attend to its fulfilment, or the officers referred to must be regarded in the interest of the claimants, through their mode of appointment, for the purpose of seeing to the fulfilment of such obliga. tions. The claimants contend that the libellants were in the exclusive possession of the vessel. But the provisions that the vessel shall be at the sole use and disposal of the libellants, and that the libellants shall man, coal, and victual her, and pay her running expenses (except insurance and repairs), and return her at the expiration of the charter in proper condition, less ordinary wear, and take and deliver her at New York, and pay one-half of her salvage earnings to the claimants, are not at all inconsistent with a fulfilment by the claimants of the agreed duty of keeping the vessel well fitted and provided with every requisite for the voyage, or with such possession by the claimants, through the captain and chief engineer appointed in the manner prescribed as would enable the claimants, through those officers, to represent them in that regard, to see that the agreement was performed. That the boiler and its tubes were not kept in proper condition during the voyage is established by the evidence. The boiler was not seaworthy. Whatever its apparent condition was when the vessel left Galveston for the first time, with her cargo of beef on board, subsequent events and the results show that the boiler was unseaworthy. There was no cause to produce the blowing out and leaking of the tubes, but the inherent defects of the boiler. Having left Galveston on the 31st Oct. at 11 o'clock a.m., the vessel was stopped at 7 p.m., because twenty-six out of the 144 tubes in her boiler were leaking. She lay until 10 a.m. on the 1st Nov., making repairs, and then returned to Galveston, and remained there making further repairs till 7 a.m. on the 7th Nov., thus losing full seven days of time. The return to Galveston was necessary in order to obtain a proper tool with which to make the repairs. On the voyage from Philadelphia to Galveston the vessel was stopped at sea on the 8th Oct. for five and a half hours, to make repairs on the boiler and engine, and on the 12th for two and a half hours, to plug leaking tubes, and on the 17th for two hours, for repairs to the boiler. This indicated a condition of things which required that the boiler should be thoroughly repaired before starting on the return voyage. But the repairs made were not thorough as shown by the result. The return to Galveston was the result of the co-operating judgment of the captain and the chief engineer, that such return was necessary. On the return voyage the vessel put into Key West, arriving there at 3 p.m. on the 14th Nov. During the passage to Key West the boiler leaked, though there was no stoppage. The vessel left Key West on the 15th inst at 2.30 p.m. On the 16th and 17th the boiler leaked. On the 18th the vessel stopped for seven and threequarter hours and stopped up three tubes, and on the 21st she stopped for four and a half hours and stopped up one tube and repaired three others. She arrived at Delaware city three and a half hours below Philadelphia at noon on Nov. 22nd, with twenty-six of her tubes plugged up. The quarters of beef were on slated racks in a refrigerating room in the hold of the vessel. In such room was a box, standing on the floor, about four feet square and eight or nine feet high. This box was replenished with ice from time to time. By machinery outside of the room the air of the room was driven through the box, and into contact with the ice, and out again into the room, constantly circulating. There was no opening into the room except by a hole in the top, and there was an opening into the box from the outside of the room, to replenish the box with ice from the general depository of ice elsewhere. The difficult question in the case is as to whether it is satisfactorily shown that the beef was spoiled and lost through the causes set forth in the libel. The burden of proof is on the libellants to show this. The averment of the libel is, that by reason of the detention of the steamer at Galveston, while making repairs, and by reason of the detention of the steamer in making her passage from Gal. veston to Philadelphia, owing to the unseaworthy condition of the boiler tubes, and by reason of the hot water which escaped from the defective boiler tubes, and was negligently allowed to run into the bilge of the steamer and melt the ice in the refrigerator where the fresh beef was stowed; the beef became damaged, spoiled, and entirely lost to the libellants. It is not enough to show the unseaworthy condition of the boiler tubes, and that the vessel was detained at Galveston to repair them, and was detained on her passage by reason of them and to repair them, and that hot water escaped and ran into the bilge, and some ice was melted from such cause. It must be shown that, but for such things the beef would have been and was unspoiled, and merchantable as fresh beef.

Zane, the person who came in the vessel from Galveston in charge of the beef, testifies that when the vessel left Galveston the first time the temperature of the room was 39 deg. Fahrenheit;

that while they were stopped at sea, outside of Galveston, it rose to 46 deg.; that when they returned to Galveston it was 41 deg. ; that the day before they arrived at Key West it was about 50 deg; that they had about 100 tons of ice when they left Galveston the first time, and about 95 tons when they left the second time; that they had about 15 tons left when they reached Key West; that they procured 20 tons more at Key West; that the first day out from Key West (16th Nov.) the temperature of the refrigerating room was about as usual, say 40 deg.; that the next day it became 60 deg., and afterwards increased to 68 deg., when they were about at Cape Hatteras: that then the beef spoiled and part of it was thrown overboard, and that at that time the ice was not quite all used up.

