380 Superior Courts: Lords Justices.-Rolls.-V. C. Kindersley.-V. C. S. uart. March 4.-Derbishire v. Home-Decree from Vice-Chancellor Turner dismissed, with costs. 5.-Fennell v. Roy-Cur. ad. vult. - 7.-In re Railway CompanyLeave refused to set down motion under the Winding-up Acts, instead of proceeding in the first instance before Vice-Chancellor Kindersley. - 7.-Official Clearage of the Grand Trunk or Stafford and Peterborough Union Railway Company v. Brodie-Motion to discharge order of Vice-Chancellor Wood fixed for the next seal. male, remainder over to his first and other sons successively, in tail male, and directed his trustees, upon his death, in such manner as counsel should advise, to convey the residue of his real and personal estate, subject and charged and chargeable as aforesaid, The testator purupon certain trusts. chased real estates after the date of his will: Held, that they were generally charged with payment of his debts with the devised estates. THE testator, Mr. Hammond, by his will dated in September, 1820, after directing the — 4, 5, 8.—In re Mostyn, exparte Griffith-payment of all his debts and funeral and testaReference back to Mr. Commissioner Perry, mentary expenses, devised his real estate to his and motion for leave to appeal to House of wife for life, with remainder to his son for life, Lords stand over. 8.-Turner v. Blamire-Part heard. A SETTLEMENT had been executed on the marriage of Mr. and Mrs. Henland, of her freehold property, and also another settlement assigning her personal property to trustees. There was a power to appoint new trustees in both settlements. This application was now made for the appointment of a new trustee as to both the settlements. The Master of the Rolls said, a trustee would be appointed on an affidavit of his fitness, and his written consent to act. remainder to his first and other sons succes- Follett and Kinglake for the plaintiffs, bond creditors; Baily and J. Stevens for mortgagees; Shapter for the devisees; Swinburne for the heir-at-law. The Vice-Chancellor said, that the real estate was generally charged with payment of the debts, and directed inquiries at Chambers with respect to the bond debts. 7.-Attorney-General v. Stand over. Blackburn 8. In re Marylebone Joint Stock Banking Company-Certificate of Master approving of compromise set aside. CROWN AS AGAINST EXECUTOR. OF A testator gave all his real and personal estate to his wife and the defendant, their executors, administrators, and assigns, on trusts for conversion and investment, and to pay the income to her for life, and after her decease to stand possessed of the residue of his property, as to one-half as his wife should by will appoint, and in default of appointment to her executors and administrators. The wife predeceased the testator, who it appeared was illegitimate: Held, that the Crown was entitled to the moiety of the personal estate which lapsed by the wife's death. Superior Courts: V. C. Stuart.-V. C. Wood-Queen's Bench. 381 THE testator, William Powell, by his will, disagreement or otherwise between the plaintiff dated in August, 1822, gave all his real and and his wife, after the solemnization of the personal estate to his wife and the defendant, marriage, the rents and profits of the estate John Merrett, their executors, administrators, settled thereon should be paid to the plaintiff. and assigns, in trust to convert and invest the The defendant had left the plaintiff's house same, and to pay the income thereof to his in 1846, with her mother, by his consent, in wife for her separate use for life, and at her consequence of the conduct of his father, and death in trust to stand possessed of his residuin 1850, a decree had been obtained by the ary real and personal property, as to one-half, for such persons as she should by will appoint, and in default of such appointment to her executors and administrators. It appeared that the testator's wife predeceased him, and that he had no next of kin or heir, being an illegitimate child. The cause now came on upon further directions. Russell and Renshaw for the defendant contended he was entitled beneficially to such moiety of the personal estate, citing Russell v. Clowes, 2 Coll. 648. Wickens, for the Crown, contrà. Wigram, Bazalgette, and Briggs, for other parties. The Vice-Chancellor said, that in accordance with the decisions of Middleton v. Spicer, 1 Bro. C. C. 201, and Taylor v. Haygarth, 14 Sim. 8, the Crown was entitled to the moiety of the personal estate which lapsed by the wife's death. March 3.-Pearson v. Goulden-Decree for account of tithe of hay. 4.-Freer v. Hesse- Decree for specific performance of contract. 4.-Watson v. Marston-Exception overruled to Master's report. 8.