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Superior Courts: V. C. Wood.-Queen's Bench.

tors and trustees on the same trusts as declared by the will as to the real estate therein comprised, and the estate was afterwards conveyed to the testator to the usual uses to bar dower. On the death of the testator in September, 1832, the eldest son entered into possession of the property at Stockwell, in accordance with the opinion of the late Mr. Preston that the subsequent conveyance revoked the codicil. The youngest child attained the age of 21 in September, 1851, and this special case was stated, the eldest son being defendant, and the other children plaintiffs.

W. H. Terrell for the plaintiffs; Rolt and A. Smith for the defendant.

authority: Held, that the defendants' right of stoppage in transitu was gone. In this case it appeared that the defendants had stopped in transitu a cargo of corn purchased of them, and which had not been paid for, and that the bill of lading had been transferred to the plaintiffs with the defendants' authority before such stoppage, for a valuable consideration.

Cur. ad. vult.

The Court said, that as the defendants being unpaid vendors had prima facie a right of stoppage in transitu, it laid on the plaintiffs to show such right was gone. A bill of lading would not pass by delivery for a valuable consideraintention, like a bill of exchange, without regard to who made the transfer, but it was necessary to show it came into the plaintiffs' hands before the stoppage, with the defendants' authority. As it appeared from the evidence, therefore, that the defendants had so authorised the transfer, the plaintiffs were entitled to judg

The Vice-Chancellor said, it was the tion of the testator, by his codicil, to confirm the arrangements of his will. The subsequent conveyance, however, had taken the estate at Stockwell out of the codicil, and was an estate of which the testator died seised. There must, therefore, be a declaration for the heir to elect whether he would take it and abandon his interest under the will, or convey the estate and accept under the will.

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A testator gave and bequeathed all his " tate and effects of what kind soever upon the trusts contained in the will: Held, sufficient to pass real estate. THE testator, by his will, gave and bequeathed all his "estate and effects of what kind soever 29 upon certain trusts as thereinmentioned, and a question now arose in this case, whether such words were sufficient to pass real estate.

ment.

Regina v. Jervis. May 4, 1854. WEIGHTS AND MEASURES' ACT.-APPOINTMENT OF POLICE SUPERINTENDENTS AS INSPECTORS.-CERTIORARI.

Quære, whether the appointment as inspectors of weights and measures in certain districts of a company under the 5 & 6 Wm. 4, c. 63, of two superintendents of police is valid, although without salary, under the 2 & 3 Vict. c. 93, s. 10.

But a rule was made absolute, with costs, to quash a certiorari to bring up such order of appointment, a certiorari being taken away by the 36th section of the 5 & 6 Wm. 4, c. 63.

THIS was a rule nisi to quash a certiorari which had been granted to bring up two orders by the sessions for the county of Suffolk under the 5 & 6 Wm. 4, c. 63, appointing two superintendents of police as inspectors of weights and measures in certain districts of the county, but without salary, and directing the days on which they should attend with the standards.

Cur. ad. vult. The Court said, that the word "estate" was sufficient to pass real estate unless there was something in the will to show that it was used in a less extensive sense. Here, however, the trusts were applicable to real as well as to personal estate, and indicated no preference for By the Rural Police Act, 2 & 3 Vict. c. 93, the eldest son, but that all the children should s. 10, it is enacted, that "all chief and other be placed on an equal footing. It was con- constables appointed under this Act shall be tended that the absence of the word "devise" restrained from employing themselves in any showed the testator's intention to die intestate office or employment for hire or gain other as to his real estate, but the words used, "give than in the execution of their duties under this and bequeath," were quite sufficient, and the presumed intention was rebutted by the addition of the words "of what kind soever." The defendants were therefore entitled to judgment.

Gurney and others v. Behrend and others.
May 3, 1854.

BILL OF LADING, TRANSFER OF.-RIGHT OF
UNPAID VENDORS TO STOP IN TRANSITU.

A bill of lading of a cargo of corn purchased
of the defendants, but not paid for, had
been transferred to the plaintiff's for a va-
luable consideration with the defendants'

Act."

Worlledge showed cause, and referred to the 17th section of the 5 & 6 Wm. 4, c. 63, which enacted that the justices of the peace "shall

direct what reasonable remuneration shall be paid to such inspectors for the discharge of such duties as they shall have been ordered by such justices or magistrates as aforesaid to perform."

Power and Couch in support, on the ground that the certiorari was taken away by the 36th section of the Act.

The Court accordingly made the rule absolute, with costs.

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The defendant, after having covenanted by a deed of apprenticeship to instruct the plaintiff in the business of a chemist, &c., sold the business to another person: Held, overruling a demurrer to the declaration in an action to recover damages for breach of the covenant, that the covenant was a personal one and could not be fulfilled by procuring the plaintiff to be instructed by the successor in the business.

