ELECTION LAW.

MANCHESTER COUNTY COURT.
Monday, Dec. 8, 1873.

(Before J. A. RUSSELL, Esq., Q.C.)
Re THE EXCHANGE WARD ELECTION v. BATTY.
Municipal election-Application under the Ballot
Act (35 & 36 Vict. c. 33) for inspection of marked
register of voters and voting papers and coun-
terfoils, a petition having been filed in the Court
of Common Pleas against the return of a Coun-
cillor-Rule nisi granted.

THIS was an application in the matter of the
petition which has been filed in the Common Pleas
by Mr. J. Nield against the return of Mr. Batty
for exchange Ward.

Ambrose appeared for the petitioner.
The application was heard in the Judge's private

room.

time, as a public document, yet, by what must
have been a mistake, a previous section enacted
that the marked register and the counterfoils of
the ballot papers should be put into one packet
and sealed up. The Legislature, in fact, gave the
public permission to inspect that which could not
be seen.

His HONOUR.-They gave the public the right
to inspect the outside.

Ambrose said he thougt there would be no diffi. culty about it after he had got an order from the court. His application was, first, for an order to inspect the counted and rejected papers, and the counterfoils. Then if he satisfied the court that he ought to have that order the seals would be broken, the marked register would be open, and the town clerk would have no difficulty in complying with his demand, or rather right, founded on the 42nd rule, to see the marked register. He asked for an order to that effect.

His HONOUR said it should be done most doubtedly; but suggested that the learned counsel should take a rule nisi.

Ambrose said that would accomplish his object exactly.

dismissing the petition with costs, that it is no objection to such an order, notwithstanding sect. 5 of the Charitable Trusts Act 1860, that the commissioners have made it on an application of a contentious character. Observations on Lord Romilly's judgment in Re Hackney Charities (36 L. J., N. S., 169, Ch.; 4 De G. J. & S. 588). The 28th and 32nd sections of the Charitable Trusts Act 1853, give the jurisdiction to appoint trustees to the Master of the Rolls and the Vice-Chancellors in cases in which it was previously necessary to file an information, bill, or petition, and by the Act of 1860 this jurisdiction is transferred to the Charity Commission: Held, that the power to appoint additional trustees is clear under the ordinary jurisdiction of the Court of Chancery; that sect. 32 of the Trustee Act 1850, gives a

statutory power for that purpose, and therefore that such a power is vested in the commissioners. The majority of two-thirds of the school trustees required by the Education Act anticipates any un-objection to the transfer of a school whose trus tees are required to be churchmen. The court will not, upon appeal, interfere with the exercise of discretion by the commissioners, except in a very strong case of miscarriage of justice, and such discretion is properly exercised in a case where in consequence of differences between the existing trustees, the school is closed, and educa tion denied to the children of the district: Semble that neither the Court of Chancery nor the Charity Commissioners have power to remove ex-officio trustees: (Re Burnham National Schools; ex parte Bates, 29 L. T. Rep. N. S., 495. M. R.)

Dec. 13.-To-day the rule was made absolute by consent that the Town Clerk should produce to the petitioner and respondent respectively, and to their respective attorneys and agents, at the Town Ambrose said the petition had been presented Hall, on the 22nd inst., and on such following against Mr. Batty on the ground, among others, days (Sundays excepted) as the parties might rethat he had not been elected by a majority of quire, the following books, papers, and documents votes, the votes having been miscounted. That namely, 1, the rejected ballot papers relating to was one of the grounds upon which, by tho pro- the said election for Exchange Ward: 2, the visions of the Corrupt Practices at Elections Act, counterfoils of the ballot papers relating to the a petition might be presented. There were other same election; 3, the counted ballot papers; 4, and additional grounds in this case. His HONOUR.-The first question is what the spoiled ballot papers; 6,' the tendered ballot the ballot paper account; 5, the unused and number of votes really was. papers; 7, the tendered votes list and list of votes Ambrose.-Yes. The petition also alleges that marked by the presiding officer, and statement of the votes were not fairly and accurately counted. the number of voters whose votes are so marked His HONOUR read the petition and an affidavit by the presiding officer, under the heads "physiwhich had been filed by the petitioner. After cal incapacity,' 9766 Jews," """unable to read," and reciting the facts alleged in the petition, Mr. the declaration of inability to read; 8, the Nield went on to say that he had reason to believe marked copy of the register of voters for the that many of the votes given for Mr. Batty were election for the office of councillor, which was duplicate votes of persons who had previously holden on the said first day of November voted at one or other of the wards on the 1st Nov. in each of the following wards of the city of ManHe had therefore instructed his solicitor to apply chester, namely-Exchange, St. Clement's, New to the town clerk for an inspection of the docu- Cross, All Saints', St. George's, Medlock-street, ments in his custody "other than ballot papers or Ardwick, and Cheetham Wards; and the burgess counterfoils," but the request had been refused. roll for the said city of Manchester. The order Letters were also read which had been passed between the town clerk and Mr. C. J. Hall, the proceeded: "That Sir Joseph Heron do at or petitioner's solicitor. The latter pointed out that upon the said production and inspection, in the presence of the parties authorised to attend the by rule 42 of the first schedule of the Ballot Act it inspection, unseal all and every the packets and is enacted that all documents forwarded by a returning officer in pursuance of the Act to the parcels wherein the before-named books, papers, documents, and other articles are inclosed or conclerk of the Crown in Chancery, other than ballot tained, and that he the said Sir Joseph Heron papers or counterfoils, "shall be open to public inspection" at such times and places as the clerk do by himself, or by some person or persons to be may direct. In the second schedule, by rule 64, production and inspection during the whole time by him appointed for the purpose, attend on such sub-section B, it is enacted that all ballot papers thereof: and, further, that the said Sir Joseph and other documents which in the case of a parlia-Heron and such other persons shall take and use mentary election are forwarded to the Clerk of all such proper measures and precautions as he the Crown in Chancery, shall in the case of a shall deem necessary, in order that the mode in which any particular elector has voted shall not be discovered, and in order that all such books, papers, and documents as are to be produced and inspected shall be safely kept from loss, damage, or other matter or thing whereby the same or any of them shall be injured, prejudiced, or altered in any wise."