-Great Northern Railway Company v. South Yorkshire and River Dun Railway Company-Arrangement come to. Vice-Chancellor Wood. wife in the Ecclesiastical Court for a divorce à mensá et thoro, upon the ground of adultery by him, on the defendant's instituting proceedings for a restitution of conjugal rights. Russell and Terrell now appeared in support of this claim, for payment of such rents and profits on their separation. Daniell and Amphlett for the defendant, contrà. C. M. Roupell and Bowring for the trustees. The Vice-Chancellor said, it was unnecessary to decide as to the validity of the provision in question for the future separation of the husband and wife, or whether any effect could be given thereto, as the case must be determined on the position of the parties. It was clear the separation in 1846 was not such as was referred to by the settlement, which must refer to a permanent separation, either by contract or by the effect of proceedings in the Ecclesiastical Courts. And in respect to the separation in 1850, there was a justifiable cause, and the husband could not insist in equity on his title to the rents which he acquired by his own misconduct, and the claim must therefore be dismissed with costs. March 2.-Montaya v. Paris-Injunction granted to restrain execution. 2.-Forbes v. Richardson- Arrears of annuity held payable out of annual profits of estate. - 2. In re Cooper-Legacy held lapsed and to fall into residue. Cartwright v. Cartwright. March 5, 7, 1853. 4.-Official Manager of the Grand Trunk HUSBAND AND WIFE.- PROVISO IN MAR- or Stafford and Peterborough Railway ComRIAGE SETTLEMENT IN CASE OF SEPARA-pany v. Brodie-Order to set aside subpœna for costs against official manager and to quash attachment. TION. CLAIM. In a marriage settlement was contained a proviso, that in case a separation should take place between the parties, by reason of any disagreement or otherwise, the rents and profits of the settled estates should be paid to the husband. It appeared a decree was made by the Ecclesiastical Court for a divorce à mensâ et thoro, on the ground of adultery by the husband: Held, dismissing with costs a claim by the husband, for 3, 5.-Morier v. Budd-Judgment on exceptions to Master's report. 5.-In re Stulz's Trust-Petition dismissed, costs out of fund. 8.-Earl of Lindsey v. Great Northern Railway Company.-Part heard. 8.-Havens v. Middleton-Cur. ad. vult. Court of Queen's Bench. payment to him of the rents and profits, Tallis v. Tallis. Nov. 16, 1852; Jan. 12, that he could not take advantage of his own Quære, also whether such a proviso is valid, IT appeared that upon the marriage of the plaintiff and the defendant, in July, 1839, it was provided, that in case a separation should take place by reason of any 1853. COVENANT ON DISSOLVING PARTNERSHIP. Upon a dissolution of partnership between the 382 Superior Courts: Queen's Bench.-Com. Pleas.- Western Circuit.-Analytical Digest. miles of the General Post Office, London, 50 miles of Dublin or Edinburgh, or in any place in Great Britain and Ireland where the plaintiff carried on business: Held, not void as in restraint of trade, and that the plaintiff was entitled to recover for a breach of the contract. THIS action was brought for the breach of a covenant, entered into by the defendant upon dissolving partnership as publishers with the plaintiff, not to carry on the business of a publisher in the canvassing trade, which consisted of sending with specimens of the works for sale, within 150 miles of the General Post Office, London, 50 miles of Dublin or Edinburgh, or in any place of Great Britain and Ireland, where the plaintiff carried on business. The question was raised on demurrer to the defendant's plea whether the covenant was void as in restraint of trade. Dowdeswell for the plaintiff, in support of the demurrer; Cole for the defendant, contrà. Cur. ad. vult. The Court said, the defendant was a retiring partner, and had received a large price for his retiring, and he was not now entitled to retain the price without giving the return he had promised, not to interfere with the plaintiff in his business. And as the covenant was a reasonable one, and the plaintiff was therefore entitled to judgment. Court of Common Pleas. 