The libellants contend that the beef remained unspoiled until after the vessel had left Key West for Philadelphia, and that the cargo would have been landen in good merchantable order at Philadelphia before the time it, in fact, spoiled, but for the detentions specified in the libel, because, but for such detentions, it would have been at Philadelphia unspoiled at a time when it was at sea, unspoiled.

No complaint is made as to any loss of time by putting in at Key West. From the time the vessel left Galveston the second time (7th Nov., at 7 a.m.) till she substantially reached Philadelphia (22nd Nov., at 3 p.m.) was 15 days and eight and a half hours. Leaving Galveston 31st Oct., at 11 a.m., a trip of 15 days and eight and a half hours, would have brought her to Philadelphia, Nov. 15, at 7 p.m., at which time she was at sea, having left Key West five hours before. Was the beef unspoiled and merchantable at the time the vessel left Key West? Captain Dennison, on his direct examination. testifies that he saw the cook cutting some of the beef, and cooking it, and the men eating it, on the Monday after leaving Key West (which Monday was Nov. 18), that it was on the cabin table, and eaten by same, after leaving West Key, and that it cut as if it was good. On his cross-examination this is his evidence:-Q Did not you yourself at that time, at Key West, after the attempt was made to get the beef, say it was stinking ?-A. I do not remember that I did. Q. Will you swear you did not?-A. I will not. Q. Will you swear it was not stinking -A. I will not swear. Q. Was it not, in fact, beginning to taint ?—A. That is a hard question for me to answer, because I did not know the condition of it then. Q. You have been swearing to something about its condition; I ask whether it was not beginning to taint ?-A. I had my suspicions about it. Q. Were not your suspicions that it was beginning to taint ?-A. I was told it was not. Q. Did you not know that that beef was beginning to taint at that time? A. I would not swear it was good, nor would I swear it was bad. Q. You were one of the persons interested in the beef? A. I was very anxious to get it here safe. Q. Did you not state, in Key West, at that time, that it was beginning to taint, or was tainted ?-A. I might have said so, but I do not remember. Q. Did you not say to Mr. Sherman, your chief engineer, that the beef stank, at Key West?-A. I may have said so, but I do not remember that I did. I will not swear I did not, because I said a great deal about the beef being bad. Q. Did you not say, at Key West, that it was "all up ?"-A. Not that I remember. Q. You will not swear you did not ?-A. I will not swear I did not. Q. Did you not say, in Key West, that you were very much worried about buying the ice, as you thought it was so much money thrown away -A. I said, in Key West, that I would not buy the ice, if the party in charge did not give me a written order to buy it. I may have said I feared it; ice was so very high there that I hated to buy it, and I thought we had enough, when we left Galveston, to see us home. Zane, in his direct examination, says that the beef was in good order when they arrived at Key West; that he is sure it was good the Tuesday morning, after leaving Key West (which Tuesday was Nov. 19th); that he knows it was good then because he ate of it, and saw others eat of it; that he examined it himself, and that he detected indications of its spoiling the next day. On cross-examination, he says that he gave some of the beef to one of the government vessels at Key West, and it was good. The evidence shows that this was an experimental voyage, to see whether the refrigerating apparatus and machinery would work successfully. There were 15 tons of ice left on arriving at Key West. The consumption of ice from Galveston to Key West, in 7 days and eight hours had been 80 tons. The running time of the vessel from Key West to Philadelphia was 6 days and twelve and three-quarter hours, after deducting the stoppages. Yet the vessel did not have over 35 tons of ice (including the 20 tons purchased at Key West) for use during that time. The same rate of use as from Galveston to Key West would have required over 71 tons for the voyage from Key West to Philadelphia, instead of 35 tons. If the beef was good at Key West,