municipal election be delivered to the town clerk, and the provisions of part 1 in respect to the inspection, production, and destruction of such ballot papers and documents, and to copies of them, shall apply respectively to the ballot papers and documents in the custody of the town clerk.

Mr. Hall held it to be clear from these enactments that all documents (other than ballot papers and counterfoils) in the custody of the town clerk relating to an election were open to public inspection. He desired to inspect the register of voters, and also the marked list, used by the returning officers at each ward in the city. Sir Joseph Heron wrote, in reply, that there was no doubt some difficulty in determining what might be the meaning of the clauses which referred to the powers and duties of the town clerk in relation to the production of documents in his custody, but it was not necessary to go into that question. By the 29th rule of the first schedule of the Ballot Act the presiding officer was directed, at the close of the poll, to make up in a separate packet, sealed with his own seal and the seal of the candidates or their agents, "the marked copies of the register of voters and the counterfoils of the ballot papers.' The 37th rule provided that he should not open that packet; and the 41st rule said that "no person shall, except by order of the House of Commons or any tribunal having cognisance of petitions, open the sealed packet of counterfoils after it has been once sealed up." He (the Town Clerk) must, therefore, necessarily decline to give the inspection which Mr. Hall asked for; and he added that, in his own opinion, no inspection of the marked register in any case could be had unless under an order of the County Court. Ambrose, after the reading of the correspondence, said he thought the Town Clerk was to a certain extent right in the objection which he had taken. Although by the 42nd rule it was clear the Legislature intended that the public should be entitled to inspect the marked register of voters at any

REAL PROPERTY AND
CONVEYANCING.

NOTES OF NEW DECISIONS.
CHARITY-SCHOOL TRUSTEES-TRANSFER TO

SCHOOL BOARD-CHARITY
APPOINTMENT OF
TRUSEEE ACT 1850, s. 32-APPEAL. By two
deeds, made in 1838 and 1849, the two joint
rectors of a parish were appointed trustees of a
Church of England School. In 1871, it having
become necessary to appoint a new master, the
then rectors could not concur in any appoint-
ment, and the school was closed. A school board
having been elected in the district, it was then
proposed that the school should be transferred to
the board, under sect. 23 of the Education Act of
1870, which requires a majority of two-thirds of
the trustees to effect such a transfer. With this
view a memorial was presented to the Charity
Commissioners, asking them to appoint three ad-
ditional trustees, so that the requisite majority
might be obtained. This course was opposed by
one and supported by the other of the two joint
rectors. The commissioners, however, made an
order appointing three additional trustees, all of
whom were churchmen, one of them being chair-
man of the school board. On a petition by the
opposing rector, by way of appeal from the order,
under sect. 8 of the Charitable Trusts Act 1853,
praying for the discharge of the order: Held, on

