Page images
PDF
EPUB

66

[ocr errors]
[ocr errors]
[ocr errors]
[ocr errors]

loans to such other metropolitan bodies as are had placed two or more crosses opposite a candi. be, there seems a great laxity in the present empowered, by statute, to borrow from the Metro. date's name, or had placed the crosses in the mode of procedure amounting to a grave defect politan Board.

wrong place. Will you allow me to point out the in the system. I am a freeholder in the Strand Messrs. MORTON, ROSE, and Co. are prepared true state of the law. First," the directions for district, occupying business premises, and duly to receive subscriptions for £1,000,000 five per the guidance of the voter " in Schedule II. of the received my voting cards as such; and having a cent. sterling sinking fund bonds of the Illinois Ballot Act which are placarded in the polling private residence in St. George's-road, Eccleston. Central Railroad Company of £200 each, payable stations are directory merely and not imperative. square, I also there received my voting cards, 1st April 1903, if not previously redeemed by the Secondly, the only grounds assigned by the Act with a different number, entitling me to vote action of the sinking fund, which are issued under for rejecting a paper on the score of the mode of again, had I been so disposed, for my private the provisions of an Act of the Legislature of the marking aro-(1), Writing a mark by which a residence. The votes for the Strand district were State of Illinois, dated 12th Feb. 1855, entitled voter could be identified ; (2), Uncertainty recorded by me at the school-room, Russell-street, “ An Act to enable railroad companies to enter (Schedule II. and Rule 36). The true construc. Covent-garden, and the votes required by me to into operative contracts, and to borrow money." tion, then, of the Act is that where the returning be given for the same election were to be recorded The loan is raised for the purchase of an equal officer has no reasonable doubt for whom the at the Pimlico voting.rooms, thus showing that, amount of New Orleans, Jackson, and Great Nor. votes are intended, and there is pothing on the had I been so disposed, I could have voted twice thern Railroad and Mississippi Central Railroad paper to identify the voter, he is bound to allow over for the same candidates. Seven per Cent. Bonds, by which means the Illi. the paper as good. To reject papers because, Another “Fair Voter" writes : "The de nois Company will gain two per cent. annually, e.g., two crosses or a tick are employed instead of focts in the system of voting complained of by thereby providing a sinking fund sufficient to a single cross, is contrary alike to common sense “A Fair Voter in his letter in the Times of redeem the whole of this issue in about twenty- and to the policy of the Legislature, which cor. Saturday provailed also in Southwark. I also six years. The bonds of the above railroads so tainly never intended to disfranchise electors by received voting cards for two different pollingpurchased are to be held by the Illinois Company the minutost of technicalities."

places in the borough, with a different number, as security for the payment of this loan.

In reply to Mr. Fitzgerald, “A Chancery being for different properties I have long held in Barrister" writes :-“Before the law on voting different parishes, and I know of others who re

by ballot is absolutely settled by Mr. Fitzgerald, ceived the same. Thinking it could not be right ELECTION LAW,

may I be allowed to point out what I cannot pre- that I should vote twice for the same candidates, sume to call the true state of the law,' but what I asked a friend well acquainted with the subject,

I venture to say would be the probable decision and in consequence voted at the one place and NOTES OF NEW DECISIONS. of a court of competent jurisdiction upon the did not go near the other. How many, similarly MUNICIPAL ELECTIONS-CORRUPT PRACTICES questions treated in Mr. Fitzgerald's letter in situated, may have voted twice, in ignorance, -DELIVERY OF LIST OF OBJECTIONS-Power the Times of this morning? In the first place, there is, I suppose, no means of ascertaining. OF COURT.-Where the parties required by No. 7 with regard to the directions for the guidance of CLOSE OF THE POLL.-“ Lex” writes :-"What of the Regulæ Generales of Michaelmas Term the voter,' which Mr. Fitzgerald describes as does the close of the poll' under the Ballot Act 1868 to deliver a list of objections six days before directory merely, the 28th section of the Ballot mean? Does it mean-(1) That all voters who the day appointed for the hearing of a petition Act is as follows :-The schedules to this Act are in the room at 4 (or 5) o'clock are entitled to under 35 & 36 Vict. c. 60, have failed to do so and the notes thereto and directions therein shall vote? (2) That no voting papers are to be dewithin that time, the court has no power to allow be construed and have effect as part of this Act. livered out after these hours? or (3) That no the list to be delivered subsequently, the discre. And the directions referred to are contained in papers are to be put into the ballot box after those tionary power given by the rule having reference the second schedule. It is true that the direction hours ? I have asked half-a-dozen late ' presiding only to the amendment of a list that has been uses the word 'will' and not the word 'shall,' officers,' but none of them can tell me, and they duly delivered : (Nield v. Batty, 29 L. T. Rep. N.S. but if I say to my clerk 'you will wait in till I said thoy had no instructions thereon when they 747. C.P.).

come back, most people will admit that my were appointed. You will see that where, as at

directions are not only directory," but are Bath, there was only a difference of six votes THE WORKING OF THE BALLOT.

intended to be imperative. With regard to between the successful and unsuccessful candi. COUNTING VOTES.—Mr. E. G. L. Anderson the grounds upon which papers may be re. dates, the meaning of the words close of the poll' writes :-“The system of calling over the votes jected, the Act says (sect. 2; that any ballot may make all the difference."

PREPARATIONS FOR POLLING.-Messrs. Knight given for each candidate is not only tedious, but by which the voter can be identified shall be void and Co., of 90, Fleet-street, write : -" May we for the purpose of ascertaining the number paper on which anything is written or marked involves the necessity of more checking than is, I and pot counted.'_.Now, suppose an agent in. venture to give you our experience in providing think, desirable. Will you, therefore, allow mo pecuniary relations—I am, of course, pụtting a necessary, apparatus for voting by Ballot ? We

structs a voter with whom he contemplates the largest metropolitan constituency with the to suggest the following plan as an improvement purely supposititious case-co mark against the refer to that of Lambeth, which contains upwards namely, that as the voting papers are scrutinized to ascertain their validity, they should be sorted candidate to le voted for two crosses instead of of 40,000 registered electors. We submit, and into as many heaps as the names on them admit

one cross, or a tick instead of one cross, or to have no doubt that all Returning Officers will of variations in voting, each heap being then place the cross on the left hand side instead of the endorse our opinion, that for such large con. counted in the same manner as a bank clerk ruus

right, would not the result be a mark by which stituencies the time allowed between the nomina. through a bundle of notes. The working of the the yoter could be identified? Perhaps Mr. Fitz. tion day and the polling day should be extended. plan can be followed by taking, say, the East gerald is not aware that the examination of the The nomination for "Lambeth was held Surrey election. There are four candidates, and under the supervision of the agents of the candi clear days in which to provide the ballot papers

ballot papers is carried on in the presence and Saturday, leaving (exclusive of the Sunday) three the variations possible are 10, with an additional dates. No doubt, the Ballot Act does not aim at and all other requisite forms of papers for con: heap for bad votes, these heaps would be as follows : -1, Plumpers for Gassiot; 2. for to be made, which must depend upon the taste or ballot papers alone occupied six of our staff with

actual uniformity in the shape or size of the cross ducting the election. The numbering of the Grantham ; 3, for Locke King ; 4, for Watney; 5, split votes for Gassiot and Locke King; 6, for capacity of the voter; but the difference between out cessation from Monday noon till Wednesday Grantham and Watney; 7, for Gassiot and a cross on the right and a cross on the left, morning. These, together with stamping instru.

ments and ballot boxes for 78 polling stations, Watney; 8, for Locke King and Watney; 9, for between two crosses and one cross, or between a Grantham and Gassiot ; 10, for Grantham and

cross and the tick, is certainly not to described as had, of course, to be assorted and distributed to Locke King; 11, rejected votes. The papers a minute technicality.”,

the 78 presiding officers before the opening of the being thus divided, the time occupied in counting Swansea, also says : “ On the subject of the voter's completed until a late hour on Wednesday evening,

And Mr. Richard A. Essery, town clerk of poll on Thursday morning. This could not be would be reduced to a minimum, while the chance mark” I very fully agree with the opinion of Mr. and, after the anxiety and responsibility devolving of error would be almost nil. Moveover, this Fitzgerald, for the body of the Ballot Act refers apon the Returning Officer in reference to this, in plan would give reliable figures as to the number simply to a "mark,' and not to a x. The form in settling the situation and preparations of the of electors who actually voted, the plumpers and the schedule doubtless indicates the latter, but it polling statious, in securing and duly instructing split votes, and in the latter the proportion of the is, in my opinion, a mere example, and I think a something liko 150 responsible men to act as prevarious combinations." Mr. John Stone, town clerk of Bath, writes cation, is a sufficient mark' within the statute. at the close of the poll he should take some hours'

tick, or dash, or any other mark not for identifi. siding officers and poll clerks, it is no wonder that in reply :-“Referring to Mr. Anderson's sugges.