these facts would tend to show that its subsequent spoiling was due to a want of sufficient ice; or, if there was ice enough, to the inability of the apparatus to preserve the beef. Notwithstanding the delay, the libellants were bound to use all accessible means to preserve the beef. If ice was needed, and could be procured, it should have been procured at Key West, and such additional expense, and not the loss of the beef, have been thrown on the claimants. It does not appear that more ice could not have been obtained at Key West. The impression produced by the evidence is that, as the ice was going out, the beef began to spoil, and that it spoiled because the ice gave out. The first day out from Key West the temperature of the refrigerating room was about 40deg., the usual, and as I understand from the testimony, the proper temperature. The fact that so small a supply of ice was procured at Key West, and that there was such reluctance on the part of the captain to procure what he did, looks in the direction, very strongly, of a spoiled condition in the beef at Key West, or such a condition as made it substantially unmerchantable when it reached Key West. This is confirmed by the halting testimony of the captain. If true, then the delay before the vessel reached Key West was not the reason why the beef did not reach Philadelphia in merchantable condition. Because, the delay before reaching Key West was only seven days, and the running time from Key West to Philadelphia added to the time the vessel remained at Key West was seven days and twelve and a quarter hours. If the beef was good at Key West, and spoiled afterwards for want of ice, the claimants are not shown to be responsible for the loss. If there was plenty of ice after leaving Key West, and yet the beef spoiled, it would indicate inability in the apparatus to prevent the spoiling, and for this it is not shown that the claimants are liable. As to any melting of ice by hot water in the bilge, any effect therefrom to spoil the beef is covered by the views before stated. But I am not satisfied, from the evidence, that any hot water in the bilge, from the leaking tubes, had any effect to raise the temperature of the refrigerating room or to melt any ice. On a full consideration of the whole case, I can come to no other conclusion than that the libellants have not made out the the cause of action set forth in the libel, and that it must be dismissed, with costs.

COMPANY LAW.

NOTES OF NEW DECISIONS. WINDING-UP UNREGISTERED ASSOCIATION— PRACTICE. 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 to be made of £300 for every £100 subscribed, several persons, exceeding seven in number subscribed to the project. Held (affirming the decision of Bacon, V.C.) that the subscribers were partners, and that the partnership, as it consisted of more than seven members, could be wound-up under the 199th section of the Companies' Act 1862: (Re the Royal Victoria Palace Theatre Company, 30 L. T. Rep. N. S. 3. L.JJ.).

RAILWAY-LANDS CLAUSES ACT.-A vendor's costs under the 80th section of the Lands Clauses Consolidation Act are not payable out of a fund paid into court by the promoters of an undertaking under the 85th section of the Act. sion of Bacon, V.C., reversed: (The Neath and Brecon Railway Company, 30 L. T. Rep. N. S. 3. L.JJ.).

MERCANTILE LAW.

Deci

NOTES OF NEW DECISIONS. VERBAL CHARTERING-No BILL OF LADING -MATE'S RECEIPT NOT CONCLUSIVE EVIDENCE AGAINST MASTER OF QUANTITY SHIPPED.-The plaintiffs having verbally chartered the ship of the defendant to carry iron from Glasgow to Swansea, the ship was loaded with iron bought by the plaintiff from W. and Co. The iron was weighed by the agents of W. and Co., to whom the mate gave a receiet signed by him for 330 tons, but there was no bill of lading. On delivery at Swansea the quantity of iron was discovered to be 326 tons only, but the mate deposed, and was not contradicted, to the delivery of all that had been shipped. The plaintiffs having paid on the full amount of 330 tons to W. and Co., who refused to repay them the difference, sued the defendant for short delivery. Held that there was no evidence of negligence in the defendants, and that if there had been, it would not be negligence causing loss to the plaintiffs, and a County Court judgment in favour of the plaintiffs for short delivery reversed: (Biddulph and others v. Bingham, 30 L. T. Rep. N. S. 30. Ex.)

BILL OF LADing-DeliveRY OF LESS QUANTITY THAN THAT STATED IN BILL.-The whole freight named in the bill of lading is payable to the shipowner carrying under it, although a less quantity of goods than the quantity named in the bill of lading be delivered, if the quantity delivered be no less than the quantity received by the ship. owner. By French law the whole freight is payable whether the whole quantity named in the bill of lading be carried or not, and therefore, in the case of a bill of lading executed in France, it is immaterial whether or not the shipowner received the whole quantity named in the bill of lading. By 18 & 19 Vict. c. 111, s. 3, "every bill of lading is conclusive evidence of the shipment as against the person signing it." Semble that by this statute the bill of lading is conclusive evidence as to quantity, not to weight: (Blanchet v. Powell's Llantwit Collieries Company (Limited), 30 L. T. Rep. N. S. 28. Ex.)

REAL PROPERTY AND CONVEYANCING.

