night have been, he found that he had no alternative in the matter, seeing that his learned friend the Attorney-General insisted upon every witness who could throw any light upon the inquiry being placed in the box. Under these circumstances he should reserve any further comments upon the evidence until after the witnesses were called. The first witness he proposed to call was the Attorney-General himself.

Sir Henry James, examined by Giffard, explained the circumstances under which he first undertook to contest the borough in 1868. He was invited by some of the constituents to come down, and undertook to do so on the distinct understanding that no corrupt practices would be resorted to, that he should not be required to attend a meeting at any public-house, and that no committee-room should be held at a public-house. These conditions were complied with, and he came down to Taunton. He was seated on petition. Mr. Lane acted as his agent, but was since dead. Mr. Burman, a tradesman, was then appointed, and acted for him in 1873. There was very little drunkenness during the contest, and only on two occasions was he asked for drinkeach time by a woman. One voter wrote a letter to him asking for £5. His canvass was purely a personal one. He was not accompanied in it by Mr. Burman. His canvass was highly successful, and throughout the polling he had no reason to believe that he was ever at the bottom of the poll. One of his agents told him after the polling that he was beaten, and that was the first time he had any reason to suppose that his opponent had a chance of success. It turned out, however, to be a mistake on the part of his agent, and was soon rectified. In regard to Rollings, he knew nothing of him further than as an active member of the Land and Labour League, and never employed him as an agent or canvasser. After some further evidence, the court adjourned.

whether it was filed within the six days required
by the rules of the court. On the matter being
argued, Lord Coleridge discharged the rule, thereby
deciding in favour of the respondent, that the list
could not be received. The question now arose
how far that decision would affect the proceedings
at the hearing of the petition. Mr. Ambrose re-
viewed the history of the election, and explained
how the order had been obtained from the County
Court judge to inspect the documents. There had
been some delay in inspecting the documents,
owing to the illness of the town clerk, and it was
not till near Christmas that the documents were
inspected. This delay had arisen from the lauda-
ble desire of the town clerk, as custodian of the
documents, to be present. It was, therefore, not
till Christmas that the marked registers were in-
spected. Then followed the New Year holidays,
and then the petitioners addressed themselves to
the getting up of the case. By the 7th rule,
which had been issued by the judges, it was
enjoined that six days before the trial a list of
votes objected to, with heads of objections, should
be handed to the master and the respondent.
This had been driven to the last moment, and a
question had arisen as to the construction of the
rule. By the 25th section of the Corrupt Prac-
tices Act, it was provided that in reckoning the
time for the purposes of the Act, Sunday Christ-
mas Day, or any day set apart for fast or public
thanksgiving should be excluded, and the judges
were authorised to make rules, which should be of
the same force as if they were enacted in the body
of the Act.

Cottingham wished the court to take note of
recent judgment of the Lord Chief Justice of the
Common Pleas.

Ambrose contended that the court had decided on the simple question that they had not left the notice at the rule office on the sixth day. The question whether the six "clear" days was not touched upon, because it was a custom with the court never to decide upon a point which did not arise. The trial was to be on the 20th. The list was tendered on the 13th, but not left till the 14th. For his part, if it had been left on the (Before T. W. SAUNDERS, Esq., Recorder of Bath, 13th, he was convinced that it would have been Commissioner.)

MANCHESTER SESSIONS COURT.
Tuesday, Jan. 20.

Be BATTY (A Councillor of Exchange Ward.) Municipal petition-Technical objection-Lists not delivered.

At the election for Exchange Ward, in November
1873, B. and N. received an equal number of
votes, and the returning officer gave his casting
vote in favour of B. N. presented a petition
against B.'s return, on various grounds, and
claimed the office on the ground that he had a
majority of lawful votes. In accordance with
the Act of 1872 (35 & 36 Vict. c. 33), the peti-
tioner prepared a list of the votes objected to,
which had to be delivered to the Master, and
the respondent, six days before the day ap-
pointed for trial. The trial was appointed
for the 20th January, and on the 13th the
list was taken to the Rule Office, when the
clerk there said it was too late, and advised
an application to the Court of Common
Pleas for leave to file the list. The list was not
pressed upon him, but it was delivered on the
14th, and an application was made to the court
as suggested, and a rule nisi was granted. The
court discharged the rule on the hearing, on the
ground that the list had not been delivered six
days before the day appointed for trial, but did
not decide whether the list would have been de-
livered in time if delivered on the 13th.
The case now came on for hearing before the com-
missioner appointed under the Act. The peti-
tioner's counsel offered no evidence, as the list
was excluded.

The commissioner refused to dismiss the petition
under the circumstances, and determined simply
to certify that B. was duly elected. He refused
to grant costs to the respondent, on the ground
that the petition was bona fide, and was simply
defeated by a technical objection, but granted
the costs of the returning officer.
Ambrose, barrister, for the petitioner.

Cottingham, barrister, for the respondent. Grundy (of Grundy and Kershaw), for the mayor, the returning officer.