On the recent contest here I advised the returning rest, instead of at once superintending the count. tion in The Times of Saturday as to making up officer to reject all marks and figures except a X, ing of the votes. We are clearly of opinion that, the poll by sorting the voting papers, I beg to say

but this was in accordance with counsel's opinion to prevent a repetition of the Hackney collapse, that so simple, effective, and rapid a plan was the previously obtained, and which, for obvious in all constituencies numbering over 25,000 voters first that presented itself, and has been used here reasons, adhered to, contrary to my own and to a week should intervene between the nomination. in four Parliamentary elections (within one year) that of many other town clerks. On the question day and the day of poll.” and in several municipal elections, each of the of counting the votes, the process of sorting is latter being similar in almost every respect to a

REGULATIONS UNDER THE BALLOT Act.Parliamentary election, Taking the Parliamentary much as there is not so much calling out After the election and transmission of the docu.

clearly the most expeditious and safest, inas. election of last Tuesday as an instance of its of names, and possible interference between ments to the Clerk of the Crown in Chancery, it efficiency, we had 4865 voting papers, which

As to the is provided that, unless otherwise directed by an classed themselves (there being four candidates) ono set of counters and another. into ten combinations. At the close of the poll point raised by, Lex,' namely the hour of order of the House of Commons or of one of Her (4 o'clock p.m.), after about one hour occupied brought within sufficiently narrow limits. A pre samo to be destroyed, after being retained for one

closing the poll—the question is capable of being Majesty's Superior Courts, he shall cause the in verifying the ballot boxes (19 in number), two siding officer cannot poll more than about 100 year. No rejected ballot paper is to be inspected hours sufficed to classify and count the papers, so that soon after 7 o'clock the Mayor was able to yotes per hour, with illiterates and all; and it is without such an order as already mentioned, to declare the numbers from the steps of the Guild- I found that each compartment in the booth having be granted on evidence that the inspection is hall. I may add that there were eight official by the statute to accommodate 150 persons per necessary for a prosecution in relation to ballot counters employed.”

day, five compartments only represent as near as papers, or for the purpose of an election or re. REJECTED BALLOT PAPERS.-Mr. Gerald A.

need be that officer's complement. He (the pre- turn, and the power given may be executed by a R. Fitzgerald, writes to the editor of the Times : siding officer), therefore, having the power to Judge at Chambers. Further, no person, except “Some doubt and confusion seem to exist in the regulate the number to be admitted at a time, by order of the House of Commons, or any tribunal minds of returning officers as to the construction may stop the poll at any time within five votes having cognizance of petitions, complaining of of the provisions of the Ballot Act relating to the mission of voters five minutes before the hour of sealed packet of counterfoils after the same has

(i.e., he may, as he should do, prevent the ad. undue returns or undue elections, shall open the in the Times of Saturday that the returning If these last five voters should happen to be counted ballot paper in the custody of the clerk Walidity of ballot papers. Lobserve, for instance, closing—four o'clock, or five, as the case may be been once sealed up, or be allowed to inspect any officer for Finsbury rejected no fewer than 474.(a) illiterate, the presiding officer could not complete of the Crown in Chancery; such order to be made Of these, many are stated to have been rejected their declarations, certificates, &c., under ten subject to conditions ; and care is to be taken, in because the voters had put figures on them, or minutes. It is a fine point undoubtedly.”

carrying out such order, that the mode in which (a) This is incorrect, there were only 167 rejected.- DOUBLE VOTING BY BALLOT.-A "Fair Voter" | any particular elector has voted shall not be dig. ED,

writes : “However desirable voting by ballot may covered until it has been proved that he has

on

[ocr errors]

TO

on

voted, and his vote, by a competent tribunal, has entitled to demand this amount; and that the dis. servant was not enough to justify a conviction. been declared to be invalid. All documents for- allowance was right : (Reg.v. Haslingfield, 29 L.T. The Court of Qaeen's Bench upheld the decision, warded by a returning officer to the Clerk of the Rep. N. S., 801. Q.B.)

on the ground that in the case statod to them it Crown in Chancery other than ballot papers and METROPOLIS COMMONS ACT — RIGHT

was not found as a fact that the servant was counterfoils shall be open to public inspection at RENEW A TAVERN SIGNPOST.-By the Metro- acting in the management of the house, in his such times and nnder such regulations as may be politan Commons Act 1866, the respondents are

master's absence. Crompton, J., observed, “- There prescribed by the Clerk of the Crown in Chancery, empowered to make a scheme for managing is no doubt that a man may be an aider and with the consent of the Speaker of the House of Blackheath, but no right of a profitable or bene. abettor though he is only in the capacity of a Commons, and extracts may be furnished on the ficial nature in, over, or affecting the heath shall

, servant, for if, as in this case, the master goes payment of fees sanctioned by the Treasury. except with the consent of the person entitled away, and the servant manages the house in his When an order is made for the production by the thereto, be taken away or injuriously affected by absence, that would do to make him liable," Clerk of the Crown in Chancery of any doonment any scheme without compensation being made or

In Reg. v. Handley (9 L. T. Rep. N. S. 827), the relating to any specified election, the production provided for the same. By a scheme thus made decision of the court turned upon the amount of by such clerk or his agent, as ordered, shall be by the respondents, and confirmed by the Metro acquiescence by the defendant in the act com. conclusive evidence that such document is the one 'politan Commons Supplemental Act 1871, no posts plained of. The contractor for working a mine specified. and any endorsement appearing in any shall be maintained, fixed, or erected on the heath had been convicted by justices of allowing packet of ballot papers produced shall be evidence without the consent in writing of the respondents. females to have charge of the machinery, a tackle of being such papers as they are by the indorse. One clause of the scheme saves to all persons all by means of which persons were brought up or ment stated to be. The production from proper such rights of a profitable or beneficial nature in, passed down a vertical shaft of a mine, in contra. custody of a ballot paper purporting to have been over, or affecting the heath, or any pert thereof as

vention of the 5 & 6 Vict. c. 99, ss. 8 and 9. The used at any election, and of a counterfoil marked they before enjoyed. By the bye laws, made in court of quarter sessions, to which an appeal with the same printed number, shall be prima pursuance of this scheme and the said Acts of

was made by the defendant, confirmed the con. facie evidence that the person who voted by such Parliament, a penalty is imposed for erecting on

viction subject to a case for the opinion of the ballot paper was the person who had affixed to his the heatk, unless with the consent of the re

Court of Queen's Bench. It was not found that name the number written on the counterfoil.

spondents in writing, any posts. The appellant, females were usually employed, or that they were ELECTION PETITIONS. — Arising out of the the owner of a tavern fronting the heath, was

employed upon any other occasion than that present general election, it is expected that a convicted and fined for erecting a new signpost which was the subject of the information, or that number of election petitions will be filed within on the heath opposite the tavern, in place of an they were employed with the knowledge of the the time prescribed by the Parliamentary Elec. old one which had been blown down. The occu

contractor. It was held by the Court of Queen's tions Act which was passed in the year 1868, and piers of this tavern had, for more than forty years Bench that there was not sufficient evidence that continued by subsequent statutes. After the as of right, without interruption, and for the the employment of the females was with the know. general election in 1868, the number filed in that more profitable and beneficial occupation of the ledge or tacit acquiescence of the defendant to year was sixty-nine, and five in the following same, kept erocted on and fixed into the soil of make him responsible, and the conviction was year. By the Ballot Act, which has now been the heath at this spot a signpost of this kind, and quashed. tested by a general election, the offence of “per. had from time to time replaced it when desirable.

