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The death of Mr. John Roche, who was appointed to an Irish County Court judgeship so recently as Jaly 1894, in the prime of life from a nervous affection, whose origin may be distinctly traced to shock sustained in a railway accident many years ago, directs attention to the fact that railway accidents number among their victims members of the Irish judiciary. In 1868 the Hon. Walter Berwick, a judge in the Irish Bankruptcy Court, perished in a terrible railway collision at Abergele when travelling in the Irish mail. Some of the judges of a past generation, who had grown old in the stage-coach system, were vehement opponents of travelling by rail, notably the first Lord Abinger, Lord Chief Baron of the Exchequer, who never lost an opportunity either on or off the Bench of pointing out the dangers of the iron road.”
The late Lord Plunket, Archbishop of Dublin, was the grandson of William Conyngham Plunket, the first peer, whose name he bore, an ornament first of the Irish and then of the Imperial Parliament, and successively Solicitor and Attorney General for Ireland, Master of the Rolls in England-a post which he accepted but resigned before taking bis seat on the Bench-Chief Justice of the Irish Court of Common Pleas, and Lord Chancellor of Ireland. When the late Archbishop was born, in 1828, bis paternal grandfather was Lord Chancellor, and his maternal grandfather, the Right Hon. Charles Kendal Bushe, an illustrious orator and jurist, was Lord Chief Justice of Ireland. The Archbishop's father practised at the Irish Bar before his election to the peerage, and was a Queen's Counsel ; and his brother, Lord Rathmore, better known as the Right Hon. David Plunket, took “silk” within six years from his call to the Irish Bar, has filled the post of Solicitor-General for Ireland, and has been recently elected a Bencher of the Honourable Society of Lincoln's. inn.
The death of Lord Plunket, Archbishop of Dublin, may render it of interest to recall the circumstance that Henry de Londres, the Archbishop of Dublin of the day, was one of the signatories to Magna Charta. When, on the rebuilding of the Houses of Parliament, it was proposed to decorate them with the effigies of the most prominent defenders of the national liberties, it was determined that statues of the barons whose names appear as signatories to the Magna Charta should ornament the House of Lords. The number of signatories, however, exceeded the number of niches to be filled, and the committee, of which Mr. Hallam, the eminent constitutional historian, was secretary, in the office of selection excluded Henry de Londres, Archbishop of Dublin, in favour of John, Bishop of Gloucester, on the frankly avowed ground that, being but an Irish Prelate, he had no business there. The late Sir Samuel Ferguson, Q.C., an eminent Irish barrister and antiquarian, in an article in the Dublin University Magazine, in 1845, demanded a reconsideration of the report of the committee, and the admission of De Londres to his rightful place in the foremost rank of the defenders of English liberties. “Mr. Hallam," wrote Sir Samuel Ferguson, “ in a letter to the University Magazine, in reply, made the most lame excuse he could for the blunder, and De Londres' effigy was elevated to the niche, where it now stands, first on the right hand entering the House of Lords : ” (Life of Sir Samuel Ferguson, vol. 1 p. 112).
Channell, Q.C., 8. Lynch, and John O'Connor ; for the respondent Wright, Pickford, Q.C., and L. Sanderson; for the respondent Churley, T. M. Stevens. Solicitors : for the appellant, Champion and Henderson ; for the respondent Wright, Martineau and Reid ; for the respondent
Churley, W. F. Stokes.] Gaming-Boxing Match--Deposit with Stakeholder-Money lent for the
Deposit--Gaming Act 1815 (8 & 9 Vict. c. 109), S. 18—Gaming Act 1892 (55 & 56 Vict. c. 9), s. 1.-By sect. 18 of the Gaming Act 1845 all contracts or agreements, whether by parol or in writing, by way of gaming or wagering shall be null and void, and by sect. 1 of the Gaming Act 1892 it is provided that “any promise, express or implied, to pay any person any sum of money paid by him under or in respect of any contract or agreement rendered null and void by the Act of the eighth and ninth Victoria, chapter 109, or to pay any sum of money by way of commission, fee, reward, or otherwise, in respect of any such contract, or of any services in relation thereto or in connection therewith, shall be nall and void, and no action shall be brought or maintained to recover any such sum of money.” The defendant agreed with one Corfield, of Sheffield, to engage in a boxing match with him, each party to deposit £500 with a stakeholder who was to pay over the stakes to the winner. The defendant then borrowed £500 from the plaintiff for the purpose of making the deposit, and the plaintiff lent him the money upon the terms that the defendant should repay him the £500 in the event of his winning the match and receiving the stakes. The match came off, and the defendant being the winner, received from the stakeholder £1000, the amount of the stakes. The plaintiff being unable to obtain from the defendant repayment of the £500, brought the present action to recover that sum as money lent to the defendant. The defendant relied upon the Gaming Acts 1845 and 1892. At the trial of the action before Day, J. without a jury, the learned judge gave judgment for the plaintiff. Tho defendant appealed. Held (allowing the appeal), that, since the terms of the loan were that repayment should depend upon the result of the boxing match, the promise of repayment was void under sect. 1 of the Gaming Act 1892 as being made in respect of an agreement rendered null and void by the Gaming Act 1845. Judgment for the defendant.
