EXCHEQUER. THE LAW TIMES. EXCHEQUER. to save himself trouble, now omits to enter or sign deposited with the clerk of the peace for the county any contract in the book, and still sends bought and of Surrey, the line of the said railway was proposed sold notes as before. If these agree, they are held to be carried close to the park of the plaintiff, in the to constitute a binding contract. If there be any parish of Leatherhead, in the county of Surrey, material variance between them, they are both nul- called Randolf's Park, and through some of his lities, and there is no binding contract. This last pro- fields in that parish; and that the plaintiff had, until position, although combatted by the plaintiff's coun- that time, dissented to and opposed the carrying of sel, has been laid down and acted on in such a long the said Bill into a law; but in consideration of the series of cases, that I could not venture to contra- covenants and agreements thereinafter contained, by vene it, if I did not assent to it. But where there is certain parties of the second part, the plaintiff then no evidence of a contract, unless by the bought consented thereto; It was witnessed that, in pursuand sold notes sent by the broker to the par- ance of the said agreement, and in consideration ties, I do not see how there can be a binding of the covenants therein contained, by the parties of contract unless they substantially agree. Where the second part, the plaintiff covenanted and agreed contracting parties must assent to terms, and where the terms in the two notes vided the same should pass into a law in the then the same with them that he would accede to the Bill, prodiffer, there can be no reason why faith should present session of parliament; and in consideration be given to the one more than to the other. This is of the assent to the Bill by the plaintiff, the decertainly a most inconvenient mode of carrying on fendants covenanted and agreed with the plaintiff as mercantile transactions. From the carelessness of follows:-That in the event of the said Bill passing brokers and clerks mistakes not unfrequently arise, into a law in the present or succeeding session of of which unconscientious men take advantage, and parliament, the company thereby to be incorporated no buyer or seller can be safe unless he has the sold should and would fulfil the following stipulations, note and the bought note as well, a precaution conditions, and agreement; first, that the company which the course of business does not permit to be should pay the said plaintiff for such of his lands taken. But these inconveniences can only be intersected by the line of the railway as might be remedied by the Legislature imposing on the broker required for the purposes thereof, or as might be a faithful performance of his duty in entering and severed from the remainder of the fields, as shewn signing the contract. being a material variance between the bought and the 1201. per acre, and so in proportion for any less quanIn the present case, there in the parliamentary plan, at and after the rate of sold notes, they do not constitute a binding contract. tity than an acre; such sum to include all damage and There is no entry in the broker's book signed by inconvenience to arise from the severance of the him, and if there were a parol agreement, there land and premises; and, secondly, that the said being no sufficient memorandum of it in writing nor company should pay to the plaintiff the sum of any copy, except the part taken, the Statute of 3,000l. as compensation for the general damage Frauds has not been complied with. I therefore which the said line should or might do to the managree with my brother Patteson that the defendant sion, park, and estate called Randolf's, including is entitled to our judgment. My brother Wightman, therein the crossing of the road near the enwho heard the argument, is engaged in another trance of the park by a bridge, and lowering place, but he authorises me to say that he has read the said road, and obstructing the view, and the this judgment, which I have now read, and that he disturbance of the privacy and seclusion of the entirely concurs in it. But the Court being divided, park and mansion, the expense of a temporary instead of making the rule absolute to enter the verdict residence during the progress of the works of the for the defendant, we think that a nonsuit should be said company, the depreciation in the value of the entered, so that the plaintiff, by a special verdict or residence, and the additional expense in the culbill of exceptions, may have the opportunity of tivation of the farm by reason of the alteration bringing a fresh action and taking the opinion of a of the road leading from Leatherhead, and all Court of Error on this point. With the most sincere other damage to be done to the mansion and deference for that member of the Court who differs park. And the plaintiff did thereby declare and from us, and with whom a Court of Error might agree to and with the parties of the second part, agree, we wish that the party should not be bound that on tender to him by the company or their agents by our judgment, but should have an opportunity of of the sum of 1207. per acre for all the land required reviewing it. Rule absolute to enter a nonsuit. for the purpose of the railway, and so in proportion for any less quantity of so much of the land required for the purposes of the railway, and also on tender to him by the company of the said sum of 3,000l. he would convey to the company the said land. The declaration then proceeded to state that the plaintiff, in pursuance of the said articles of agreement, assented to the said Bill passing into a law, and that liament next ensuing that after the making of the the said Bill passed into a law in the session of ParAn agreement was made between the plaintiff and corporated by the name of the Direct London and agreement, and the said company were thereby inthe defendants, provisional committeemen of a Portsmouth Railway Company. Breach.-As to the railway company, whereby the plaintiff cove- 3,0001. that although a reasonable time for the paynanted_to_accede to the passing of the Billment of the said sum had elapsed before the comthrough Parliament (which he had previously mencement of the suit and since the passing of the opposed), and in consideration of such assent the Bill into a law, and that the company at a reasonable defendants covenanted with the plaintiff that in time had been requested to pay the same, yet neither the event of the Bill passing the company should the said defendants nor the said John Laurie, or any pay to the plaintiff for such of his land inter- or either of them, had paid the same. To this desected by the railway as might be required or claration the defendants pleaded in like manner as severed, at the rate of 1201. an acre, such sum to to the whole declaration, as to the quantity of the include all damage to arise from severance, and said lands intersected by the line of railway, that also to pay the plaintiff 3,000l. as compensation they were not, nor was any part thereof, required by for general damage to the park, &c. &c. The the company for the purpose of the said railway, Bill passed, but the railway was abandoned: Held, per Parke and Platt, BB., Pollock, C.B. severed from the remainder of the land, as shewn and that neither was that, nor any part thereof, dissentiente, that the defendants were bound to upon the Parliamentary plans. To these pleas the pay the 3,0001. immediately after the passing of plaintiff demurred. the Act, notwithstanding the railway was not constructed, nor any damage done. COURT OF EXCHEQUER. Reported by C. J. B. HERTSLET, Esq. of the Middle Temple, Barrister-at-Law. May 2 and 12. BLAND V. CROWLEY. for damage-Consideration. This was an action of covenant, in which the plaintiff sought to recover against the defendants, amongst other things, the sum of 3,000l. which he alleged they had, by a contract in writing, become liable to pay. The declaration alleged that the defendants, Sedgefield Crowley and Benjamin Baines, and John Laurie, since deceased, on the 25th day of July, 1845, being three of the provisional directors of a company, registered provisionally, for the promotion of a Bill in Parliament to enable them to make a railway from the termination of the Croydon and Epsom Railway to Portsmouth, and which said company was intended to be incorporated and called the Direct London and Portsmouth Railway Company, by articles of agreement, made upon the 25th of July aforesaid, between the plaintiff of the first part, and the defendants, and the said John Laurie, therein described and since deceased, of the second part, and which articles of agreement, sealed with the seals of the defendants, and John Laurie, the plaintiff now brings into court, after reciting that, according to the parliamentary plans of the railway murrer. Peacock, for the plaintiff, in support of the de Cur, adv. vult. in this case, is, whether, according to the true PLATT, B.