NOTES OF NEW DECISIONS. BREACH OF TRUST-NEW TRUSTEES-APPOINTMENT OF SOLE TRUSTEE-LOSS OF TRUST FUND LIABILITY OF SOLICITOR-CONSTRUCTIVE TRUSTS.-Those who create a trust clothe

the trustee with a legal power and control over the trust property, imposing upon him a corresponding reponsibility, which responsibility may be extended in equity to others who are not properly trustees if they are found either making themselves trustees de son tort, or actively participating in any fraudulent conduct of the trustee to the injury of the cestuis que trust. But strangers are not to be made constructive trustees merely because they act as the agents of trustees in transactions within their legal powers, even transactions of which a court of equity may disapprove, unless those agents receive and become chargeable with some part of the trust property, or unless they assist with knowledge in what they know to be a dishonest and fraudulent design on the part of the trustees. The court does not approve of solicitors or others, who are properly witnesses, and who are not primarily chargeable with any part of the relief prayed, being made parties to suits with a view of charging them with costs alone. A testator bequeathed his residuary estate to three trustees, upon trust as to one-fourth part thereof, for the separate inalien. able use for his daughter A. for life, with remain der to her children. Two of the trustees died, and the surviving trustee appointed A.'s husband sole trustee of his wife's share of the trust fund, and that share was transferred into the sole name of the husband, who employed it in his business and became bankrupt. A solicitor, who had previously acted in the affairs of the trust, prepared the deed of appointment, but only after strong protestations against the transaction, and another solicitor, after informing A. of the danger of the proposed appointment, approved of the deed on behalf of A. and her husband. Held (affirming the decision of Wickens, V.C.) that the solicitors were not liable to make good the loss of the trust fund, and that a bill seeking to make them liable had properly been dismissed with costs: (Barnes v. Addey, 30 L. T. Rep. N. S. 4. Chan.)

EXECUTOR DE SON TORT-ASSIGNEE OF LEASE

-AGENT OF EXECUTOR DE SON TORT.-The exe

cutor of an executor de son tort may become himself executor de son tort in respect of the estate of the original intestate, and where the father was executor de son tort with regard to a lease, and the son upon his death acted as agent to the mother till her death, and then continued in possession of the lease for the benefit of himself and the other children, it was held that he became assignee of the lease, and liable upon the covenants therein: (Williams and Another v. Heales, 30 L. T. Rep. N. S. 20. C. P.)

COUNTY COURTS.

BURNLEY COUNTY COURT.
18th Dec. 1873, 29th Jan. 1874.
(Before W. T. S. DANIEL, Q.C., Judge.)
LORD v. HARDMAN.

Piecework-Supply of materials - Liability of
employer.
A power-loom weaver, paid by piecework, but
bound not to leave his employment without
giving seven days' notice in writing, is not
entitled in the absence of express contract to
damages for loss of wages through not being
fully supplied by his employer with materials
for his loom, where the deficient supply was not
occasioned by the wilful refusal or negligence of
the employer. The limit of the implied legal
liability of the employer is to find reasonable
employment according to the circumstances of
the trade: (Pilkington v. Scott, 15 L. J. N. S.,

Baldwin (Burnley) for defendant.

His HONOUR.-This action is brought to re cover the sum of 10s. 6d. as damages for loss of wages to the plaintiff, through an alleged breach of contract by the defendant. Though the sum sued for is small, the case was treated as involving a question of considerable importance to the trade and industry of this district. The plaintiff is a power-loom weaver, and the defendant is a manufacturer occupying room and power in a mill in Burnley, in which he has 170 looms, upon which from 40 to 50 weavers are employed, all of whom are paid by piecework according to an agreed list of prices. The wages are paid weekly, and are made up to the Wednesday, and paid on the following Saturday in each week, and the amount of wages payable to each weaver necessarily depends upon the quantity of work done by him during the week. The following is a copy of the rules in force at the defendant's mill, and which regulates the terms on which the plaintiff was employed.

"NOTICE.-All persons employed in these works are required to give seven days' notice, in writing, at the counting house before leaving their employ, and seven days' notice in writing will be given by the undersigned before the discharge of any person from such employ, except in the event of any person being guilty of wilful neglect, or spoiling of work, disobedience of orders, or any misdemeanour, in which case the person offending will be liable to immediate discharge, and on proof of wilful damage to forfeit any wages that may be due at the time of such discharge. All notices to be given on Wednesday night before six o'clock. Any person being absent from work without a substitute will be considered to have left without notice. Any persons leaving without notice will forfeit all wages due to them.-Signed, RICHARD HARDMAN."

