
The CHIEF JUDGE recapitulated the facts of the case, and said: In point of law this is as plain a case as can be. This bill of sale was given for no other purpose than to protect Roberts against claims which might be made against him as surety by the executors of Strange. Is that bill satisfied? Beyond all question it is. The money is received by the person against whose claim that bill of sale was to insure the appellant, and that being so the bill of sale is absolutely satisfied at law. The sums paid by the bankrupt in discharge of the instalments as they fell due, were paid by the money which had been placed to
Clapham-road, Nos. 18 and 20, Binfield-road, term 70 years
A prospectus of the Bilbao Iron Ore Company (Limited) has been issued. Its capital is 500,000. in 10,000 shares of 501. each. 21. to be paid on application and 81. on allotment. 51. in six months; 51. in nine months; 51. in twelve months. It has been formed for the purpose of acquiring the concessions from the Spanish Government, held by Sir John Brown and William Fowler, Esq., of the extensive and valuable iron mines known as the Mines of Galdames (called La Escarpada), La Cenefa, Berango, Moruecos, and El Cerrillo, near Bilbao, all in the province of Biscay, and for working the same, and for making and working railways in connection therewith, and for other purposes as set forth in the memorandum of association. The mines of the Bilbao district have been worked from time immemorial, are celebrated for their purity and richness, yielding from 50 to 60 per cent. of metallic iron, and the analysis of the ores proves they are the nearest approach in composition to the hematites of Cumberland.
Nov. 25, 1871.]
NOTES OF NEW DECISIONS. DOMICILE-DOMICILE OF BIRTH-ABANDONMENT OF.-A Frenchman who had taken up his residence in England in 1833, and continued to reside there until his death in 1868, was held to have acquired an English domicile, although in 1861 he refused to become a naturalised British subject, as he was unwilling to lose his status as a French citizen: (Brunel v. Brunel, 25 L. T. Rep. N. S. 378. V.C. B.)
ADMINISTRATION-APPLICATION FOR JOINT GRANT TO NOMINEE OF NEXT OF KIN AND PARTIES ENTITLED IN DISTRIBUTION-20 & 21
VICT. c. 77, s. 73.-In the absence of special circumstances the court declined to make a joint grant to parties entitled in distribution and the nominee of the next of kin, who was an old lady of eighty-one, and unable to attend to business: (In the Goods of P. Richardson, 25 L. T. Rep. N. S. 384. Prob. Ct.)
PRACTICE-BILL AND INFORMATION-SPECIAL ORDER TO AMEND-AFFIDAVIT IN SUPPORT OF.
THE LAW TIMES.
given him a receipt for the balance in full dis-
By the affidavits of Harding and others, the
Middlesex, dairyman, Dec. 20; Capron and Co., solicitors,
DARBISHIRE (Samuel D.), Esq., Pendyffryn, Carnarvon.
GATES (Jno.), West Grinstead, Sussex. gentleman. Dec. 30;
Clutton and Haines, solicitors, 10, Serjeant's-inn, Fleet-
GORHAM (Ruth), Uxbridge-common, Middlesex. Dec. 31:
Pritchard, in support of the summons, having stated the facts, contended that no agreement whatever could preclude a client from his right to see his attorney's bill, it had been repeatedly IMLACH (Henrietta), 47, Hope-street, Liverpool. Dec. 7: decided that all agreements made between these parties to receive a fixed sum for costs were illegal, and likely to cause both dissatisfaction and fraud. The recent Attorneys' Act did not affect the matter in question.
Brydges and Mellersh, solicitors, Public Offices, Chel-
MALLALIEU (William), Ockbrook, near Derby. Dec. 31; John
square, Middlesex. Dec. 23; F. H. Turner, solicitor, 40.
OAKELEY (Edward), Esq.,, Charles-street, St. James's
PRYCE (James E. C.), Bombay, East Indies, Master Atten-
Staffs, farmer and merchant. Jan. 1; Hacker and Allen,
Walker, solicitor, 18, Lendal, York.