In this case a petition had been lodged by Mr. Nield against the return of Mr. Batty for Exchange Ward in November last, at which election there had been a tie between these two candidates, and the mayor, who was the returning officer, gave his casting vote in favour of Mr. Batty. The petition declared that the respondent was not duly elected by a majority of lawful votes, and therefore a scrutiny was prayed for. A rule nisi had been applied for and obtained by Mr. Ambrose in the Court of Common Pleas, calling upon the respondent, Mr. Batty, to show cause why the petitioner should not be at liberty to give evidence against the list of voters tendered at the rule office, and why the said list should not be filed. It appeared that the petitioners had deferred the filing of the list to the last moment, and it was a question

in time. When the list was tendered on the 13th,
the legal agents of the petitioner in London con-
clerk it should have been delivered on the 12th.
sidered it was in time, but he was told by the
Unfortunately, in pursuance of that suggestion,
the clerk did not press the matter; and if the rule
clerk had refused to accept the list, he (Mr.
Ambrose) should have felt in a different position.
As it was, the rule clerk simply gave advice,
which was accepted, namely, that a summons
should be taken out, which was done. No
order was made on this summons, and appli-
cation was then made to the Court of Com-
mon Pleas with the result above stated.
He had offered in the Court of Common Pleas,
and before the judge, and was now prepared to
offer to pay the costs of the adjournment if the
respondents would waive the objection taken in
respect of the lists not being delivered in time,
and he was prepared with evidence of the most
reliable character in support of his list of objec-
tions; and he ventured to think that he should
lay such evidence before the judge as would en-
title him to a verdict in his favour.

Cottingham refused to accede to the sugges-
tion. He argued that the petitioners tried, by the
ruse of keeping back the information as long as
they could, to put the respondent to a disadvan-
tage, and as they had not complied with the law,
they must abide by the consequences.

A long discussion then ensued on the question
of costs, Cottingham contending that the costs
should fall on the defeated party.

that the costs in a case under these peculiar cir-
Ambrose said that all precedents tended to show
cumstances should not fall on the petitioner, who
was ready to go on with his case, but was met by
a frivolous technical objection.

Cottingham said if the petition had been with-
drawn altogether no court would have refused to
give the respondent costs, and the petitioner said
he would have withdrawn if he had had time to
do so.

Ambrose contended that the commissioner had a
discretion in the matter of costs, and that there
were special circumstances in this case calling for
the exercise of that discretion in favour of the
petitioner. The petitioner had offered long ago to
pay the costs of a postponement, and the offer
had been renewed that morning, but it was not
accepted, and this was a case of an inquiry being
defeated on a purely technical objection. At all
events, it was a case in which the respondent was
entitled to no indulgence from the court; on the
contrary, it was a case having special circum-
stances which would justify the commissioner in
depriving him of his costs.

Cottingham having briefly replied.
The COMMISSIONER said this was a peculiar
case, and he was sorry it fell to his lot to adju.
dicate upon it in the first:instance. The earnest
ness of the petitioner was shown by the deposit

of £500. He had shown that he was animated by a desire honestly to go on with and have the petition tried. He (the Commissioner) did not, therefore, look upon his conduct as being in any way tinctured by frivolity or insincerity. The 7th rule provided that the list of objections should be filed six days before the day of trial. That meant that one day should be included, and another excluded, and therefore if the particulars had been filed on the 13th they would have been in time. The clerk who tendered them volun tarily took them away again, but if he had insisted upon their being received, the question would have arisen whether the tender was not in fact a filing. No doubt the petitioner drove the thing to the last moment. It was a pity that he was not more liberal in his views, and did not file his particulars in ample time, but he did nothing more than he was lawfully justified in doing. The particulars, however, were not strictly filed, and the respondent had a right to rely upon that, and so far he had the advantage of retaining his seat. He could not shut his eyes to the fact that this was a bona fide petition. There were on both sides a great many questionable matters for the consideration of the court, but it was impossible for him to suggest which side would have been victorious. Here, however, was a bona fide petition, honestly presented, and he could not look upon it as being in any way frivolous. It failed to some extent on a techni cality. He thought the petitioner had the moral merits of the case, and did not think that he was called upon to visit him with the costs, he there. fore made no order as to costs, and should certify that Mr. Batty had been duly elected.

Cottingham thought the Commissioner had power to reserve a point of law, and he wished the point in reference to the construction of the Act of Parliament on the question of the time of notice to be reserved.

The COMMISSIONER said his discretion as to costs was unfettered, and Mr. Cottingham could hardly go to the Court of Common Pleas with a case as to how he exercised his discretion.

Grundy (who represented the Mayor).-I under stand you to dismiss the question of costs with regard to Mr. Batty and to grant costs to the Mayor?

Ambrose said he must consent to an order that the returning officer should have his costs. He must also consent to the costs of the town clerk being allowed.

objections were made to votes upon which the The COMMISSIONER remarked that a number of register was conclusive. For instance, voters the ward sufficiently long, or because they were were objected to because they had not resided in not duly rated to the poor. The court had nothing to do with these questions.

Ambrose said these objections were made on them. both sides, and a question would have arisen as to

The proceedings then terminated.

REAL PROPERTY AND
CONVEYANCING.

