Watts), the sum of 50l., to be paid to him on his at-ever on the part of the grandfather, William Burtaining twenty-one. And the testator devised the row the elder, that the admission should operate premises to Maria Watts for life, with remainder to as an advancement of the child, and the question, his son Daniel for life, with remainder to his son Wil- therefore, is, whether, because the testator had liam Burrow, his executors, administrators, and as- placed himself in loco parentis, an advancement must signs, for all the residue of his interest therein. be held to have been intended. The onus lies on a stranger, who has the legal estate, to shew that he is not a trustee for the person who paid the purchase money, but a purchase in the name of a child is a prima facie advancement. This was settled in Dyer v. Dyer, though throughout the cases a doubt is expressed as to how this doctrine arose. [His Honor then referred to Grey v. Grey (2 Swanst. 294; Finch, 338) and Soar v. Foster.] The testator, William Burrow the elder, died in August, 1828, and Daniel Burrow also died subsequently, and in the lifetime of Maria Watts. William Burrow the son, by his will, dated the 27th February, 1856, devised to the plaintiffs, their heirs, executors, administrators, and assigns, various specific hereditaments, not including the premises, upon trust for sale and division into twenty-eight parts, one equal twentyeighth part being bequeathed to the defendant James Burrow. And the testator devised the residue of his real estate to the plaintiffs, their heirs, executors, administrators, and assigns, upon trust, after the death of his wife, to sell, and to apply the proceeds in the manner directed as to the sale of the lands firstly devised to his trustees. And he appointed the plaintiffs executors and trustees of his will. William Burrow the younger died in September, 1860, without having altered his will, except by a codicil, which did not affect the disposition of the residue of his real estate; but he thereby directed his trustees to complete a contract for the renewal, by way of lease, of his interest in (amongst others) the copyhold premises, and to pay the remainder of the fine, which they did, but no lease was actually granted to them. Maria Watts died in November, 1863, and thereupon the plaintiffs claimed to be equitably entitled in possession to the close of land and premises, the defendant James Burrow being a mere trustee for them; but he refused to give up possession, on the ground that the renewal made in April, 1815, by William Burrow the elder, was made as an advancement for him, his illegitimate grandson, to whom he alleged that he had placed himself in loco parentis. The defendant James Burrow had been paid his legacy of 50%. under the will of William Burrow the elder, and had also received his twenty-eighth share under the will of William Burrow the son, so far as the same had become divisible, and had thereby, as the plaintiffs submitted, elected to take under the wills; and they now filed this bill with a prayer for relief as above. It appeared that the defendant James Burrow was born in April, 1806, and lived with William Burrow the elder until his death, and that he acted towards him as a parent, and maintained and educated him. After the death of William Burrow the elder, the defendant James Burrow was recognised as his natural son by Luke Watts, who also left him some property by his will. Rolt, Q. C., and Babington appeared for the plaintiffs. -They cited Dyer v. Dyer (2 Cox, 92; S. C., 1 Wh. & Tud. L. C. in Eq. 165); Soar v. Foster (4 Kay & J. 152; 4 Jur., N. S., 406); Powys v. Mansfield (3 My.& C. 359); and Childers v. Childers (1 De G. & J. 482; 3 Jur., N. S., 1277). Jessel, Q. C., for the defendant, cited Crane v. Lord Salisbury (1 Bro. C. C. 425); Finch v. Finch (15 Ves. 43); Beckford v. Beckford (Lofft, 490); Currant v. Jago (1 Coll. 261); Ebrand v. Dancer (2 Ch. Cas. 26); Kilpin v. Kilpin (1 My. & K. 520); Perry v. Whitehead (6 Ves. 544). Babington, in reply. Sir W. P. WOOD, V. C.-I have recently considered this question in Soar v. Foster, but I had not then seen the case of Kilpin v. Kilpin. The facts of the present case are these:-[His Honor stated them.] They shew no intention what The doctrine seems to have arisen from the principle of law, that a use might arise from a blood relation ship. The rule has been extended to the cases of an illegitimate child, a grandchild, when the father i dead, and to persons who stand in the position o children towards the purchaser, but the authoritie have not gone further. It was observed by Lord El don in Finch v. Finch (15 Ves. 50), that "this principl of law and presumption was not to be frittered away by nice refinement;" but, on the other hand, th case must be brought clearly within the rule. Th case of an illegitimate child might have been reste on the moral obligation to support it, in favour which Mr. Fearne has expressed an opinion in