-The question raised by the pleadings construction of the covenants of the defendants the payment of the sum of 3,000l. depended upon the company entering upon the plaintiff's land, or requiring for the purposes of the railway the whole or part of the plaintiff's land, intersected by the proposed line of railway. The solution of this question depends on the intention of the contracting parties, to be collected from the recital and stipulations in the deed; and by the recital the sole object of the contract with the directors appears to have been to buy off the plaintiff's opposition, and the object of the plaintiff to have been to secure the price for which he would abandon it. Such being the respective objects, the plaintiff, in consideration of the covenants and agreements of the directors, contracted with the directors to assent to the Bill, provided it should pass into a law within a particular period; and the defendants, in consideration of the EXCHEQUER. 267 assent given to the Bill by the plaintiff, covenanted with the plaintiff, that in the event of the said Bill passing into a law in the present or the ensuing session of Parliament, the company incorporated thereby should pay for such of his lands as were intersected by the line of railway, as might be required for the purposes thereof, at a certain rate per acre; and, secondly, that they should pay to the plaintiff the sum of 3,0007. in full compensation for certain damage which the said line of railway might do to the said mansion, park, and estate called Randolf's, including therein crossing the road near to the park, and other particular kinds of damage to the estate. The particular description of damage pensation does not appear to me to shed any light agreed to be included in that as the subject of comon the construction of the covenant. It seems to have been added in order to protect the company from any further claim for compensation; and it should be observed, that the damage for which the compensation was to be paid might include damage particularly specified. It does not follow that it excluded all other damage which might result from the company's Bill passing into a law, such as the depreciation of the value of the plaintiff's estate, resulting from a portion of it being, during the period prescribed for executing the works of the company, subject to the exercise of their tion unnecessarily, the fact was, he was so enover it. titled. Without further embarrassing the quespower the money is to be paid in the event of the Bill passing into a law; if either event was to happen before, the liability of the parties was to attach. No By the covenant between the parties other event is mentioned in the covenant. The liability could not have been ascertained until after the company entered on the land, which is one of the pleas. The plaintiff was not bound to give them possession until they had tendered not only the price of the land, but the 3,0007. the sum stipulated in the deed. The deed does not contain any clause tending to shew that the liability to pay the compensation was to be dependent on the company requiring the land for the purpose of the railway. The contracting directors covenanted that in the event of the Act passing, the incorporated company should pay such certain compensation for general damage by them to be done to the plaintiff's estate, and the sum was ascertained; and why should not the parties have agreed that it was to be paid forthwith? The plaintiff may have distrusted the power of the projectors to execute their contract, and to have anticipated them in his demand for any damage, which even in that case he would be likely to sustain. The argument to be deduced from the Lands Clauses Consolidation Act cannot, as it seems to me, alter the distinct terms of a contract. mit such alteration we should make for the contracting parties a bargain which they have not dreamt of If we were to perthemselves. On the whole, it seems to me that the given to this Act of Parliament, covenanted to pay defendant Laurie, in consideration of the assent compensation, and that in the same event that they for the general damage a sum certain by way of should pay also a stipulated sum for the acreage of such lands as might be taken of the property of the plaintiff, consisting, antithetically to general damage, of particular damage which the owner of the estate might have suffered. It seems, therefore, that these two pleas are insufficient as a bar to the action, and that the plaintiff is entitled to recover. pleadings in this case. true construction of the deed, which was prepared PARKE, B.-It is unnecessary for me to state the apparently in the confidence that, if the Bill for making the Direct Portsmouth Railway passed into The question is as to the a law, the promoters would certainly carry the underthe possibility that after the Bill passed the railway taking into effect. If the parties had contemplated would have been abandoned, it is probable a distinct ing no doubt whatever as to the intention of the provision would have been made for that event, leavcontracting parties. As the deed doubt may arise as to the intention, and also as to framed, some we can do is, to look to the words, and in construsent state of facts had been presented to them. All what the parties would have stipulated, if the preing the deed we must adopt the established rule of construction, to read the words in their ordinary grammatical sense, and to give them effect, and to make such a construction as does not lead to an absurdity or inconvenience, or would be plainly repugnant to the intention of the parties, to be collected from other parts of the deed. I think the parties have bound themselves by their covenant that the company is to pay the 3,000/. for which the action is brought immediately after the passing of the Act, although the railway should not be constructed, nor any damage done to the plaintiff. They have covenanted in the event of the Bill passing into a law in the present or the ensuing session of Parliament, that the company shall perform two covenants; first, that the company should pay at the rate of 1201. an acre for all land that might be required, and for damage by severance. If no land should be words of the deed, and according to their true EXCHEQUER. required the stipulated price would not be payable; the sum of 3,0001. before mentioned, he (the plainas none was required the defendants could not be tiff) will convey the lands and deliver possession. called upon to pay any part of the price. The second Now, I do not see that the order in which these stipu covenant is, that they are to pay 3,000l. to the lations are placed makes the one a condition preceplaintiff in full compensation for the general damage dent to the other; but in construing the words that which the line of railway should or might do to the the parties use, it may be not unimportant to conplaintiff's mansion and lands, including therein the sider that they have made two stipulations: the first crossing of the road near the entrance of the park by is, that the land shall be paid for; secondly, that a bridge, the lowering of that road and obstructing the damage shall be paid for. The present contention the view, disturbing the privacy of the park, the on the part of the plaintiff is, that the first stipulation expense of a temporary residence, the depreciation is of no importance whatever, and is no precedent in the value of the residence, the additional expense whatever with reference to the second; but that the in the cultivation of the farm by reason of the alteracompany was bound, and ought to perform the setion of the road leading to Leatherhead and other cond portion of the agreement, making no reference towns in the neighbourhood, and all other damage to POLLOCK, C.B.