SMITH WI.) Darlington, banker's clerk. Feb. 2; W.
A. B. Carpenter opposed the summons. admitted that in many instances an agreement by an attorney to accept a fixed sum for costs from -Although the Consolidation Order ix., by rules 14 his client was illegal, but this description of agreeand 16, requires that a special order to amendment was valid, it having been entered into subshall not be granted unless upon affidavit of the sequently to the settlement of the action. He plaintiff and his solicitor that the amendments cited Re Whitcombe (8 Beav. 140), where Lord have been approved by counsel, and are not in- Langdale held that the agreement was valid, tended for vexation or delay, and not by the soli- although it ought to be looked upon with jealousy; citor alone, unless the plaintiff is unable to join also Re Newman (30 Beav. 196), in which case therein, the rule does not apply to the case of he depended upon the dictum of Sir John Romilly information and bill, in respect of which such (Master of the Rolls) who decided that there was a fixed sum for attorney's charges, when made special order may be obtained on the affidavit of a vast distinction between an agreement to accept TINDALL (Thompson), Scalby Mill, Scalby, York, miller. after the proceedings, to those cases where it had was pending; also Stedman v. Collett (17 Beav. been entered into previously, or while the action 608), where it was decided that the settlement of a solicitor's bill by the client for a fixed sum is valid, and will not be disputed by the court, when WATTS (Henry), Anerley, Surrey, gentleman. Dec. 31; it has been entered into fairly and with proper knowledge on both sides.
the solicitor alone, where the proposed amendments have been approved and signed by the Attorney-General: (The Attorney-General v. The Castleford Local Board of Health, 25 L. T. Rep. N. S. 371. M.R.)
SETTLEMENT BY SON IN FAVOUR OF FATHER -BILL TO SET ASIDE-UNDUE INFLUENCEDELAY IN SEEKING RELIEF.-A son, when at the age of twenty-one, and while residing with his father, made a settlement in favour of his father, who was at the time in receipt of a comparatively small income, whereas the son was in affluent circumstances. Fourteen years afterwards the son filed a bill to set aside the settlement on the ground of his youth, inexperience in business, want of proper advice, and undue influence on the part of his father at the time of its execution : Held, that, upon the evidence, no proper ground had been shown to induce the court to set aside the settlement, and that, in any case, the delay in filing the bill was fatal. The principles upon which the court interferes to set aside family arrangements stated: (Turner v. Collins, 25 L. T. Rep. N. S. 374. V.C. M.)
- ACQUIESDEMURRER-BREACH OF TRUSTCENCE-A testator appointed a personal guardian of his illegitimate children, to whom he bequeathed a bond debt, and the guardian became possessed of the bond, but took no steps to enforce it, and the debt became irrecoverable. Shortly afterwards the wards were made acquainted with the existence of the bond, but took no steps against the guardian in respect of it. On the death of the guardian, thirty-eight years afterwards, they filed a bill against his executors to recover from his estate the amount of the bond debt and interest. On demurrer to the bill, held, that the plaintiffs were barred by their acquiescence: (Sleeman v. Wilson, 25 L. T. Rep. N. S. 408. V.C. B.) COMMON PLEAS OF LANCASTER-CAUSE TRIED BEFORE WHAT COURT AT THE ASSIZES NEW TRIALFOR A BE MADE MOTION TO 4 & 5 WILL. 4, c. 62, s. 26.-When an action is brought in the Court of Common Pleas of Lancaster, and tried at the assizes, a rule for a new trial, &c., must be made in the Court of Westminster of which the judge who tried such Where, therefore, such an cause is a member. action was tried before Kelly, C.B., and a nonsuit was entered, this court refused to entertain a motion to set aside the nonsuit and for a new trial: (Cox v. Sillen, 25 L. T. Rep. N. S. 425. Q. B.)
(Before Master JOHNSON.)