hi Posthumous Works, 327. There is a case of a grand child (Ebrand v. Dancer) mentioned in a note to Car rant v. Jago, but there the father was dead. An Sir J. L. Knight Bruce, V. C., asked whether ther was any case of grandfather, father, and son, th father being alive? In Powys v. Mansfield, Lord Cot tenham said "Lord Eldon, however, in Ez parte Pye has given it a definition which I readily adopt, not only because it proceeds from his high authority, bu because it seems to me to embrace all that is neces sary to work out and carry into effect the object an meaning of the rule. Lord Eldon says, it is a perso meaning to put himself in loco parentis, in the situ tion of the person described as the lawful father the child;' but this definition must, I conceive, I considered as applicable to those parental offices at duties to which the subject has reference, viz. to office and duty of the parent, to make provision f the child; and it would be most illogical, from t exercise of any such offices by one not the father, infer an intention in such person to assume alsoť duty of providing for the child.” The question is, whether or not a purchase with A money in the name of B., is to be conclusively consider a gift inthe absence of any evidence of an advanceme merely because A. had placed himself in loco parent The father not being able or willing to take care of t child, the grandfather took it and sent it to scho but is this enough to shew that he intended to ma him the owner of this property to the detriment his legitimate son William, and, in fact, to turn hi self out of it, which would have been the case if t other lives had dropped in his lifetime? I am aske upon a supposed analogy, to join together two do trines, neither of them so clear as they might be, a to hold, that the mere fact of performing the parent duty, by bringing up the child and sending him school, shews that the grandfather stood in loco [ rentis, and that then the purchase made in the chik name was intended as an advancement for him; bat cannot do this. In Kilpin v. Kilpin there were co temporaneous declarations; and in Powys v. Mas field there was the fact of the gift, and then t fact of the donor being in loco parentis. And the t things in conjunction induced Lord Cottenham to cide as he did. I cannot put the doctrine so hi 1 as to hold, that if a person educate a child, to whom placed against it on the field side to support it; but he is under no obligation, either morally or legally, that if a horse pushed his breast against it, the gate the child is, therefore, to be provided for at his ex-would fall down; and it was in evidence that the depense. I have no doubt, therefore, that the defendant fendant's horses, including the grey mare, had on seJames Burrow is trustee for the plaintiffs, and there veral previous occasions pushed the gate down, and enmust be a declaration according to the prayer of the tered the plaintiff's land through the gate. It further bill. But, looking at the state of the authorities, I appeared, that on the night before the horse was found shall not make the defendant pay costs. lamed, this gate had been fastened by one of the plaintiff's sons. Further: that the hedge separating the two fields of the plaintiff's (the Rye Bank and the Pasture) had been of sufficient strength during all the summer previous to prevent the plaintiff's cattle from passing out of one field into the other. This gate was found thrown down, and recent footmarks of a horse were observed on the morning of the 26th October on each Note for reference-1 Wh. & Tud. L. C., Eq., 165. COURT OF COMMON PLEAS. EASTER TERM. [Before ERLE, C. J., BYLES, KEATING, and SMITH, side of it, and traced across the close called Rye Bank, JJ.] LEE, App., RILEY, Resp.-May 5. The defendant's mare, through the defendant's neglect in This was an appeal from the decision of the judge of he county court at Halifax. Case.-A plaint was entered in the said county court by the plaintiff on the 10th November, 1864, whereby he sought to recover the sum of 221.; and the following is a copy of the particulars attached to the summons served upon the defendant:— "Nov. 8, 1864. "Charles Lee to Samuel Riley. "1864, Oct. 28 One black horse. . £22 0 0" The action was brought to recover the sum of 221., the value of a horse belonging to the plaintiff, which had had its leg broken in the night time. The horse had been left safe and sound in the plaintiff's field on the evening of the 25th October last, and was found the following morning standing there on three legs, the fourth having been broken, as was alleged, by the sick of a horse of the defendant's. and through the hedge into the field called the Pasture; and in the latter field, close to where the plaintiff's horse was found standing on three legs, strong marks of horses "scuffling" were observed, and patches of black and of grey hair were found at the same spot, corresponding with the colour of the plaintiff's horse, which