[Carney v. Plimmer. Ct. of App. : Lord Esher, M. R., Lopes and Chitty, L.JJ. March 31.-Counsel : for the plaintiff, Alfred Lyttelton and Dorsett; for the defendant, Hugo Young and McCardie. Solicitors : Davis, for East and Smith, Birmingham ; Judge and Priestley, for
Philip Baker, Birmingham.] Husband and Wife--Husband's Petition for Divorce-No legal Evidence
against alleged Adulterer-Dispensing with Co-respondent-Divorce Act 1857 (20 4: 21 Vict.c. 85), ss. 27, 28-Divorce Act 1858 (21 4 22 Vict. c. 108), s. 11-Dirorce Rules 1865, rr. 2, 4, 6.--In his petition for dissolution of marriage a husband alleged that his wife had frequently committed adultery with a person whose name was unknown to him. The petitioner filed affidavits which contained statements to the following effect: The petitioner left his house in Wales on the 17th April 1894, and went to America. He did not return until the 27th May 1896, and he then ascertained that his wife had given birth to a child on the 27th April 1896. She registered the birth of the child without the name of any father. On the 2nd June 1896 she took out a bastardy summons against one H., as being the father of the child. The summons was made returnable on the 17th June 1896. The hearing was adjourned to the 8th July 1896 for the attendance of witnesses. On that day the wife failed to attend in support of the summons, and the justices struck out the case. The wife told the clerk of the husband's solicitor that H. was the father of the child, and that she had never committed adultery with anyone else. H. denied that he was the father of the child, and was prepared to go into the box and to swear that he had never bad intercourse with the wife. It was not disputed that, when he presented his petition, the husband knew where H. vas, and that he know where he was still living. By sect. 27 of the Divorce Act 1857 (20 & 21 Vict. c. 85) every petition for dissolution of marriage “ shall state as distinctly as the nature of the case permits the facts on which the claim to have such marriage dissolved is founded ”; and by sect. 28,
upon any such petition presented by a husband the petitioner shall make the alleged adulterer a co-respondent on the said petition unless on special grounds, to be allowed by the court, he shall be excused from so doing.” By sect. 11 of 21 & 22 Vict. c. 108 a person named as co-respondent may be dismissed by the court from the suit if the court thinks there is not sufficient evidence against him. By the Divorce Rules of 1865 every petition must be verified by the petitioner's verifying the facts of which he has personal cognisance aud deposing as to his belief in the truth of the other facts alleged in the petition (rule 2). Alleged adulterers must be made co-respondents unless the judge shall otherwise direct (rule 4), and applications for such direction must be supported by affidavits (rule 5). If the name of the alleged adulterer is unknown to tho petitioner when he presents his petition, the name must be supplied as soon as known, and the petition must be amended accordingly (rule 6). Barnes, J., on the authority of Jones v. Jones (75 L. T. Rep. 190 ; (1896) P. 165), refused to allow the petitioner to proceed without making H., the person who, the wife said, had committed adultery with her, a co-respondent. The petitioner appealed. Held (dissentiente Smith, L.J.), that by “ alleged adulterer in sect. 28 and rule 4 was meant alleged by the petitioner in his petition, and that, if he did not allege any adulterer, sect. 28 and rule 4 did not apply ; that the expression “unknown” in rule 6 referred to name and not to guilt, and the expression “alleged adulterer” in rule 6 could not refer to any person already named in the petition, for the rule only applied where the name of the petitioner was unknown. Held, therefore, that the appeal should be allowed, and that leave to
NOTES OF RECENT DECISIONS NOT
COURT OF APPEAL. Bill of Sale-Validity-Registration-Defeasance-Mortgage contempo
raneous with Bill of Sale--Bills of Sale Act 1878 (41 f 42 Vict. c. 31), 8. 10.-This action was brought to recover damages for unlawful detention of goods. The defendants justified the detention on the ground that the goods were lawfully seized under a bill of sale. On the 26th Nov. 1894 the plaintiff executed a bill of sale, and also a mortgage of land, in favour of the defendants. The bill of sale was given to secure the repayment of the sum of £140, wbich was made payable at the expiration of one month from the date of the bill of sale. The mortgage was given to secure repayment of the sum of £440, and contained a covenant to pay that sum on demand. The sum of £140, secured by the mortgage, included the sum of £140 secured by the bill of sale. The plaintiff contended that the covenant in the mortgage deed to pay the sum of £440 on demand was a “ defeasance” of the bill of sale, and that the bill of sale was invalid because this defeasance was not written on the same paper as the bill of sale. The Bills of Sale Act 1878 (41 & 42 Vict. c. 31) provides, by sect. 10, sub-sect. 3, that, “ If a bill of sale is made or given subject to any defeasance or condition, or declaration of trust not contained in the body thereof, such defeasance, condition, or declaration shall be deemed to be part of the bill, and shall be written on the same paper or parchment therewith before the registration, and shall be truly set forth in the copy filed under this Act therewith, and as part thereof, otherwise the registration shall be void.” The plaintiff relied on Counsell v. The London and Westminster Loan and Discount Company (19 Q. B. Div. 512), and Edwards v. Marcus (70 L. T. Rep. 182; (1894) 1 Q. B. 587). At the trial before Wright, J., without a jury, the learned judge decided that the bill of sale was valid. The plaintiff appealed. Held (reversing the judgment of Wright, J.), that the covenant in the mortgage deed was a defeasance of the bill of sale, within the meaning of sect. 10 of the Bills of Sale Act 1878.
[Ellis v. Wright and others. Ct. of App. : Lord Esher, M.R., Lopes and Chitty, L.JJ. Jan. 28 and 29. March 16.-Counsel : for the appellant,
proceed without naming any co-respondent should be granted. Jones v. Jones (ubi sup.) disapproved. Decision of Barnes, J. reversed.
[Saunders v. Saunders. Ct. of App. No. 2 : Lindley, Smith, and Rigby, L.JJ. March 24 and April 5.-Counsel : Priestley. Solicitors :
Crowders and Vizard, agents for W. Howell, Llanelly.] Metropolis--Drain-Sewer-Drainage by combined Operation--Liability
to repair-Metropolis Management Act 1862 (25 & 26 Vict. c. 102), s. 112.-In 1838 a group or block of houses was drained by one pipe into a main sewer in Lambeth. At that time the jurisdiction over sewers in Lambeth was vested in the Commissioners of Sewers for Surrey and Kent by a local Act (49 Geo. 3, c. clxxxiii.). In 1848 these commissioners were superseded by “the Metropolitan Commissioners of Sewers,” who were constituted by 11 & 12 Vict. c. 112, s. 3. The Metropolis Management Act 1855 (18 & 19 Vict. c. 120), by sects. 68 and 69, imposed the liability to repair sewers upon the vestries or district boards; and, by sect. 250, provided that “the word 'drain' shall mean and include any drain of and used for the drainage of one building only,
and shall also include any drain for draining any group or block of houses by a combined operation under the order of any vestry or district board ; and the word 'sewer'shall mean and include sewers and drains of every description except drains to which the word “drain,' interpreted as aforesaid, applies.” The Metropolis Management Act 1862 (25 & 26 Vict. c. 102), by sect. 112, provided that, in the construction of the prior Act, and of that Act, “ the word • drain' shall be deemed to apply to and include the subject matters specified in sect. 250 of [the Act of 1855], and also any drain for draining a group or block of houses by a combined operation, laid or constructed before the first day of January 1856, pursuant to the order or direction or with the sanction or approval of the Metropolitan Commissioners of Sewers.” The plaintiff, the owner of the group or block of houses, brought this action against the Vestry of Lambeth, claiming a mandamus to the vestry to repair the said pipe as a “ sewer. The action was tried by Hawkins, J. without a jury, and the learned judge gave judgment for the plaintiff, and granted a mandamus. The defendants appealed. Held (dismissing the appeal), that the Commissioners of Sewers for Surrey and Kent under the local Act were not “ the Metropolitan Commissioners of Sewers” within the meaning of sect. 112 of the Metropolis Management Act 1862, and that the drain laid in 1838 could not, therefore, have been laid pursuant to the order, &c., of the Metropolitan Commissioners of Sewers within the meaning of sect. 112.