In the case of Searle v. Reynolds (14 L. T. Rep. sonation

can be added to the charges of bribery, The appellant had no knowledge of the above- N. S. 518), the members of the court came to the treating, and undue influence. The mode of pro- mentioned scheme, and had received no compen.

conclusion that a conviction should be affirmed,

different cedure is by filing a petition in the Rule Office of sation for the right to have this post. Held, upon but arrived at that decision the Court of Common Pieas, containing the alle- a case stated by the convicting magistrate, that grounds... The facts were these : By an order gations charged. A seat can be claimed or not on the appellant's right to renew the signpost was a

of the Privy Council, issued in pursuance of the part of an unsuccessful candidate. Before a right in, over, or affecting the heath; that it was

the 11 & 12 Vict. c. 107, every owner or petition is at issue a recognisance in a sum of therefore saved by the scheme ; and that the con occupier of premises in which' animals labouring £1000 must be lodged, or a sum to that amount viction must be quashed: (Hoare v. The Metro. under the cattle plague had been, was to obey any deposited in the Bank of England. The next pro-politan Board of Works, 29 L. T. Rep. N. S. 804. order given by the district inspector as to the ceeding is to appoint the trial, after which the Q. B.

cleansing and disinfecting, subject to a penalty of sitting member can obtain“ particulars” of the APPOINTMENT OF SERVANT BY BOARD OF

£20 for disobedience. The inspector gave an offences alleged, and within a few days of the GUARDIANS--CORPORATION-APPOINTMENT NOT order to the foreman of the appellant (who was trial the names can be procured of the parties UNDER SEAL-INFERIOR SERVANT.-The appoint- not himself present, and resided at a distance) to implicated in the bribery, dc. The Ballot Act ment of a clerk to the master of a workhouse by disinfect the premises by a certain hour, which was passed on the 18th July, 1872; it is to con- the guardians of a union must, to bind them, be order was not obeyed. The justices found as a tinne in force until the 31st December 1880, and under the goal of the corporation. A clerk to’the fact that the order was communicated to the no longer, unless Parliament otherwise determine. master of a workhouse is not such an inferior appellant, and convicted him, and the court Several statutes were repealed during the opera- servant as that his appointment comes within the affirmed the conviction, but, as before stated, on tion of the Act. It was proposed to make it an recognised exceptions to the general rule of law different grounds. Cockburn, C.J. and Shee, J. offence to induce an elector to disclose for whom that a corporation can only bind itself by seal. pased their judgments on the ground that know. he voted, but the provision was struck ont. In The sanction of the Local Government Board, re- ledge of the order had been brought home to the the present election

was not observed, quired by No. 153 of the Poor Law Orders to be appellant, without which he would not have been and cards were forwarded on behalf of candidates given to certain appointments by the guardians liable. But Mellor, J. was of opinion that it was and returned after voting. It will be for con. of assistants that they think necessary is a sanc.

a case in which the act of the servant was to be sideration in the new Parliament whether amend- tion of the office, and not of the individual nomi: considered as an act done in the master's business ments are not needed in the statute. By the 24th nated to fill it : (Austin v. The Board of Guars and within the scope of the authority probably section of the Ballot Act

(35 & 36 Vict. c. 33) it is dians of St. Matthew, Bethnal Green, 29 L. T. Rep. given to him by the master, and that there was no provided that if on the trial of any election peti. N. S. 807. C. P.)

, tion any candidate is found by the judge, by him.

penalty for a breach of a sanitary regulation." self or his agents, to have been guilty of persona.

The case of Core v. James (25 L. T. Rep. N. S. tion, or to have aided or procured such personation,

THE LICENSING ACT 1872.

593) may be noticed in passing. Here it was held at an election, such candidate shall be incapablo CriminaL RESPONSIBILITY OF LICENSED PER- that a person could not be convicted under sect. of sitting in Parliament for a county or borongh SONS FOR OFFENCES COMMITTED IN THEIR

of 6 & 7 Will. 4, c. 37, for using prohibited mix. during the Parliament then in existence; and by ABSENCE, BY SERVANTS, AGENTS, &c.

tures or ingredients in the making of bread for the following section, on a petition claiming the [By Thomas Cousins, Esq., Clerk to the Justices of sale, uniess there be knowledge, either in himself seat, if it is proved that the candidate or his

Portsmouth.]

or in the person employed by him, of the presence agents have been guilty of bribery, treating, or As & general rule it may be laid down that of the mixture or ingredient. undue influence, there shall, on a scrutiny of the criminal liability does not arise in the absence of the passing of the Licensing Act 1872, the law

The above cases show that at the time of number of votes, be struck off from the number of votes appearing to have been given to such

a guilty knowledge or intention. To this rule, relating to the criminal responsibility of masters candidate one vote for every person who voted at however, there are some exceptions, amongst for offences committed by servants was open such election and is proved to have been so bribed, which may be classed the various offences against to some doubt, and it might therefore have treated, unduly influenced, or retained or employed for reward. Already notices of election but in the absence, of persons licensed to sell contrary, however, the Act further mystified the licensing laws, committed upon the premises, been anticipated that all questions would have

been set at rest by that statute. On the petitions have been given, but up to the present intoxicating liquors. time not one has been filed. A petition must be

the matter by using the word “knowingly lodged within a specified period after each elec

There are several decisions bearing upon the in some of its penal clauses, and omitting it in tion. The Election Petition Judges for the current subject.

others, and by expressly making a licensed person year are Mr. Justice Mellor, Mir. Justice Grove, N. 5.640) was one under the Highway Act (5 & 6 relating to the entry by constables, and by impli.

The case of Harrison v. Leaper (5 L. T. Rep. answerable for the acts of his servant in sect. 35, and Baron Bramwell.

Will. 4, c. 50), by sect. 50 of which statute, a cation in sect. 62 respecting the evidence of a sale penalty is imposed for sinking a pit or shaft, or of intoxicating liquor.

erecting a steam engine, &c., within twenty-five However, the most logical and reasonable solu. MAGISTRATES' LAW. yards from a carriage way, &c. The defendant tion of the question, even prior to the recently

was the owner of a steam thrashing machine, decided case (Mullins v. Collins), and the opinion NOTES OF NEW DECISIONS.

which ho let on hire to a farmer, and sent his very generally acted upon by justices, was that a

servant with it, who superintended it. The licensed person was liable for an offence against Justices' Clerks' FEES-VERIFICATION OF machine was erected within a distance of twenty- the licensing laws committed in his house, notJURY Lists-OVERSEERS' ACCOUNTS-Disal. five yards from the highway; but there was no withstanding the act was not brought home to his LOWANCE OF AUDITOR.-A poor law auditor i evidence to show that the defendant directed it personal knowledge. It was generally considered disallowed from overseers' accounts a

sum of

to be so erected, and he was not present at the to be sufficient if the act constituting the offence 45. 6d. charged to the poor rates for fees paid to time. Being convicted by justices he appealed, was committed with the knowledge, permission, a justices' clerk for notices and oath upon verifi. , and the Court of Queen's Bench held that the or connivance of his wife, servant, or other person cation of the jury lists. These fees were allowed conviction was bad. Cockburn, C.J. said, “ The employed in the business. If it were otherwise a in the table of justices' clerks' fees sanctioned for master was not present, and there is nothing to licensed person has only to absent himself in the county by the Home Secretary under 11 & 12 show that the engine was placed in that particular order perpetually to evade responsibility. On the Vict.c. 43, s. 30. Held that the overseers' duties in spot by his directions."