was black, and with that of the defendant's grey mare. The plaintiff's horse was discovered standing on three legs, as before mentioned, at about eight o'clock in the morning of the 26th October, and on being examined by a veterinary surgeon, it was found that the off hind leg was broken-a compound fracture, and that a piece of the bone had been taken out. The horse was obliged to be killed, and on a post mortem examinating, the bone exhibited an appearance of having been struck, and a piece of it knocked out by a violent blow. Such shoes as the defendant's grey mare had on might have caused it. The ordinary shoe of a horse would not, nor could the plaintiff's horse, have caused the injury to itself. About twelve o'clock the same day the plaintiff's sons, accompanied by a veterinary surgeon, went to the defendant's stable, and there found his servant fomenting the off hind leg of the defendant's grey mare with water. There were "abrasions" principally inside the thigh, down the leg towards the hock, hair was found knocked off in several places, and the colour of the mare corresponded with that of the patches of grey hair found in the field. The defendant's mare was a large powerful animal, seventeen and a half hands high, and its shoes had attached to them large strong "caulkins," formed by the shoes being turned down at the heels. The plaintiff's mare was about fifteen hands high. There was no evidence of the defendant's mare being a vicious one. No evidence was given on the part of the defendant, except as to the value of the plaintiff's horse. A letter was put in, dated the 28th October, 1864, from the plaintiff's attorneys to the defendant's, charging the death of his horse to have been occasioned by a kick from the defendant's mare, and claiming compensation, to which no answer had been returned. The plaint was tried before a jury, and it appeared evidence that the plaintiff and the defendant occudied two adjoining farms, and that an occupation road xtended from a highway through the defendant's arm, of which it formed part, into the plaintiff's farm, here it formed part of the plaintiff's farm, and terinated some two or three fields' length within the arm; that there was a gate across the occupation road the point where the two farms adjoined, which elonged to the defendant, and had been erected the occupier of the farm immediately preceding im, some seven or eight years ago; and that, being roken in two places, the plaintiff had given notice to he defendant to repair it about three weeks before At the close of the plaintiff's case the attorney for he occurrence which gave rise to the action, and had the defendant submitted that there was no evidence to prised him that it was his duty to repair it. It ap- go before the jury, and directed the judge's attention to eared further, that the defendant's horses, and parti- the case of Cox v. Burbidge (32 L. J., C. P., 88). The larly a large grey mare of his, had on several occa-judge decided there was evidence for the jury, and ons passed through this gateway along the plaintiff's portion of the occupation road, and thence through a mall gateway opening from the occupation road into meadow field of the plaintiff, called the Rye Bank, nd thence through a hedge into another field of the laintiff's, called the Pasture, being the field in which plaintiff's horse had been left sound and well on evening of the day in question: that the last-mened gateway was a small one (one yard and a half e) for the plaintiff's cows to enter the close called Rye Bank from the occupation road, and that re was a gate reared against the opening, and stones that it was not necessary for the plaintiff to prove that the grey mare of the defendant was a vicious animal; that there was a distinction between the two cases; that it might not be in the ordinary course of nature for a horse to kick a child, but that it was for one horse to kick another, particularly a strange one, when they met in a field. The judge, in summing up to the jury, told them that the case depended mainly on circumstantial evidence. That there was no direct evidence bringing the plaintiff's horse in contact with the defendant's, and shewing that the defendant's mare caused the injury, but that he thought there was sufficient evidence for them to take the case into consideration, and in the exercise of their judgment to consider whether sufficient ground of complaint had been made out by the plaintiff. That the plaintiff was bound to furnish them with reasonable evidence from which they might presume that the defendant's mare was the cause of the accident. That was one question, but, in order to make the defendant liable, supposing that the horse had done the mischief, it must be shewn that the defendant's mare was wrongfully on the plaintiff's land. That if the defendant was bound to repair the gate, it was also his duty to keep his cattle from trespassing upon other persons' land." The judge directed