[Appleyard v. The Vestry of Lambeth. Ct. of App. : Lord Esher, M.R., Lopes and Chitty, L.JJ. March 15.--Counsel: for the appellants, Macmorran, Q.C. and Muir Mackenzie ; for the respondent, McCall, Q.C. and Morton Smith. Solicitors : for the appellants, Miller, Smith,
and Bell; for the respondent, Venn and Woodcock.] Practice-Appeal–Court of Appeal—Jurisdiction—" Criminal Cause or
Matter”-Judicature Act 1873 (36 & 37 Vict. c. 66), 8. 47).—By the Southport Improvement Act 1871 (34 & 35 Vict. c. cxl.), s. 40, it was provided that “if it shall at any time be proved to the satisfaction of any two justices, after hearing the parties, that the illuminating power of the gas supplied by the [Southport] corporation in the said town. ship [Birkdale] did not, when so tested as aforesaid, equal the illuminating power by this Act prescribed, the corporation shall forfeit such som not exceeding twenty pounds as such justices shall determine, to be paid to the local board” of Birkdale. The Birkdale Urban District Council laid an information against the Southport Corporation under the above section for that the corporation unlawfully did not supply gas of the prescribed illuminating power, contrary to the above Act. The justices thereupon convicted the corporation on the said information and imposed a penalty of £10. Upon the application of the corporation the justices stated a case for the opinion of the Queen's Bench Division. Upon the argument of the special case the Divisional Court (Wills and Wright, JJ.) reversed the decision of the justices. The Birkdale Urban District Council appealed. A preliminary objection was taken by the respondents that this was an appeal from judgment of the High Court in a criminal cause or matter," within the meaning of sect. 47 of the Judicature Act 1873, and that, therefore, the appeal wonld not lie. Held, that the judgment was a judgment of the High Court in a criminal cause or matter” within the meaning of sect. 47 of the Judicature Act 1873, and that an appeal would not lie to the Court of Appeal.
[The Mayor, Aldermen, and Burgesses of Southport v. The Urban District Council of Birkdale. Ct. of App. : Lord Esher, M.R., Lopes and Chitty, L.JJ. March 18.--Counsel: for the appellants, Bigham, Q.C. and James Fox; for the respondents, Moulton, Q.C., Brynmor Jones, Q.C., and S. T. Evans. Solicitors : for the appellants, Rowcliffes, Rawle, and Co., for John Smallshaw, Southport; for the respondents,
Mellor, Smith, and May, for J. W. Daries, Southport.] Practice--Appeal-Order for Security for Costs--Application for stay of
Execution before Security giren.---Where an order had been made directing an appellant to give security for the costs of the appeal, and he applied, before he had given such security, for a stay of execution under the order appealed from pending the appeal, the Court refused to hear the application until he had given the security ordered.
[Re The Corporation of British Investors Limited. Ct. of App. : Lindley, Smith, and Rigby, L.JJ. March 31.-The appellant in person.
Counsel, Macaskie. Solicitors, Beall and Co.] Practice-Jurisdiction of Master--Compensation under Lands Clauses
Act 1845 --Railway-Summons for Trial in High Court--Regulation of Railways Act 1868 (31 $ 32 Vict. c. 119), 8. 41-Judicature Act 1873 (36 8 37 Vict. c. 66), 8. 16-R. S. C., Orier LIV., r. 12.Sect. 41 of the Regulation of Railways Act 1868 provides that, in the case of lands being taken by a railway company, where the
question of compensation in respect of lands injuriously affected is under the Lands Clauses Act 1845 to be settled by a jury, the company may at any time before issuing the warrant to the sheriff, apply to a judge of any one of the Superior Courts of common law at Westminster, who shall, if he thinks fit, make an order for trial of the question in one of the Superior Courts. On the 20th Feb. a claim was delivered, under sect. 68 of the Lands Clauses Consolidation Act 1845, for compensation in respect of lands injuriously affected by land taken by the Manchester, Sheffield, and Lincolnshire Railway Company at Leicester, stating the desire of the claimant that the question of compensation should be settled by a jury. On the 1st March the company took out an originating summons, under sect. 41, for an order that the question of compensation should be tried in the High Court. On the 12th March the summons was heard by one of the masters, who refused to make an order. On the same day the company issued a warrant to the sheriff, under sect. 68 of the Lands Clauses Act 1845, for summoning a jury to settle the question of compensation. On the 15th March the summons camo before Day, J. at chambers, on appeal from the master. Day, J. made an order for the trial of the question in the High Court. The claimant appealed. He contended that the order of the judge was made without jurisdiction, being made after the issue of the warrant to the sheriff ; and, further, that the order of the judge could not relate back and be considered as having been made at the time when the summons was heard before the master because the master had no jurisdiction to entertain the summons. It was argued that in respect of sect. 41 a judge of the High Court exercises a peculiar jurisdiction, and does not act in virtue of his general power as a judge of the High Court. He referred to sect. 12 of the Judicature Act 1873, and expressions used by Lord Esher M.R.. in Re The East London Railway Company ; Oliver's claim (63 L. T. Rep. 147; 24 Q. B. Div. 507, at p. 515). For the company reliance was placed on sect. 16 of the Judicature Act 1873, and it was contended that, inasmuch as a judge of the High Court now has power to make the order mentioned in sect. 41 under and by virtue of the Judicature Act 1873, and, inasmuch as a master has power under Order LIV., r. 12, to exercise the authority exercised by a judge at chambers under the Judicature Acts, the master had in the present instance jurisdiction to hear the summons; and that the order of Day, J. should be considered as having been made on the day when the summons was heard by the master, and was therefore a valid order. Held, that the power given by sect. 41 to a judge of the Superior Courts of common law is now exercised by a judge of the High Court under the Judicature Act 1873, s. 16; and that, therefore, a master has power, under Order LIV., r. 12, to order a trial in the High Court under sect. 41. Appeal dismissed.
[Re the claim of Donisthorpe against the Manchester, Sheffield, and Lincolnshire Railway Company. Ct. of App. : Lord Esher, M.R., Lopes and Chitty, L.JJ. March 22 and 25.--Counsel: for the claimant, Toller ; for the company, J. E. Bankes. Solicitors : Surr, Gribble, and Co., for R. and G. Toller and Sons, Leicester ; Cunlifjes
and Davenport, for J. Storey, Leicester.] Principal and Agent-Liability of Agent- Public Servant of Crown.--
The plaintiff brought this action to recover damages for wrongful dismissal, or alternatively for damages for breach of warranty of authority. The defendant was Her Majesty's Commissioner and Cousul-General for the Niger Protectorate. The plaintiff alleged that the defendant had engaged him to serve in the Protectorate for a term of three years certain, or alternatively had untruly warranted that he had authority so to engage him on behalf of Her Majesty. The plaintiff alleged that he had been wrongfully dismissed before the expiration of three years. The action was tried by Charles, J. without a jury. The learned judge held that the plaintiff could not recover damages from the defendant upon the ground that he was the servant of the defendant, because he had already brought a petition of right alleging that he was the servant of the Crown : (Dunn v. The Queen, 73 L. T. Rep. 695 ; (1896) 1 Q. B. 116). The learned judge further held that, the defendant being a public servant acting on behalf of the Crown, could not be made personally liable. Judgment was given for the defendant. The plaintiff appealed. Held (affirming the decision of Charles, J.), that the defendant could not be made liable upon a contract made by him as a public servant on behalf of the Crown.