NOTES OF NEW DECISIONS. BILL OF SALE-COVENANT TO PAY IMME DIATELY ON DEMAND "-REASONABLE TIME FOR PAYMENT-CONSTRUCTION.-By a bill of sale dated the 15th April 1873, the plaintiff assigned all his goods, &c., to the defendant to secure a sum of £100, upon the express condition that if the plaintiff did not "immediately upon demand left for him at his home, pay the money due, it thereof in writing," delivered to the plaintiff or shall be lawful for the defendant to seize and sell the goods comprised in the bill of sale. On the 27th April 1873, the defendants went with bailiffs to the plaintiff's house and there saw the plaintiff's wife and son, who told him that the plaintiff was from home, they knew not where, and that he might be gone to America for aught they knew. The defendant then read and delivered to the wife and son a written demand for payment, which not being complied with, he at once put the bailiffs in possession, and after an interval of eight days sold the goods. The plaintiff returned to his home on the 8th May, and said he had started with the £100 to go to S. on business, but had gone to R., had got drunk, and remained away 64 on a spree." In an action against the defendant for so seizing and selling the plaintiff's goods, it was held by the Court of Exchequer (Kelly, C.B., and Bramwell and Pollock, BB.) that the defendant was under the circumstances perfectly justified by the terms of the bill of sale in seizing the goods as he did, immediately upon the demand having been made as above stated. Toms v. Wilson and another in the Q.B. and Ex. Chamber (7 L. T. Rep. N. S. 421, 8 ib. 799; 3 B. & S. 422 and 455; 30 L. J. 32 and 382, Q.B.), and Massey, Sladen and others in the Exchequer (L. Rep. 4 Ex.

13; 38 L. J. 34, Ex.), discussed and distinguished:
(Wharlton v. Kirkwood, 29 L. T. Rep. N. S. 644.
Ex.)
VOLUNTARY SETTLEMENT-WORDS OF LIMI-
TATION IN GRANT-LIFE ESTATE.-A., by a volun-
tary settlement, in 1838 conveyed freeholds to
trustees upon trust (together with a sum of stock
already transferred) for himself for life, and after
his death in trust for his reputed son, W., when
and in case he attained twenty-one, with a trust
for maintenance if W. should be under twenty-one
at the settlor's death. And in case W. should die
under twenty-one, or die in the settlor's lifetime,
without leaving issue living at his decease, then
over. There were no words of limitation in the
trust for W. There was a power of sale in the
settlement, but no trust to invest the proceeds
in land. A. died in 1849, having made his will in
1843, which recited the settlement and confirmed
it, except as to the stock which had been sold.
W. attained twenty-one, and died in 1872. Held,
that W. took a life estate only in the freeholds
under the settlement, and that there was a result-
ing trust for the settlor: (Middleton v. Barker,
29 L. T. Rep. N. S. 643. V.C.B.)

generally. A dissentient creditor is as much
bound by such extraordinary resolution as he was
by the resolution accepting the original composi-
tion. The word "persons "in clause 5 of sect.
126 of the Bankruptcy Act 1869 does not mean
"creditors," but " persons "other than creditors,
whose interests may be affected by the proceed.
ings: (Ex parte The Liquidators of the Radcliffe
Inves'ment Company (Limited); Re W. H. Glover
and Co., 29 L. T. Rep. N. S. 694. Bank.)
WILL ADEMPTION

conclusive evidence that the capital has been subscribed (Ystalyfera Iron Company v. The Neath and Brecon Railway Company, 29 L. T. Rep. N. S. 662. M. R.)