COMMISSIONERS-
ADDITIONAL TRUSTEES

BILL OF SALE-AGREEMENT NOT TO REGIS TER-RENEWAL-17 & 18 VICT. c. 36. At the beginning of March 1872, it was agreed by the the latter should grant a bill of sale upon his plaintiff and a person who owed him money that furniture as security for a debt which ought then to have been paid to the plaintiff, that the bill of sale was to be kept renewed for twelve months, and that neither it nor the renewals should be registered during that period, unless the grantor should get into difficulties in the meantime. In pursuance of this agreement a bill of sale was executed on the 8th March, and a fresh bill of sale on the 27th March, but the first bill of sale remained in posession of the plaintiff unregistered and uncancelled. On the 15th April the plaintiff, having learnt that the said grantor was in difficulties, duly filed the second bill of sale dated the 27th March, and on the 20th April took possession of the furniture under it: on the 24th April, the sheriff seized the said furniture under a fi. fa. obtained by the defendant in an action against the grantor of the bill of sale. Held, in an interpleader issue, that the second bill of sale was valid against the execution creditor. Smale v. Burr, L. Rep. 8 C. P. 64; 27 L. T. Rep. N. S. 555, affirmed: (Ramsden v. Lupton, 29 L. T. Rep. N. S. 510. Ex. Ch.)

By the construction of a railway, some land
RIGHT OF WAY-GRANT-LEVEL CROSSINGS.-
belonging to the Crown was taken, and other
adjoining Crown land was severed from the rest.
The railway company were required by their Act
to make such convenient communications across
the railway, where it should be carried through or
across Crown lands, as should be necessary for
the convenient enjoyment and occupation of the
Crown lands. The company accordingly made
two level crossings. The severed land was, at the
time these crossings were made, marsh or mud
land, but it had since been reclaimed, and several
houses built upon it. Held, that the owners and
occupiers of these houses had a right to use the
level crossings, as the right of way was not
restricted to the "convenient occupation" of the
land, for the purpose for which it was used at the
time the crossings were made, but extended to the
"convenient occupation of the land, for any
to which it might subsequently be
purpose
applied: (United Land Company v. The Great
Eastern Railway Company, 29 L. T. Rep. N. S.
498. V.C. M.)

COMPANY LAW

NOTES OF NEW DECISIONS. CONTRIBUTORY-SHARES ALLOTTED IN PAY. MENT OF A DEBT.-Shares in a company were allotted to a creditor in satisfaction of a debt due by the company. Subsequently the company gave the creditor a debenture for the amount of the debt, which was treated as subsisting, but the creditor retained the shares which had been allotted to him, and agreed to surrender them on payment of the debenture. Held, that, by the allotment of the shares in satisfaction of the debt, the debt ceased to exist, aad that the creditor having taken the shares in satisfaction of his debt, could not be placed on the list of contribu tories in respect of the shares. Decision of Bacon, V.C. reversed: (Re The Matlock, &c., Company, 29 L. T. Rep. N. S. 441. L.JJ.)

NOTES OF NEW DECISIONS. SALVAGE-TERMINATION OF SERVICE-PLACE OF SAFETY.-Where a steam tug is engaged to render assistance to a ship aground in the night time, and succeeds in getting her off, and takes by deviation may be waived in writing, but not by her to a safe anchorage for the night, and lies alongside of her till morning, the salvage service does not end on the ship being anchored, but the steam tug is entitled to reward for the time she lies alongside the ship ready to render further assistance if required: (The Philotare, 29 L. T. Rep. N. S. 516. Adm.)

COUNTY COURTS

BIRMINGHAM COUNTY COURT.
Thursday, Nov. 27.

(Before H. W. COLE, Q.C., Judge.) WORCESTER CITY AND COUNTY BANKING COMPANY v. Mountford.

Action to recover the value of a bank cheque. THIS action was brought to recover £15 4s. 1d., being the value of a cheque upon the plaintiffs' bank, obtained by Joseph Shirt, and endorsed by

the defendant.

Young (instructed by Messrs. Barlow and Smith) appeared for the plaintiffs, and Nathan (instructed by Edwards) for the defendant.

The opening statement of the plaintiffs' counsel was to the effect that the plaintiffs had their central offices in Worcester and branch establishments in other parts of the country, one of which was at Evesham, and another at Birmingham. Some time ago a person named John Shirt drew a cheque on the Evesham branch in favour of the defendant for £14 18s. The defendant went to the Birmingham branch for the purpose of getting the cheque cashed, when the cashier refused payment. At an interview between the defendant and Mr. Martin Abel, a managing director of the banking company, the defendant explained that he did not wish to pass the cheque through his own bankers, because they had certain bills belonging to Shirt, which he had got them to discount, and in the event of the cheque being dishonoured there might be a difficulty in getting the bills renewed. Upon that Mr. Abel consented to cash the cheque upon the responsibility of the defendant himself. The cheque was subsequently dishonoured by the Evesham branch, and in consequence thereof the present action was brought against the defendant as the indorser of the bill. Young referred to the case of Woodland v. Fear (7 E. & B., 819), in which it was held that banking companies having various branches at which separate accounts were kept, and from which cheque books upon the particular branches were issued were, in the estimation of the law, separate banking companies; and that, therefore, where a cheque drawn upon one branch had been cashed by another, and subsequently dishonoured, the parties were in the same position as though the banks were perfectly distinct.