[Dunn v. Macdonald. Ct. of App. : Lord Esher, M.R., Lopes and Chitty, L.JJ. March 16.--Counsel : for the appellant, W. H. Steven. son ; for the respondent, Sir R. B. Finlay (S.-G.) and H. Sutton. Solicitors : for the appellant, Dunn and Hilliard; for the respondent,
Solicitor to the Treasury.] Solicitor--Bill of Costs—Statutes of Limitation-Cause of Action--21 Jac.
1, c. 16, 8.3–4&5 Ann. c. 3 (also called 4 Ann. c. 16), 8. 19-Solicitors Act 1843 (6 & 7 Vict. c. 73), 8. 37.-By the Solicitors Act 1843 it is provided by sect. 37 that no solicitor shall commence or maintain any action or suit for the recovery of any fees, charges, or disbursements for any business done by him until the expiration of one month after he shall have delivered to the party to be charged therewith a signed bill of such fees, charges, and disbursements. Under 21 Jac. 1, c. 16, s. 3, an action on a solicitor's bill of costs must be commenced within six years “ next after the cause of such action." By sect. 19 of 4 & 5 Ann. c. 3, the six years' limitation allowed by 21 Jac. 1, c. 16. 8. 3, do not begin to run if the person against whom there is any such cause of suit or action “shall be at the time of any such cause of suit or action, given or accrued, fallen or come, beyond the seas.” The plaintiff in this action was a solicitor, and was retained by the defendant to do work for him as a solicitor. On the 29th May 1889 the last item of the work was completed by the plaintiff. On the following 12th June the plaintiff posted to the defendant at his place of address a signed
bill of costs. Five days before, on the 5th June, the defendant had left the United Kingdom, and remained beyond the seas antil 1896. On the 12th June 1896, as soon as the plaintiff heard of the defendant's return, he issued the writ in the present action, in which he sought to recover the amount due to him for the work which he had done for the defendant. The defendant relied on the fact that more than six years had elapsed since the 29th May 1889, the day on which the work had been completed by the plaintiff. At the trial of the action before Charles, J. without a jury, the learned judge gave judgment for the defendant. The plaintiff appealed, and contended that, in consequence of the provisions of sect. 37 of the Solicitors Act 1843, the plaintiff had no cause of action against the defendant until one month had elapsed after the delivery of the signed bill of costs, and that, as the defendant was beyond the seas at that time, the six years did not begin to run until the defendant's return to England in 1896. Read v. Brown (60 L. T. Rep. 250 ; 22 Q. B. Div. 128) and Reeves v. Butcher (65 L. T. Rep. 329; (1891) 2 Q. B. 509) were the principal cases cited. Held, that sect. 37 of the Solicitors Act 1843 dealt merely with the procedure of enforcing a cause of action, and that the cause of action was the completion of the work on the 29th May 1889. Time began to run, therefore, from that date, and the plaintiff's right of action was barred by the lapse of time. Appeal dismissed.
[Coburn v. Colledge. Ct. of App.: Lord Esher, M.R., Lopes and Chitty, L.JJ. April 2.-Counsel: for the plaintiff, Atherley Jones, Q.C. and H. M. Sturgis ; for the defendants, Jelf, Q.C. and F. M. Abrahams.
Solicitors : Henry T. Coburn; Blair and W. B. Girling.] Vendor and Purchaser - Voluntary Settlement — Notice — Title-Bank.
ruptcy Act 1883 (46 & 47 Vict. c. 52), s. 47.-A summons under the Vendor and Purchaser Act 1874 was taken out by the vendors of freehold property, to which they derived their title as grantees under a voluntary settlement made in March 1896, asking for a declaration that they could make a good title to the property, notwithstanding sect. 47 of the Bankruptcy Act 1883, which enacts : “(1) Any settlement of property not being a settlement made before and in consideration of marriage, or made in favour of a purchaser or incumbrancer, in good faith and for valuable consideration, or a settlement made on or for the wife or children of the settlor of property which has accrued to the settlor after marriage in right of his wife, shall, if the settlor becomes bankrupt within two years after the date of the settlement, be void against the trustee in the bankruptcy, and shall, if the settlor becomes bankrupt at any subsequent time within ten years after the date of the settlement, be void against the trustee in bankruptcy, unless the parties claiming under the settlement can prove that the settlor was, at the time of making the settlement, able to pay all his debts without the aid of the property comprised in the settlement, and that the interest of the settlor in such property had passed to the trustee of such settlement upon the execution thereof.” Held, that, having regard to the language of the section, in which nothing is said about time, the settlement was not void until there was a trustee in bankruptcy of the settlor; and that any right acquired in the property by a purchaser before the act of bankruptcy of the settlor was good as against his trustce in bankruptcy: and therefore a good title was shown. Re Vansittart ; Ex parte Brown (68 L. T. Rep. 233; (1893) 2 Q. B. 377); Re Brall ; Ex parte Norton (69 L. T. Rep. 323; (1893) 2 Q. B. 381); and Re Holden; Ex parte The Official Receiver (58 L. T. Rep. 118; 20 Q. B. Div. 43), approved. Re Briggs and Spicer (64 L. T. Rep. 187 ; (1891) 2 Ch. 127), overruled. Decision of North, J. (ante, p. 364) reversed.
[Re Carter and Kenderdine. Ct of App. : Lindley, Smith, and Rigby, L.JJ. March 27.- Counsel : Cozens Hardy, Q.C., and Borth vick ; Eustace Smith. Solicitors : Miller, Smith, and Bell ; Gerrish and Foster.]
certain sales made by Mr. Wilding as mortgagee in possession. On Ainsworth's death the action was continued by his executors. As a result of a long correspondence between the parties, a partial agreement was come to as to the manner in which the accounts should be taken, the claim for damages being abandoned. One point only remained open when the case came on for trial before Romer, J., and after a consider. able discussion between counsel, and some evidence, an order was made, expressed to be by consent. The minutes were settled by counsel for both parties, and the order was passed and entered. In due course Mr. Wilding brought in his accounts, to which the plaintiffs in Ainsworth v. Wilding, objected as not being in accordance with the order. The matter came before Stirling, J. (to whom the action had originally been assigned) on a summons to proceed with the accounts, and he decided in favour of the defendant Wilding's contention, but his construction of the order was reversed by the Court of Appeal. Mr. Wilding then applied by motion to Romer, J. to have the order rectified, but his application was dismissed with costs for want of jurisdiction. He then instituted the present action to have the order rectified or set aside on the ground of mistake. At the trial, evidence of their intention in con. senting was given by Mr. Wilding's counsel in the former action. Byrne, J. was willing to hear an unsworn statement, but, on the saggestion of Mr. Wilding's counsel that this evidence might be objected to if the case went to a higher tribunal, the learned gentlemen were sworn, and wera examined and cross-examined from their places within the bar. Held, that the consent was given by mistake, that Mr. Wilding was not precluded by what had taken place from the relief which he sought, and that the order ought to be set aside. Hickman v. Berens (73 L. T. Rep. 323 ; (1895) 2 Ch. 638) followed and explained.