-The question is, what is the to the first at all. Inasmuch, however, as these two be done to the mansion-house and park. This latter true construction of the contract which the conditions are in the agreement, although mentioned covenant is a distinct and separate one; it is not parties have entered into? Two constructions together, I infer from them, and from the manner in made to be contingent upon the company requiring are presented to our attention. On the part which they are mentioned, that the agreement had the land. Then comes a covenant that the plaintiff of the plaintiff it is contended that the agree- reference to the question which, on the passing of should convey upon the tender of 1201. per acre and ment means that in consideration of the assent the Act, would arise between the plaintiff and the 3,000. There is no time stipulated for the pay- of the plaintiff to the passing of the Bill the defend- company, and that they really meant to provide that ment of the 3,000l. and the plaintiff is not bound to ants agreed that in the event of the Bill passing into instead of resorting to arbitration or to a jury, in convey at any time without a tender of the price of a law the company would fulfill certain conditions, the event of the Act passing, the claim of the plainthe land and 3,0001. thus obtaining a lien upon the one of which was to pay to the plaintiff the sum of tiff should in that case be considered to be settled by land for both. But the defendants are not bound to 3,0007. in full compensation for the general damage agreement, probably on very liberal terms,-the pay the 3,000l. at any precise and stipulated time; which the line of railway should or might do to the land to be at so much per acre, and the general all that they covenant is, that in the event of the mansion, park, and estate belonging to the plaintiff, damage at a gross sum; but that it was not intended Bill passing, the same shall be paid as a compensa- including certain heads of specified damage or injury, as accessory to the payment of one sum, still less to tion for special damage that shall or may be done, none of which, it is to be observed, not one single make the latter payment of 3,000l. payable instanter, and all other damage to be done. It is not said that individual source of damage which is there enume- and wholly irrespective of whether any lands should when the Bill is passed the money shall be paid, but rated, being of a description, that which would be taken or any damage done to it. It appears to only that in the event of its passing it shall be paid. arise from the actual construction of the railway, me that if this agreement had been entered into This difference in expression was pointed out by the none of the damage that has been alluded to by my after the passing of the Act, no doubt would have Court in the course of the argument; and it was learned brother Parke in his judgment just now, arisen as to its true construction; and if that suggested that the covenant was to be read in the such as, that the estate could not conveniently be be so, I own I do not see why it may not be consame way, in the event that has happened, of the sold in the meantime, or was liable to be taken, or was strued in the same way, though the agreement passing of the Bill, as if introduced into a deed pre- taken during the period of three years,-no such was made before the passing of the Act. It would pared after the Bill had passed; and if so, it could uncertainty in respect of enjoyment of the estate, or have been, on the other hand, that the owner of the not be contended to be a covenant that it was to be the possibility whether the railway could or not be land consented to the passing of the Act, which paid, unless damages of the nature supposed had constructed; no damage of that sort was mentioned; would be of no possible mischief to him whatever if actually accrued or occurred. Even so read, it would nothing is mentioned in the agreement except that the Act did not pass at all; and his consent to the have been questionable whether that would have description of damage which could alone arise from Act passing amounted to nothing, unless the Act did been the true meaning of the covenant. A diffi- the actual making of the railway; and the plaintiff pass; and the Act having passed, then arises the culty would have occurred as to the time of payment contends that the only condition precedent to his question what he shall be paid for his land, and said to be made when any damage, however small, recovering the money is the passing of the Act, and the compensation for damage, in the manner stipu occurred. If so, greatly more than this amount that the consideration he gave was his assent to the lated for by the agreement. And I understand the would be payable if the whole sum would become Bill; and he contends that as soon as the Bill passed plaintiff to say this: "If I assent to the passing of due, and there is no provision for the payment of a his title to the 3,000l. accrued. On the other hand this Bill, and do not oppose it, you must agree to a proportionate part. On the other hand, if it would the defendants contend that the agreement was, in stipulation that I shall stand in the same favourable be payable when all the past damage had been sus-effect, to settle the amount of damage as between position in respect of compensation, to be distinctly tained, the payment must be indefinitely postponed, the claimant and the company, when any damage ascertained beforehand, that I may have no extra and possibly would never arrive. But, in truth, this should be done; and that if the company should not costs to pay and no expenses to incur,-no unmode of considering the question, if the deed had prosecute the scheme at all it would not have certainity or anxiety to sustain." The expression been executed after the act, is certainly erroneous. to pay the sum of 3,000l. In construing this" shall or may," used with reference to the damage There is a great difference between such a covenant agreement I think we are entitled, and indeed to the mansion and other lands of the plaintiff, was before a Bill passes, and after a Bill becomes a law. I may say, that we are bound to consider not only urged upon us by the plaintiff's counsel as shewing After a Bill becomes a law there could be no reason the actual words of the contract itself, but all the that the sum of 3,000l. is to be paid whether any for paying money to the plaintiff except as compen-circumstances of the transaction, so far as the statute damage is done or not; but this argument certainly sation for actual damage. Before the Bill became a law and enactments in the public statutes have produced no effect on my mind, for the expression law, the plaintiff might oppose it, possibly with suc- reference to the subject matter. Now the public general damage "which the line of railway shall or cess, and the covenant not to oppose furnishes a good Act, 8 & 9 Vict. c. 18, commonly called the "Lands may do to the said mansion," &c. in my judgment, reason for making the covenant to pay absolute. It Clauses Consolidation Act," makes provision for is with reference to this Act especially, and the is to be the price given to the plaintiff for agreeing compensation, and enacts that lands may be taken making of the agreement, and the subject matter, and to give the company, through the medium of the for undertakings of a public nature; and I may here the statute. With reference to the rights of the parAct, a power for three years to affect his estate, by observe, that the very expression, “may be," which ties, in my opinion the expression shall or may exercising the powers of the Act; and the form of I have just used, does not mean may or may not be," is grammatically to be read "shall or may actually the deed in this case shews clearly that the plaintiff's be;" but " may be taken" as there used, is " may take place;" and if the word "actually" were in the consent was the consideration for which the de- be actually taken," not "may be" taken, possi- deed (and I think it ought to be read as if it were fendants covenanted the money should be paid. In- bly or contingently; but " may be" "actually" there), I think it is perfectly certain the plaintiff could deed it is expressly so stated. I cannot, therefore, taken. And it divides the compensation into two not claim the 3,000l. until some actual damage had consider this covenant of the defendants to be on parts,-namely, what is to be paid for the value of been done. And I may observe here, that in the the same footing as if introduced in the same words the lands to be purchased, and the sum of money 18th section of the Act, "damage that may be sus-, in a deed executed after the passing of the Act, as it to be paid as compensation for damage done to the tained" is an expression to be found; which exis a condition precedent to the covenant having com- other lands belonging to the same individual. As pression it is impossible to construe in any other way plete effect. The money is to be paid at some