The case on behalf of the defendant was that the cheque was not endorsed to the plaintiffs at Birmingham by the defendant with the intention of passing the property and the cheque to them, but only in order that they might get the money from the branch bank. It was further contended that an arrangement had been made between the defendant and the banking manager at Evesham that that bank should continue to honour the cheques of Shirt; but it was explained on behalf of the plaintiffs that at the time the conversation took place, Shirt had an overdraft of £370, and the bank at Evesham consented not to press him for the overdraw, but expressly said that they should not honour any of his cheques beyond that amount unless they had funds in hand for the purpose. Evidence was given on the part of the plaintiffs to show that at the time the cheque was drawn the bank had no funds in hand belonging to Shirt. The defendant was called, and in examination in chief said that he had endorsed the cheque because he knew could not get the money without it.

BRIDPORT COUNTY COURT.

Friday, Nov. 21.

(Before T. E. P. LEFROY, Esq., Judge.)
SPILLER v. BUGLER.

Husband and wife-Wife's agency.
The fact of a husband supplying his wife from
time to time with money necessary to provide for
his family negatives her implied agency to
pledge his credit.

notice of his wife's indebtedness. I am of opinion that the fact of defendant supplying his wife with money to provide for his family from time to time negatives her implied agency at law, and I have less hesitation in this case because I am quite sure substantial justice is done. This ought to be a warning to the plaintiff and all tradesmen to give notice to the husband of the wife's debt. There would be a verdict for £3 12s. 11d. only, the debt incurred by defendant since his wife's death.

[We should like to be referred to the decision which has gone this length. Phillipson v. Hayter was the last decision in the Common Pleas, and that certainly does not support the learned judge.

BRIGHTON COUNTY COURT.
Wednesday, Dec. 11.

(Before F. H. LASCELLES, Esq., Deputy Judge.)
SMITH V. ANGOVE.

THIS was an action by the officer of the sheriff of Sheriff's fees-Action against attorney for. Sussex to recover £6 128., his costs and charges on a levy made under the following circum. stances:

THE plaintiff is a baker, of Barrack-street, and
the defendant is a fireman at the Pymore Mills.
The parties had appeared before the court on two
former occasions, with a view to settle their
differences, but each time an adjournment was-ED. L. T.]
necessary, and the plaintiff's accounts, which his
Honour wished to be satisfactorily put before him,
were referred to Mr. Read, clerk to the registrar,
and the attorneys in the case, in order that a plain
statement of how matters stood might be arrived
at. The point at issue was this. Defendant had
dealt with the plaintiff for bread for nearly twenty
years. Mr. Spiller, in the course of his periodical
deliveries, had left bread at Bugler's house for
seventeen years, when the latter's wife died. At
that time, now three years ago, plaintiff alleged
that defendant was £11 15s. 11d. in his debt. On
the other hand, Bugler repudiated the claim in
toto. His defence was that he had given his wife
the whole of his wages-148. a week-to find
household necessaries, and he had no reason to
think that she was not paying for the bread
weekly. He also asserted that just as his wife
was on the eve of death, he, in a conversation
with the plaintiff, elicited from him that "she
(his wife) was standing all right with him." This
admission the plaintiff denied ever having made.
F. W. Gundry again appeared for the plaintiff.
J. A. Day for the defendant.

Mr. Read laid the result of the examination of
plaintiff's accounts before his Honour, who read
the items as follows:-Due to plaintiff at death of
defendant's wife, 5th Sept. 1870, 211 158. 11d:
bread delivered since, £23 28. 4d.; money paid
by defendant to plaintiff since his wife's death,
£19 98. 5d.: total balance owing, £15 8s. 10d.;
deduct the £11 15s. 11d. due at defendant's wife
death, balance remaining, £3 128. 11d. The case
was then gone into on its legal merits.
Gundry maintained that the article supplied to
the defendant's wife being bread, it was a neces-
sary one; also that there seemed to be the same
mode of dealing after defendant's wife's death as
before, as shown by the fact that the debt had
grown larger since; and he held that it was very
discreditable for a man to try to make his dead
wife a scapegoat as the defendant was trying
to do.

His HONOUR said he could not exactly adhere
to Gundry's proposition that the defendant had
been very irregular in his payments since his
wife's death, because in three years, out of
£23 28. 4d. he had paid £19 9s. 5d., letting back
only £3 12s. 11d. He thought that rather corro-
borated the fact that the man was a tolerably fair
paymaster.