[Wilding v. Sanderson. Ch. Div.: Byrne, J. March, 9, 10, 11, 12, 13, 15, and 25.—Counsel ; Astbury, Q.C. and Butcher ; Eve, Q.C. and Clare; Macnaghten. Solicitors : Robbins, Billing, and Co.; Bower,
Cotton, and Bower.] Marriage Settlement-Covenant to settle Wife’s after-acquired Property
Investments representing Accumulations of Income.-By a settlement made on the marriage of C. D. with J. D., it was provided that, if C. D. (the wife) or J. D. (the husband) in her right should, during the cover. ture, “ become seised, possessed of, or entitled to any real or personal property of the value of £200 or upwards for any estate or interest whatever (except jewels "), &c., such property should be vested in the trustees of the settlement as being subject to its trusts. Under the will of her father, C. D. received income amounting to £630 a year. The income received by her under the settlement amounted to £650 a year. C. D. from time to time invested, in her own name, considerable sums, being part of the income derived by her under the will and settlement, and accumulations of income derived by her from such investments. Upon a special case being stated by the trustees for the opinion of the court as to whether the investments representing income and accumulations of income were subject to the trusts of the settlement: Held, that, it being clear that the income received by C. D. was not subject to the covenant in the settlement, it could make no difference in principle that she had not chosen to deal with it as income, but had invested it, and that the investments were not subject to the trusts of the settlement. Levis v. Madocks (8 Ves. 150; 17 Ves. 48) discussed. Re Bendy; Wallis v. Bendy (71 L. T. Rep. 750; (1895) 1 Ch. 109) not followed.
[Finlay v. Darling. Ch. Div.: Romer, J. March 31.—Counsel: H. Terrell ; J. Dixon. Solicitors : Pitman and Sons, agents for H. Russell,
Lichfield; Rowclifes, Rawle, and Co.] Metropolis–Building-Flue built against Party Structure, New Brick.
work— London Building Act 1894 (57 of 58 Vict. c. ccxiii.), 8. 64, sub-sect. 18.-In rebuilding a house in the city of London, new flues were erected against the party wall of an adjoining house, which wall had been built in 1892, about three years previously, between 14 inches and 18 inches in thickness, and the brickwork of which was sound. This wall was made the back of the flues, the other three sides of each flue consisting of new brickwork of the same date as the rest of the flue. Sub-sect. 18 of sect. 64 of the London Building Act 1894 provides ! “A flue shall not be built in or against any party structure, unless it be surrounded with new brickwork, at least 4 inches in thickness, properly bonded.” In an action by the lessee of the adjoining house. Held, that the words “new brickwork” in that section mean brickwork new at the time of the erection of the flue, and that, as the backs of the fues consisted of a wall previously built, they were not surrounded with new brickwork within the meaning of the Act.
[Aërated Bread Company V. Shepherd. Ch. Div.: North, J. Feb. 20, 21, 22, March 2, 3, and 23. Counsel : Swinfen Eady, Q.C. and W. F. Hamilton; Cozens-Hardy, Q.C. and Ingle Joyce. Solicitors :
Wilson, Bristows, and Carpmael ; Stones, Morris, and Stone.] Practice-Discovery Production of Documents-Lien of former Solicitor
-- Allegation of Negligence—“ Possession or Power." - In this case the defendants bad made an application for an order for production of documents by the plaintiff. The plaintiff bad given full information as to those in his possession or power, but the question was how far the lien of his former solicitors for costs precluded the court from making an order for discovery in the usual form. The plaintiff, in his evidence, stated that he disputed the bill of costs delivered by such solicitors, and that he had a good claim against them for negligence in the conduct of his business; and he relied upon this as a sufficient answer to the application. Personally he was willing to produce the documents, and the solicitors simply took their stand on their legal position. In these circumstances it was held that, according to Rodick v. Gandell (10 Beav. 270) and Vale v. Oppert (10 Ch. 340), that the mere fact that documents were in the possession of a former solicitor who claimed a lien upon them was not a sufficient answer to the application; that, if
HIGH COURT OF JUSTICE.-CHANCERY DIVISION. Bankruptcy-Forfeiture-Domicil.-Josephine Elizabeth Hayward, who
died in 1892, by her will bequeathed a fund to trustees apon trust to pay the income thereof to her son, Frederick Berger Hayward, “during his life or until he shall be outlawed or become a bankrupt, or file a petition for liquidation of his affairs, or shall assign, charge, or incumber the said interest, dividends, or income, or some part thereof, or shall do or suffer something whereby the same or part thereof would, through his own act or default, or by operation or process of law, or otherwise, if belonging absolutely to him, become vested in or payable to some other person or persons." After determination of this trust there was a gift over of the fund. In Dec. 1895 F. B. Hayward was adjudi. cated a bankrupt at Auckland, New Zealand, on a creditor's petition, and, according to the law of New Zealand, his personal property became vested in his trustee in bankruptcy there. F. B. Hayward was a domiciled Englishman, although when declared & bankrupt he was temporarily residing in New Zealand. In Dec. 1896 his bankruptcy was annulled. This was a summons by the trustees of the will to determine whether or not F. B. Hayward had forfeited his life interest under the will. Held (following Re Blithman, 14 L. T. Rep. 61 ; L. Rep. 2 Eq. 23), tbat, as F. B. Hayward's domicil was English, the colonial bankruptcy did not operate to vest his life interest in the colonial trustee in bankruptcy, and that there was consequently no forfeiture. Re Davidson's Settlement Trusts (L. Rep. 15 Eq. 383) considered.