Attorney and client-Costs-Agreement to take a
and client to accept a fixed sum for costs, although
THIS was a summons by Harding, the plaintiff in a recent action in one of the Superior Courts, calling on a Mr. Davies, his attorney, for the delivery of his bill of costs. It appeared that the action just alluded to had been compromised, and subsequently the plaintiff had agreed with Mr. Davies for a fixed sum to be received by the latter for doctor's bills, attorney's charges, &c., and had
Master JOHNSON referred to Philby v. Harle (29 L. J. 370, C. P.) for the consideration of which case the summons was adjourned until Nov. 10. Philby v. Harle was an action by the attorney to recover a sum agreed to be paid him by his client before it became due.
Nov. 10.-Master JOHNSON said he thought Harding had a right to see his attorney's bill, he considered the dicta in the last cited authority to a bill of costs; but he based his order more partiwent to show that a client was in all cases entitled cularly upon Tanner v. Lea (5 Scott Rep. 237), which appeared to him, to be almost precisely in point. bill, although an ascertained sum had been received The court had there ordered the delivery of the for costs after the settlement of the action. It would be afterwards open to argument, as to whether the bill so delivered should be taxed or Order made. not. He therefore made an order for the delivery
of the bill.
CREDITORS UNDER ESTATES IN CHANCERY.
Dec. 22; Drawbridge and Rowtree, solicitors, 74, New-
TWEDDELL (Hubbersty, M.), Esq., 35, Abbey-road, St.
ULLATHORNE (Ann H.), 39, Kensington-park-gardens, Mid-
Bridges and Co., solicitors, 23, Red Lion-square, W.C. WILSON (Wm. H.), Esq., 6, Victoria-street, Westminster, and Chapel House, Battersea, Surrey. Dec. 17; Baker and Co., Solicitor, 6, Victoria-street, Westminster.
HEIRS-AT-LAW AND NEXT OF KIN. COULSON (George), 20, Marlborough-road, Peckham, Surrey, bill discounter, heir-at-law and next of kin to come in by Dec. 22, at two Dec. 15, at the chambers of V.C. W. o'clock, at the said chambers, is the time appointed for hearing and adjudicating upon such claims.
The following extraordinary advertisement ap-pears in the Manchester Guardian of the 21st
all legal business at one-tenth the usual charges, is
LAW. The address of a popular Attorney, transacting 17, Exeter-street, Devonshire-street, Ardwick.
NOTES OF NEW DECISIONS. BENEFIT BUILDING SOCIETY-WINDING-UPADVANCED PRACTICE BORROWING POWERS MEMBERS.-The court will not make an order to wind-up a benefit building society compulsorily on the petition of advanced members, contrary to the wishes of the majority of the creditors and the contributories, unless a plain injustice will be done to the petitioners by refusing the order. The trus tees of a benefit building society under 6 & 7 Will. 4, c. 32, were by the rules authorised from time to time, as might be necessary for the purposes of
FOWLER (Walter M., St. Michael's-alley, Cornhill, E. the society, to borrow money, for which they
and Redclyffe-road, West Brompton, Middlesex, stock
HARROP (Jas.), Dukinfield, Chester, pawnbroker. Dec. 7;
at 12 o'clock.
JONES (Hugh), Esq., Bryngwyn-hall, Flint. Dec. 30; Bar-
Jan. S; M.R., at eleven o'clock.
CREDITORS UNDER 22 & 23 VICT. c. 35.
were to be indemnified out of the first funds of
society could not be sued for the sums due to the depositors: (Re the Professional, &c., Building Society, 25 L. T. Rep. N. S. 397. L. JJ.)