UNREGISTERED ASSOCIATION-WINDING.UP.In reply to a circular issued by M. and D., setting forth a project for acquiring and remodelling a theatre at the cost of £12,000, with the intention of selling it to a company, to be formed for the purpose, for £40,000, which would enable a return BEQUEST OF LEASE to be made of £300 for every £100 subscribed, HOLDS NOTICE TO TREAT FOR SERVED ON several persons, exceeding seven in number, subTESTATOR - NO WRITTEN AGREEMENT-CON- scribed to the project. The theatre was at first VEYANCE BY EXECUTRIX-MESNE RENTS.-A carried on by M. and D., and afterwards by three testator bequeathed two leasehold houses to A., of the subscribers. A creditor, on the grounds and appointed B. his executrix and residuary that the subscription to the project constituted legatee. Previously to his death the testator the subscribers partners, presented a petition to was served, by a railway company with notice to wind-up the partnership under the 199th section treat for the sale of the leaseholds. No written of the Companies Act 1862. Held, that the subagreement was executed, but surveyors assessed scribers were partners, and being more than seven the amount of the purchase money, and it was in number, came within the Act, and the order arranged that the testator should continue to was accordingly made: (The Royal Victoria Palace receive the rents until the completion of the pur- Theatre, 29 L. T. Rep. N. S. 668. V.C. B.) chase. Nothing more was done until after the VOLUNTARY WINDING-up · CONTINUATION death of the testator, when B., as executrix, con- UNDER SUPERVISION - PRACTICE.-The 147th MINES EXCEPTED OUT OF GRANT OF SURFACE veyed the property to the company. Held, that section of the Companies Act 1862, empowers -RIGHT OF OWNER TO SUBTERRANEAN WATER. the bequest was adeemed, but that A. was enti- the court, notwithstanding the opposition of un-In a case in which mines were altogether tled to the rents received from the testator's paid creditors to order a voluntary winding-up to excepted out of a demise of the surface, held death to the date of the conveyance: (Watts v. be continued under supervision. Where, therefore, (reversing the judgment of the court below), that Watts, 29 L. T. Rep. N.S. 671. V.C. H.). the creditors of a company, in the course of volunthe rights of the owner of the surface, and the DOMICIL OF ORIGIN-ABANDONMENT OF-tary liquidation, presented petitions for windingowner of the mines did not in any way differ from WILL-GIFT OF RESIDUE - ADEMPTION.-In up the company, the court declined to make a those of the owners of adjoining closes, who are 1858, the testator, a native of Montreal, where, compulsory order, but directed the voluntary strangers in title, each of whom is entitled to the up to that time he had carried on the business of winding-up to be continued under supervision. water found upon his land, but neither of whom a merchant, sold his house, and also a piece of Where successive petitions were presented for is entitled to complain of the loss of that water by ground that he had there purchased in the burial winding-up a company, in ignorance of prior petinatural percolation set in motion by his neigh-ground, and accompanied by his family went to tions, the court, in making the order, allowed one bour's excavations; for it makes no difference Paris for the education of his children, where he set of costs on all petitions: (Re Owen's Patent whether the respective closes are adjacent verti- resided until 1868, when he came to England and Wheel, &c. Company, 29 L. T. Rep. N. S. 672. cally or laterally, and the grant of the surface purchased the lease, having thirteen years unex- V.C. H.) cannot carry with it more than the ownership of pired, of a house, which he furnished, and in which the entire soil would: (The Ballacorkish &c., he lived until his death in May 1871. Testator on Mining Company v. Dumbell, 29 L. T. Rep. N. S. several occasions returned to Canada for the 658. Priv. Co.) transaction of business, and on one of such occasions made his will in the French language, and in the form usual in Lower Canada, describing himself as of Montreal, merchant, and appointed four executors, of whom three were resident in Canada; and on another such occasion made a codicil to his will, describing himself in the same manner. While residing in England, testator's daughter married an Englishman, and he also established his son in business in England. Held, that the testator had acquired an English domicil. Testator, by his will made in 1853, gave all his property, subject to an annuity, to his wife (who predeceased him) for life, to be divided equally between his two children. In 1869 testator, on the occasion of the marriage of his daughter, covenanted to pay to the trustees of her marriage settlement the sum of £8500, and in the meantime to pay to them the annual sum of £525, upon trust for his daughter for life for her sole and inalienable use, with remainder to her children as she should appoint, and in default of appointment for all her children who should attain 21 or marry. Testator also advanced to his son a sum of £2000 for the purpose of placing him in business. Held, that the sums settled by the testator on the marriage of his daughter and advanced in his lifetime to his son, must respectively be taken into account in estimating the shares to which they respectively were entitled under the testator's will: (Stevenson v. Masson, 29 L. T. Rep. N. S. 666. V.C. B.)

RIGHT OF WAY-SUBSTITUTED WAY.-The grantor of a right of way over a towing path along a private canal built a bridge over the canal, which entirely blocked up the towing path, and obliged the grantee to go through the grantor's land around the foot of the bridge in order to rejoin the towing path. Purchasers from the grantor of the land over which this right of way existed, attempted to prevent the grantee from using the substituted way which the building of the bridge had obliged him to use. Held, that the grantee was entitled to an injunction restraining the purchasers from interfering with his use of the substituted way: but that the injunction must be limited to the period during which the obstruction of the towing path by the bridge might continue, and was not to extend so as to authorise the grantee to use the substituted way for any other purpose than towing barges. Order of Bacon, V.C., varied: (Selby v. Nettlefold, 29 L. T. Rep. N. S. 661. L.C. and L.JJ.).