[Re Hayward ; Hayward v. Hayward. Ch. Div.: Kekewich, J. March 19.-Counsel : Freeman ; Mark Romer ; Ball. Solicitors, Frank
Richardson and Sadler.] Consent Order-Mistake-Order set aside after Construction by Court
Evidence of Counsel.-Mr. Wilding, the plaintiff in this action, had been defendant in an action instituted by one Ainsworth, who claimed as second mortgagee, for an account, and also for damages in respect of
the allegations of the plaintiff were held a sufficient answer, it would probably be resorted to in every case where there had been a change of solicitors, and would throw on the court the burden of considering whether an action of negligence would succeed ; that the test in every case was whetber the person called upon to produce had done his best to get possession of the documents claimed; and that as some arrangement between the plaintiff and his former solicitors could probably be come to, that the order ought to go; but that, as the court was desircus that it should not be made an instrument of oppression, it would contain liberty to apply to provide for the contingency that the party called upon to produce the documents found a difficulty in obtaining them.
[Lewis v. Powell. Ch. Div.: Stirling, J. March 6 and 20.—Counsel : Grosvenor Woods, Q.C. and Lacey Smith; Hastings, Q.C. and Edward Ford. Solicitors: Woodham Smith; Hanbury, Whitting, and
Nicholson.] Practice- Administrator Pendente lite-Proceedings against—Leave of
Court-Court of Probate Act 1857 (20 & 21 Vict. c. 77), e. 70.-A creditor of T.. deceased, took out an originating summons for an account of certain transactions between himself and T., redemption of a mortgage, and if necessary administration of T.'s estate. The only defendant was the administrator pendente lite of T.'s estate appointed by the Probate Division in an action as to the validity of his will. The defendant moved for a stay of proceedings on the ground that he was only interested as an officer of the court, and that it was contempt of the Probate Division to take proceedings against him without the leave of that division. Held, that an administrator pendente lite is, while bis office lasts, an administrator for all purposes other than that of distributing the residue, which is expressly excepted by sect. 70 of the Probate Act 1857 ; that the proceedings were therefore in order and could not be stayed. Motion dismiesed.
[Re Toleman ; Westwood v. Booker. Cb. Div.: North, J. March 27. -Counsel: Ashton Cross; Priestley. Solicitors : Pumfrey; Baillie
and Cato.] Practice-Writ-Indorsement of Plaintiff's Address-- Fictitious Address
---Security for Costs—R. S. C., Order IV., r. 1.—This was an action brought by an American company against an English firm for infringement of an English patent. The plaintiffs had given in the indorsement on their writ an address in London at which they had hired the right to put up their name, but did not really carry on any substantial business. The defendant moved that the writ and the service thereof should be set aside as irregular because the true address of the plaintiff was not indorsed thereon. Held, that the proper remedy of the defendant was to have security for costs. The plaintiffs were ordered to give such security and to pay the costs of the motion. [The Pittsburgh Crushed Steel Company Limited v. Jacob Marx and
Ch. Div.: North, J. March 27.—Counsel : P. T. Blackwell; Cartmell. Solicitors : 8. Myers ; Mann and Taylor.]
Sessions for the county of Kent. The respondents appealed to the quarter sessions against a rate made for the parish of Crayford under the provisions of the Lighting and Watching Act 1833, wherein they were rated as occupiers of certain hereditaments which were described in the rate as “ brickfield land used for pipes and other land,” and were assessed at 6d. in the pound on the sum of £1250. The quarter sessions allowed the appeal, and reduced the rating to 2d. in the pound. Sect. 33 of the Lighting and Watching Act 1833 provides that,
Property (other than land) rateable to the relief of the poor, shall be rated at and pay a rate in the pound three times greater than that at which the owners and occupiers of land shall be rated at and pay for the purposes of this Act.” In Dec. 1895 a lighting and watching rate was made for the parish of Crayford; this rate purported to assess the owners and occupiers of property (other than land) at 6d. in the pound, and the owners and occupiers of land at 2d. in the pound. The respondents were rated at the higher rate of 6d. in the pound, as being the occupiers of property other than land. The assessment committee of the Dartford Union refused to lower tbis assessment, but the quarter sessions held that the assessment ought to be reduced to 2d. in the pound. The brickfields, land, and other property comprised in the assessment were shown on a plan, and of the land 25 acres were agricultural land, and the remainder was used and occupied, and the works and buildings thereon were used and occupied entirely for brickmaking. These buildings included an engine house, engine, and wash mills ; open shop used as a wheelwright's shop; a one-floored cottage occupied by the foreman, and a few other buildings and works used in the brickmaking business. On the part of the respondents it was contended that no part of the assessment could be charged at the higher rate, but the whole assessment was “land” within sect. 33, an that the dwelling-house being occupied by the foreman of the brickfields and all the buildings and machinery were only ancillary to the land used as a brickfield, and that, therefore, the whole must be assessed at the lower rate as
land." On the part of the appellants it was contended that the whole of the assessment, so far as it was used for the purpose of making bricks, was a commercial undertaking in which capital was invested for commercial purposes, and that it should be assessed at the higher rate as being property other than land ; and that, if the brickfield as a whole could not be so assessed at the bigher rate, everything which did not fall within the definition of land, such as the foreman's dwelling-house, the engine houses, pumping stations, moulders' sheds, &c., should be assessed at the higher rate. Held (affirming the decision of the quarter sessions), that, if the assessment was to be taken as a whole, then the buildings were accessory to the land and the land was the principal, and that, taken as a whole, it ought to be assessed as “land ” and at the lower rate, but that there was not sufficient to show whether the other buildings onght to have been separately rated as buildings, though the foreman's cottage ought to have been so rated.
[Overseers of Crayford (apps.) v. D. and C. Rutter (resps.). Div.: Cave and Lawrance, JJ. March 17.-Counsel : Morton Smith and Hohler ; Dickens, Q.C. and Tassell. Solicitors : Pyke and Parrott, for J. and J. C. Hayward, Dartford; H. P. Davies.]
QUEEN'S BENCH DIVISION. Licensing Act 1874 (37 & 38 Vict. c. 49), 8. 16— Failure to admit Constable
- Violation of Prorisions of Licensing Acts—Evidence of ViolationReasonable Grounds.-Case stated by the Recorder of Bristol. The appellant was the licensed holder of a public-house in Bristol called the Brandy Cask, in which a society known as the Royal Antediluvian Order of Buffaloes were accustomed every Thursday, from 8 p.m. till closing time, to hold their meetings in a private room let to them for that purpose by tbe appellant, who was himself a member of the society. On the 23rd April 1896 the society was holding one of its usual meetings when the respondent Dowding, a police constable, hearing the sound of music and singing proceeding from the house, entered the licensed premises and demanded admittance to the room from which the sounds proceeded, which was that in which the society were holding their meeting. The landlord, Duncan, stated that the room was not in his control, but was in the occupation of the society. He therefore did not admit the constable, who took out a summons against him for an offence under the 16th section of the Licensing Act 1874 (37 & 38 Vict. c. 49). That section provides as follows : “Any constable may, for the purpose of preventing or detecting the violation of any of the provisions of the principal Act or this Act, wbich it is his duty to enforce, at all times enter on any licensed premises.