Gundry. In three years he got £3 12s. 11d. in debt, and in seventeen years, before his wife's death, £11 158. 11d.; the latter being less taking the average of three years.

Day.-Defendant for the past three years has been paying for a specific purpose-that of satishefying the plaintiff for bread he was then supply ing from week to week, and not towards the old debt.

Young asked the judge whether it was necessary, under such circumstances, to cross-examine the defendant at all, inasmuch as he submitted that it was really an undefended action ?

His HONOUR took that view, but allowed Nathan to reiterate his legal objections.

In giving his decision his HONOUR reviewed the facts of the case and the arguments adduced on both sides. He said that he considered the result of the evidence was that the cheque was cashed under circumstances which made it rather giving change for a cheque than giving cash for it in the ordinary way. According to the ruling of the court in the case of Kean v. Beard, the defendant might be sued as the endorser of the cheque, and the only defence that could be raised was that which had been attempted, namely, that the defendant in endorsing the cheque had no intention of making himself liable upon it; that it was like a person writing his name on a bank note merely for the purpose of identifying it. He considered, however, that the evidence established the fact that the defendant had endorsed the cheque with the intention of making himself liable upon it, and that it was cashed on the credit of the defendant, and as a cheque bearing his endorsement. It must be conclusive that the defendant had endorsed the cheque, and negotiated it, with the view of getting the money in the way he had, and of being liable for the money received. He had, therefore, come to the conclusion that there was a right on the part of the plaintiffs to maintain this action in the form it had been brought, and accordingly there must be a verdict for the plaintiffs for the amount claimed.

Gundry.-It is one and the same account, and
payments could only go to the earliest items.
His HONOUR.-If a man gives his wife money
for household expenses he is not further liable.
Gundry.-But surely it is not the business of a
tradesman to ascertain what understanding there

is between husband and wife.

His HONOUR.-He ought to apprise the husband of the fact that his wife was getting in his debt.

Day-My friend, Mr. Gundry, begs the question altogether. Plaintiff told my client that at his wife's death there was nothing owing.

Gundry was about to quote what he deemed a
parallel point settled in his favour.

His HONOUR interposed by saying that in the
Common Pleas it had been decided that where a
husband had forbidden a wife privately to buy
goods on credit he was no longer liable.
Gundry.-Here the goods were delivered at the
defendant's own house.

Day.-To the wife.

Gundry.-At the house. It would break up all the credit in the country if such a debt as that were disallowed; and he then cited the case he had before referred to, which he contended made the husband's authority to the wife binding upon him. This was not like one of those cases where a "tallyman" went and induced a wife to buy finery and jewellery, but the plaintiff had delivered bread which it was absolutely necessary a wife and family should have.

His HONOUR said he should hold that it was the plaintiff's bounden duty to give the defendant

"

On the 10th June, defendant, who is a London attorney, caused a writ of fi. fa. to be issued and lodged with the town agent of the sheriff, to recover the amount of a judgment debt and costs in an action, in which the defendant resided at Brighton. The following day, the 11th June, the defendant (Angove) received a telegram from the officer in the following words: Johnson and others v. Graham. Notice served on me. Graham filed his petition for liquidation yesterday. Under these circumstances telegraph reply whether I am to seize or not." The reply to this telegram was: "Seize by all means.'" The officer having been served with restraining orders, wrote to Mr. Angove on the 17th June, requiring to know restraint expired on the 2nd July, or whether he whether he should keep his bailiff in until the should at once withdraw, and to this Mr. Angove replied on the 21st June, stating that "the sheriff must exercise his own discretion regarding the writ." The officer, did not, however, go out until the 2nd July, on which day Graham's creditors passed a resolution to wind-up his affairs in liquidation, and of which due notice was given. Application was then made to Mr. Angove, by the officer for the payment of his costs and charges, the items of which were-levy fee, £1 1s.; telegram, 1s.; possession money, twenty-two days, at 58. per day, £5 10s.; total £6 12s. Mr. Angove result. It should be mentioned that the return to repudiated all liability, and this action was the the writ was nulla bona.