the attention of the jury to the fact, that no evidence or explanation had been offered on the part of the defendant, as to where the grey mare was on the night in question, or what she was doing. That he certainly expected that some evidence would have been adduced on this point, and that it might be reasonably expected that some evidence would be given, which would answer the presumption that the defendant's mare did the mischief; and the fact that the defendant's man was found fomenting the grey mare's legs, was a circumstance which might reasonably have some weight in the matter. The three points for consideration were-first of all, and mainly, did the jury think the circumstances given in evidence were sufficient to satisfy them that the defendant's mare caused the death of the plaintiff's horse? If so, then came the next question whether the defendant was liable? His mare would become a trespasser as soon as it passed the gate leading to the plaintiff's portion of the occupation road. The main difficulty was, whether there was sufficient evidence to lead the jury to a conclusion that it was the defendant's mare that did the mischief. It was entirely a matter for their consideration. It did not require that the evidence should be as strong and exact as would be required to convict a man charged with murder, but still that it should be such reasonable evidence as men of ordinary capacity would act upon as between man and man. The question had risen, whether the defendant was liable, supposing that the plaintiff did not give evidence of notice to the defendant that his mare was a vicious animal. The judge said he was of opinion that had nothing to do with the present question. He added, that if the defendant's horse got into the plaintiff's field, whether the plaintiff's horse began to kick first or not, did not affect the question, if the defendant's mare was a trespasser. It was for the jury to consider, first of all, whether the death of the plaintiff's mare was caused by the defendant's mare; secondly, whether the defendant's mare was trespassing; and then the amount of damages. The jury found a verdict for the plaintiff, damages 147. Notice of appeal had been given by the defendant, and the following are the grounds of appeal :First, that there was no evidence to support the claim of the plaintiff. Secondly, that the judge of the said court was wrong, when, at the end of the case of the plaintiff, he determined that it was not necessary for the plain tiff to prove that the grey mare of the defendant was a vicious animal. Thirdly, that the judge of the said court was wrong when, at the end of the case of the plaintiff, he determined that there was evidence for the jury in support of the case of the plaintiff, if the plaintiff proved that the grey mare of the defendant had committed a trespass by entering the fields of the plaintiff, and had whilst committing that trespass kicked the mare of the plaintiff. Fourthy, that the judge of the said court mis rected the jury at the trial of the plaint, and pa cularly when he observed that no evidence or exp nation had been offered on the part of the defend as to where the grey mare was on the night in qu tion, or what she was doing, and that he certainly pected that some evidence would have been addu on this point, and that it was reasonable to exp the jury should have some evidence which would swer the presumption, that the defendant's mare the mischief. Further: when he said, that, whet the defendant's mare was a vicious animal or not, was of opinion that had nothing to do with the qu tion; nor, if the defendant's horse got into the pla tiff's fields, whether the plaintiff's horse began to k first or not. Maule, for the appellant.-The appellant cannot liable for the injury to the horse. Even if he wo be liable if he knew that the horse was vicious, th was no evidence of vice. The damage is too mote. The appellant could only be liable for the mage, if any, done to the hedge, grass, or land. T damage caused by the appellant's horse to the spondent's horse cannot be said to be a reasonal consequence of the appellant's neglect to maintain proper fence to this field. [He cited Cox v. Barb (9 Jur., N. S., 970).] Horace Smith, for the respondent.-The appellant clearly liable. The whole damage was caused by t appellant's neglect to maintain a proper fence. It natural to horses to kick, even in play, and the d mage was the probable consequence of neglect to ke the horses apart. The question of the vicious ch racter of the horse does not arise, because it may ha happened without any vice. [He cited Star v. Rokes! (1 Salk. 355); Roath v. Wilson (1 B. & Al. 59); Powe v. Salisbury (2 Y. & J. 391); and an Anonymous ca (Vent. 264).] Maule, in reply. ERLE, C. J.