Every person who by himself, or by any person in bis employ
refuses or fails to admit any constable in the execution of bis duty demanding to enter in pursuance of this section, shall be liable to a penalty.” The alleged violation of the Act which tbe constable demanded to enter for the purpose of preventing, was that of permitting dronkenness on the licensed premises, but there was no evidence of such violation other than the singing and music. The learned Recorder was of opinion that the appellant bad refused or failed to admit the constable in contravention of sect. 16, and convicted him accordingly. The appellant appealed. Held (reversing the decision of the learned Recorder), that the constable is not entitled to demand admission under sect. 16 without having reasonable grounds for believing that the Act is, or is about to be, violated, and in this case po such reasonable grounds existed. The conviction must, therefore, be quashed.
[Duncan v. Dowding. Q. B. Div.: Cave and Lawrance, JJ. March 15.-Counsel: for the appellant, Candy, Q.C. and Lionel Maddison ; for the respondent, Vachell. Solicitors : James Morley and
8. A. Bailey ; D. Trowers Burgess.] Rating-Lighting and Wa'ching Rate-Brickfields-Land and Buildings
Property other than Land "--Lighting and Watching Act 1833 (3 f 4 Will. 4, c. 90), 8. 33.—Case stated by the Court of Quarter
IN BANKRUPTCY. Bankruptcy-Practice-Receiving Order granted on Appeal-Date of.-
In this case the Court granted a receiving order, reversing the decision of the County Court. On the application of counsel for the appellant, the receiving order was dated as if it had been made on the date of the application to the court below.
[Re Raatz ; Ex parte Carlhian. Q. B. Div., in Bank.: Williams and Wright, JJ. April 6.--Counsel: for the appellant, H. Reed, Q.C. and R. B. Muir; for the respondent, Meager. Solicitors : Collyer and
Davis ; Evans, Swaneea.] Bankruptcy-Refusal to make Receiving Order-Costs likely to absorb the
Assets Bankruptcy Act 1883 (46 $ 47 Vict. c. 5), s. 7, sub-sect 3.This was an appeal from the decision of the County Court judge at Steffield, who had refused a receiving order upon the ground that, in all probability, the costs would exceed the assets, and that no benefit would be derived by anyone from the making of the order. By the Bankruptcy Act 1883, s. 7, sub-sect. 3, it is provided that. “ If the court is not satisfied with the proof of the petitioning creditor's debt, or of the act of bankruptcy, or of the service of the petition, or is satisfied by the debtor that he is able to pay his debts, or that for other sufficient cause no order ought to be made, the court may dismiss the petition.” Held, that there was no sufficient ground for the refusal of a receiving order.
[Re Jubb; Ex parte Burman. Q. B. (Div., in Bank. : Williams and Wright, JJ. April 5. Counsel : for the appellant, Harper ; for the respondent, Hansell, Solicitors : Mellor Lamb for Wilmshurst and Stones, Huddersfield; Hickin, Smith, and Co., for Arthur Neal, Shef
field.] Bankruptcy-Sale to Partner of a Member of the Committee of Inspection
-Rule 316 of the Bankruptcy Rules 1886.—This was an application to set aside a sale made by the trustee in bankruptcy in 1889 as contrary to rule 316 of the Bankruptcy Rules of 1886, which provides that: “ Neither the trnstee nor any member of the committee of inspection of an estate shall, wbile acting as trustee or member of such committee, except by leave of the court, either directly or indirectly, by himself or any partner, clerk, agent, or servant, become purchaser of any part of the estate.” Held, that the rule has no application to the sale to a partner of a member of the committee of inspection, in which such member of the committee takes no interest, directly or indirectly.
[Gallard; Ex parte Gallard v. Stretton. Q. B. Div., in Bank.: Williams, J. March 1, 2, 15, and 30.—Counsel : Cooper Willis, Q.C.
and Mackintosh ; H. Reed, Q.C. and Muir Mackenzie ; Ashton Cross. Solicitors : Sawyer and Ellis, for J. C. Buckwell, Brighton ; Ashurst,
Morris, and Crisp ; Turner, Rogers, and Myall.] Bankruptcy-Settlement of Damages awarded in Divorce Court-Settle
ment approved by the Court-Interest to Settlor determinable on Bankruptcy-Intention to defeat Creditors, Matrimonial Causes Act 1857 (20 4: 21 Vict. c. 52), s. 33.- This was a motion on behalf of the trustee in bankruptcy for a declaration that a certain settlement, under which the debtor took a life interest determinable on bankruptcy, was void as against the trustee. The settled fund consisted of damages obtained in the Divorce Court, and the settlement was made with the approval of a judge of the Divorce Division. At the time the settlement was executed the debtor was in great financial difficulties. Held, that the motion must be refused, as the debtor had no control over the form of the settlement, and could not have intended to defeat his creditors.
[Ex parte Stephenson ; Brown v. Stephenson. Q. B. Div. in Bank. : Williams, J. March 30. — Counsel: Muir Mackenzie; Leigh Clare. Solicitors : Spyr and Sons; Trenam.]
“It is illegal," said Mr. Coke.
“I mean to do it," said the sheriff. “ Prove it to be illegal afterwards if you can.”
Sir John and Mr. Coke then went to their carriages and drove away, followed by the carriages of the other Tory gentlemen which had been lent for the occasion, amid the curses and hoots of the assembled populace.
Never mind,” said Sir John, “ the result will be the same, though, of course, it will increase the expenses enormously.” (It wanted a long purse in those days to fight an election with success.)
“ You may say that,” said Mr. Coke, “I do not feel so safe. There is no knowing what these blackgaards may do, now that they have obtained more time. Your seat is safe; for the enemy have only one candidato but mine is threatened.” · Well,” said Sir John, “I will help you in every way I can.
Let us be early at the poll to-morrow with our friends."
OUR LITERARY COLUMN.
STORIES FROM THE LAW REPORTS. XVI.—THE STORY OF THE NOTTINGHAM ELECTION IN THE YEAR
EIGHTEEN HUNDRED AND Two.
(From the Vottingham Election Petition, 1 Peck, 17.) The proclamation for the election bad been regularly made, and the day, bour, and place for the election had been thereby fixed. It was to commenco, at the Exchange Hall, on Tuesday, the 6th June 1802, at nine o'clock in the morning.