Lamb for plaintiff, having opened the case as above, proceeded to read and comment on the case of Newman v. Merriman, reported in 26 L. T. Rep. N. S. 397, which he believed would be relied on by defendant, and with great discrimination to distinguish the present case from it, alleging special employment arising out of defendant's reply to plaintiff's telegram of the 11th June, as the ground of such distinction. In Newman v. but in this case he contended his client had a right Merriman no such employment could be alleged, of action on a quantum meruit, for services rendered. Also, benefit to the execution creditors might have resulted from the acts of the officer, as in the case of a composition being agreed upon, or the proceedings wholly falling through. the following points, viz., First, that the levy Angove, defendant in person, raised and argued be taken as acting throughout on the original was abortive; secondly, that the officer must instructions derived under the writ; and thirdly, that no express employment was proved. In support of the first point the file of proceedings in Graham's liquidation and the sheriff's return it was submitted that that case must govern the were put in, and Newman v. Merriman cited; and present one, should his Honour be of opinion that no express employment was proved. In support of the second and third points, it was contended that the admission that the writ was duly lodged was sufficient to connect the officer with the sheriff as his servant throughout (per AbingerShepherd v. Wheeler, 8 Car. & P. 332; Ramsay v. Eaton, 10 M. & W. 22). Before the passing of the Common Law Procedure Act, 1852, the law as to the liability incurred by an attorney suing out execution was very unsettled, but in the absence of express employment or interference no general principle whereby the attorney was held liable had been established, Lord Ellenborough laying it down in Bilke v. Havelock (3 Camp. 374), that the writ according to the general rule must be considered as the king's writ, executed by persons appointed by the Crown. The 123rd section of the Act alluded to, however, pointed out how these persons were to be paid, and provided that they might levy the costs and expenses of executing the writ

66

over and above" the judgment debt and costs (Marquis Salisbury v. The Queen, 29 L. T. Rep. 225). The telegram of the 11th June, sent off by

one of the defendant's clerks, was a mere expression of opinion as to the best course to be adopted, and no instructions had been given by defendant ex mero motu. Seizure being made after petition filed, no benefit could arise from it (vide cases in point collected in last edit. Roche and Hazlitt on Bankruptcy) and sheriff should have exercised a proper discretion.

His HONOUR delivered judgment in these words: I have given a great deal of attention to this case, which has been very ably argued. I need not recapitulate the facts, as they are so fresh. I must, however, refer for a moment to these dates and these telegrams. The first telegram to which I need refer is that dated 11th June from Mr. Smith to Mr. Angove, and the reply of the same date, of which the only pertinent words are," Seize by all means." After that the sheriff's officer wrote on the 13th June that he did not see any object to be gained by his continuing in possession, but no reply is received to this. The next documents that come before me are a letter and also a telegram of the 17th June from the sheriff's officer, "Shall I withdraw my bailiff or not?" Then comes the letter of the 21st June from the defendant, "The sheriff must exercise his discretion regarding the writ of fi. fa." I do not think it necessary for me to take it further or to refer to any other document. Now, there is no doubt that it is an axiom of law that an attorney is not liable to a sheriff's officer unless labour has been performed beneficial to him; but the defendant has admitted here that if any express contract is made an attorney is liable. The question for me to consider is whether or not any express contract was implied in that telegram, and I am distinctly of opinion that there is an express contract. The words are, "Seize by all means." As early as the 13th June Mr. Smith wrote to Mr. Angove, "I do not see any object to be gained by keeping me in possession;" and at last, but not until the 21st June, some further correspondence takes place, when Mr. Angove, wishing to wash his hands af the whole thing, writes and says that the "sheriff must exercise his own discretion regarding the writ of fi. fa." I shall find for the plaintiff for possession up to the 21st June, but no longer.

CHELTENHAM COUNTY COURT.
Friday, Nov. 28.

(Before C. SUMNER, Esq., Judge.)
JOHNSON v. TURNBULL.
Application for new trial-One of the jury a friend
of a party-Costs.

Potter said he had to ask his Honour to restrain execution till next court day, when Mr. Boodle would make an application for a new trial on the ground that one of the jury was a friend of the defendant

His HONOUR said Mr. Boodle stated all that at the last hearing.

Potter said he had not gone into the case fully, but he had just been asked to make the application by Mr. Boodle's clerk.

His HONOUR said Mr. Boodle's clerk had asked Mr. Potter to make a hopeless motion.

Stroud said he must ask for the costs of that motion being granted. When his Honour made an order for costs on Saturday last, Mr. Boodle intimated to him that he intended to bring another action, and asked him (Mr. Stroud) where he should like to have that action brought. He replied that it was perfectly immaterial to him where he brought his action, because he was perfectly certain of being successful wherever it was, and as far as that went he left Mr. Boodle to take his own course. That understanding was come to on the day of the court, and on the 26th inst. Mr. Boodle wrote to him inquiring if he intended to apply for a writ of certiorari, as if he did not, he (Mr. Boodle) would bring his action in the County Court. To that he (Mr. Stroud) replied that as then advised he had not the slightest intention of applying for a certiorari; but that he should apply to his Honour to stay further proceedings until the costs in the former abortive action were paid, pursuant to his Honour's order. Yesterday afternoon he received from Mr. Boodle a notice to the effect that he intended to apply to his Honour for a rescindment of the order for costs, on the ground of the misconduct of one of the jury in not intimating to the court the fact that he was intimately acquainted with the defendant; and that if the judge refused to rescind the order for costs, then he should apply for a new trial. He further stated that he should apply for a taxation of costs, and also that the judge might make such other order as he might think fit. He meant to say that Mr. Boodle put so many strings to his bow that he (Mr. Stroud) really did not know which he was going to play upon, and he was, therefore, obliged to come there and bring Dr. Turnbull to defend the very serious attacks which had been made upon his reputation, and which he could not for a single moment allow to go uncontradicted. He did not think his Honour would refuse his order for