time, these clauses form part of the general law of the than as damage, not possible, but damage which and as no precise time is fixed, it is payable imme- land, not merely as being presumably known to all actually may be sustained. I think, therefore, that diately. It is not stated that it is to be paid as soon persons, but probably as having been referred to and that was what was intended to be referred to; as any damage shall be done, or after all shall be stated by those who framed this agreement, we are but it seems to me the very language, and the done, and the inconvenience above pointed out of entitled to look at these clauses just as much as if very agreement with reference to the language which the other construction forms a good reason for not they had been embodied in the agreement itself; the Act uses, expresses "shall or may be done," as adopting it. Neither can we say the payment ought and it appears to me that so reading the agreement, meaning "shall or may actually be done." Conto be at a period when, according to the provisions and so looking at the public law of the land, the sidering, therefore, all the circumstances which beof the Act, the time for assessing the damages would agreement between these parties was made expressly long to the agreement, and to the language used, I do arise, for that would be to alter the language, and to with reference to these clauses. Now, I find by the not find myself fettered by any such grammatical conintroduce new terms in it; and indeed all damage terms of the agreement, the company are to perform struction, opposed to the view I have taken, as comspecially mentioned, could not be the subject of the following stipulations and conditions,-which pels me to decide in a manner which I must say is, compensation to the plaintiff if the covenant had are two only; namely, first they are to pay for so I think, not only contrary to the intention of the not been introduced. The rule upon this subject much of the land as may be required, or as may be parties, but exceedingly contrary to the justice of the having been so lately laid down by the Court of severed from the remainder,-they are to pay for case, and to the general policy that should be obQ.B. and I think very rightly, that the test where that at the rate of 1201. per acre; and as the com- served in cases of a like nature. I must say, morelands are injuriously affected by the construction of pany are to purchase at that rate not only all the over, that I entertain no doubt whatever that the a railway is, whether if they are deteriorated in value land that is required, but all the land that is severed construction which I have put on the contract, is by an act done by an individual without the authority from the remainder, the price of the land naturally that which the parties intended; and I think it is of an Act, the landowner might obtain compensa- and necessarily includes the price of severance. If the far better and more reasonable construction, and tion. And indeed the damages enumerated do that be all that is severed, there can be no for that reason I adopt it. The whole scope of the form a reasonable objection on the part of a resi- damage remaining to be paid for by the agree- agreement appears to me much more to resemble an dent gentleman to the proximity of a railway, ment itself. The second stipulation is the one agreement to take a just value as compensation, though not entitling him to compensation. It on which the question now turns; and that upon the passing of the Act, without any question is to be observed that it may be that the passing of second stipulation is to pay 3,000l. in full com- of price between the parties, than to provide for the the Act would be a practical damage to the plaintiff, pensation for the whole damage which the line payment of the sum of 3,000l. at all events if the because it would render his place less saleable by of railway should or might do the mansion and Bill should pass, without any reference to whether reason of the power of the company to make the other lands of Mr. Bland, which are not taken any injury should or should not be done. The inrailroad, during the period they have the power of and not subject to it. Then there is a covenant by juries for which compensation is provided by the making it by the Act, though the railroad shall not the plaintiff, that on tender of these two sums, agreement are all of them such injuries as could not be actually made. Without altering any of the namely, the value of the land at 1201. an acre, and arise except from the actual construction of the rail EXCHEQUER. way; and do not include any other injuries,-certainly they do not include the injuries my brother Parke has just referred to,-namely, that the land might be tied up before a certain period, without a prospective possibility of the mischief that might or might not arise. It seems to me to follow from the very language used by the agreement, that they did not intend that compensation should be paid, except in the event of the railway being actually made. I think, therefore, that our judgment ought to be for the defendants; but as my learned brothers are of a different opinion, the judgment of the Court must be for the plaintiff. Judgment for the plaintiff. June 6 and July 10. WILLIAMS . THE CHESTER AND HOLYHEAD RAILWAY COMPANY. Contract made by secretary-When not binding on the company. A contract made by the secretary of a company on behalf of the company is not binding on them unless authorised by the directors or committee; and such contract should be by deed, under the seal of the company, and signed by the directors as required by the Act of Parliament. This was a special case. The facts and arguments are so fully stated in the judgment that it is unnecessary to give them at greater length. Phipson (with him Willes), for the plaintiff, cited Elmore v. Kingscote, 5 B. & C. 583; Acebal v. Levy, 10 Bing. 376. Bros (Keating with him) for the defendants. EXCHEQUER the quantity of iron is stated. It was stated it was left to Mr. Stephenson and Mr. Fairbairn to arrange as to the quantity and price of each description, and the times of delivery, and some other stipulations which are not material. Upon the 19th of October, Mr. Williams answered to this effect,-"I have your letter of the 15th instant, offering me an order for 2,000 tons of plates, half of which are to be best, and the other half best best,' at prices therein mentioned, and & quantity of angle iron, as will be ordered by Mr. Fairbairn, all of which I beg to say I will accept." It was contended for the plaintiff that these two letters constituted a contract with the company, and that by virtue of it the defendants were bound to accept and pay for the 2,000 tons of piates, exclusive of the angle-iron, which might be ordered by Mr. Fairbairn. If the question depended upon the mere construction of these two letters, we probably should have considered the plaintiff's view correct; but it was contended on the part of the defendant, that Mr. King, the secretary, had no authority to bind the company, as such, beyond that authority conferred on him by a resolution of the directors or the committee, the secretary of a railway company having himself no independent authority to bind the company, and that to bind them otherwise than by a deed the contract must be signed by three of the directors of the company, and it must be made in conformity with the 94th section of the Act of Parliament, and, on consideration, we think this argument well founded. The secretary of a railway company is in a very different position from that of a managing clerk of a private company or firm; he is MARTIN, B.