other hand, he would not be liable if an offence, respect of the jury lists under 6 Geo. 4, c. 50, and The case of Wilson v. Stewart (8 L. T. Rep. gaming for example, were committed by his 25 and 26 Vict. c. 107, were concluded upon the N. S. 277) involved the liability of a servant guests, clandestinely and without his knowledge production at petty sessions ; that these fees for in a house of public resort, who harboured or that of his servants. The question under dis. the subsequent verification were not costs pro- prostitutes there in the absence of his master. A cussion is now virtually set at rest by the recent perly incurred by the officers of the parish in metropolitan police magistrate refused to convict case, Mullins (app.) v. Collins (resp.) (29 L T. preparing and collecting the lists under 7 & 8 Vict. the servant as an aider and abettor, on the Rep. N. S. 838). The appellant, a licenesd victu. c. 101, s. 60; that the justices' clerk was not ground that the mere relationship of master and I aller, was charged under sect. 16 of the Licensing

secrecy”

[ocr errors]
[ocr errors]

was

66

&

Act 1872, with supplying liquour to a constable lated exclusively to the property sold to the makers, the partnership paying him rent for the on duty, without the authority of the superior purchasers. The purchase-money was paid to C., lands, stock, and plant, and royalties for the stone officer of such constablo. It was proved that the who gave S. a receipt for the amount signed by raised and bricks and tiles manufactured. Under constable was on duty and in uniform, and was him on behalf of himself and co-trustee. In 1870 the articles of partnership the partnership was served in the appellant's house with some brandy S. contracted to sell another portion of the mort. continued after the testator's death by his former by a female (whether the wife or servant of the gaged property to P. for £1500 and on that partner and the testator's nephew, further leases appellant was not shown), and that he had no occasion C. represented to H., who then heard of being granted and rents and royalties reserved to such authority as above-mentioned. The appel. it for the first time, that S. had then sold part the executors. Held, that the tenant for life was lant admitted the facts, but contended that be of the mortgaged property for £3080 and had entitled to the rents and royalties absolutely fore he could be convicted it must be proved that contracted for the sale of another part for during her life : (Greaves v. Smith, 29 L. T. Rop. the offence was committed either by himself per. £1500, and desirous of having such N. s. 798. V.C.B.) sonally or with his knowledge, and that he must parts reconveyed to him upon payment of those WILL-CONSTRUCTION-LEGACIES, WHETHER have been present, or the liquor must have been sums in part discharge of the mortgage debt. SPECIFIC.--Testator gave to his trusttes £700 supplied by his express authority. The justices, Two deeds were accordingly executed by H. and £3 per cent. Consolidated Bank Annuities, part however, convicted him, and the Court of Queen's C., the one being a conveyance by H. and C., by of a larger sum of like annuities standing in my Bench supported their decision. Blackburn, J., the direction of s., to P., in consideration of name,” upon trust to pay a weekly sum to J. He said that the construction contended for by the £1500, the other & reconveyance to S. in con. also bequeathed various other sums for the benefit appellant would render the Act a dead letter, for sideration of £3080, of several small portions of of some of his children, designating the sums as any person could escape liability by simply keep the mortgaged property, so as to enable him to " £3 per cent. Consolidated Bank Annuities ing out of the way while his servant was supplying convey them to the respective purchasers. At further part of the said larger sum,” and bethe liquor.

this time S. was aware that C. had misapplied the queathed to others of his children various legacies

£3080. P. completed his purchase, paying the of " like annuities, further part of such larger DISCRETIONARY POWER OF FIXING £1500 to C., and receiving from him the con- sum.” The legacies amounted to a sum far

PUNISHMENT IN CRIMINAL CASES. veyance, and at the same time the reconveyance beyond the amount of Three per Cent. Consols The message of Governor Noyes to the Ohio was delivered to S. Shortly afterwards č. ab. possessed by the testator at the date of his will Legislature contains the following suggestions of sconded, taking with him all the deeds relating and death, but he had at the date of his will and a reform in the laws with reference to the quantum to the trust. Upon a bill filed by H. against C., death, besides Three per Cent. Consols, a large of punishment in criminal cases :

S., and the several purchasers, held, that the amount of “New Three per Cent. Annuities, Another year's experience in the matter of deed of reconveyance must be delivered up to be and “Three per Cent. Reduced Annuities.” Held, hearing and deciding applications for pardon has cancelled, that an account must be taken of what that the legacies were not specific : (Bumpus v. confirmed me in the opinion that the law should was due in respect of the mortgage, and that Bumpus, 29 L. T. Rep. N. S. 800. V.C. B.) be so modified as to leave less discretion with the upon the failure of S. or the purchasers (other courts in passing sentence for criminal offences. than P., against whom the bill was dismissed) to It often happens that two prisoners work side by pay the amount so found due, the mortgaged

MERCANTILE LAW. side in the penitentiary, both sent there for pre premises (other than the part conveyed to P.) cisely the same crime, one for one year and the must be sold, and that, for the purposes of the

NOTES OF NEW DECISIONS. other for ten. In such case it is impossible to sale, the purchasers must produce the title deeds convince the convict incarcerated for the longer in their respective possessions, and deliver them

LETTER OF HYPOTHECATION-CONSTRUCTION time that he has been fairly dealt with. And so up to the new purchasers. Secondary evidence of

-WHETHER POLICY OF INSURANCE REPRESENTS long as he is stung with a sense of this injustice the mortgage deed under the circumstances ad. Goops INSURED.-V., & merchant in Bombay, he is not likely to reform. There is nothing apmitted. The doctrine of estoppel by deed re

consigned cotton to C. and Co., at Liverpool, per proaching uniformity in the length of sentences marked upon : (Heath v. Crealock, 29 L. T. Rep. the Aurora, and drew a bill against it on C. and pronounced by different judges for similar offences. N. S. 763. V.C. B.)

Co., which, before acceptance, was sold to a bank. I earnestly recommend that the criminal law be so LIGHT AND AIR-ANCIENT Lights-EFFECT V. insured the cotton, and deposited the bills of changed as to secure more exact justice; so OF THE PRESCRIPTION ACT (2 & 3 WILL. 4, lading and policy with the bank, with a letter of amended as to leave results affecting the lives and c. 71)-LATERAL OR OBLIQUE CONSTRUCTION— hypothecation, authorising the bank in case that liberties of men less dependent upon the judgment, SCIENTIFIC EVIDENCE.-The Prescription Act bill or any other bills of his held by the bank the temperament, or the caprice of those who ad (2 & 3 Will. 4, c. 71) has made a material altera- should not be accepted or paid, to sell the cotton minister the law."