HASLEMERE COUNTY COURT.
Thursday, Dec. 11.

costs. It was a very serious thing for a medical | it would be unfair for the defendant to carry the
man to get in an action of that kind, and he contract into effect (as the cottages were not
believed the taxing master would admit that no worth what they were represented to be), and on
undue allowance was made, and in fact if there this point His Honour said defendant had made a
was any cause of complaint it was on the part of bad bargain. His Honour was further of opinion
Dr. Turnbull. His Honour would see that a case that defendant at the time the contract was made
of that kind involved the very life and livelihood was sober. After considering all the circum-
of a professional man, and he was therefore stances of the action, his Honour decreed for a
obliged to spare no expense to defend his reputa- specific performance of the contract, according to
tion, and in point of fact instructed him to pre- the prayer of the plaint.
pare brief for counsel, which he did, but was
obliged to abandon the idea of having counsel
there on account of the great expense. All these
costs were therefore abortive, and for these Dr.
Turnbull would have to pay out of his own pocket.
More than that, he would desire to call his
Honour's attention to the extreme suddenness of
Mr. Boodle's withdrawal. He allowed the case to
proceed all the first day, and then when he saw
that his client must lose, he decided to withdraw
from it, and he (Mr. Stroud) had no intimation of
such intention until he came into court on
Saturday, and the consequence was he had his
witnesses there at a great expense from Glou-
cester and elsewhere. He submitted that this was
an exceedingly vexatious proceeding, and he did
think, having regard to all the circumstances, that
it was a case in which the defendant ought to
have the costs of attending there that day.
Potter pointed out that in any case it was not
necessary to have Dr. Turnbull present, and that
his expenses therefore ought not to be allowed.

His HONOUR said that it was by no means a matter of course that when an application of that sort was refused the successful party got his costs. When a motion was made and costs were asked for, if notice was given of the motion, as a matter of course costs followed against the unsuccessful party, but where a motion was made without asking for costs, it was not a necessity that costs were given. There was some doubt in the matter, but he believed the defendant had been put to a good deal of unnecessary expense. It was perfectly easy, as Mr. Boodle had made up his mind to withdraw from the case, for him to inform Mr. Stroud of the fact, and thus avoid the expense of his bringing all his witnesses. He thought this was a very vexatious expense, which probably the defendant would never be repaid. Under these circumstances, he thought in refusing the application he ought also to give costs against the plaintiff. At the same time, although perhaps it was right and desirable that Mr. Turnbull should attend there, his presence was not actually required, and he should not allow his costs.

CHORLEY COUNTY COURT.
(Before W. A. HULTON, Esq., Judge.)
Friday, Dec. 12.

HALL V. PEndlebury.
Agreement to purchase cottages-Specific
performance.

Mutuality need not be expressed on face of agree
ment, if it can be fairly inferred from the terms
used. Certainty as to terms and time not neces-
sarily of the essence of the contract.

The fact of the bargain being a bad one for one of
the parties not sufficient reason for setting it
aside.

Watson (barrister) for plaintiff.

Edge (barrister) for defendant.

The chief facts of the case are that on the 2nd of May last plaintiff met the defendant in a public house at Chorley, and the latter began to talk about having purchased some property at an auction sale. The plaintiff thereupon said he had some cottages to sell. Pendlebury said he would give him £500 for them, and after the offer had been repeated two or three time plaintiff accepted it, and an agreement was drawn up and signed by each party in presence of witnesses, and the defendant deposited £5. Subsequently, however, defendant repudiated the contract on the ground that he was intoxicated at the time it was entered into. Several witnesses for the plaintiff swore that defendant was sober, while witnesses for the defendant said he had been drinking for a week, and was drunk at the time. This part of the case was decided by a jury, who found a verdict for the plaintiff. Counsel then argued the legal points, Edge, for the defendant, argued that there was no mutuality in the contract, and that the court could not decree its specific performance, as there was no agreement for the defendant to purchase.

His HONOUR was of opinion that there was no necessity that such an agreement should be expressly stated on the face of the contract. It is sufficient if it can be fairly collected from the terms used.

Another objection was that there was a want of certainty in the terms of the agreement, it being argued that no time was fixed for the payment of the purchase money, or for the purchaser to be let into possession.