-This was a special case. The ques- the secretary, or scribe, only; and unless his Act is tion stated for the opinion of the Court was whether authorised by the directors or the committee, it is the plaintiff was entitled to recover on both or either not, in our opinion, binding on the corporation or of two special counts in the declaration. The first company. We have already stated that in our view count was founded on an alleged contract by the de- the resolution of the company only authorised a confendants to buy and accept from the plaintiff 2,000 tract for the purchase of 2,000 tons of iron, and tons of boiler plates; the second count was upon an therefore it follows, according to our judgment, the alleged contract to buy and accept from 400 to 500 contract alleged in the 1st count, which is founded tons of other boiler plates and of angle iron, that on an alleged contract to buy and accept 2,000 tons being a description of iron used in applying boiler of boiler plates, exclusive of angle iron, is not proved, plates. The defendants are a corporation created and is not entitled to be called a contract. It has been and regulated by the stat. 7 & 8 Vict. c. 65, and not reported to us by Mr. Whitmore, to whom it was by the general Act; but the provisions applicable to referred by the parties, that the letters of the 31st the present case are the same in both Acts. By the of July and the 15th and 19th of October were not 87th section the affairs of the company were placed laid before the directors, nor were the terms otherunder the management and superintendence of the wise made known to them, so no confirmation or directors who were authorised to enter into con- ratification can be alleged to exist. The contract in tracts for the execution of the works of the company the second count originated in a letter, by Mr. King and for all matters necessary for the transaction of the secretary, of the 28th of March, 1846, requestits affairs; by the 93rd section the directors were ing to be furnished with a tender for a further quanauthorised to appoint one or more committees, who, tity of iron. To this letter the plaintiff replied on while three were present, were, by the 94th section, the 31st of March, offering to supply 400 to 500 tons authorised to perform the acts entrusted to them. of plates and angle-iron at various prices. This By the ordinary law, contracts to bind the company letter was laid before the directors at a board meetcould only, except in particular instances, be ing, held on the 6th of April, when they authorised created by deed. But by the 95th section of this the contract to be entered into with the plaintiff for Act the directors, or the committee appointed by 350 tons. On the day of this meeting the plaintiff, them, were authorised "with respect to any contract being in London, where the meeting was held, wrote which, if made between any private persons, would, on a slip of paper, as follows:-"Mr. Walter Wilby law, be valid although made by parol only, and liams to inquire if the company have decided about not reduced into writing;" and such "contracts, the plates," and sent it in to the secretary, who remade according to the provisions thereinafter con- turned it to the plaintiff, with the following written tained, were effectual in law and binding upon the upon it by him:-"Tender accepted for 350 tons." company and their successors." The present alleged On the 11th of April, however, the secretary adcontracts were contracts in which there had been a de- dressed a letter to the plaintiff, to this effect: "Your livery and acceptance of part of the goods under both, tender of March 31 for a further quantity of iron and also part payment under both. It was contended for the Conway and Britannia bridges is accepted by on behalf of the plaintiff that, under the provisions the directors, and I am instructed to request a line before alluded to, the contract was binding on the from you in confirmation thereof." And on the 12th company, and assuming there was no other objection of April, 1848, Mr. Williams wrote to the secretary, to the contract, we think this contention is well Mr. King, stating that he agreed to the contract. founded. The first contract originated in a circular The plaintiff considers the contract contained in the letter, dated the 24th of July, 1846, which the second letter, of the 30th of March and the 11th of directors caused to be sent to the plaintiff, and on April to be the real one, videlicet, a contract for 400 the 28th of July he answered this letter. On the to 500 tons of iron, and the second count is founded 29th a board meeting of the directors was held, when on such a contract; but for the reasons already this letter was laid before them, and at this meeting given, we consider there was no such contract bindit was resolved that the tender be accepted of the ing on the company, the directors having alone plaintiff for 2,000 tons of iron at certain prices; and authorised one for 350 tons. It was suggested that on a careful consideration of this resolution we are this count might be amended on the memorandum, of opinion that the quantity of iron which the written by the secretary on the day of the directors resolved should be absolutely accepted from meeting, by alleging it to be a contract for 350 the plaintiff was 2,000 tons altogether, including tons; but this could not be done, because in boiler plates and angle iron. Under the authority truth the plaintiff never contracted to supply 350 of this resolution, Mr. King, the secretary, on the tons. The contract was for the supply of from 400 31st of July, addressed a letter to the plaintiff, to 500 tons, so that the parties never agreed ad idem; stating that he was instructed by the directors to therefore the substantial result is, that, according to enter into an agreement for the supply of 2,000 tons the agreement stated in the case, the verdict must of boiler-plates; and, in consequence of a mis- be entered for the plaintiff for 401. 11s. 1d. upon the understanding as to the price, the matter was not common count. There are some other issues with finally arranged until some time afterwards. On the respect to the other counts, which the parties will 15th of October, Mr. King, the secretary, addressed probably be able to arrange among themselves. We a letter to the plaintiff:-"Referring to my letter to cannot conclude without calling attention to the exyou of the 31st of July, of which a copy is appended treme imprudence of persons dealing with railway or hereto, I am now instructed to state that the direc- other companies on letters or documents signed by tors will agree to an alteration in the terms as therein the secretary of such companies. There is no stated, the alteration to be to the following effect, reason to suppose that any fraud was intended in That the supply of 2,000 tons of boiler-plates shall this case, or that the mistake originated otherwise consist of 1,000 tons of the best, and 1,000 tons of than in an unintentional oversight; but the conthe 'best best,' at the same price per ton," and sequence to the plaintiff is the same as if a gross there are some other terms mentioned in the letter fraud had been practised on him of the directors of the 31st of July and set out at length, in which authorising one contract and their secretary know BANKRUPTCY. ingly communicating one varying from it to him, he not unnaturally supposing the contract, as contained in the letters of the 15th and 19th of October, was the contract of the company; but in consequence of this contract not being authorised by the resolution of the 29th of July, which he most probably never saw, it is not binding on the company, and he has failed in his suit upon it. Persons dealing with these companies should always bear in mind that such companies are corporations, and essentially different from ordinary partnerships or firms for all purposes of contracts, with reference to evidence of giving the legal authority, and they should insist on their contracts being made by deed under the seal of the company, or signed by the directors in the manner prescribed by the Act of Parliament. There is no safety or security for any one dealing with such bodies on any other footing. But the same observation will also apply with respect to any deviation or alteration in the contracts already made. Judgment for the defendants. BANKRUPTCY. VICE-CHANCELLOR KNIGHT BRUCE'S COURT, reported by G. S. ALLNUTT, Esq. Barrister-at-Law. COURT OF BANKRUPTCY, LONDON, reported by JOHN A. FONBLANQUE, Esq. Barrister-at-Law. COURT OF BANKRUPTCY, DUBLIN, reported by J. LEVY, Esq. Barrister-at-Law. VICE-CHANCELLOR KNIGHT BRUCE'S COURT. Saturday, May 10. Ex parte CARTER, re CARTER. Disputing adjudication of bankruptcy. Where a bankrupt does not avail himself of the remedy for disputing the adjudication given by the 104th section of the Bankrupt Law Con solidation Act, 1849, still every other remedy for disputing the adjudication remains to him. This was a petition by way of appeal from the commissioner's decision, under the following circumstances. On the 30th of July, 1850, Carter was taken in execution on a ca. sa. at the instance of J. Dimmock, T. Dimmock, and T. Keeling, three joint judgment-creditors, and he was committed to gaol. On the 15th of February, 1851, J. Dimmock, T. Dimmock, and T. Keeling, filed a petition of adjudication of bankruptcy against Carter, whereupon he was adjudged bankrupt, and notice thereof was served upon him personally on the 19th of February, when he was discharged from custody. On the 28th of February