-I am of opinion that our judgme should be for the respondent. The action was brow in the county court; but if there had been pleadin it would have been either an action for break and entering the respondent's close, and doing dam to his property, or an action on the case, for negle ing to maintain a proper gate on the appellant's whereby his mare strayed into the respondent's and was kicked and injured to such an extent she was obliged to be destroyed. The particulars nexed to the plaint in the county court were. black horse;" but the evidence, as set out in the shews what was intended by those particulars. pears that the respondent and the appellant owners of adjoining farms, and that a road went a highway, through the one farm into the other and across this road was a gate, which had been pu by the appellant's predecessors in the farm sever eight years before, and it was the appellant's and therefore his duty to repair it; and the respo had given the appellant notice to repair it some before the accident happened; but the appellant did repair it, and in consequence of the gate being repair the appellant's mare strayed down the and entered the respondent's field, and injured mare to such an extent, that she had to be It is said that the appellant is not liable for this cause there is no evidence that he knew the m be vicious; and the case of Cox v. Burbidge and other authorities have been cited, and in my judg the effect of these decisions is, that the owner tame animal is not liable for damage committe such animal, unless a knowledge of viciousness in animal be proved; but I think the direction of judge of the county court to the jury in this case 1 ment: "Due 3001. London, 18-. "Four months after date pay to my order the sum of three hundred pounds, for value received. "To Captain William Taylor. right, although he did not refer to the question of defendant gave the plaintiff the following docuknowledge, because the action was, in substance, trespass committed by the defendant's mare; and, in fact, the only question is, whether the damage claimed was too remote. I do not think, on the facts stated, the question was, in any way, as to the ferocity of the animal. What happened may have happened in play. I think the question of viciousness does not arise. It is the nature of horses to kick, and as the horse strayed through the appellant's neglect, I think the damage committed, and sought to be recovered, was the reasonable consequence of the appellant's neglect; and that the appellant is, therefore, liable. Ship Jasper. "11, Great St. Helen's, London, E. C." Across the instrument the defendant wrote his acceptance in the usual form. There was no date and no drawer's name, nor was it indorsed to any one. At the expiration of four months the present action was BYLES, J.-I am of the same opinion. In these brought, and the instrument was declared on, in the cases our duty is to look narrowly into what was the first count, as a bill of exchange, in these terms:duty of the judge, and what he did; and the appel-"First, that the plaintiff, on the 15th April, 1865, by lant in this case complains that the county court judge did not tell the jury that they were bound to consider whether the defendant knew that his horse was accustomed to kick, for it is said that the knowledge of vice by the defendant in the court below, was necessary to enable the plaintiff in the action to reCover. But the action was trespass, and the only question is, whether the damage is too remote. Now, the case states that the mare was seventeen hands and a half in height, and had on her feet "caulkins;" and the marks on the plaintiff's mare corresponded with the hoofs of the defendant's mare. Such an animal would be reasonably expected, if she strayed and got frightened, or even when at play, to do serious mischief. What did happen may, therefore, be said to be the reasonable consequences of allowing the mare to escape. KEATING, J.-I am of the same opinion. I think the damages claimed were caused by the reasonable consequences of the appellant's neglect, and that they are not too remote. SMITH, J.-I am of the same opinion. The foundation of the suit in the county court was the negligence in not maintaining proper fences, whereby the appellant's mare strayed and kicked the respondent's mare. The only question is whether the damage is too remote. It certainly appears to me to be the natural consequences of strange horses coming into the same field. Now, as it was owing to the appellant's neglect that this happened, I think the respondent was entitled to damages for the injuries caused by the negligence.-Judgment for the respondent. TRINITY TERM. Before ERLE, C. J., WILLES, BYLES, and SMITH, JJ.] M'CALL v. TAYLOR.-May 27. Bill of exchange-Promissory note-Imperfect instrument sued on as a promissory note-No drawer's name and no payee. An instrument in the following form was sued upon as a bill of exchange, and as a promissory note:-"Four months after date pay to my order 2001., for value received.