1853. MASTER AND SERVANT. LIABILITY FOR over by the defendants' carman. The defendants pleaded not guilty. It appeared on the trial before Jervis, L. C. J., at the Guildhall Sittings, that the carman had been delivering parcels for the defendants during the day on which the accident in question took place, and that it was his duty upon his return home to put up the horse in the stables, but that upon being requested by the defendants' foreman, who was ill, he had taken him, without having first obtained the defendants' permission, part of the way to his house at Islington. The accident happened on his return therefrom. The learned Judge having directed a verdict for the defendants, on the ground the carman was not acting at the time of the accident as their servant, this rule had been obtained. Eyles, S. L., and Petersdorff, showed cause. Shee, S. L., and Garth, in support, cited Joel v. Morison, 6 Car. & P. 501; Sleath v. Wilson, 9 C. & P. 607. The Court said, that as the journey in question was not a mere deviation in the course of his masters' service, but a new one on his own account, they were not liable for the accident, and the rule must be discharged. CONFESSION UNDER INDUCEMENT.-EVIDENCE. A defendant had confessed to her master upon being accused of having set fire to a straw rick upon his telling her in answer to her saying: "Master, will you forgive me if I tell?"-" Did you ever know me do you any harm?" Held, that such confession could not be received in evidence, on the ground it was given under an induce ment. A carman in the employ of the defendants had run over the plaintiff's wife, while returning from I. with their cart, but it appeared that it was his duty to have put up THIS was an indictment of the defendant the horse on his return from delivering for setting fire to a straw rick, the property of parcels for them, but that he had conveyed her master. It appeared that she had stated their foreman, who was ill, part of the way her wish to speak to him by herself, upon beto his house at I., but without the defend- ing charged therewith, and that she said, ant's permission: Held, that the plaintiff Master, will you forgive me if I tell?" to was not entitled to recover against the de- which he replied, " Did you ever know me do fendants for such injury. you any harm." A RULE nisi had been obtained on January 11 last, to enter the verdict for the plaintiffs in this action, which was brought to recover damages for injuries sustained by the plaintiff's wife, in consequence of having been run Arney for the prosecutor. The Court said, that evidence of the conversation could not be adduced as it was given under an inducement, and the prisoner was accordingly acquitted. ANALYTICAL DIGEST OF CASES, RAILWAY CASES. [Concluded from p. 368.] COMMITTEE. Liability as creditor.—Admission. — In an action against a member of the committee of a wwwww projected railway company for work and labour, goods supplied, and money paid, the jury are to consider whether the defendant, by taking upon him the character of a committeeman, and afterwards acting in the affairs of the company, has authorised the company's solici tor or secretary, or any member of the com Analytical Digest of Cases: Railway Cases. COMPENSATION. 383 mittee, to hold him out to the world as per- | Bracebridge, ib.; Dawson v. Hay, ib.; Wilson sonally responsible for the reasonable and v. Holden, ib. necessary expenses incurred in forming such a company, and on its behalf; and, then, whether the credit was given on the faith of his being so personally responsible. where to be taken.-A compensation jury, of For injury to land. — Ferry.— Inquisition, owner, under Stat. 8 & 9 Vict. c. 20, s. 6, in the city of L., awarded compensation to a landrespect of the works of a railway company, by which he alleged that his land was injuriously affected. The land was divided from the railway works by a river. The land was in the city; the works were not. The mode in which the works injuriously affected the land was, that they obstructed the access to a ferry over the river and appurtenant to the land in question: Held, That, as the land lay in the city, the inquisition was rightly take there. A committee-man, by merely allowing his name to appear in that character in the ordinary form of prospectus issued by railway companies, incurs no liability to a tradesman who supplies goods to the company; but the consent of a person to his name so appearing may be a fact of importance on a question of such liability as showing that he took an interest in the proposed concern, whether merely as a patron and well-wisher, or as co-operating in the measures preparatory to its formation. It becomes, therefore, material to know what the committee was doing when he joined it, and whether he knew what it was doing, and con- That the ferry might pass with the land, curred therein. If advertising, printing, and under a conveyance of the land with “all stationery are necessary to the working of the profits and commodities belonging to the committee, and no fund has been raised to pay same;" and that, where, as far as living mefor such necessaries, the tradesman may justly mory went, the land and ferry had always been suppose that all who act on the committee have enjoyed by the same