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the money was necessarily payable, and therefore was not prejudiced by the omission of the words, and the plaintiff was therefore entitled to judgment.

Burchfield v. Moore. May 5, 6, 1854.
BILL OF EXCHANGE.-ACTION BY INDORSEE

AGAINST ACCEPTOR. MATERIAL ALTE-
RATION. DISCHARGE OF ACCEPTOR.

To an action by the indorsee against the acceptor of a bill of exchange, the defendant pleaded that the words " payable at the Bull Inn, Aldgate," had been added after acceptance, without his knowledge or consent: Held a material alteration, and on demurrer to the replication that the bill had been indorsed to the plaintiff for value before it became due, and without notice of the alteration, judgment for the defendant. To this action by the indorsee against the acceptor of a bill of exchange, the defendant Milward appeared in support of a demurrer pleaded that it had been altered in a material to this declaration on the ground that the co-particular since acceptance. The case now venant was not personal and would be fulfilled by his causing the plaintiff to be instructed by his successor.

THIS was an action to recover damages for the breach of a covenant in a deed of apprenticeship whereby the defendant covenanted to instruct the plaintiff in the business of a chemist, druggist, and dentist-the defendant having disabled himself by the sale of his business.

The Court (without calling on Brett for the plaintiff) said, that the contract was founded on the personal confidence in the defendant's skill and character, and that a breach was committed by the sale, and the plaintiff was therefore entitled to judgment.

Mudd v. Fagg. May 5, 1854.

came on upon a demurrer to a replication that the bill had been endorsed to the plaintiff for value before it became due and without notice of the alteration. It appeared that the words "payable at the Bull Inn, Aldgate," had been added without the defendant's knowledge.

Holland, for the defendant, in support of the demurrer; Bovill for the plaintiff, contrà. Cur. ad. vult.

The Court said, that if the words added had been in the defendant's handwriting, there

COMMON LAW PROCEDURE ACT.-COUNT IN would still have been a general acceptance, but

DECLARATION ON ACCOUNT STATED.
OMISSION OF WORDS MONEY PAYABLE."
-DEMURRER.

as they were added without his consent they "constituted a material alteration and varied the contract between the parties to the bill, and had ceased to be the accepted bill, and the therefore discharged the acceptor. The bill plaintiff as indorsee was in no better position

A count in a declaration followed the 6th form in Schedule B. to the 15 & 16 Vict. c. 76, on an account stated, but omitted the words " money payable," directed by form 1, to precede money counts: A demurrer to the count was overruled upon the authority of s. 91 of the Act.

THIS was a demurrer to a count in the declaration following the 6th form in Schedule B. to the 15 & 16 Vict. c. 76, which is as follows:-"Money found to be due from the defendant to the plaintiff on accounts stated between them."

M. Lloyd in support, on the ground of the omission in the declaration of the words money payable," referring to Form 1 in Sched. B., which is as follows:-" Money

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than the indorser. The defendant was entitled to judgment.

Court of Exchequer.

Chaplin v. Levy. May 1, 1854.
CITY OF LONDON SMALL DEBTS' ACT.
CERTIFICATE FOR COSTS WHERE VER-
DICT ABOVE 201.

Held, that the certificate for costs under the
15 & 16 Vict. c. lxxvii., in an action where
the plaintiff recovers a verdict above 201.,
need not be given forthwith.

THIS was a motion for a rule nisi to set payable by the defendant to the plaintiff for aside a verdict of Erle, J., for the plaintiff's [these words money payable, &c., should pre-costs in an action where he had recovered a cede money counts like i to 14, but need only be verdict above 201. inserted in the first] goods bargained and sold by the plaintiff to the defendant."

Raymond, contrà, was not called on.
The Court, after referring to s. 91 of the
Act,' said, that in this case the defendant knew

Which enacts, that "the forms contained in the Schedule B. to this Act annexed shall

be sufficient, and those and the like forms may be used, with such modifications as may be necessary to meet the facts of the case; but nothing herein contained shall render it erroneous or irregular to depart from the letter of such forms, so long as the substance is expressed without prolixity."

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Superior Courts: Court of Exchequer.