TESTAMENTARY SUIT-MARRIED WOMAN'S WILL SETTLEMENTS COSTS. A married woman executed a will by virtue of a power, by which she appointed A., her husband, her universal legatee. A. did not prove the will, but dealt with the estate, which was all included in the marriage settlement. On the intermarriage with B., his adopted daughter, with C., he settled on her a sum of £5000, in which he included a certain portion of his wife's estate. B. and C. proved the will of the testatrix, which was opposed by her next of kin, and the court, in decreeing costs out of her estate, held, that no portion of the fund settled at the marriage of B. and C. was liable to COMPANY LAW. the costs of the litigation: (Adamson v. Adamson and Hammond, 29 L. T. Rep. N.S. 700. Prob.) NOTES OF NEW DECISIONS. EJECTMENT FOR FORFEITURE-NONPAYMENT RAILWAY-COMPULSORY POWERS-NOTICE TO OF RENT-CONSTRUCTION OF COMMON FORM- TREAT-DELAY · EVIDENCE.-A railway comMEANING OF 66 BEING DEMANDED."-The defen-pany, incorporated by an Act of Parliament, which dant was tenant to the plaintiff under an agree passed on the 29th July 1869, limiting the time ment containing a condition for re-entry if defen- for the exercise of the compulsory powers to dant should "make default in payment of the rent three years, and the time for the completion of within twenty-one days after it should have the railway to five years, served a notice to treat become due being demanded." The defendant for certain lands belonging to the plaintiff commade default on the 25th March, and the plaintiff pany on the 21st April 1866. By an Act of made demand on the 9th April, but the defen- Parliament of the 26th July 1869 (against which dant failed to pay. The plaintiff waited twenty- the plaintiff company petitioned), the railway one days, and then brought ejectment: Held, company was dissolved, and its undertaking was that the demand being made before the expiration amalgamated with that of the defendant company, of twenty-one days, was not a good demand and by the same Act the time for completing the within the meaning of the agreemet, and a rule works was extended for three years; but the period to set aside a verdict for the plaintiff in ejectment within which the compulsory powers given by the made absolute: (Phillips v. Bridge, 29 L. T. Rep. first Act were to be exercised was not extended. N. S. 792. C. P.) On the 18th Aug. 1871, the defendant company took possession of the lands, whereupon the landowners filed a bill to restrain them from continuing in possession. Held, that the time for completion of the works having been extended by the Act of 1869 (of which the plaintiff company had notice) to the 29th July 1872, the notice to treat was not invalidated by lapse of time. Held also, that the magistrate's certificate under ss. 16 & 17 of the Lands Clauses Consolidation Act 1845 must, in the absence of fraud, be taken as

BANKRUPTCY — COMPOSITION SUBSEQUENT RESOLUTION TO REDUCE-WHEN PERMISSIBLEACTION BY DISSEnting Creditor-INJUNCTION -POWERS OF CREDITORS-32 & 33 VICT. c. 71, 8. 126, CLAUSES 1, 5, AND 6.-Under sect. 126 of the Bankruptcy Act 1869, creditors have power by an extraordinary resolution to reduce the amount of a composition previously accepted by them when the circumstances require it, and it will be for the benefit of the debtor and the creditors

COURT OF APPEAL IN CHANCERY.
Saturday, Jan. 17.

Ex parte THE NEATH AND BRECON RAILWAY
COMPANY.

Lands Clauses Act-Money deposited by company
· Purchase money paid-Payment out of
THIS was
deposit.
an appeal from a decision of Vice-
Chancellor Bacon. The above railway company
in 1865, being desirous of entering on some lands
belonging to Mr. John Lloyd Vaughan Watkins,
which they required to take for the purposes of
their railway, before any agreement for purchase
sions of sect. 85 of the Lands Clauses Consolida-
was come to, paid into the bank, under the provi-
entered into the usual bond. The sum was after-
tion Act, 1845, the sum of £1544 78. 4d., and
wards invested in Consols. The sum of £1700
was subsequently awarded for the purchase-
money of the land, and another sum of £1700 for
compensation for severance. These sums, with
interest, were paid by the company, and on the
10th June, 1873, a conveyance of the lands to the
company was executed. The company then peti-
tioned for payment to them of the sum deposited
in court. The Vice-Chancellor ordered the vendor's
costs and expenses of the purchase to be paid out
of this sum, and the balance to be paid to the
company. The company appealed.

Eddis, Q.C. and W. D. Gardiner were for the company.

Kay, Q.C., Cracknall, and Whately, were for the landowners and others interested.

Lord Justice JAMES was of opinion that the Vice-Chancellor's order was not in accordance with the Act. The money was paid into the bank to answer a particular purpose-viz., to secure the payment of the purchase-money with interest; that purpose having been answered the Legisla ture had said that the money was to be paid out to the company. It would be unlawful for the court to do anything else with it. The ViceChancellor's order must be discharged.

Lord Justice MELLISH was of the same opinion. The money was deposited as security for the performance of the condition of the bond. If the matter stopped there, it would be a strange thing to apply the money to any other purpose. But the Act went on to say, in sect. 87, that on the condition of the bond being fully performed it should be lawful for the Court of Chancery to order the money to be repaid to the promoters of the undertaking. The court was bound in that case ex debito justitiæ to make an order for payment to the company. If any of the costs claimed were costs under sect. 80 of the Act, that section only said that it should be lawful for the court to order them to be paid to the promoters: it did not say that they were to be paid out of the money deposited.

A discussion then arose as to the costs of the petition, and

Lord Justice JAMES said that if the respondents had simply appeared, they would have been entitled to their costs; but as they had chosen to raise a litigation, no costs would be given.

MARITIME LAW.