notice of the adjudication was published in the London Gazette, and the 10th of March was appointed for the first public sitting. On the 19th of March, Carter presented to the commissioner a petition, praying that the adjudication might be annulled, as the petitioning-creditors' debt had become satisfied by their having taken him in execution. The commissioner, however, dismissed the petition, because the bankrupt had not shewn cause against the adjudication within the time allowed by the 104th section of the Bankrupt Law Consolidation Act, 1849. On the 23rd of April the present petition was presented. Daniel appeared in support of the petition. Swanston and W. W. Cooper, for the assignees, contended that, after the expiration of fourteen days from the service of notice of the adjudication on the bankrupt, the commissioner had not jurisdiction to entertain the bankrupt's petition, and that he had properly dismissed it. The present petition was also filed too late, as it was not within twenty-one days after the adjudication (12th section), nor within twenty-one days after the advertisement in the Gazette (233rd section). The VICE-CHANCELLOR said that though the bankrupt did not avail himself of the remedy allowed under the 104th section, yet every other power or remedy of disputing the adjudication which he would have had, remained to him. Then it appeared that before the end of twenty-one days after the advertisement he applied to the primary jurisdiction in bankruptcy to annul the fiat. That petition was in time, and it was competent to the Court to entertain it. The Court, however, came to a certain decision, and refused to entertain the petition, and that decision came under review before his Honour, the merits of the case being, that one man had made another a bankrupt without having a legal debt. The proceedings must be annulled, with costs. Wednesday, July 16. Ex parte JOHNSON, re CROSS. Official assignee-12 & 13 Vict. c. 106, s. 41. An action was brought by A. B. against the official and creditors' assignees of a bankrupt, and a verdict obtained for the plaintiff. The bankruptcy was afterwards found to be invalid. The creditors' assignee was insolvent, and A. B. was about to issue execution for the costs against the official assignee, when he applied to the Court for protection. It appeared that the result of A. B.'s action did not depend upon the validity or invalidity of the fiat, and the Court considered that there was no jurisdiction to interfere with A. B.'s proceedings. In January 1848 a fiat in bankruptcy was issued against Mr. Cross, under which he was adjudged bankrupt, and Mr. Patrick Johnson was appointed official assignee, and Mr. George Smith was chosen creditors' assignee. In the following month a petition to annul the fiat was presented by Mr. R. Partridge and Mr. Cross, and upon that petition coming on to be heard, an action was directed to be brought by the petitioners against the assignees, for the purpose of trying the validity of the fiat. The action (which, however, was not tried according to the directions of the Court) resulted in a verdict for the plaintiffs. A second action was then directed to be brought against the creditors' assignee alone, and in this a verdict was given for the plaintiffs. In February 1850 all proceedings under the fiat were ordered to be stayed, and the Court gave Partridge and Cross leave to sue out execution against the Cooke, in reply, observed, that the Court was quite creditors' assignee. In 1848 two other actions with aware that this subject had been most carefully gone reference to parts of the bankrupt's property were into by Mr. Commissioner Law, in Re Sarah Garbrought by Mr. Archer and Mr. Hawkins against side, July 1st, 1850, reported in the LAW TIMES. the official and creditors' assignees, and in both of His opinion was, that no matter by what authority a these actions verdicts were given for the plain- man was named assignee, his acceptance of the office tiffs. The creditors' assignee was insolvent, and must be signified to that court. The mere nominaMr. Archer being about to issue execution against tion by the County Court, or formerly by the comMr. Johnson for the costs of his action (amounting missioners on circuit, or even by this court, although to upwards of 5007.), Mr. Johnson applied to Mr. it may fix the man to whom the estate is to be conCommissioner Evans for protection. The commis- veyed, does not give the property to him. There sioner considered that he had no jurisdiction to in- was something more to be done before the property terfere; and accordingly the present petition was of an insolvent vested in him. The man must accept presented by Mr. Johnson, praying that as one of the appointment, and signify such acceptance to the the officers of the Court of Bankruptcy, he and his court. That could mean nothing but the court in estate and effects might be protected from all claims London. They must look at the whole Act of Parand demands of Mr. Archer in respect of these liament, and at the practice before the transfer of matters. It was admitted that the validity or in-the jurisdiction. The record made at the hearing on validity of the fiat would not have affected the result circuit, that a certain party was to be appointed of Mr. Archer's action. assignee, was transmitted to the court in London, Russell and Walford, for the petitioner, Mr. upon which, acceptance being signified, and no Johnson, relied upon the 41st section of the Bank-reason appearing to the contrary, the appointment rupt Law Consolidation Act, 1849, as protecting the issued from the office of the provisional assignee as official assignee from personal liability for acts done a matter of course. in execution of his duty. They referred also to the provisions in the former Acts on this subject-1 & 2 Wm. 4, c. 56, s. 22; 5 & 6 Vict. c. 122, s. 54; and cited Re Martin, 1 Ph. 445; and Munk v. Clarke, 10 Bing. 102. INSOLVENCY. County Court, and a certificate from the clerk of commissioner for saying, that from and after the the court that this was the formal appointment issued order of reference, the jurisdiction of the Court in by the Court, Smith had taken out his appointment, London ceased, and that it could not afterwards though not in this court. Then the question was, interfere. whether or not a person who is appointed assignee Mr. Commissioner PHILLIPS said he was conby a County Court was bound to come to that strained to adhere to his opinion expressed in Re court and take out his appointment. He had to Notten, respecting the appointment of assignees in argue that, since the statute 10 & 11 Vict. c. 102, insolvency cases by the County Courts. He differed and after the petition was referred to a County toto cælo from the judgment of Mr. Commissioner Court under that statute, the judge had sole juris- Law. After giving all attention to it, he confessed diction in the matter, and that all he had to do was he could not bring his mind to the conclusion he to transmit the record to this court, and that it was did. As to the case of Notten, he did consult the not necessary to come there and take out his ap- Chief Commissioner, and his answer was as read pointment. The learned counsel read the words of out. He had consulted him again that morning, the clause, and contended at some length in effect and his answer was, his mind wavered very much, that the County Court had not merely the power to and Mr. Commissioner Law having given the fullest make the appointment, but that, upon signification consideration to the subject, he (the Chief) desired of acceptance made to it, the clerk of the court had his vote to be thrown into the scale, although waverpower to issue the formal document called an "ap-ing. He (Mr. Commissioner Phillips) was not conpointment," which is the evidence of title. vinced by Mr. Commissioner Law's judgment, and it would lead to great saving of expense and trouble, if, instead of collating various Acts of Parliament, they would take the plain words of the clause and understand it. The plain question was, had not a commissioner on circuit merely the power to chronicle, but also to appoint? He was clearly of opinion that he had both, but subject to the contingencies mentioned by Mr. Cooke. The statute (1 & 2 Vict. c. 110, s. 30) said that such commissioner should have the same power at the hearing of an insolvent in the country, as the Court had in London, and that he should make all orders, &e., necessary for the discharging or remanding of the prisoner, "and otherwise respecting such prisoner and his schedule, and his creditors, and his assignees, as the said Court for relief of insolvent debtors may make, give, or do in the matters of petitions heard by the said Court, and that in each and every matter to be heard and inquired into by such commissioner, he shall have the same power as the said Court would have therein, if the same were heard and inquired into by the said Court." He shall have the same power as the said Court. What Court? Why the full Court. If the power of the Court followed the commissioner into the country, and he sat with the same power, where then was the difficulty? And all and every act done shall be transmitted to the said Court signed by the judge (10 & 11 Vict. c. 102, s. 10). To what Court Cooke.