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By the City Small Debts' Act, 15 & 16 Vict. c. lxxvii., s. 119, it is enacted, that "if any action shall be commenced after the commencement of this Act in any of her Majesty's Superior Courts of Record, for any cause "for which a plaint might have been entered in the Court holden under the provisions of this Act, and a verdict shall be found for the plaintiff for a sum not more than 50%, if the said action is founded on contract," "the plaintiff shall have judgment to recover such sum only and no costs," "unless the Judge who shall try the cause shall certify on the back of the record that the action was fit to be brought in such Superior Court;" and by s. 120, that "if in any action commenced after the passing of this Act in any of her Majesty's Superior Courts of Record," &c., " the plaintiff shall recover a sum less than 201.," &c., "the plaintiff shall have judgment to recover such sum only, and no costs," &c.; "provided always (s. 121), that if the plaintiff shall, in any such action as aforesaid, recover a sum less than the sum in that behalf herein before mentioned, by verdict, and the Judge or other presiding officer before whom such verdict shall be obtained, shall forthwith certify on the back of the record that it appeared to him at the trial that the cause of action was one for which a plaint could not have been entered in the Sheriff's Court, or that it appeared to him at the trial that there was a sufficient reason for bringing the said action in the Court in which the said action was brought, the plaintiff in such case shall have the same judgment to recover his costs that he would have had if this Act had not passed."

Pulling in support, on the ground that the certificate should have been given forthwith. Cur. ad. vult.

The Court said, that as it appeared from the Act that, although in cases under 201. the certificate must be given forthwith, in cases above that sum the Judge might give it at his leisure, the rule would be refused.

Nichols v. Gayford. May 3, 1854.

APPEAL FROM COUNTY COURT. ACTION

FOR NEGLIGENCE IN EXCAVATING.

CONTRACTOR.

employed a contractor to execute the works, and had not interfered in the mode of executing the contract. On the trial before Manning, S. L., the jury were directed that the defendant was liable for the negligent excavation and for the carrying away the bricks, and the plaintiff obtained a verdict of 201. damages, and 31. for the bricks, whereupon this appeal was presented.

Bagley, in support, cited Reedie v. London and North Western Railway Company, 4 Exch. R. 244; Knight v. Fox, 5 Exch. R. 721; Peachey v. Rowland, 13 Com. B. 182; Cuthbertson v. Parsons, 12 Com. B. 304.

Edgar for the respondent.

The Court said, that in accordance with the decision of Reedie v. London and North Western Railway Company, there must be a new trial, with costs.

Rowberry v. Morgan. May 10, 1854.
COMMON LAW PROCEDURE ACT.-ISSUE OF

FI. FA. ON NON-APPEARANCE TO WRIT
SPECIALLY INDORSED.

The time for pleading in an action commenced
by writ specially indorsed under the 15 &
16 Vict. c. 76, s. 25, expired on Feb. 18, and
the extra eight days under s. 27 on the
26th, which fell on a Sunday. The plain-
tiff signed judgment and issued execution
on the 27th: A rule was discharged, with
costs, to set aside the execution and all
subsequent proceedings.

THIS was a rule nisi obtained on April 25 last, to set aside, with costs, a writ of fi. fa. and all subsequent proceedings, on the ground of irregularity. It appeared that the time within which the defendant was to appear expired on Feb. 18 last, and the extra eight days on the 26th, which fell on a Sunday. The plaintiff signed judgment on the Monday morning, and issued a fi. fa. thereon.

By the 15 & 16 Vict. c. 76, s. 27, it is enacted, that "in case of non-appearance by the defendant where the writ of summons is endorsed in the special form herein before provided, it shall and may be lawful for the plaintiff" " AGAINST OWNER OF ADJOINING LAND the plaintiff may upon such judgment issue at once to sign final judgment," " and execution at the expiration of eight days from the last day for appearance, and not before;" and the 174th rule of Hilary Term, 1853, directs that "in all cases in which any particular number of days, not expressed to be clear days, is prescribed by the rules or practice of the Courts, the same shall be reckoned exclusively of the first day, and inclusively of the last day, unless the last day shall happen to fall on a Sunday, Christmas Day, Good Friday, or a day appointed for a public fast or thanksgiving, in which case the time shall be reckoned exclusively of that day also."

The plaintiff obtained a verdict in the County Court in an action against the owner of land adjoining his house for negligently excavating his ground so that the plaintiff's wall, &c., had fallen, although it appeared the defendant had employed a contractor to execute the works, and had not interfered in the mode of executing the contract: On appeal, a new trial was ordered with costs. THIS was an action in the Whitechapel County Court against the owner of land adjoining the plaintiff's house for negligently excavating his ground so that the plaintiff's wall, &c., had fallen down, and also to recover for certain bricks carried away from the plaintiff's premises. It appeared that the defendant had

Willes showed cause against the rule, which was supported by Huddleston.

The Court said, that the rule must be dis charged, with costs.

The Legal Observer,

AND

SOLICITORS' JOURNAL.

SATURDAY, JUNE 3, 1854.

JOINT-STOCK TRUST COMPANIES. to alter the Bill in any mode, and to any

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extent, that their Lordships might deem proper.