POOR LAW-SETTLEMENT-PARISH NOT MAINTAINING ITS POOR-ASSOCIATION OF TOWNSHIPS FOR RATING PURPOSES.-The ecclesiastical parish of Old Swinford never maintained its own poor; but the township of Upper Swinford, within the said parish, and three other townships also therein, from time immemorial associated together under the designation of the "parish of Old Swinford,' jointly appointed overseers, and made rates for the relief of their poor. The four townships, how. ever, disjointed, pursuant to a mandamus directed to one of them in 1842, and separate overseers have since been regularly appointed, and separate rates made for each. The township of Upper Swinford now forms part of Stourbridge Union, which comprises the parishes and places of Stourbridge, Old Swinford, &c. A. was born about the year 1804 in the township of Upper Swinford. The wife and children of his son, paupers, were entitled to derive a settlement from the birth settlement of A., and were therefore adjudged by an order of justices to be legally settled in the parish of Old Swinford, and to be removable to the Stourbridge Union: Held, in consequence solely of the decisions in Reg. v. The Inhabitants of Tipton (3 Q. B. 215), Reg. v. The Inhabitants of Hunnington (5 Q. B. 273), and successive similar cases, that as there had been a change in the chargeable area wherein the birth settlement of A. lay, by the separation of the united townships, the paupers had no legal settlement there, and that the order was bad: (Guardians of Stourbridge Union v. Guardians of Droitwich Union, 25 L. T. Rep. N. S. 411. Q. B.)
NOTES OF NEW DECISIONS. LIEN - PRIORITY - SHIP'S AGENT - SHIP- WAGES - REPAIRS MERCANTILE ACCOUNT.-The master of a ship has a maritime lien on her for his wages and disbursements, and his claim takes priority over all other claims, save claims for salvage and damage by collision. A ship's agent was appointed by the master on his arrival at B. He had no previous knowledge of either master or owner, but made no inquiries as to how he was to be repaid his advances for necessaries. He allowed the vessel to be placed in the hands of a shipwright to be repaired, and when her value was by this means increased, caused her to be arrested: Held, that he was not entitled to be paid his claim in priority to the shipwright. Where there are several claimants against the proceeds of a vessel in the registry, and she has been sold at the suit of one, the costs of such sale will be paid before all claims, as such sale was for the benefit of all: (The Panthea, 25 L. T. Rep. N. S. 389. Adm.)
PRACTICE-COSTS-BAIL-RE-ARREST OF SHIP -ADMIRALTY CONTRACT.-Where a suit has been instituted for an estimated amount to cover damages and costs, and the damages recovered and the costs taxed are a larger sum than the bail given, and there has been no carelessness on the part of the plaintiffs, the court will issue a writ under the Admiralty Court Act 1861, ss. 22 and 15, for the re-arrest of the ship to satisfy the costs, and will direct such writ to the marshall for execution. The fact that generally the amount in which a suit is instituted is laid to cover probable damages and costs is simply a matter of convenience: (The Freedom, 25 L. T. Rep. N. S. 392. Adm. Ct.)
BRITISH VESSEL IN UNITED STATES COURTWAGES-PROTEST OF BRITISH CONSUL-VOYAGE NOT ENDED JURISDICTION.-A crew shipped in a British vessel for a voyage "from Liverpool to Bombay and any ports and places in the Indian, Pacific, and Atlantic Oceans, and China and Eastern seas, thence to a port for orders, and to the Continent, if required, and back to a port of final discharge in the United Kingdom, term not to exceed three years." On arriving at Boston on the return voyage, the crew claimed their wages as per schedule, and brought a suit in the United States Court. The British acting consul protested against the jurisdiction, on the ground that the voyage was not ended, and that by English law British seamen are not permitted to sue in foreign ports unless discharged there, or so illtreated as to be put in fear of their lives. Held, that although the couat might doubt the validity of the ship's articles, it could not, in the absence of special circumstances, entertain the suit against the protest of the British consul: (The Becher dass Ambaidass, 25 L. T. Rep. N.S. Un. St. Adın.)
Master Park, of the Common Pleas, died on Tuesday night, aged 70.