Accordingly, at that time and place, the carriages of the country gentle. men in the neighbourhood of Nottingham were to be seen collecting. For in those days an election in the provinces was an affair chiefly in the hands, and subject to the influence, of country gentlemen, and the labour. ing classes had not the power that they wield to-day. The voters in Nottingham, at any rate, wore mainly those who were subservient to the interests of the great landed proprietors of the district, and to this class belonged the two candidates who were expected to be returned unopposed at this election, and whose carriages and retinue were accordingly much to the fore. These were Sir John Borlase Warren and Mr. Parker Coke, neither of whom the inhabitants of Nottingham, taken as a whole, would have at all desired to represent them. But for the inhabitants of Nottingham, taken as a whole, these country gentlemen cared little or nothing ; it was not they who possessed the power of the franchise. Only a small minority of the people bad that, and these belonged chiefly to the class which depended largely on their feudal chiefs, the landlords, to which kings of the earth they were quite willing to offer up their votes as a sacrifice.
There were, of course, exceptions, and among these were the town magnates, who held the principal municipal offices of Nottingham, who were sturly supporters of Mr. Fox, and who looked upon the taking of the Bastille thirteen years earlier as the grandest event in European history. But these worthy magnates had little hope of success, though the unfranchised mob were altogether upon their side.
Sir John and Mr. Coke had come to the poll in great spirits, certain that they would be returned to support their leader Mr. Addington, who was at this time Prime Minister, and strong in the favour of the King. They were enthusiastic followers of this premier, whom they preferred even to Mr. Pitt as the more trustworthy supporter of country gentlemen in general, and of all the interests which they were most eager to protect.
Mr. John Allen, one of the sheriffs of Nottingham, presided at the election. A few votes were given for Warren and Coke, for that was the castom in Nottingham even when there was no opposition, and then the supporters of these candidates urged upon Mr. Allen that it was his duty to return them fortbwith as duly elected.
“Not yet," said the sheriff. “You yourselves asked for time to bave a few votes recorded on your side ; the other side must have time also. I shall open a poll--a regular poll ; I am determined to do it.”
" It is illegal,” said Sir John.
“I shall do it,” said the sheriff. And then he kept urging the lovers of Fox to put forward a candidate.
An hour passed by. The Tories still kept urging the sheriff that it was time to declare the poll closed; but he continued to ignore their arguments, and to urge the populace to put forward a candidate of their
Next morning they did come early ; but the populace were earlier still. They were massed in the street in front of the Exchange Hall several thousands in strength. The carriages of the gentry were pelted with stones; and their supporters, especially the would-be voters, were assaulted with fists and sticks. Sir John and Mr. Coke were powerless. The whole livelong day they and their friends strove to pass through the serried ranks of the enemy; in some cases they succeeded, and parties of a dozen or so made their way to the polling booth more dead than alive, but the friends of Mr. Joseph Birch polled in safety. When evening fell however, the Tory candidates were still a few votes to the good.
The next morning the Tory voters were earlier still at the poll, but their enemies were still before them. The result was much the same as before, and during the remainder of the poll a scene of riot, confusion, tumult, and violence was continued, utterly incompatible with freedom of election. During all the time of the polling the top of the booth was regularly occupied by well-wishers of Mr. Birch, who pointed out to the surrounding mob all the voters who polled for the Tories, many of whom in consequence were assaulted and seized by the mob; their clothes were torn, their persons beaten and bruised, and other acts of outrage and violence were committed upon them. The houses of gentlemen who espoused the interests of the unpopular candidates were attacked, and every act of tumult and disorder which could intimidate voters who were in sympathy with Sir John Borlase Warren and Mr. Parker Coke were practised. These acts were attended with the desired effect. It was calculated that some 500 or 600 voters were prevented by the conduct of the mob from voting for the Tory candidates.
On the evening of the third day of the poll Mr. Parker Coke, who had represented the town of Nottingham in four successive Parliaments, having been repeatedly attacked by the mob of that town, and his life baving been thereby exposed to imminent danger, was at last, for fear of the continuance of the same or greater violence, under the necessity of with. drawing himself from the place of the election.
The law was no help to him, for those to whom the execution of the law was intrusted were on the people's side. Not only Mr. John Allen, the sheriff, but Mr. John Davison, the mayor, and Mr. Thomas Oldknew and Mr. Joseph Oldknew, the aldermen, frequently attended the hustings. All of these, by virtue of their respective offices, were magistrates of the town. Repeated applications were made to each of them to preserve the peace of the place and the freedom of the election, and, in particular, to remove the persons from the top of the poll booth whose action was the cause of so much of the wrong. But the magistrates took no effectual steps either to remove these persons, or to prevent any of the other violent and illegal acts wbich have been described.
At last the tumult and violence increased to such a degree and the mob became so completely masters of the place that no ordinary forcehowever effectual the same might have been if it had been early and seasonably applied-was capable of restraining their violence. The reality as well as all appearance of free election was entirely at an end, and no means or chance of restoring it remained but by the civil magistrates calling to their aid such a military force as would have been sufficient to have effectually protected the persons of the electors in the free exercise of their franchises. A legal gentleman, whose advice in an other matters they had been accustomed to respect and follow, gave his opinion that they were warranted in calling in such a force. But they did not do it. On the contrary they encouraged the people by providing free drink to incite them to further violence.
The Tories throughout bebaved with the greatest pluck and courage, but the forces of the mob were too strong for them, Mr. Joseph Birch, although he himself knew nothing of his candidature till after he had been defeated at Liverpool, and although he did not arrive at Nottingham till the fifth day of the election, was eventually returned at the head of the poll. Mr. Parker Coke's forecast had proved correct, Sir John Borlase Warren had been returned as the member to sit with Mr. Birch, and he himself was ousted from the constituency which be bad so long represented—though, if a tenth of those of his supporters who were excluded by violence from the poll had been allowed to vote, they would have turned the scale.
At last a man on horseback came riding up to the front of the Exchange Hall, and called out," Mr. Birch will come forward-Mr. Joseph Birch, of Hugh Hall, in Lancashire.”
The mob fell into a fury of delight. “Hurrah!” they shouted. “Three cheers for Mr. Birch.” And they were given lustily.
* But,” said Mr. Coke, “this gentleman cannot stand. In the first place, I protest that it is too late for bim to come forward, and that we are already elected according to law. Besides, I do not believe that Mr. Bitch knows anything of this; he is a candidato at Liverpool; there is no authority from him to use his name.”
Mr. Jobn Allen did not care. Three or four voters came forward and voted for Mr. Birch. Forty-four had already polled for the other candi. dates. Then the sheriff adjourned the poll to the subsequent day, though no agent or other persons authorised by Mr. Birch nor any elector had demanded a continuance of the poll.
Parliament was petitioned to declare the election void. Unfortunately there were several petitions, and most of the petitioners, whose names were written at the foot of them, signed without knowing exactly what they were signing. Several of the points, therefore, which the Tories meant to urge were lost through mismanagement; bat eventually the committee unanimously decided that, where there had been such riot and tumult as there had been in this case, there was no free election, and they accordingly unseated Mr. Birch.