His HONOUR thought the omissions were not of the essence of the contract, and that the law would supply them. It was further argued that

(Before H. J. STONOR, Esq., Judge.) ALEWYN v. LUFF. Ejectment-Suspicious deed-New trial-Costs. A VERDICT in this case was given at the previous trial for the plaintiff.

Hull, solicitor, of Godalming, now made application for a new trial on the ground of surprise in a certain deed which went to show that consideration money was paid in 1862, and also on the ground that such consideration money was never paid. In support of the application Mr. Hull said that he received no notice that the deed of 1862 was in existence, and consequently at the last trial he was taken by surprise, and had no opportunity of disputing it. In support of the latter ground of the application, viz., that the consideration money supposed by the deed of 1862 to have been then paid, and which put the case out of the Statute of Limitations, he would put in three affidavits to show that such consideration money never had been paid. If this money had not been so paid then the action would be barred by the Statute of Limitations, as the plaintiff had no other proof of possession within the period of twenty years. Mr. Hull then put in and read the affidavits of James Teesdale.

Folkard, barrister, instructed by Albery and Lucas, of Midhurst, who opposed the application, objected to the admission of the affidavit on the ground that it was of a hearsay character.

His HONOUR ruled that such affidavit could be read in support of an application for a new trial.

Folkard said that the contents of the affidavit were only evidence in a new form. If it was not evidence, it was a tender of evidence. The affidavit of Teesdale was to the effect that in 1862 or thereabout he drove Hoad (whom the deed put in by Mr. Folkard at the trial showed to have paid the consideration-money) to Godalming to see his lawyer, whose name was Woods. Woods was not satisfied that the property was clear, and he (Teesdale) did not believe Hoad paid any money. The next affidavit was that of John Hoad Tidy, nephew of the Hoad in question (who is dead), stating that he was one of Hoad's executors. He did not believe Hoad paid any money. If he had done so he should have seen an entry of it in Hoad's books, and no such entry existed.

Stephen Pannell, another executor of the estate of the deceased Edward Hoad, made affidavit that he never considered the property in question as belonging to Hoad.

Hull argued that a new trial should be granted, in order to give him an opportunity to call these witnesses. He thought then that their twenty-two years' possession would run against the documentary title on the other side.

His HONOUR said the case of the plaintiff was that the property was conveyed to him both by the mortgagee and mortgagor.

Folkard-We claim under both.

Hull-But they prove that we had twenty-two years' possession, and if we prove that in 1862 no consideration was paid at all, it would affect the groundwork of the whole thing.

Folkard said that the present application was one of the most extraordinary that he had ever heard made, and it was made in the most extraordinary manner. It was attempted to be supported by evidence of the merest hearsay characterevidence that would never be admitted in a trial, even if a new trial were granted. It was hearmay evidence of interested parties given in denial of a deed executed in solemn form, under sign and seal. He challenged his friend to produce a single authority to show that such st t ments and such affidavits had been rece ved by any court in contradiction of a deed executed under hand and seal, and duly witnessed. He (Mr. Folkard) could not imagine what kind of grounds his friend was going to base his applica tion for a new trial upon. On the ground of surprise he should contend that there was no ground for the application whatever.

His HONOUR intimated that he was of Mr. Folkard's opinion on the ground of surprise. Hull said that if deeds came by surprise that should be sufficient ground for a new trial. Folkard said that there was no suggestion that the deed was forged.

His HONOUR.-No doubt the suggestion is that the deed was concocted.

Folkard proceeded to deny the insinuation with some indignation. Was it, he said, to be in

Hextall submitted in the course of a lengthy argument, that the defendant was not liable. He would show that no action would lie against trustees of a turnpike road for its non-repair, and consequently their clerk was not liable. The case of Gibson v. Mayor &c., of Preston (22 L. T. Rep. N. S. 293), was greatly in point. Hannen, J. in delivering judgment, pointed out that at common law no action lay for the non-repair of a highway, and that a plaintiff must show that a right to sue was given him by statutory enactment. There Turnpike road-Negligence of trustees-Liability. was no case of successful action against turnpike THE plaintiff, Mr. R. J. Chawner, solicitor, Uttoxe- trustees for non-repair; Whitehouse v. Fellowes ter, sued the defendant, Mr. Wm. Henry Sale, (4 L. T. Rep. N. S. 177) was not in point; the injury solicitor, Derby, as clerk to the trustees of the there was damage to a neighbouring proprietor Derby and Uttoxeter turnpike road. The follow-through negligence during the process of repairs. ing were the particulars of claim: "For the injury done to plaintiff's horse on the 8th March 1873, caused by putting his foot in a hole left on defendant's road in the parish of Doveridge through the negligent and unskilful repair of the said road.