Mr. Francis Snowden, of the Western Circuit, has been appointed Senior Magistrate of the Straits Settlements.
could hardly have held that such words ought to have put the defendant upon inquiry since they are frequently used when there is no partnership. I decide this case on the authority of Ramazottiv. Bowring (29 L. J. 30, C. P.), Jemenza v. Brinsley (34 L. J. 161, C. P.), De Mantort v. Saunders (1 B. & Ad. 398). The conclusion of fact at which I arive is, that Newell permitted Coling to appear as sole trader, that Whitley was induced to believe, and did believe him to be a sole trader, and conse quently the right of set-off attaches. Verdict for defendant.
LIVERPOOL COUNTY COURT. Friday, Nov. 17. (Before JOHN GILMORE, Esq., Deputy-Judge.) THE UNION.
and harbour dues.
Demurrage-Payment of town dues-Mersey docks CAPTAIN DOOLITTLE, master of the coasting schooner Union, brought an admiralty suit against Mr. William Broomham, merchant, of Liverpool, to recover 381. 18s. 10d. for demurrage, for the detention of the vessel.
Gully (instructed by Masters and Fletcher), appeared for the plaintiff.
Segar (instructed by T. and T. Martin) for the defendant.
NOTES OF NEW DECISIONS. LOCAL CUSTOM OF BANKERS-BILL OF EXCHANGE-PROVISIONAL PAYMENT ACCOUNTS MISTAKE CORRECTION OF ERRORS AT DAY END. The plaintiffs, customers of defendants' Branch Bank of England at Newcastle-upon-Tyne, paid in to the defendants a bill of exchange accepted by H., which the defendants discounted, placing the amount, less discount, to the credit of the plaintiffs in their books. On the morning of the day the bill fell due the defendants' clerk took it to the banking house kept by L. and Co., where it was payable, for the purpose of ascertaining, according to the practice among the bankers at Newcastle, whether it was in order for payment and would be paid. Upon presentation, the bill was, in accordL. and Co. for payment, and a credit note was given ance with the above-mentioned practice, marked by indicating that it, with other moneys, was in order for payment and would be paid. At 2 p.m. the defendants' clerk took all the cheques drawn on L. and Co. to the bank of the latter, together with the said credit note, which was admitted into the total amount, and a cheque upon the Branch Bank of England was handed by L. and Co. to the clerk for the balance due to the defendants. The Newcastle banks close to the public at 3 p.m., but the defendants' bank keeps open until 4 p.m. for the other bankers only to attend there during those hours for the purpose of having the day's accounts between them and the Branch Bank investigated, and of rectifying any mistakes and errors of any kind that may have arisen in the course of the day, and of finding and stating final balances between them. All mistakes and errors made in the course of the day are subject to correction during that investigation. At 3.30 p.m. on the day in question, L. and Co. discovered that H. had stopped payment. They sent to the defendants, declared that the bill had been paid by error, and requested them to take it back. This the latter did under protest, reserving their rights. The amount of the bill had then been placed to the debit of L. and Co. in the banking account kept by them at the branch bank. The defendants afterwards treated the bill as dishonoured, and passed the amount thereof to the debit of the plaintiffs' account. On a special a case,-Held, that as the defendants failed to show that the giving of the cheque by L, and Co. for the bill of exchange was a mere provisional transaction subject to rectification at the end of the day, the plaintiff was entitled to have credit with the defendants for the amount of the bill: (Pollard and another v. The Bank of England, 25 L. T. Rep. N. S. 415. Q. B.)
BLOOMSBURY COUNTY COURT.
NEWELL AND COLING v. WHITLEY.
Set-off of private debt against partnership_debt allowable when there has been no sufficient publication of the partnership.
Williams (Solicitor) for the plaintiffs. Dodd (barrister, instructed by Taylor, Kingsroad) for the defendant.