The plaintiff entered upon his employment as a power-loom weaver, having four looms under his management; and on the Monday in the first week of his employment his looms were stopped for two hours for want of weft, and he was stopped all day on the following Wednesday from the same cause. On that day he gave the defendant the seven days' notice in writing required by the rules to leave his employ. He was supplied with weft on the following day (Thursday), but he had none on Friday or Saturday, and notice was given by the defendant that the weavers need not come till after breakfast time on the following Monday. At that time the plaintiff attended his employment again, and he was supplied with weft and warp for his looms from that time till the following Wenesday night, when his employment terminated according to his notice. Upon his wages account being made up to that time, the quantity of work done being less than it would have been if he had had a continued supply of weft, the amount of wages payable to him was less than he would have been able and expected to have earned by the sum claimed, namely, 10s. 6d., which he demanded of defendant, and defendant refused to pay. A question was raised by the defendant as to the amount, it being insisted on his behalf that the difference between what the plaintiff earned and what he might have earned did not exceed 78. 6d., but I adopt the plaintiff's computation of his loss. The case, as at first opened on behalf of the plaintiff, was that the non-supply of weft was attributable to the wilful refusal or neglect of the defendant to supply it. The result of the evidence satisfied me that the defendant had done all that a prudent manufacturer, acting for his Own interest and the interest of those employed by him, could be reasonably expected to do under the circumstances. I am satisfied that what the defendant did he did according to the usual custom of business, and he acted for the best for his own interest and the interest of the plaintiff and the other weavers in the same employment, and he was not, in my opinion, bound to do more. It was then contended for the plaintiff that the contract between him and the defendant involved an implied obligation on the part of the defendant to keep the plaintiff supplied with sufficient material to enable him to keep his looms going during the whole period of his employment, so as to enable him to do as much work as the looms were capable of turning out under his management, and thereby secure for himself as large an amount of wages as his skill and industry would enable him to earn. And it was further contended that this obligation was absolute, and that the plaintiff ought not to be affected by any circumstances which might occasion the deficient supply, though those circumstances might be beyond the control of the defendant, and though they actually arose out of the ordinary hazards and risks of the trade, and, in short, that the defendant must be considered as insuring the plaintiff constant remunerative employment, and as taking all risks and hazards upon himself.

the plaintiff were the only fund out of which he could provide the necessaries of life for the support of himself and family; while, on the other hand, the question with the defendant was only one of more or less profit upon capital, with which labour had nothing to do. This contention would seem to apply to every description of remuneration for labour by piece work, and to every form of interruption to the continuance of that labour however occasioned. The importance of the question as thus stated to the commercial and industrial classes generally is obvions; but, in endeavouring to arrive at a proper decision of the question, it must be borne in mind that though the argument on both sides had a tendency to drift into the discussion of vexed questions between capital and labour, those questions cannot be discussed here. In this court the question can only be dealt with as one of contract, and must be determined by the application of principles and rules established by authority, and illustrated by examples of decided cases Two cases were cited and relied upon by Mr. Deane on behalf of the plaintiff as authorities for the principle of the implied absolute obligation for which the plaintiff contends. The first case was that of Pilkington v. Scott, which occurred in 1846, and is reported 15 L. J., N. S., 329, Ex. Ch. That was an action by one rival manufacturer against another for harbouring one Joseph Leigh, a servant of the plaintiff's. The defendant pleaded not guilty. The case was tried at Liverpool before Patteson, J., and an agreement of serservice between Leigh and the plaintiffs was put in, which the defendant contended was invalid as being unilateral and not mutual, on the ground that the plaintiffs were not bound to employ Leigh, but only to pay him as long as he was employed, and that such an agreement was in restraint of trade, and therefore void as being against public policy. The learned judge overruled the objection, and the plaintiff recovered a verdict for £4. The agreement was that Leigh should and would at all times during the term of seven years to be computed from the date, serve the plaintiffs, their executors, &c., as a crown glass maker; that he should not during the term work for any other person at any other glass house or place of business without the licence of the plaintiffs; that it should be lawful for the plaintiffs to deduct from his wages any fine that he might incur for breach of their rules; that during any depression of trade he should be paid a moiety of his wages; that if he was sick or lame, the plaintiffs should be at liberty to employ any other persons in his stead without paying him any wages; that the plaintiffs should pay him a sum, and so long as he should be employed and work as a crown glass maker wages by the piece (stating them), and £8 per annum in lieu of house rent and firing, and that the plaintiffs should have the option of dismissing him on giving him a month's notice and paying him a month's wages. A rule nisi for a new trial was obtained for misdirection on the ground that the judge ought to have directed the jury to find for the defendant, inasmuch as the agreement was invalid, being unilateral and not mutual, the master not being bound to employ the workman at all, but only to pay him as long as he might be employed, and that the agreement was in restraint of trade. After argument the court discharged the rule, holding that the agreement was not in restraint of trade (an objection which has no application here), and that upon the question whether the agreement was void for want of mutuality, as containing no undertaking on the part of the masters to employ the workman, Baron Alderson says, "We must take the whole of the contract together. The workman agrees to serve the plaintiffs on certain terms, and the plaintiffs agree to pay him some certain wages on certain terms. And they are to have the option of dismissing him on giving him a month's notice or a month's wages. Now, if all these stipulations are taken together, they clearly point to an undertaking on the part of the master to employ the workman for seven years, subject to the terms above mentioned. This is a reasonable bargain made with good consideration, and the amount of the consideration is not material." The other judges, Baron Rolfe and Baron Platt concurred, giving similar reasons. That case merely decided that on the agreement in question there, there arose an obligation on the part of the master to find employment for the workman, but the extent of the obligation, which is the question in this case, was not decided or even discussed. The other case relied upon was Reg. v. Welch (22 L. J., N. S., 145, Mag. Cas.), decided in 1853. This was an application by T. F. Griffiths for a rule calling on certain justices of the borough of Birmingham and Robert Whitaker to show cause why the justices should not hear, determine, and adjudicate upon an information and complaint laid by Griffiths on behalf of himself and his co-partners, under 4 Geo. 4, c. 34, against Whitaker for breach of a contract