-Yes; a month. The 30th section of the shall they be transmitted? Why, to the said Court Act (1 & 2 Vict. c. 110) gave the commissioner on whose powers were given to the commissioner on circuit the power to appoint assignees at the hearing; circuit. The judge of the County Court had the The VICE-CHANCELLOR said it was not necessary and the 45th section gave the Court power to appoint same power to appoint assignees, but subject to the to say what he should have done with this case if it assignees at any time after vesting order made. return of the appointment and signification of achad been certain or even probable that the result in These sections must be read together. There was ceptance signed by the judge as directed by the Act either of the actions would have been in any respect no magic in the words " appointment by the Court (10 & 11 Vict. c. 102, s. 10). These documents materially different if Cross had been well made a or commissioner." No property passed until the were to be transmitted to this Court as records. He bankrupt. But it had not been shewn to his Honour assignee appointed or nominated did the thing the was not going to blink the question that it was the that, if Cross had been proved to have been well statute declared necessary, namely, signified his practice of the commissioner on circuit merely to made a bankrupt, the result in either action would acceptance to the Court. Until the signification of nominate assignees, and that the court of four comhave been in any respect materially different. The acceptance to the Court, there was no estate in the missioners had a veto upon all acts done regarding state, then, of the evidence before him obliged him assignee appointed or nominated. The County the appointment of assignees upon due cause being to deal with the matter on the supposition that the Courts had the same powers as the commissioners made to appear; but what he contended for was that bankruptcy, or absence of bankruptcy, on the part on circuit and the Court in London possessed in re- the commissioner on circuit went out with the full of Cross, was an utterly immaterial ingredient in the ference to the appointment of assignees at the hear-power of the Court pro hac vice, and was emcase. That being so, it was impossible for his Honouring; but the acts and doing of the County Courts powered to do everything at a hearing which to interfere. must be governed by the same practice and the this Court was empowered to do. One of same law as those of the commissioners on circuit these powers was the appointment of assignees, and the Courts in London. For the purpose of saving trouble and expense the judge of the County Court was substituted for the commissioner on circuit. The clause in the 10 & 11 Vict. c. 102, gave him the same power as the 30th section of 1 & 2 Vict. c. 110, gave to the commissioners on circuit. These clauses were mutatis mutandis the same. It must therefore be looked upon as a part of the 1 & 2 Vict. c. 110, and the judge of the County Court must consider himself as a commissioner of the Court for Relief of Insolvent Debtors, and governed by the same law and practice as other commissioners. The law (sec. 45) required that in all cases there should be a signification of acceptance to this Court. Then in the present case there had been no signification of acceptance to this Court under the 45th section, therefore the property was still in the provisional assignee of the Court. Craig and Reilly for the respondents. INSOLVENT COURT, (Before Mr. Commissioner PHILLIPS.) Tuesday, July 29. Re JOSEPH HOWE. Appointment of assignees under 1 & 2 Vict. c. 110, and 10 & 11 Vict. c. 102, by the County Courts. Held, that the judge of a County Court possesses and may exercise all the powers exercised by the Court for Relief of Insolvent Debtors at a hearing in reference to the nomination or appointment of assignees, but unless he duly forwards the papers containing the notification of appointment and acceptance, as required by the 10 & 11 Vict. c. 102, 8. 10, to the Court-house in Lincoln's-inn-fields, the Court will not take judicial notice of the appointment, and will proceed to act upon an application by another party for the appointment as if there was no sub-assignee. This insolvent was heard in the County Court at Lancaster in May, 1850, and Thomas Smith was appointed assignee of his estate and effects, but as the papers were never forwarded to the Court in London, as required by the 10 & 11 Vict. c. 102, s. 10, upon an application to this Court by certain other parties, the provisional assignee granted a certificate that no sub-assignee had been appointed, upon which Cooke, on their behalf, obtained a rule nisi for their appointment as assignees. To-day, Lucas shewed cause, and, with affidavits of the appointment of Thos. Smith by the County Court, put in a parchment purporting to be the actual appointment by the County Court at Lancaster, on the 10th of May, 1850, acceptance having been duly signified, stamped with the seal of the Mr. Commissioner Phillips.-After the appointment by the circuit commissioner, was there any limitation in practice as to the time for signifying acceptance by the party appointed. subject to the contingencies to which even the appointment in the full Court was subject, namely, the signification of acceptance. (1 & 2 Vict. c. 110, s. 45.) Once the signification of acceptance being signified to the commissioner or Court, this Court had no power afterwards to interfere, except upon some statuteable complaint. (I & 2 Vict. c. 110, s. 65.) He would then go back to sec. 45. What was the language of the clause? "And when such assignee or assignees shall have signified to the said Court his or their acceptance"-of what? Said nomination ? No; but "the said appointment, the estate, effects, rights, and powers, of such prisoner vested in such provisional assignee as aforesaid, shall immediately, by virtue of such appointment, and without any conveyance or assignment, vest in the said assignee or assignees." (1 & 2 Vict. c. 110, s. 45.) He confessed he thought there was great signification in this Mr. Commissioner PHILLIPS.-There is one thing word "appointment" used there. He would now clear, that this appointment is not registered in the come to the 10th section of the County Courts Act books of the provisional assignee of the Court, nor (10 & 11 Vict. c. 102); and he begged the words of had he applied to have it registered on this parch-that section to be fully attended to, for it seemed to ment, purporting to be an appointment by the him that the Legislature had expressed itself in a County Court at Lancaster. There was no sig-most unmistakeable way: "The judge of such court nature that it was entered of record by the provisional assignee. Had that registry been made according to that Act of Parliament ? Lucas said it was utterly indifferent or not, so far as the appointment was concerned. The judge of the County Court was to transmit all the documents here to be registered, and if that appointment had not been registered, it was merely the laches of the judge of the County Court in not forwarding them, and could not affect third persons. A year had elapsed since he had acted as assignee, and he had got in all the estate and distributed it. The learned counsel referred to Re Notten, 12 Law T. 248, and contended that he had the authority of the learned shall have and possess the same power and authority with respect to every such petition, and shall make all such orders, give all such directions, and do all such matters and things requisite for the discharging or remanding of such prisoner, and otherwise respecting such prisoner, his schedule creditors, and assignees, as the said Court for Relief of Insolvent Debtors, or any commissioner thereof, might make, give, or do in the matters of petitions heard before such Court or commissioner" (10 & 11 Vict. c. 102, s. 10). The Legislature not only gave the power of the Court, but of the commissioner. Why was that word "commissioner" put in? It was highly probable that the gentleman who drew the statute had INSOLVENCY. heard the practice of this Court, and therefore put in those words, that there should be no doubt but that the judge of the County Court had both the power of the commissioner and the power of the Court. It did not matter that the commissioner on circuit did not use this power. The point was, had he the power. He thought he had shewn clearly that he had the power. A great portion of Mr. Commissioner Law's judgment hinged on the practice of the Court. But the question was not so much as to the practice of the Court, as the proper signification of these words in the 10th section of the County Court Act (10 & 11 Vict. c. 102). The words clearly and plainly gave the judge of the County Court jurisdiction to appoint assignees. It was all very well for Mr. Cooke to say, with his usual ingenuity, that the question was, had that Court clearly distinguished between the word "appointment" and "nomination?" He said it had. The 25th rule of Court shewed this. It was this-" Appointment of assignees.