NOTES OF NEW DECISIONS. DAMAGE TO CARGO-GOODS CARRIED INTO ANY PORT OF ENGLAND AND WALES-SHIP CALLING FOR ORDERS-GOODS DETAINED AT A FOREIGN PORT.-When a foreign ship carrying cargo, acting in pursuance of the contract of affreightment, which gives the option of several ports of call, English and foreign, puts into an English port of call for orders, she carries her cargo into the English port within the meaning of the Admiralty Court Act 1861 (24 Vict. c. 10), s. 6; and, though she be ordered to a foreign port, and there discharge her cargo, the Court of Admiralty has jurisdiction to entertain against her a suit by the assignees of the bills of lading of the cargo, for damage to cargo, and to arrest her on her return to this country: (The Pieve Superiore, 29 L. T. Rep. N.S. 702. Adm.)

The warranty may be written in any manner on the face of the policy or be contained in documents expressly referred to in the policy.

A formal expression is not necessary. Any direct or even incidental allegation of a fact relating to the risk may constitute a warranty. Phillips, sect. 757.

But every recital of a fact is not necessarily a warranty, particularly if it be evident that it cannot have any relation to the risk.

Ibid. sect. 758.

The port being named, she must be in it, but for by a neutral in contemplation of war, unless may be moved about in it: delivered before the declaration of war.

port

Clark v. Westmore, Selw. N. P. 1008.

In policies at and from, the general words "in "refer to the port where the voyage is to commence. The ship must be in that port on the specified day:

Co by v. Hunter, 1 Mood. & Malk. $1. "Lawful trade:"

Relates to the employment of the ship by the owners. A loss by barratry is recoverable under a policy containing this warranty:

Havelock v. Hancill, 3 T. R. 277. "Sailed":

Means unmoored and got under way in complete preparation for the voyage, with the intention of proceeding to sea without further delay at the port of departure.

The warranty to sail is not complied with by
leaving harbour imperfectly equipped.

Graham v. Barras, 3 Nev. & Man. 125; Pettegrew v.
Pringle, 3 Barn, & Ad. 514.

The risk under the policy having commenced
before the time fixed for the sailing, the war-
ranty is complied with if the ship is ready to sail,
and is only prevented by a peril insured against
by the policy:

1 Phillips, p. 427, s. 772..

But if the risk is to commence only at the sailing of the ship, the warranty is not complied with unless the vessel actually sails within the time warranted.

vided by the Goverment for vessels bound on the
The convoy must be the regular convoy pro-
voyage insured.

The vessel insured must sail with the convoy
and continue with it until the end of the voyage
unless separated by necessity.

with convoy :
The captain must have sailing orders to keep

Arn. 4th edit. 563; Phillips, ss. 780, 781.
NEUTRALITY.

Proofs of neutrality.

warranty the ship must be furnished with all those In order to be neutral within the meaning of the herself and her cargo required to be on board documents and proofs of the neutral character of either by the law of nations or by the regulations

of international treaties :

Arn. 569, 4th edit; Phillips, sect. 802.
NOTE.-These should comprise the flag, the passport,
sea-brief, sea-letter, or pass; the register, or cer-
tificate of registry; the muster-roll, the charter-
party, the log book, the bill of health; proofs of
the national character of the cargo; ex. gr. invoices,
bills of lading, certificates of origin:

Arn. 570, 571, 4th edit; Phillips, sect. 802, et seq.
A master forfeits the neutral character of his

ship by covering belligerent goods on board as
neutral, even though without the knowledge or
consent of the shipowner :

An engagement on the part of the assured that the property is owned by persons resident in a country at peace when the risk begins, and who have the commercial character of subjects of such country, and that it shall be accompanied with conducted by the assured and their agents, as to such documents, and shall be so managed and be entitled as far as depends on them to all the Harrison v. Douglas, 5 Nev. & M. 180; 3 Ad. & E. 396, protection and privileges of property belonging to captain does not forfeit the neutral character of The warranties in the memorandum are simply the subjects of such country: agreements relieving the underwriter from lia bility for loss or damage under a certain percentage.

The rule of a mutual insurance society merely directory to its committee is not an express warranty:

Non-compliance: Its operation. Non-compliance with an express warranty is excused only

(1) When the state of things contemplated by the warranty ceases; and

(2) When a subsequent law makes compliance illegal.

Failure even temporarily to comply with the warranty at any stage of the risk is fatal to the policy.

American Law.-It relieves the underwriter from liability for subsequent loss.

Phillips, sect. 783.

Extent of warranty.

The warranty is that the subject is neutral at the commencement of the risk, and that it shall continue to be neutral so far as depends upon the assured, or he is responsible:

I b. sect. 784; Arn. 4 edit. 565.

Part owners insuring their interest with a warranty as to neutrality the warranty extends to their interest only:

Phillips, sect. 789.

The breach of warranty need not be connected acquired by migration flagrante bello. [This is with the loss:

Phillips, sect. 810.

The forfeiture of neutrality by the shipowner or

goods shipped by another neutral, and duly documented as such:

Phillips, sect. 811.

In general the concealment of papers amounts to a breach of warranty:

Marshall, C.J., in Livingstone v. Maryland Ins. Co., 7 Cranch, 536.

Semble, also, carrying a material paper written in sympathetic ink:

Phillips, sect. 809.

Throwing papers overboard is not of itself a breach of the warranty, although raising a strong presumption of enemy's property:

Bernardi v. Motteux, Dougl. 581; The Pizzaro, 2
Wheaton 227.