-To Captain William Taylor." It was accepted by the defendant, but contained no date or drawer's signature, and was not indorsed:-Held, that it was merely an inchoate instrument, capable of being perfected, and could not, until completed, be declared on either as a bill of exchange or promissory note. This was an action tried before Byles, J., at Guildhall, in the sittings aftery Hilary Term. The facts Were, that the plantiff had shipped certain goods on board the ship Jasper, of which the defendant was master, and in respect of these goods the master had me interest, the plaintiff at the trial contending at it was a joint speculation. Prior to sailing, the his bill of exchange, now over due, directed to the defendant, required the defendant to pay to the plaintiff 300l., four months after date, and the defendant accepted the said bill, but did not pay the same." And in the second count, as on a promissory note:-" Secondly, that the defendant, on the 15th April, 1865, by his promissory note, now over due, promised to pay bearer 3001. four months after date, and the plaintiff became the bearer of the said note, but the defendant did not pay the same." There was also a count for goods sold and delivered, and an account stated. As to the first count, the defendant traversed the acceptance; and in regard to the second, he traversed the making of the note. To the rest of the declaration he pleaded never indebted. -This The learned judge directed the jury that the document was not a bill of exchange, and, in his opinion, not a promissory note; and a verdict was entered for the defendant, leave being reserved to the plaintiff to move to enter the verdict for him, on the ground that the instrument was a promissory note payable to bearer. A rule nisi having been obtained accordingly, Day (J. Thompson with him) shewed cause.-' document, although containing no drawer's name, is declared on as a bill of exchange. But with that omission, it does not amount to a bill of exchange. It has not even a date; it contains no promise to any one, or if to anybody, to the drawer, whose name is not declared; and, lastly, there is no indorstment. Supposing such a document to be treated as complete, it is without meaning. The case of Stoessiger v. The South-eastern Railway Company (3 El. & Bl. 549) is in point. There the instrument was framed by C., who months after date, "pay to my order" the amount. directed it to himself, and ordered himself, three A proper stamp was affixed, and C. wrote his acceptance across, and then sent it to G., in order that he might add his name as drawer. The document having been lost by common causes, and an action brought, it was held, that it was not a bill, order, note, security the time of such delivery. [He was then stopped.] for payment of moneys, or writing of any value at Hannen and Lord, in support of the rule. - The Court will give effect to a document of this description in the hands of a bonâ fide holder. The plaintiff mitted that this document is good at least as a prowas a bonâ fide holder, and for value, and it is submissory note. (Fielder v. Marshall, 30 L. J., C. P., 158; Armfield v. Allport, 27 L. J., Ex., 42). [Erle, C. J.-In the latter case some important fact appears to be omitted.] As a general principle, an informal instrument will be treated as formal, where it appears that the intention of the framer of it was, that he should be liable. The acceptor says, in effect, "I promise to pay." If any one issues to the world a document in such a form, he authorises a bonâ fide holder to fill up the blank. (Cruchley v. Clarence, 2 Mau. & S. 90). Here, if the plaintiff had put in his own name as drawer, there would have been no defence to the action. An acceptor in blank makes himself liable in any event when sued upon. (Gibson v. Minet, 1 H. Bl. 569). [Willes, J., referred to Penny v. Innes (1 C., M., & R. 439).] ERLE, C. J.-I am of opinion that this rule should be discharged. The instrument was declared on as a bill of exchange, and as a promissory note. It was in these terms: "Four months after date, pay to my order the sum of 300l., for value received," and it was addressed to and accepted by William Taylor. The document came into the hands of the plaintiff, and the question is, whether he can declare upon it either as a bill of exchange or as a promissory note. It is certainly not a bill of exchange, and I think that in form it is not a promissory note. It is an inchoate instrument, capable of being completed, and full effect could be given to it if completed. Let the holder complete it if he have authority to do so. The case of Stoessigger v. The South-eastern Railway Company is directly in point. The other cases cited are distinguishable; in those nothing more remained to be done. It is perfectly clear to my mind, that where there is no drawer's name ataached to the bill, that it is most important for the acceptor to know who the drawer is; and such is the case here. The plaintiff seeks to sue on the document without completing it. It may be he has no authority for doing so. I offer no opinion on that point; I only put it as a possible circumstance. As it stands, this is an inchoate and imperfect instrument, on which no action can be brought. WILLES, J., concurred. BYLES, J.