-Assignees will be appointed, if expedient, by the Court or a commissioner at any time after vesting order made." Now what followed?-"In a case heard at Berwick, a nomination by the justices will be attended to." Appointments might be made by the Court or a commissioner at any time after vesting order made, but a nomination by the justices would be attended to. There he said the Court itself had made the distinction. Upon reading that rule, the conclusion was inevitable that a commissioner had not only the power to nominate, but to appoint, although, as Mr. Cooke said, that appointment was nothing in itself unless followed up by its incidents, the solvency of the man, &c. But there was one important portion of the appointment, that was the signification of the acceptance by the creditor appointed. What did he (Cooke) say upon that subject? That this Court, apon receiving the appointment and the signification of acceptance by the creditor, signed by the judge, was bound to register the acceptance, and the appointment and signification of acceptance so recorded, although emanating solely from the County Court, would be as valid as if made in and by this Court. The nomination or rather appointment of assignees was made in that Court at the hearing every day. But the nonacceptance of the appointment at the time did not vitiate the appointment in the Court above. Why, then, should it have that effect in the Court below? Under these circumstances, he was as clearly of opinion as he ever was of any thing, that the judge of the County Court at the hearing in his Court had the full power of this Court. But there was another point. Had he a right to look at the appointment now produced in Court at all? The judge of the County Court was bound to transmit his notification of appointment, and the signification of acceptance by the creditor or other person, when made at the hearing, to this Court, to be a record of this Court. The certification of the nomination or appointment by the judge, and the signification of acceptance by the person appointed, had not been transmitted to this Court. It ought to have been transmitted at once. It had not been done, and he could not take judicial notice of the act of the judge until he had duly certified it to this Court by the transmission of the documents authenticated by his signature. If the judge was minded to keep this record below at Lancaster, he could take no notice of it, and he therefore thought that the rule should be made absolute for the appointment to issue. shares, of which the defendant was the holder, in the North American Colonial Association of Ireland. It appeared that the calls were duly made; that the defendant was at that time the holder of the shares, and that notice of the calls was given to him, but that before the day of payment arrived the defendant transferred his shares. Whateley, Q.C. contended that the defendant was not liable for the payment of these calls; he was not now a holder of shares. The Court of C. P. had decided that, under such circumstances, the defendant was not liable. (Semble Aylesbury Railway Company v. Mount, 4 M. & G. 651; 5 Sco. N. R. 127.) pointment could not issue till another acceptance common carriers. This was an action to recover 481. the value of goods sent by the defendants as carriers from Worcester to Exeter, and lost on the road. The defendants, who carried on business under the name of Crowley and Co. were in the habit of collecting goods in Worcester, and of sending them by railway to the place of destination. They in some cases received the whole cost of the carriage from the consignor, and in others only the charge of conveyance Rule absolute, no record having been trans-to the railway station. In the precent case, silk mitted to the Court. Lucas wished the affidavits signifying this appointment and acceptance to appear on the files of the Court. Mr. Commissioner PHILLIPS.-Yes. Note.-The Act of Parliament (1 & 2 Vict. c. 110, s. 45) vests the prisoner's estate in the person nominated or appointed assignee, "when such assignee or assignees shall have signified to the said Court his or their acceptance of the said appointment." goods packed in a case were sent by the plaintiff to M. Chambers, Q.C. contended that in forwarding Lord CAMPBELL, C.J.-I am of opinion that the . "Every such appointment shall, after such acceptance thereof, be entered of record in the said Court;"" and such notice thereof shall be published as the said Court shall direct; and every person so appointed assignee shall be deemed to be an officer of the said Court, and shall be liable as such to the control thereof." (1 & 2 Vict. c. 110, s. 45.) Three things are essential to constitute a valid appointment-1. Nomination or appointment by the Court, or commissioner, or judge; 2. Signification of acceptance by the person appointed or nominated to the said court; and, 3. The publication of such notice as the said Court shall direct. No appointment could issue without the assent and direction of either the Court in London or the Circuit Court, but the assent of either of these Courts having been given, and duly signified to the provisional assignee, the appointment would issue as a matter of course, provided there was in the office a signification of acceptance by the person nominated or appointed. The acceptance paper might and often was filled up in the Circuit Court, but if it was lost, or by any acci The action was brought to recover the sum of dent never reached the Court in London, the ap-2,8187. being the amount of calls due upon 1,025 THE NORTH AMERICAN COLONIAL ASSOCIATION Whateley, Q.C. tendered a bill of exceptions. Irish Reports. COURT OF DELEGATES. Reported by W. St. LEGER BABINGTON, Esq. Barristerat-Law. Tuesday, June 17. A will was written upon two sides of a sheet of Held, that this was a due execution of the will by Semble, that the words "foot" and "end" in the This was an appeal from the decree of the learned judge of the Consistorial Court of Dublin (Dr. Ratcliffe), made on the 4th day of February, 1851, whereby he refused to grant probate of the will of the late Elizabeth White Turner, of Harcourt-street, in the city of Dublin, bearing date the 19th day of August, 1850, upon the ground that according to certain recent decisions of the Court of Prerogative in England, the will was not signed at the foot or end," as required by the statute, 1 Vict. c. 26, s. 9, the learned judge stating that he made his decree entirely in deference to those decisions, but that in his opinion these were erroneous; however, that sitting in a court of inferior jurisdiction he did not think it becoming to decide contrary to them, as the opinion of the Court of Delegates could be had, which he considered to be necessary to settle the law on the subject. It appeared that in the present case the will was written on two sides of a sheet of post paper, and came down to within about two inches of the bottom of the second page, which space was left blank, then at the top of the third page the attestation clause was written, at the side of which the signature of the testatrix was affixed, and immediately under those of the witnesses; there were no controverted facts in the case, there having been a consent admitting them all, among which was the fact that Mr. Storey, the gentleman who drew the will, conceiving it to be necessary that there should be an attestation clause, (a) Semble North American Colonial Association of Ireland v. Bentley, 19 L. J. 427, Q.B. |