Breaches of the warranty.
All voluntary illegal acts forfeiting the charac-
ter of a neutral are breaches of the warranty.
Ex. gr.-Resisting the right of search when
properly exercised (a). Rescuing, or attempting
to rescue, a neutral vessel sent in for examination
by an authorised belligerent captor. Violating
blockade(b). Carrying hostile despatches(c).

(a) As to what is a proper exercise of the
right of search, see
Phillips, s. 819, 820; Arn. 580, 4th edit.; The Maria,
1 C. Rob. Adm. 340.

(b) Blockade must be effective, and neutral
nations must have had notice of it.
(c) "A distinction has been made between
carrying despatches of the enemy between
different parts of his dominions and
carrying despatches of an ambassador
from a neutral country to his own sove-
reign. The effect of the former despatches
is presumed to be hostile; but the neutral
country has a right to preserve its rela
tions with the enemy, and it does not
necessarily follow that the communica-
tions are of a hostile nature."
Kent 1, s. 153.

Attempting to disguise belligerent goods as
neutral, and carrying them as such with the
neutral part of the cargo, is a breach of the
warranty of neutrality, and will avoid the policy
as to the whole of the neutral cargo:
Arn, 576, 4th edit.

If during war neutral property be engaged in any branch of the colonial or coasting trade of the enemy that is open to foreigners in time of peace, such property loses its character of neutrality:

1 Kent, Comm. 81-86; The Immanuel, 2 C. Rob. Ad. R. 186.

NOTE. This rule is confined to trade between the enemy's colony and the mother country, and is not applicable where the produce of a hostile colony is boná de imported into a neutral country, and thence re-exported into the mother country: (Arn. 574, 4th edit.) Property despatched to a neutral in pursuance of a contract with a belligerent government, or employed by him in a trade for which a privilege is given by a belligerent, does not answer to a warranty of neutrality:

The Anna Catherina, 4 C. Rob. Adm. 107.

A warranty that a vessel is neutral is not forfeited merely by the supercargo being a belligerent:

Mayne v. Walker, 3 Dougl. 79.

The employment of a neutral vessel in a service auxiliary to the hostile operations of a belligerent forfeits its neutral character:

Ph. s. 822; 1 Kent, s. 149.

NOTE.-Kent says, "It is a presumption almost de jure that the neutral, if found on the interdicted waters, goes there with an intention to break the blockade."

A master being informed during a voyage to a port that it is blockaded, violates the blockade if he continues his voyage.

NOTE. The pursuit of the voyage is, however, open
to explanation.
Phillips, s. 838.

Sailing to a port with a design to enter, if the blockading squadron should be blown off by the winds is a violation of the blockade.

The materials of which the ship is made;
Its construction;

The qualifications of the captain;

The number and description of the crew;
The tackle, sails, and rigging;

The stores, equipment, and outfit generally,
must be such as to render the ship in every
respect fit for the proposed voyage or service:
Phillips, s. 695.

The cargo must be properly stowed;
There must be sufficient ballast.

If the existing state of things does not comply
with the warranty, the policy is void, although
the owners have acted honestly and fairly and in
ignorance of any defect.

The warranty requires seaworthiness in con-
formity with the standard at the time for the
contemplated service at the port to which the
vessel belongs, unless some other standard is re-
ferred to expressly or by implication :
Phillips, sect. 719.

A vessel seaworthy for one stage of the voyage
may be unseaworthy for another, and unless she
is fit for each stage of the voyage when she
enters upon it, the warranty is not complied with.

[Ex. gr., a boiler efficient in fresh water, cracked in salt water-case cited infra.]

The enumeration as excepted from the policy
of some losses of the same kind as those resulting
from defects which constitute unseaworthiness,
does not exclude the general implied warranty:

The Quebec Mar. Ins. Co. v. The Commercial Bank of
Canada, L. Rep. 3 P. C. 234.

Unseaworthiness arising after the commence-
ment of the voyage, and produced by a peril
insured against, does not of itself discharge the
underwriter. It imposes upon the assured the
duty of using reasonable diligence to repair it,
and negligence in that respect may discharge the
insurer from any loss arising from the want of
such due diligence:

Kent. Comm., sect. 288.

restored:

Phillips, sect. 734.

The remedy of a defect after sailing-unless

with the consent of the underwriters-does not

aid owners of a ship unseaworthy at the time of
sailing:

Forshaw v. Chabert, 3 Br. & B. 158: The Quebec
Marine Ins. Co. v. The Commercial Bank of Canada,
L. Rep. 3 P. C. 231 [in which Lord Tenterden's
dictum to the contrary (in Weir v. Aberdeen, 2
B. & Ald. 320) is dissented from].
"At and from a port:"

A ship would appear to answer the warranty if
capable of being moved about in port:
Parmeter v. Cousins, 2 Camp. 257; Annen v. Wood.
man, 3 Taunt. 259.

If the ship arrives at the port so shattered as to
be a mere wreck, or in such a state as to be unable
to lie there in reasonable security till she is pro-
perly repaired and equipped for the voyage, the
policy does not attach:

Arn. 604, 4th edit.