66

brought for wages. Being then satisfied by these authorities that pilotage is included under the head of claim wages," I think however much disposed I may feel to consider that the service is in the nature of a necessary, that I ought to hold that the Legislature did not intend to include it under the class or description of necessaries, for which the right to sue is given by the 3 & 4 Vict. c. 65, especially as such right to sue is limited in the way I have mentioned. I, therefore, am of opinion that the suit was wrongly brought, and that I ought to discharge the bail. But I intimated at the hearing that I was inclined to think I might amend, under the provisions of the County Courts Acts, those Acts being incorporated with the County Courts Admiralty Act by the 34th section; and inasmuch as the agent of the ship and the captain had full notice of the nature of the claim, I think I ought to exercise the power if it exists, without prejudice to the right of the sureties to be discharged from the bail bond. Now the 57th section of 19 & 20 Vict. c. 108, appears to me fully large enough to give me the power of amendment required. It is, The judge of a County Court may at all times amend all defects and errors in any proceeding in such court, whether there is anything in writing to amend by or not, and whether the defect or error be that of the party applying to amend or not; and all such amendments may be made with or without costs, and upon such terms as to the judge may seem fit; and all such amendments as may be necessary for the purpose of determining in the existing suit the real question in controversy between the parties shall be so made, if duly applied for." The only question in controversy between the parties to this suit is the question of plaintiff's wages. I shall, therefore. under this section, if I am asked by the plaintiff so to do, strike out the word "necessaries" from the præcipe, and substitute for it the word wages," But, having regard to Mr. Lucovich's evidence that the plaintiff agreed to accept £4 in full payment of his claim, and being of opinion that that agreement was binding upon him under the circumstances (for, notwithstanding he swore that the master agreed to his terms, and the master was not called to contradict him, it was clear that the master denied the agreement and its performance, as stated by the plaintiff, and therefore the matter was sufficiently in dispute to make the compromise binding), I shall decree only the sum of £4 for the plaintiff's services; and inasmuch as the destruction of Mr. Lucovich's letter was most improper and inexcusable, and as the institution of this suit was, in my opinion, under the circumstances, quite uncalled for, I shall not allow the plaintiff any costs of the suit.

66

IPSWICH COUNTY COURT.
Saturday, Feb. 21.
(Before J. WORLLEDGE, Esq., Judge.)
DOUGHTY V. PRESS.

Tithes-Covenant running with the land-Right of assignee.

HIS HONOUR this morning gave judgment in a case in which Miss Mary Ann Doughty sought to recover from Mr. Edward Press the sum of £39 43, being the amount of eight years' landtax, which the plaintiff had been called upon to pay, and had paid, in respect of a moiety of the tithes arising from certain lands in the parish of Syleham, and which moiety of tithes Miss Doughty's father purchased of Mr. Press's uncle as long ago as the year 1827. The case came on for trial at Harleston, in May 1873, when Mr. Merewether was counsel for the plaintiff; Mr. Blofeld for the defendant. On the 19th Dec. 1827, John Latham Press, defendant's uncle, was owner for the residue of a term of 1000 years, created by deed, dated 26th Jan. 1549, of the tithes of Syleham, and contracted with the plaintiff's father, George Clarke Doughty, for the sale to him of a moiety of the tithes, which were then compounded for at £216 16s., for the sum of £2703 158. purchase money. No conveyance was then executed, but instead thereof, by an indenture dated the 19th Dec. 1827, John Latham Press covenanted to convey upon request. The indenture also contained a covenant to indemnify against various charges, including land tax. Mr. Doughty died on the 22nd April 1832, and Mr. Press on the 19th Dec. 1835, both before any conveyance had been cuted. Doughty bequeathed his moiety or the tithes to his daughter, the plaintiff, and Press, his moiety to his nephew, Edward Press, the defendant, and George Latham Press; the defendant being also his heir-at-law. Mr. J. L. Press also in his will directed two of his executors, William White and Thomas Lombe Taylor, to perform the agreement contained in the deed of 1827. On the 14th March 1839, a deed was executed, to which the executors, defendant, and his brother, and Miss Doughty were parties, by which the executors assigned the moiety of the tithes to Miss