tion in the way in which a right to the access of and recoup themselves. The letter of hypothe. Undoubtedly, there must in most cases be a light and air may be acquired, but it has not in cation made no mention of the policy. V. shipped discretion reposed somewhere, and within certain any way altered the nature or extent of the right cotton on other vessels to W. and Co., and drew prescribed limits, as to the quantum of punish itself. In a suit to restrain an interference with bills against it upon W. and Co., which were ment which a given offence shall carry with it. the access of light and air to the plaintiff's house, accepted by them and sold to the bank. The In some states, as at common law, this discretion the question for the court to determine is (just bank, at W. and Co.'s request (for value), resides in the judge ; in others it is reposed in the

as it was before the passing of the Prescription deferred presenting their bills for payment at jury. Evidently the policy of the law should be Act) whether the interference complained of would maturity. The ship Aurora with her cargo was to limit this discretion as much as possible. It substantially affect the comfortable occupation burnt at sea, and the bank received from the in. would seem worth while to consider whether, in and enjoyment of the plaintiff's house, according surance company the whole amount of the in. larceny, embezzlement, false pretences, and other to the ordinary notions of mankind. The court

surance money. C. and Co. failed before their like offences affecting property, the punishment has power to award damages although the build. acceptance matured. V. and also W. and Co. might not be gauged more nearly by the value of ings complained of should have been completed failed, and the bills accepted by W. and Co. were the property affected by the crime. This might before the filing of a bill. A greater amount of not presented to them for payment. Held, first, to some extent do away with what is now a re. evidence is needed to support a material injury

on the construction of the letter of hypothecaproach to the administration of justice, that the by lateral or oblique buildings than that which tion, that the bank had no claim on the policy snall thieves are punished more severely than the is necessary where the obstruction to access of moneys beyond the amount of C. and Co.'s great ones. But in cases of homicide, and assaults light is direct: (The City of London Brewery acceptance, so as to apply the balance towards to kill, wound or beat, where the defendant fre. Company v, Tennant, 29 L. T. Rep. N. S. 755. payment of the bills on W. and Co. Secondly, quently acts upon strong provocation or from a Chan.).

that independently of that, they had, by agreeing principle of self.preservation, and where no two

WILL – BEQUEST TO AFTERBORN REPUTED

not to present the bills accepted by W. and Co. cases stand on the same footing with reference to CHILDREN-CHILD EN VENTRE SA MÈRE AT DATE for their payment at maturity, released the estate the quality of the act committed, a provision of

OF WILL-BIRTH BEFORE TESTATOR'S DEATH- of V., the drawer: (Latham v. The Chartered law which leaves a large discretion in the court or

REPUTATION-Public POLICY.-A testator, who Bank of India, Australia, and China, 29 L. T. jury with reference to the quantum of the punish. had gone through the ceremony of marriage with Rep. N. s. 795. V.C. B.). ment would seem to be conceived in a spirit of his deceased wife's sister, and had two children by justice and mercy. At all events, the question her, by his will directed his trustees to pay the

MARITIME LAW. deserves of more extended investigation and rents and profits of his real and personal estate patient thought than the average legislator will to M. L. (his deceased wife's sister), for life, and, find time to bestow upon it; and the wise course after her death, to stand possessed of the said

NOTES OF NEW DECISIONS. would seem to be to submit it to a commission, to

estates “

upon trust for my reputed children BILLS OF LADING — MATE's RECEIPT report to another session.--Central Law Journal. Catherine and Edith, and all other the children BROKER'S LIEN-HYPOTHECATION.-C. and Co.

which I may have, or be reputed to have by the said were cotton brokers in Bombay, who used to buy M. L. now born, or hereafter to be born,” in equal and ship cotton for H. and Co., retaining the

shares as tenants in common. At the date of the mate's receipts for the cotton until the payment REAL PROPERTY AND will M. L. was enceinte of a child, which was born of their charges. C. and Co. having purchased CONVEYANCING.

six months afterwards, in the testator's lifetime, and shipped for H. and Co. a quantity of cotton, and acknowledged by him as his child. Held took receipts from the mate in the name of

(Lord Selborne, L.C., dissentiente), that the after. | H. and Co., which were indorsed to them by NOTES OF NEW DECISIONS.

born child was entitled to share with her sisters H. and Co. H. and Co. obtained from the captain PURCHASER FOR VALUE WITHOUT NOTICE- | under the gift in the will. Decision of Wickens, of the ship, to whom C. and Co. gave no notice of MORTGAGE-TRUSTEE ADVANCING MONEY ON V.C., reversed: (Occlestone v. Fullalove, 29 L. T. their lien, bills of lading for the cotton which JOINT ACCOUNT-RECONVEYANCE OBTAINED BY Rep. N. S. 785. Chan.)

were hypothecated to a firm of bankers who also FRAUD-ESTOPPEL.-In 1856 H. and C., who WILL-CONSTRUCTION-WASTING SECURITIES had no notice of C. and Co.'s claim. Held, that were trustees of a certain indenture of settlement, -ROYALTIES–TENANT FOR LIFE-CONVERSION C. and Co.'s lien was gone when they had shipped lent £7700 of the trust money to S. upon tho-Testator gave his residuary real and personal | the cotton; that the bankers' security was not security of a mortgage in fee simple of certain estate to trustees upon trust to receive the affected, nor the captain chargeable with default: hereditaments. C., who was a solicitor, acted on "rents, dividends, interest, and annual proceeds (Hathering v. Laing, 29 L. T. Rep. N. S. 736. this occasion as solicitor for both S. and the thereof,” and pay the same to his wife for life, and V.C. B.). trustees, and took possession of the title deeds on after her decease to convert the said residuary

COLTISION ---SPEED — LightS OBSCURED BY behalf of the trustees. C. and S. had various real and personal estate. The will also contained SMOKE-DUTY TO STOP.-It is negligence on the pecuniary dealings, in respect of which an account a proviso that it should be lawful for the trustees part of a steamer to go at full speed under steam current was established between them, and to this during the life of his wife to convert and invest and sail before the wind whilst her smoke is account the £7700 was carried, and the interest | the residuary real and personal estate, the invest. blown over her bows so as to obscure her lights, was paid by C. on behalf of S. to the persons en. ments to be held both as to capital and income and to prevent her from seeing and from being titled. In 1859 S., concealing the fact of the upon the same trusts as the real and personal seen by other ships approaching from an opposite mortgage, and representing himself as being estate from which they should have arisen. Part direction. Where a steamship is approaching seised in fee simple, sold part of the mortgaged of the residuary estate consisted of freehold and another, whose exact course cannot be at once property for £3080. On this occasion, (also, C. leasehold lands, stock and plant, which were for ascertained by reason of her lights being obscured acted as solicitor for S., and on the completion of merly occupied and used by the testator and his by her own smoke, it is the duty of the former to the sale delivered such of the title deeds as re. ' partner, in trade as quarriers and brick and tile | slacken speed and to wait till that course is ascer.

[ocr errors]

ained before taking any decided step to avoid the

COUNTY COURTS.

were for sums under £50, was not affected by the other vessel ; if before having ascertained the

subsequent bankruptcy of the execution debtor exact course of the other, she, without slackening CLERKENWELL COUNTY COURT. before the sale of the goods seized, notwithstand. speed, executes a manouvre, although appearing

(Before GORDON WHITBREAD, Esq., Judge.)

ing the levy of a previous execution for a greater to be right at the time, contributes to the collision,

amount; and as to them the injunction already she will be to blame : (The Rona, 29 L. T. Rep.

Thursday, Jan. 29.

granted must be dissolved. As to the creditors N. S. 781. Priv. Co.)

TURNER AND TURNER v. GENTLE. whose executions were for over £50, the order CHARTER-PARTY-LUMP FREIGHT-LOSS OF Setting asiile judgment obtained by default under and declaration as prayed for on behalf of the PART OF CARGO BY PERILS OF SEA.-A charter.