As to Freight and Cargo.

A ship whose condition complies with the war-
ranty in a policy on ship may yet fail to comply
with the warranty in a policy on cargo and freight.
The policy being on cargo and freight the war.
ranty of seaworthiness is not complied with if the
cargo is put on board for the voyage when the
ship is in so defective a state that the cargo must
be relanded in order to make the necessary repairs,
and the policy therefore does not attach on the
cargo if the risk is to commence at the time of
loading.

Phillips, sect. 723, vol. 1, p. 391.
Lighters.

The doctrine of seaworthiness does not apply to
lighters engaged in loading or unloading the cargo.
Lane v. Nixon, L. Rep. 1 C. P. 412.

(2.) Navigation.

The captain must be competent to conduct the vessel in safety through all the ordinary perils of the voyage, and in long voyages-not in all voyages-there should be a competent mate :

Arn. 615, 4th edit.; 3 Kent. Com. p. 337, n. e.

When pilotage is compulsory or customary, a pilot should be on board (a):

Phillips, sect. 717.

Phillips v. Headlam, 2 B. & Ad. 380; Law v. Hollingsworth, 7 T. R. 160.

(a) It appears that failure in this respect would not per se discharge the underwriters.

The person engaged in navigating the vessel need not be an authorised pilot if he possesses a competent knowledge of the ground:

Phillips, sect. 713.

NOTE.-If a pilot cannot be procured, and it is
prudent to enter the port rather than wait, the
underwriter will not be discharged if the master
enters without a pilot.
Arn. 617, 4th edit.

The crew must be adequate and of sufficient skill when the vessel sails:

Hicks v. Thornton, Holt's N. P. 30; Forshaw v.
Chabert, 3 Br. & B. 158.

If the master takes on board a person representing himself to be a qualified pilot, although in fact he is not so, the warranty is satisfied:

Phillips, sect. 374, citing Law v. Hollingsworth, 7 T.
Rep. 160.

A sufficient crew being shipped originally, an occasional disability or absence of the men does not violate the warranty:

Busk v. Roy. Ex. Ass. 2 B. & Ald. 73, per Bayley, J. (3) Legal Conduct.

An illegal act committed by the assured, or on his behalf, is a violation of this implied warranty.

The illegality must induce loss by a peril insured against to violate the warranty.

But if the act arise out of negligence or mistake the insurers are not exonerated from consequent loss by perils insured against.

The vessel must be furnished with all proper evidence of her national character, for want of which she might be condemned if taken by a belligerent:

Phillips, sect. 745; Arn. 619, 4th edit.
NOTE. This is necessary, although there is no war-
ranty of neutrality in the policy:
Steel v. Lacy, 3 Taunt. 285.

MERCANTILE LAW.

NOTES OF NEW DECISIONS.
BILL OF EXCHANGE-BILLS OF LADING-
ACCEPTANCE - MISREPRESENTATION. - The U.

Bank presented a bill of exchange to B. and Co., the drawees, for their acceptance, accompanied by a ticket representing that the bank held bills of lading to cover it. B. and Co. thereupon accepted the bill, relying on the statement that the bank held bills of lading which both parties thought to be genuine. The bills of lading had been forged by the drawer of the bill of exchange. Held, that B. and Co. were not entitled to demand from the bank genuine bills of lading before paying the amount of the bill of exchange: (Barter v. Chapman, 29 L. T. Rep. N. S. 642. V.C. B.)

FACTOR-SALE BY-SET-OFF AGAINST PRINCIPAL" MEANS OF KNOWLEDGE OF BUYER THAT HE DEALT WITH AN AGENT-PLEADING. To a declaration for goods sold and delivered, the defendants pleaded, that the goods were sold and delivered to the defendants by S. and Co., agents of the plaintiffs in that behalf, and entrusted by the plaintiffs with the possession of the said goods, as apparent owners thereof, and that S. and Co. sold and delivered the goods to the defendants as their own, with the consent of the plaintiffs, and at the time of the said sale and the said S. and Co. to be the owners of the said delivery of the said goods, the defendants believed goods, and did not know that the plaintiffs were the owners of the said goods, or of any of them, or were interested therein, or that S. and Co. were agents in that behalf; and the plea averred a set-off against S. and Co. First replication, that before, &c., the defendants had the means of knowing that S. and Co. were merely the apparent owners of the goods, and sold them as agents for the plaintiffs; secondly, the like, but averring means of knowledge that S. and Co. were agents generally. On demurrer to the plea and replications: Held, that the plea was good, without any allegation negativing "means of knowledge" on the part of the defendants that S. and Co. were agents; and that the replications, being therefore immaterial, were bad: (Borries and others v. The Imperial Ottoman Bank, 29 L. T. Rep. 689. C. P.).

THE will of Mr. Thomas Wontner, late of No. 3, Cloak-lane, solicitor, who died on the 19th ult., at Weston-green, Thames Ditton, was proved on the 3rd inst. by Mr. Russell Wontner, the son, the sole executor, the personalty being sworn under £5000. The provisions of the will are in favour of testator's wife and four sons.