person, and there was no authorised him to supply them on their credit, evidence to show that they ever had been the although the individual committee-man has not subjects of separate conveyances, a compenspecifically given such authority, and though sation jury were justified in concluding that the tradesman may know nothing more of the the ferry did pass with the land under the committee-men than that they are probably above words. At all events, that there was no men of character and substance. The absence such want of jurisdiction as to call for a cerof the committee-man's intention to pledge his tiorari or prohibition. Regina v. Great Norcredit is immaterial, if he have given the autho- thern Railway Company, 14 Q. B. 25. rity beforehand. If, however, the tradesman looked solely to the deposits on shares as the funds from which payment was to be made to him, he has no cause of action against the committee-man. As the liability of the committee-man arises, not from his filling that character, but from his authorising the orders for goods or services, his admission of general liability may be evidence of his having authorised such orders before his name appeared on the committee. Cases cited in the judgment: Sutton v. Clarke, 6 Taunt. 29; Peter v. Kendal, 6 B. & C. 703. COMPANIES' CLAUSES CONSOLIDATION. 1. Mandamus to take off company's seal from register of shareholders.--The Court will not grant a mandamus commanding a railway company to take the seal off the register of shareholders, on affixed without authority, and contrary to the a suggestion that it was provisions of Stat. 8 & 9 Vict. c. 16 (the Companies Clauses Consolidation Act, 1845), ss. 9, 66, 75, 90. Exparte Nash, 15 Q. B. 92. pur- 2. Action for calls.-Executor.-The form of declaration given by the 26th section of the 8 & 9 Vict. c. 16, is not applicable in an action for calls against an executor, where the calls were made in the lifetime of the testator. Birkenhead, Lancashire, and Cheshire Junction Railway Company v. Cotesworth, 5 Exch. R. 226. The jury are to consider whether such an admission was made because the actual liability in law was questionable, and for the pose of preventing litigation, or whether the admission is referable to his conscientious conviction that his acts have made him personally liable. In the latter case they may infer his general liability. Where a party has incurred and paid costs in bringing actions against committee-men to recover the amount of his claim, at the request 3. Transferee of bond.-The transferee of a of another committee-man, he may recover bond, transferred to him under the provisions such costs from the committee-man at whose of the Companies Clauses Consolidation Act instance he sued, under the common count for (8 & 9 Vict. c. 16), is the party in whose name money paid. an action upon the bond must be brought. Vertue v. East Anglian Railways Company, 5 Exch. R. 280. Where it appeared that, on the trial of an action against a committee-man of a projected railway company, one of the jury was also a member of the committee, and had been sued in respect of the claim then in question, the Court granted a new trial, on payment of costs. Bailey v. Macaulay, 13 Q. B. 815; Same v. Pearson, ib.; Same v. Haines, ib.; Same v. 4. Line part in England and part in Scotland.-Service of writ of summons on secretary. By the Act incorporating the Caledonian Railway Company, six miles of which are in England, and the rest in Scotland, the English Companies Clauses Consolidation Act (8 & 9 Vict. c. 16), is incorporated, so far as is neces 384 Analytical Digest of Cases: Railway Cases. sary for carrying into effect the English portion tem, to the ordinary locomotive principle. The of the line. The company's principal office was in Edinburgh, and their only office in England was at Carlisle, which was used only for receiving passengers and goods. Held, that service of a writ of summons in an action of debt, on the secretary of the company while attending a meeting in London, was good. Wilson v. Caledonian Railway Company, 1 L. M. & P. 731. CONSOLIDATION OF CLAUSES. contractor, in pursuance of the agreement, entered upon the works, and performed a portion of them, but before they were completed he was dismissed by the company: Held, that he could not recover the value of this work. Diggle v. London and Blackwall Railway Company, 5 Exch. R. 442. DEED. Construction.· - Act of Parliament. - A declaration in case charged the defendants, in the Exhibition of plans and sections, how far ob- first count, with digging trenches across a lane ligatory.