County Court Act 1867, s. 2.

trustee would be made. party provided that the ship should load a full | This was an application by the defendant to set cargo at Colombo or Cochin, and proceed to Lon. aside a judgment obtained by the plaintiffs under don and there discharge (fire, and all other dangers the County Court Act 1867 (30 & 31 Vict. c. 142),

BATH COUNTY COURT. of the seas, rivers and navigations excepteu); “ a 8. 2, for £17 08. 5d. debt and costs, and execution

Thursday, Jan. 29, 1874. lump sum freight of £5000 to be paid after entire issued thereon. The facts were set forth in an

(Before C. F. D. CAILLARD, Esq., Judge.) discharge and right delivery of the cargo in cash affidavit by the defendant, and were substantially two months after the date of the ship's report admitted by the plaintiff's attorney. The defen- Petition for liquidation-Appointment of receiver inwards at the Custom House.” The cargo having dant was sued in this court by the plaintiffs for -Interim injunction-Refusal of high sherif to taken fire on the homoward journey, it was found £15 0s. 5d., and the summons being under sect. 2 withdraw-Motion to commit for contempt. necessary to scattle the ship in Table Bay, and a of the above Act, notice of intention to defend J. Horton Dyer, for the receiver. large part of the cargo which had been injured by was necessary. Upon receiving the summons the J. K. Bartrum, for the sheriff. the fire and water was there sold. The voyage defendant saw one of the plaintiffs and disputed

Dyer, in opening the case, said it had been par. was then resumed, and the remainder of the cargo the account, and finally proposed to pay £10 is. 5d. tially heard before his Honour's deputy, Mr. was delivered in London. The charterers having at a certain date. This agreement was agreed to Lister, some time ago. It was then in the form refused to pay the whole of the lump sum of £5000. by the said plaintiff, who promised to abandon the of an order to commit the high sheriff, but in con. Held (affirming the jugdment of the Court of action, and accordingly the defendant (who had sequence of his having withdrawn immediately Queen's Bench), that the shipowners were

still the five days' time) did not give notice of in. after the order calling upon him to show cause entitled, notwithstanding the non-delivery of the tention to defend, and did not defend the action; why he should not be committed was issued, it entire cargo, to the payment of the lump sum of The plaintiffs subsequently signed judgment, and resolved itself into a question of costs. He then £5000. : (Merchant Shipping Company v. Armic issued execution contrary, as the defendant said, proceeded : At the outset I may as well say the tage, 29 L. T. Rep. N. S. 809. Ex. Ch.)

to the agreement, and for a larger amount than sheriff is beyond all possible doubt connected COLLISION Pilor's DUTIES SHIP AT agreed upon.

with the acts complained of, because in the affida. ANCHOR-LOOK-OUT - COMPULSORY PILOTAGE. Whale appeared for the defendant.

vits filed on his behalf it is admitted those acts - Where a ship in charge of a licensed pilot is

Popham appeared for the plaintiff, and without were done by his officers and agents in the course anchored within pilotage waters, the pilot deter. disputing the affidavit, raised the objection that of the execation of the warrants which he gave mines and is responsible for the length of cable judgment being given under the above Act, the them. He then read the affidavits filed, which at which the ship rides, and it is the duty of the matter could not be reopened. The County Court show, first, that of the debtor, that a receiver was pilot, when the ship swings to the tide, to superin.

Act 1846 (9 & 10 Vict. c. 95), s. 80, did not apply, appointed by order of the court on the 6th tend that manæuvre, and to reg late the helm, and since there had been no hearing or trial.

Dec., after his filing his petition ; that by an it is negligence on his part to go below before the

His HONOUR.—This court has entire control order of the court made on the 6th Deo., ship is fully swung, leaving the helm amidships over its own judgments, and therefore, upon good W. S. Kirby and his wife and the sheriff without orders as to its regulation; and if, cause shown,

I have power to set this judgment of Wilts and his officers, were restrained from through want of length of cable and of regulation aside. His Honour afterwards suggested as a proceeding in the

matter of an execution levied of the helm, the ship sheers and so parts from her compromise that the plaintiffs should allow part by them upon the debtor's effects ; that a anchor in swinging during his absence, the pilot of the money paid into court under the execution copy of such order sealed with tho seal of this will be alone responsible, provided that the watch to be returned to the defendant, and both parties court, was served on the 6th Dec. on Samuel on deck take the right manquvre to counteract agreed to this.

Hinder and Charles Hinder, the officers of the the sheering. Semble, that where the look out

sheriff in possession; and he was informed that a has once roported to the pilot or officer of the

BANKRUPTCY LAW.

like copy was served on Ezekiel Charles Petgrave, watch a light on board another ship, and the

the execution creditor's attorney ; that the said report has been answered, there is no further

officers, Samuel Hinder and Charles Hinder, not. duty on the look out to report that light a second LONDON COURT OF BANKRUPTCY. withstanding, refused to withdraw from posses. time on nearing the ship. The Mersey Docks

Monday, Feb. 9.

sion, and proceeded in the matter of the execution; Acts Consolidation Act 1858 (21 & 22 Vict. c. xcii.), providing for the pilotage of the river

(Before the CHIEF JUDGE.)

that the said Samuel Hinder and Charles Hinder

said they should take no notice of the order; that Mersey, and enacting (sect. 139), inter alia, that

Re PEACOCK.

Mr. West Awdry, of Chippenham, the under if the master of any vessel (with certain excep. Execution creditor-Executions for sums over and sheriff, read the order and was asked to direct the tions), being ontward bound, shall proceed to under £50-Subsequent act of bankruptcy- officers to withdraw from possession, which he sea, and shall refuse to take on board or to employ Respective rights of execution creditors and refused to do ; that by an order of this court made a pilot, he shall pay to the pilot who shall first trustees.

on the 12th Dec. the said Kirby and his wife, and offer himself to pilot the same, the full pilotage In this case, which bad been referred by Mr. the sheriff and his officers, were absolutely rerate," as if the pilot had piloted the ship, and, Registrar Pepys to the Chief Judge, the liquidat. strained from proceeding in the said execution further, that (sect. 138) if a master requires the ing debtor was a licensed victualler.' On the 25th until the 31st Dec.; that the debtor thereupon services of a pilot whilst his ship is lying at Nov. 1873, an execution was levied upon his goods sent for the manager of the sheriff, who called anchor in the Mersey, the pilot shall be paid for for £191 4s. 6d. On the 1st Dec. 1873, another upon him, and the order was handed to him, but every day or portion of a day he shall attend, execution was put in for £37 19s. 6d. by another he refused to withdraw: that about three o'clock the sum of 58.; but no such charge shall be made creditor; on the 12th Dec. another execution by on the 13th Dec. the said Samuel Hinder came to for the day on which such vessel being outward another creditor for £201 13s.; on the same day his (the debtor's) hotel and was informed by bound, shall leave the river Mersey to commence another execution by another creditor for Charles Hinder of the order that had been made, her voyage,'' compels a master so proceeding to £148 16s. 6d.; on the 16th Deo. another execution but he refused to comply, and placed another sea to take a pilot. Where a ship fully equipped by another creditor (Messrs. Greenless and Son) man in possession. Dyer said that was a distinct and ready for sea leaves one of the Liverpool for £37 153. 6d. ; on the 24th Dec. another execu- proceeding in the execution, and he is proceed. docks at night, with the intention of proceeding | tion by another creditor for £22 138. On the 30th ing in the execution. He was informed by his straight to sea, but her master, on getting into Dec. the debtor filed a petition for liquidation; wife that Charles Hinder told her he should place the river Mersey, determines, on account of the and on the 22nd Jan. 1874 a trustee was appointed another man in the bar to receive the moneys weather, to anchor for the night, he is proceeding No sale having taken place under any of the from the customers, and to maintain himself out to sea within the meaning of the Mersey Docks executions, the court was now moved for an order of the same. On the same affidavit an order Acts Consolidation Acts 1858 (21 & 22 Vict. to restrain the execution creditors from selling or was made by the registrar calling upon the c. xcii.), sect. 139, and is compelled by that section otherwise dealing with the goods seized, and a sheriff to show cause why he should not be com. to take on board a licensed Liverpool pilot on declaration that the goods are the property of the mitted, and why such other order as your Honour leaving dock; and if the ship break from her trustee, and that the sheriff should be ordered to saw fit should not be made. The matter came anchor during the night, and a collision ensues withdraw from possession. This was opposed on before your learned deputy and was partially through the sole negligence of the pilot, the behalf of Messrs. Greenless and Son.