exe

Doughty, and personally covenanted that they did not encumber. The two brothers Press were, then, merely parties for the production of the deeds. There was no covenant in this deed, however, by either of the parties indemnifying Miss Doughty against land-tax. In 1821 the tithes were commuted to £245; but no demand was made upon Miss Doughty for land tax till 1853, when she paid £2 12s. 4d., and had since paid various other amounts. She made no demand, however, for the repayment of these amounts till the 4th April 1872, when Messrs. Josselyn and Sons, having been consulted by the plaintiff, wrote to the defendant, calling his attention to the deed of 1827, and requesting payment of £106 53. 6d. Mr. Merewether argued that plaintiff, as assignee of his uncle, the covenantee in the deed of 1827, was entitled to sue the defendant as assignee of his uncle, the covenantor, upon the covenants contained in that deed, or if not as assignee, as heir-at-law of his uncle; in other words, that the plaintiff is entitled to the benefit, and defendant was liable to the burden of the deed of 1827. His Honour remarked that it was clear that by the deed of 1827 the legal estate in the moiety of the tithes did not pass to Mr. Doughty, and he, in fact, never acquired the legal estate in it, the latter being vested in Mr. J. L. Press. After the death of Mr. J. L. Press it vested in the executors, and passed, by the deed of 1839, to Miss Doughty, so that, as far as the legal estate was concerned, she was the assignee of J. Latham Press, the covenantor, and not of her father, the covenanted. Until he (His Honour) heard Mr. Merewether's argument, he always supposed that for a covenant to run with land-and it was the same with tithes

the assignee of the covenantee was enabled to sue on it, and the covenantee must have some legal estate in the land to which the covenant could be attachel, and this view was supported by the case in Coke upon Littleton, 387 A., and by Webb v. Russell (3 Term Rep. 393). Mr. Merewether contended that Webb v. Russell was not a binding authority, and referred to a case in which Lord Tenterden was reported to have remarked that the decision in that case had caused a great deal of feeling at Westminster, and the Real Property Commissioners expresed an opinion that it would be well if the law as laid down in that case could be altered. Mr. Merewether also quoted Wakefield v. Brown (9 Q. B. Rep. 209) and Magnay v. Edwards (22 L. J., N. S., 170, C. P.). The latter was a case in which the Court of Common Pleas had confirmed a previous judgment of the Court of Queen's Bench. His Honour said the facts in Wakefield v. Brown were not identical with the present case, and not only so, but from the words of Jervis, C.J., in giving judgment in Magnay v. Edwards, and from the remarks made by Willes and Keating, the learned editors of Smith's Leading Cases, it was clear that the case Wakefield v. Brown was regarded as a doubtful authority. He would, therefore, decline to follow it, and extend its operation to the present case. Mr. Merewether had also referred to two Irish cases, Averall v. Wade (Lloyd's and Goold's Reps., Temp. Sugden, 252), and Hatton v. Waddy, a case on the equity side of the Irish Court of Exchequer (2 Jones's Irish Exchequer Reps. 541). He (his Honour) did not consider that these cases applied. It, therefore, appeared to him that at the time of the execution of the deed of 1827 Miss Doughty, the covenantee, had no legal estate in the moiety of the tithes in question, and these cases were no authority whatever that Miss Doughty could maintain an action at Common Law, upon the covenant to indemnify contained in the deed of 1827. Therefore upon the sole ground that Miss Doughty had no right of action at common law, whatever remedy she might have had at equity, he would give judgment for the defendant with costs. But in the event of an appeal against his decision the other points raised by Mr. Blofeld, the defendant's counsel, must be open to the defendant.

MANCHESTER COUNTY COURT.
Saturday, Feb. 7.
(Before J. A. RUSSELL, Q.C., Judge.)
Re SIMPSON AND SONS.