-I am of the same opinion. This is not like the case of an acceptance in blank. SMITH, J.-The case is not distinguishable from Stoessigger v. The South-eastern Railway Company, where the instrument was similar to this; and Lord Campbell observes, "It is not a bill of exchange; there is neither drawer nor payee. Nor is it a promissory note to pay any one who might happen to be the bearer. That Crattenden should become liable generally to the bearer was quite contrary to his intention." We should be doing violence to the intentions of the defendant if we held this to be either a bill or a promissory note.-Rule discharged. In ascertaining whether a deed of composition has been executed, &c. by a majority of creditors, &c., all the creditors must be taken into account, whether or not they have security for their claims. The declaration was upon an award and common money counts. The defendant pleaded, as an equitable defence, that after the accruing of the causes of action, and after action brought, a composition deed, within the intent of the Bankruptcy Act, 1861, was executed by the defendant, then being a debtor within the said act, and was a deed made and entered into between the defendant, so being such debtor, and his creditors, relating to his debts and liabilities, and his release therefrom, setting out the deed at full length. The deed contained an averment, that a majority in num ber, representing three-fourths in value of the creditors of the defendant, whose debts amounted respectively to 107. and upwards, had executed, or in writing as sented to or approved of, the deed. The plaintiff took issue upon this plea. The cause was tried at the Manchester Spring Assizes, before Mellor, J. It appeared that the plaintiffs were millwrights at Oldham, in Lancashire, and the defendant a millowner in the same place. The action was brought for repairs in the defendant's mill. A deed of composition was executed by the defendant and his creditors, to which the plaintiffs did not assent; and the only exception taken to it at the trial, the only defence made to any part of the case, was, that the deed had not been assented to by a majority in number representing three-fourths in value of the creditors. It was proved, that if in estimating or arriving at the value of the debts of the creditors who executed or assented to the deed, the value of the securities held by them ought to be deducted, three-fourths in value had not as sented; but if the value of such securities ought not by law to be deducted, a majority in number, representing three-fourths in value, had executed or assented to the deed. The objection being taken by the plaintiffs' counsel, the learned judge said, that for the purposes of the case he felt bound by the case of Turquand v. Moss (17 C. B., N. S., 15), and directed a verdict for the defendant, leave being reserved to the plaintiff to set the verdict aside, and enter a verdict for the plaintiff for the amount claimed, on the ground that the value of the securities held by the secured creditors should be deducted in estimating the value of their debts. In Easter Term, Holker obtained a rule accordingly; against which, R. G. Williams shewed cause. THE COURT immediately called upon Holker, in support of the rule.-Turquand v. Moss was decided on the authority of Ex parte Godden (1 De G., J., & S. 260), in which latter case the decision upon this point was unnecessary, and which case is at variance with Ex parte Smith (10 Law T. 802). On the merits of the question, it is clear that the construction asked for by the plaintiff is the better. THE COURT said, that without entering further inte the question, the rule would be discharged, on the authority of Turquand v. Moss, and that it was to be understood that the decision rested exclusively on that case.-Rule discharged. TRINITY TERM. [Coram MARTIN, BRAMWELL, and CHANNELL, BB.] CHAPMAN, P. O., v. COTTRELL.—June 3. Writ of summons-Jurisdiction-Common-law Procedure Act, 1852, sect. 18. The defendant, being at Florence, signed a joint and s veral promissory note as one of the two makers, and sent it to London to the other, who signed it, and pa it in to the plaintiff's bank:-Held, that the case action arose in London, and the defendant coul served with process, under sect. 18 of the Common-la Procedure Act, 1852. H. James applied for a rule nisi to set aside the writ of summons in this action, which is brought by the public officer of the Union Bank of London against the defendant, one of the two makers of joint and several promissory note. The defendant, the time when he made the note in question, was re sident at Florence, and has been ever since. In order to discharge a debt to the bank, he drew up and An appeal from this decision has been entered in the Court of Exchequer Chamber. |