-A railway company, before applying over which the plaintiff had a right of way; in for a Deviation Act, deposited with the clerk the second, with severing pipes which conveyed of the peace for the county, plans and sections water to the plaintiff's messuage; and in the of the proposed line, and cross sections show-third, with stopping a drain for carrying away ing the manner in which roads were to be the foul water from the premises. carried over the line. On one of those cross Plea, that, by a certain Act of Parliament, sections (No. 3), were delineated the manner in which it was proposed to carry a road at J. over the line by a bridge, and the proposed inclination of the altered line of road. the defendants were authorised to construct a certain railway; that they had agreed with the plaintiff for the purchase of a portion of the land of the plaintiff near to the messuage; that the making of the railway, and carrying the same near to the plaintiff's messuage, being likely to occasion injury and inconvenience to the plaintiff, it was agreed that the defendants should pay to the plaintiff, for and in respect of the purchase of the said land, such a sum as should be sufficient to compensate her, not only for the value of such land, but also for all such injury and inconvenience as should ne cessarily arise from, or be incidental to, the making of the railway, and carrying the same near to the said messuage of the plaintiff; that, in pursuance of such agreement, and be fore the committing of the alleged grievances, by a deed between the plaintiff and certain other persons having an interest in the said land, the plaintiff and those other persons, in consideration of 5751., &c., conveyed the land to the defendants for the purpose of making the railway; that it was declared by the deed, that the 5751. so paid should be, and then was, accepted and taken by the plaintiff and other persons, for the purchase of the land, and by way of full compensation for all damage, loss, or inconvenience which could or might be sustained by them, or any of them, by severance, or otherwise by reason of the exercise of any the powers of the Act, the said 5757. being the sum so theretofore agreed to be paid as aforesaid to compensate the plaintiff, not only for the price and value of the land, but also for all such injury and inconvenience as should necessarily arise from, or be incidental to, the making of the railway, and carrying the same near to the plaintiff's messuage. The plea then went on to aver, that the grievances comContract not under seal.-Work done in pur-venience necessarily arising from and inciplained of were part of the injury and inconsuance of objects of company.-A railway com- dental to the making of the railway, and car pany, duly incorporated by Act of Parliament rying the same near to the plaintiff's messuage, (6 & 7 Wm. 4, c. cxxiii.), entered into an and were part of the damage, loss, and inconagreement, not under their seal, with a con- venience sustained by the plaintiff by reason tractor that he should execute certain works of the exercise of the powers of the Act, and upon their railway, for the purpose of chang-intended to be compensated by and included ing the system of locomotion which they then in the said compensation money so paid as employed, the rope and stationary engine sys-aforesaid. The Deviation Act, when obtained, incorporated the Railway Clauses Consolidation Act, 1845, and enacted (sect. 9), that it should be lawful to the company to construct the bridges for carrying the railway thereby authorised over any roads, or for carrying any roads over the said railway, of the heights and spans and in the manner shown on the sections deposited The company made the line, and at J. deviated two feet vertically from the level marked on the plans. They carried the road over the line on a bridge of the proposed height and span, but with a different inclination of the altered road. A mandamus having issued, commanding the company to make the bridge and carry the road over it in conformity with cross section, No 3, and at the rates of inclination delineated thereon as the rates of inclination of the road when altered: Held, on demurrer to a plea to the return, 1. That the exhibition of the plans and sections imposed no obligation on the company, except in so far as the plans, &c., were incorporated in the Act. 2. That nothing in the Railway Clauses Consolidation Act, 1845, rendered the cross sections obligatory on the company. 3. That, if sect. 9 in the special act was obligatory (which, semble, it was so far as regarded the height and spans of the bridges), the obligation did not extend to the rates of inclination of the altered road, and that the mandatory part of the writ going in this respect beyond the obligation imposed by law, the writ was bad altogether. Regina v. Caledonian Railway Company, 16 Q. B. 19. CORPORATION. |