heard. Mr. Lister adjourned the matter, leave owners are exempted from liability. Semble, that Shortt (instructed by Fallows and Whitehead), being given to both sides to file further affidavits. in such circumstances the right of the pilot, under for the trustee, acknowledged that if the execu. The first further affidavit to which I will refer is sect. 138, to an extra payment of 52. a day whilst tion of Messrs. Greenless and Son, being under one by Charles Howse, sworn on the 25th Jan. It employed ou the ship, at the requirement of the £50, had been prior to the execution for shows that the said Samuel Hinder and Cornelius master, during the time she is anchored in the £191 4s. 6d., levied on the 25th Nov. 1873, the Hinder told him they were the officers of the said river, except on the day when the ship leaves the title of the execution creditor should prevail as sheriff, and had been directed to levy the said sum Merses to commence her voyage, does not alter against that of the trustee, on the authority of and costs, and had a warrant given them so to do, he character of the employment during that time, slater v. Pinder (26 L. T. Rep. N. S. 482 ; L. Rep. which was produced and read to him. They took so as to make it a voluntary employment: (The 7 Ex. 95), and other cases; but contended possession and proceeded with the said execution. City of Cambridge, 29 L. T. Rep. N. S. 816. Adm.) that the levy of the previous execution for more He was well acquainted with the said Cornelius

than £50 distinguished the present case, and Hinder and Samuel Hinder, and knew them to be relied on the provisions of sect. 87 of the Bank- officers of the sheriff ; (the under sheriff

admitted ECCLESIASTICAL LAW. ruptcy Act 1869.

that they were]; that Henry Collett duly entered on Rose (instructed by H. Smith), on behalf of his office on the 6th December, and duly informed NOTES OF NEW DECISIONS.

Messrs. Greenless, relied on Slater , Pinder (ubi the said Samuel and Cornelius Hinder that he had CHURCH DISCIPLINE ACT-DISCRETION OF sup.) and other cases, which decided that where been appointed receiver, and they were required to BISHOPS-PROHIBITION-PRACTICE.-Where & an execution for less than £50 was levied before withdraw from possession. On the 10th December commission has been issued by a bishop under an act of bankruptcy was committed, a subse. the said Henry Collett came to the hotel for the the 3rd section of the Church Discipline Act quent act of bankruptcy would not take away express purpose of taking possession thereof. (3 & 4 Vict. c. 86), to inquire into charges bronght the right of the execution creditor ; and here no In his (debtor's) presence the officers were inagainst a clerk in holy orders, the court will not act of bankruptcy had been committed at the formed that Collett had been appointed receiver grant a prohibition staying proceedings until the time of the levy of Messrs. Greenless' execution, by the court, and was entitled to possession of clerk has been heard by counsel before the bishop there having been no sale under the prior execu- such goods and effects. The officers were he as to certain preliminary objections, and especially tion. as to the fitness of the promoter. Decision of The CHIEF JUDGE was of opinion that he was request had been made on previous occasions

quested to withdraw, but they refused. A like Bacon, V.C., affirmed : (The Rev. J. Edwards, 29 bound by the authority of the cases cited to hold The under sheriff, Mr. West Awdrry, L. T. Rop. N.S., 711. L.C. and Mellish, L.J.) that the rights of the creditors whose executions December, instructed them to withdraw, which

[ocr errors]
[ocr errors]

on the 16th

[ocr errors]

manner.

was

no

more

they did. The affidavit of the receiver made on the not be liable to the execution creditor in any other side the case of Ex parte Isaacs (L. Rer. 6 28th Jan, was to this effect : That he was duly ap: action he might bring? Moreover, the receiver Ch. App. 58) was quoted. pointed receiver on the 6th Dec. ; that the said did not demand possession as he ought to have His HONOUR held that that was conclusive as Cornelius and Samuel Hinder were then and are done, and there was no contempt on the part of to the injunction, and he refused it accordingly. officers of the high sheriff, and that they had the sheriff, because he had no knowledge what. levied an execution upon the goods of Mr. Howse; ever of the matter. He quoted several authorities tended, on behalf of the plaintiff in the Chancery

As to the examination of Taylor it was con. that he went to the hotel on the 12th Dec. to take in support of his contention. possession, and found them in possession, and His HONOUR.-I think there has been a breach suit, that this was an attempt on the part of proceeding with the execution; that they con. of the injunction, but not a substantial breach. not put in their answers to make a catspaw

the defendants in the Chancery suit who had tinued proceeding under the sheriff's warrant It was a formal rather than an avowed contempt. of the Court of Bankruptcy to evade and override until he took proecedings against the sheriff for No injury whatever has occurred to the creditors, the

practice and rules of procedure of the Court contempt of court; that he acted bona fide in and the sheriff not being personally a party to of Chancery which will not allow a defendant to endeavouring to obtain possession, but was not the breach, I think he must bear his own costs, allowed by the said officer so to do. Your but all other costs must be paid out of the interrogate a plaintiff before putting in his answer. Honour sees that the weight and result of estate.

His HONOUR decided in favour of the trustee, the evidence is this : On the 6th Dec. there was

and granted an order for the examination in bank an injunction; that was served personally on the MANCHESTER COUNTY COURT. rupcy of Taylor, the plaintiff in the Chancery suit. proper person, the man in possession. The first

Wednesday, Feb. 4. act of contempt with which he treats it is to say distinctly that he takes no notice of it. The

(Before J. A. RUSSELL, Q.C., Judge).

CORRESPONDENCE OF THE agent sees Mr. West Awdry, the direct agent of TAYLOR v. BOWKER; Re FIELDING.

PROFESSION. the sheriff ; he read the injunction and was

Bankruptcy Act 1869–Injunction. required to withdraw the men, but refused to do Application for injunction to stay proceedings in so. The second order was treated in the same

NOTE.-This Department of the Law Times being open to a Chancery suit, an.l for an order for the exami

free discussion on all professional topics, the Editor is not It served personally on the

nation of the plaintiff in that suit before answer responsible for any opinions or statements contained in it. man in possession, who said he should take

filed, under the following circumstances : notice of it than of the other. T.' filed a bill in the Chancery Court of the County VOTING FOR GUARDIANS OF THE POOR.Mr. Bradbury was then seen, and he directed Palatine of Lancaster for specific performance Will you or some of your correspondents be good the man to remain even after reading the order. of an agreement for sale of certain property by enough to furnish me through the medium of your That was another step, another proceeding with B. Meanwhile, B. had conveyed the property paper with answers to the following questions :: the execution. Any word spoken by any officer to F., who became bankrupt. F. and his trustee First. In calculating the number of votes in the of the high sheriff is an act and a proceeding with were then made parties to the bill, F. having election for guardians of the poor of a parish, are the execution if it tends to carry it on. A much

had notice oj T.'s prior claim. F. having con. the qualifications which a man has to yote as more important proceeding was taken on the 13th

veyed the property to A. T., the latter was also Dec. Your Honour sees that, after the service

owner and occupier treated as separate and

made a party to the bill. of the injunction, that act was actually to place Application was now made on behalf of the trus. voting according to the respective rateable

distinct, and as giving each of them the right of another man in possession. Hinder, the man who tee in the bankruptcy for an injunction, under values ? For example, A. is owner of property makes this affidavit, comes on the 13th, the day the Bankruptcy Act, to restrain the proceedings rated at £150, and occupies property rated at after the second injunction has been made. This in the Chancery suit against the defendant F. £200; will he be entitled to four votes for his was a distinct proceeding. On the very day of the and his trustee and A. T., they not having filed ownership and five for his occupation, viz., first injunction they were told the receiver had been

their answers, and also for an order for the altogether nine votes, or will the total rateable appointed, and that he was the person who should examination of F., the plaintiff in the suit. have had possession of the estate. These facts Held, on the authority of Ex parte Isaacs be added together, and he be allowed the

value of all property occupied and owned by him are brought home in the clearest way. They do (L. Rep. 6 Ch. App. 58), that the injunction maximum pumber of six votes ? or B. owns and not deny any of these statements, but confine could not be granted, but that the order for occupies property of the value of £10 per annum, themselves to saying they did not proceed with examination could be made, and it was made will he be entitled to one or two votes? Second. the execution. On the 10th Dec. the receiver

accordingly. went himself to take possession.