The facts, and cases cited, sufficiently appear from the written judgment of the Court
It was stated that the plaintiff's vessel brought cargo of coal to Liverpool; that it was contracted that the cargo should be received by the defendant when the vessel got into a berth; that for the defendant's own convenience he did not do this, and that, therefore, the demurrage claimed arose. It was stated that 211. 13s. 6d. had been paid into court as a tender; but beyond that amount the defendant was not liable, as the delay was the result of the plaintiff's laches. A question arose in the case involving the sum of 15s. 4d., which had been paid by the captain for town dues, and which he sought to recover, but which was contested by the defendant on principle.
During the discussion of this point Segar said he could not find in any of the Acts of the Mersey Docks and Harbour Board power to enforce the payment of town dues.
His HONOUR said he scarcely thought this could be so, for it would affect the collection of large amount of the revenue of the port of Liverpool.
Mr. Registrar Hime: About 100,000l. a year. Gully said that under the Mersey Docks and Harbour Act 1857, the town dues were transferred to the Dock Board. The 32nd section of that Act said that "all such powers, rights, and privileges of imposing or collecting any of the dues, herein. before called town dues and anchorage dues, as are now vested in, or have been lawfully exercised by, the Corporation of Liverpool, shall from Jan. 1858, be transferred and vested in the board."
His HONOUR held that the plaintiff was entitled to 11. 5s. 4d. demurrage, including the 15s. 4d. town dnes, beyond the amount paid into court.
NOTES OF NEW DECISIONS. LIQUIDATION BY ARRANGEMENT-ADJOURNMENT OF MEETING OF CREDITORS-RESOLUTION, VALIDITY OF-VOTING-SIGNING BY CREDITORS
given-REGISTRATION.-A resolution to adjourn a meeting of creditors under a petition for liquida tion by arrangement, in order to be valid must (like any other resolution) be reduced into writing, and must be signed by the proper majority of the creditors who have proved their debts, and are present at the meeting. It is not necessary that the c:editors who dissent from the resolution should evidence their dissent by any writing, as the resolution cannot be carried unless it is signed by the proper majority in value of assenting creditors. A creditor who does not wish to take any part in the voting, must withdraw his proof as provided by rule 273. At a meeting of creditors, under a petition for liquidation by arrangement, a resolution to adjourn the meeting for a week was proposed, and was declared by the chairman to be carried. adjourned meeting was held, and the creditors then passed a resolution in favour of liquidation by arrangement. The resolution for adjournment was reduced into writing, and was signed by certain creditors present at the original meeting, who professed to be a majority of those present. They were, in fact, not a majority in value of those present. The County Court judge held that the resolution to adjourn was invalid, and that it could not be registered, and that all the subsequent proceedings were also invalid. The Chief Judge in bankruptcy directed the resolution to adjourn to be registered. On appeal, the decision of the Chief Judge was reversed, and that of the County Court judge affirmed: (Ex varte Orde; re Horsley, '25 L. T. Rep. N. S. 400. Ch.)
This is an action for wine sold, the defendant has given notice of his intention to prove a set-off against the price of certain wine, for which this action is brought. Prior to the delivery of the wine, Coling was indebted to Whitley, on account of goods supplied to him by Whitley, to a larger amount than the value of the wine. This private debt of Coling's, to Whitley, is now sought to be used as a set-off against the partner's claim for wine supplied by them to Whitley. The order for the wine was in writing and was directed to Coling alone. Whitley ordered this wine because he could not obtain from Coling payment in money; there was no agreement that the wine should be in payment of Coling's private debt, which distinguishes this case from a somewhat doubtful case of Mallace v. Kelsall, 7 M. and W. 264, cited in argument. No invoice was sent with words "Coling and Co." printed upon it; this the wine, but a delivery note was sent with the ticket was signed by the defendant's servant and then at once handed back to the carman who brought the wine, the defendant never saw it. There is a rule of law that a partnership debt cannot be set off against a private debt. But there is also a rule that the right of a principal, who keeps in the background, to intervene and claim the benefit of the contract, is subject to the condition that the other party to the contract is not prejudiced thereby. If the delivery note had even been an invoice, sent to the defendant himself, with the words "and Co." upon it I think I