Bankruptcy Act 1869-Partnership-Death of
partners-Distribution of property.
J. A. S. entered into partnership with his son,
W. S., in April 1864, as cotton spinners. J. A. S.
died, and in May 1865 an agreement was entered
into by and between the executors of J. A. S.
and the several parties interested in his estate,
under which it was arranged that three of the
sons, W. S., C. J. S., and F. S., should take the
goodwill, stock, and machinery of and in the
said business at an agreed price, and should
carry on the business in manner set out in that
agreement. The business was carried on for
two or three years, when another son, A. S., was
taken into the partnership, and the business was
carried on under the agreement of May 1865 and

a further agreement then made with the execu tors. On 2nd Jan. 1871 articles of partnership were entered into by the four brothers, which provided, amongst other things, that in case of the death of either of the four brothers in the partnership, the partnership should not be dissolved, but the survivors should carry on the business, and the shares of either of them should be ascertained at the succeeding stocktaking after such death. There were other provisions as to the mode of dealing with the property in such an event. The capital of the firm consisted of money left by the father, debts owing to the concern, and the machinery and stock. No balance sheets were made out, as provided by the articles.

A. S. died in Sept. 1871; C. J. S. died in Jan. 1872. Their shares were not ascertained at the stocktaking succeeding their decease. The business was carried on by the two surviving brothers, the assets of each of the deceased remaining in the business. New stock was purchased and intermixed.

On the bankruptcy of the firm, after the death of A. S. and C. J. S., those creditors whose debts were contracted before that time contended that the proceeds of such of the machinery as could be distinguished as having belonged to the partnership of the four should be divisible amongst the creditors of the early partnership, in priority to those of the creditors who had become so after the death of A. S. and C. J. S. respectively.

Held, that the matter must be decided by the terms of the agreement of May 1865, and that the proceeds of such of the machinery as could be distinguished as having belonged to the partnership of the four should be divided amongst the credi. tors of the four partners.

Ambrose, barrister, instructed by Boote and Edgar, appeared on behalf of the creditors of the two surviving partners.

Coventry, barrister, instructed by Cooper and Sons, for the creditors of the four original partners.

Jones, attorney (of the firm of Sale, Shipman, and Co.), for the trustee under the bankruptcy.

It appeared that on the 12th April 1864, Mr. J. A. Simpson, who was the father of the debtors, Walter Simpson and J. A. Simpson, entered into a partnership with Walter Simpson to carry on business at Park-lane Mills, Preston. J. A. Simpson died on the 25th April 1864, and on the 3rd May 1865, an agreement in writing was entered into between the executors of J. A. Simpson and the beneficiaries under the will. By the agreement it was arranged that Walter Simpson, C. J. Simpson, and Frederick Simpson, the sons of the testator, should carry on the business, and should take the goodwill, stock, and machinery thereof, at an agreed price. The business was carried on till June 1867, when a further agreement was entered into. The business was continued by Walter Simpson, Fred. Simpson, C. J. Simpson, and Arthur Simpson, under the agreement of the 3rd May. On the 2nd Jan. 1871, articles of partnership were entered into which contained a clause that, in case of the death of either of the four brothers-the members of the partnershipthe partnership should not be dissolved, but the survivor or survivors should carry on the business, and the shares of either of them should be ascertained at the succeeding stocktaking after such death. The half of the balance then found to be due to any of them was to remain in the hands of the firm, except as to a sum of £200 for the period of three years from such decease, and the other half, except as regarded the £200, should remain in the hands of the survivors for five years, and the whole of the said balance should be secured to the representatives of either or any of them by the promissory notes of the survivors, such notes bearing interest at the rate of 7 per cent., payable to such representatives quarterly, and the £200 should be paid to the representatives of the remainder within one calendar month of the death of any one of them. The brother Arthur died on the 27th Sept. 1871, and the business was continued by the three surviving partners. Charles J. Simpson, another of the brothers, died on the 15th Jan. 1872, and from his death up to the commencement of the proceedings in liquidation on the 19th Dec. 1872, the business had been carried on by the two survivors. There had been no stocktaking after the death of either of the brothers, nor had their shares been ascertained. No promissory note had been given to the representative of either of the deceased partners, nor was the £200 paid in either case within the month. Small sums had from time to time been paid to the widow of each, but not specifically in respect of the £200. Upon the death of Arthur, the assets remained, and were used for the purpose of the business, and the same happened at the death of Charles John.

The question for the opinion of the court was whether the creditors of the four partners were entitled to have the machinery or such part as could be distinguished as having belonged to the