Two persons being trustees and executors under

a will are on the rate book as A.'s executors, His Honour read from an affidavit to the Storer, solicitor for Fielding and trustee. effect that the receiver had not taken possession. S. Taylor and T. A. Hulme, barristers, in. how will they be able to vote ? will each have a Dyer.—The receiver says in his affidavit that structed by Vaughan, for Taylor, the plaintiff in separate right of voting in respect of one moiety,

or must they exercise their power jointly? An he went on the 10th to take possession. These the Chancery Court. men were told he was entitled to possession. The facts in this case were as follows :-On early answer to this letter will oblige.

R. MAPER. Your honour will see that he was entitled to the 23rd May 1873, Samuel Bowker entered ab-solute possession of the premises. Now, my into an agreement with George Taylor for the friend will say that they remained because they sale to him of certain property in Manchester,

LEGAL NEWS, were not asked for possession.

which agreement he refused to carry out. On the His HONOUR.—Yes; that is what it seems to 21st July Taylor filed a bill for the specific per. be. What is the present state of circumstances ? formance of this agreement in the Chancery Court

MR. MANISTY, Q.C. wishes us to state that he Dyer.- Immediately the registrar issued this of the County Palatine. Several interviews be. was present at the dinner given to Sir Samuel order calling upon the sheriff to show cause why tween the parties took place in the interval that Martin, on his retirement, by the late and present he should not be committed for contempt they elapsed from the date of the agreement to the members of the Northern Circuit. vanished like a vapour. The following morning filing of the bill, at nearly all of which George ATTORNEYS' CERTIFICATES.-By a return just Mr. F. West Awdry comes down and says, "I Fielding was present, and took part in all the printed it appears that in the year ended the 31st have received this order threatening a committal. transactions relating to the purchase. On the March last, the number of attorneys' certificates You withdraw.” This was four days after the 10th July, one of the interviews referred to having in the United Kingdom was 14,053, and the duty second injunction, and one day after notice to taken place on the 30th June, Bowker conveyed charged £92,635. show cause. The very next day after that notice, the property to Fielding. Attempts were then New POLLING DISTRICTS.—As to Middlesex, at the earliest possible moment the men are told made to come to an arrangement, and on the 30th there are seventeen polling districts comprising to withdraw. My friend will say the sheriff and Aug. a compromise was agreed to upon certain the several parishes in this county. In the borough his officers acted bona fide in retaining possession terms, one of which was that Fielding should con- of Marylebone there are twenty polling districts, until the receiver came. I take it they put it in vey the property to Taylor. Tais compromise, and ten in Finsbury; in Lambeth three, in Green. that way because the receiver did not sooner however, was not carried out, and on the 29th wich and Woolwich pineteen, in the city of London distinctly (that is what they allege) come and ask Sept. Fielding, filed a petition for liquidation by twenty districts divided into the wards. In South. for possession. I have two answers to that. In arrargement in the Manchester County Court. wark are six, and in Westminster ten polling dis. the first place the receiver says, “I did go, and The bill in Chancery was amended by adding to it tricts. should have taken possession, but these officers the names of Fielding and Trevor, the trustees WE regret to state that a telegram has been prevented me. In the next place it is apparent under the liquidation as defendants, and the bill, received at the Colonial Office announcing that from these affidavits that the sheriff had notice over as amended, sought a declaration that the pro- the Attorney-General of Jamaica, Mr. Alexander and over again. If it be true they only remained perty did not pass to the trustee under the liqui. Schalch, died of the yellow fever on Jan. 31. Mr. in possession till the receiver came, why was it they dation by the provisions of the Bankruptcy Act of Schalch, who left England about three years ago, withdrew their men when the notice to show cause 1869, as Fielding, having had notice of Taylor's had already acquired a high reputation in the had been served, but before the receiver came ? prior claim, only held the property as trustee for colony for learning, intelligence, and unwearied In Hinder's affidavit he says, Even when I did Taylor. On the 7th Nov., or thereabouts, Field. industry, and his loss will be severely felt, coming withdraw, the receiver was not in possession.” Iting conveyed the property to Alfred Turner, for as it does close upon the departure of the late seems to me that single admission cuts away all whom Fielding stated in his examination under Governor. ground of that kind.

the liquidation that he had bought it. The bill in AN ECCENTRIC ATTORNEY.-Mr. Robert Dover, His HONOUR.- The question is what is the re- Chancery was again amended by adding Turner as who resided at Barton-on-the-Heath, in Warwick. straining order ?

a defendant. Fielding the trustee, and Alfred shire, in the reign of King James the First, and Dyer.-The words of the order of the 12th Dec. Turner, had not filed their answers in the Chan. who was much esteemed for his congenial conduct are that the “sheriff and his officers were abso. cery suit, and the time for doing so had expired. and legal knowledge, instituted an annual meeting lutely restrained from proceeding in the matter The registrar had granted an interim injunction for the practice of rustic games. Mr. Dover con. of the said execution until the 31st day of” the to restrain proceedings in the Chancery suit ducted these pastimes personally, habited in a same month. It is not for me to contend whether against these defendants till the sitting of the suit of this King's clothes. Prizes were given, the word “absolutely". is rightly inserted or not, court, and had left the question of examining and the spectators attended from various parts. I say it was an injunction of this court. He then Taylor to be also decided by the judge. It was Anthony Wood, ihe author, stated that these cited Ex parte Page (17 Ves. 59); Doria's Bank. contended, on bebalf of Fielding's trustee, that games were continued until the rebellion was com. ruptcy, 230-32 ; Cooper v. Asprey (11 W. R.); Ex the fact of Fielding being within the jurisdiction menced by the Presbyterians. In a poem, pub. parte Royner, re Johnson, (L. Rep.7 Ch. 325); Re of the court under his liquidation proceedings lished A.D. 1836, called Annalia Dulvensia, these Davis (Fisher's Digest, 1872, p. 36); General Rules gave the court power to grant the injunction asked games and their patron are described by some of 299, 200, 264; Re Dickenson, (50 LAW TIMES); Ex for, although the other parties to the suit were the poets of the day. parte Paine, re Bernardat (14 Sols. Journ., cited not included in such proceedings, and that they

RAILROAD Law,-A Bill is now before Congress Doria 235); Joyce on Injunctions, 1325, etseq. were entitled to examine Taylor under the Bank. for the establishment of a bureau of transporta

Bartrum contended that there had been no ruptcy Act, although even granting that such tion in the United States of America, similar to breach of the injunction, and that the sheriff was examination was of a fishing nature with regard the railway board of commissioners which has bound to remain in possession until he received to the Chancery proceedings.

been appointed in England, under the recent Act instructions from the execution creditor to with. In support of the motion for the injunction of Parliament. The Bill proposes to appoint five draw. If the proceedings in liquidation fell were cited Ex parte Cohen (L. Rep. 7 Ch. App. commissioners to hold office for five years, who through, what would be his position? Would he '20); Morley v. White (L. Rep. 8 Ch. 214) On the are to enforce all the laws relating to the trans

[ocr errors]
« EelmineJätka »