PROGRESS OF THE SOUTH SEA AND EXECUAfter some formal proofs, three Bank TOR AND TRUSTEE COMPANIES' BILLS. Directors were called, who stated they had THE Select Committee of the House of heard of breaches of trust, but as the Bank Lords, to whom these Bills were referred, did not take cognizance of trusts, they were met on Wednesday, the 24th May. The not personally acquainted with the facts. Duke of Buccleuch was in the Chair, and They inferred where two or more persons the following Peers were also present:- held stock, that it was trust property; they the Earl of Lonsdale, Lord Brougham, Lord admitted that where the stock stood in the St. Leonards, and Lord Overstone. The names of three trustees, they knew of no case of the South Sea Company was opened cases of fraud, but there were some inby Mr. Rolt at great length. He contend- stances in which complaints were made of ed that a company for administering private improper dealing with trust stock, where trusts was required for the convenience of two trustees only were the holders of it. the Public, and that the South Sea Com- In 30 years one of the Directors had heard pany was peculiarly adapted to supply the of eight complaints of that kind. want. He alleged that responsible trustees were difficult to procure, and that the ne- We may observe, that the Bank would, of cessity of procuring new trustees in conse- course prefer that a joint-stock company quence of deaths and retirements was at- should hold large amounts of stock, instead tended by inconvenience, expense, and of numerous individuals with comparatively delay. He urged also that individual trus- small sums. The Directors and their officers tees were liable to failure and often com- and clerks would thus have less trouble and mitted breaches of trust. He combated probably less risk of mistake. The Directors the objections stated in the Petition of the who have their own mercantile affairs to Incorporated Law Society regarding the transact, as well as the Bank business, would unfitness of a board of directors to execute no doubt gladly escape from the gratuitous family and other private trusts. Having duties of private trustees; and they consestated the grounds on which he contended quently spoke in favour of a company which that the preamble of the Bill was proved, would enable them to decline trusteeships and that legislation was necessary to re- and refer the applicants to the company. move the evils complained of,-he went They stated some instances in which trusthrough the clauses under which the plan tees, and others in which the cestui que is to be carried into effect, and particularly trusts, had sustained loss, delay, and exthose for the security of the trust funds pense; but on cross-examination, it apand the due keeping of accounts,-on peared that if there were failures of indiwhich many doubts and difficulties were vidual trustees so there were of joint-stock suggested by members of the Committee, companies; and in litigated cases there must and especially by the Law Lords. The be the same course of proceeding, whether learned counsel, on all these points, pro- the trustees were a body of Directors or a fessed the entire willingness of his clients few private individuals.

VOL. XLVIII. No. 1,369.

F

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3rd. That although Courts of Equity allowed a remuneration to trustees where it was expressly provided for in the will or settlement,-in the absence of such express provision, no allowance could be made to a trustee for the employment of his time, or for his trouble or exertions in the affairs of the trust.

Mr. Franks, the Deputy Governor of the should be responsible only to the extent of company, was also examined, and he de- their guarantee fund and other property, but scribed the intended mode of executing the that the directors should incur no personal trusts, the constitution of the board of responsibility whatever. management, the anticipated extent of business, and the profit to be derived from it. He expected that they would have trusts to the extent of 10,000,000l. annually, that they would probably require one per cent. on the gross amount of the property; that the expense of the establishment would be about 5,000l. a year; and that the shareholders, in addition to the 4th. That the holding of estates in trust interest derived from the guarantee fund, by corporate bodies had been declared inmight receive one per cent. out of the expedient by the legislature, for by the profits. On cross-examination, it appeared Municipal Corporations' Act property held that the details of the scheme were in a for charitable purposes was directed to be very unsettled and unconsidered state. conveyed from such corporations to indiThe witness saw no difficulty in undertaking vidual trustees. Although the motive for any kind of trusts, whether of large landed this enactment was a political one, in order estates, or any other class of business. to prevent corporations from exercising an The Select Committee again met on influence over tenants or others employed Monday, the 29th May, when Sir John in the trust affairs, the same objection Patteson was examined in support of both would apply to a joint-stock trust company, Bills, and particularly of the Executor and if they should have the management and Trustee Bill,-stating his opinion to be in control of large estates or other property, favour of such institutions if a competent necessarily carrying with it considerable inboard of directors could be induced to at- fluence in public affairs. tend personally to the duty, but if it were delegated to paid officers he should not approve of the plan. He stated the case of a relative who had lost a very large sum of money as a trustee, and had heard of difficulties in procuring responsible and competent trustees.

Mr. Selwyn appeared as counsel for the Incorporated Law Society, and addressed the Committee at considerable length. He urged the following and other objections against the Bills :

5th. That if their Lordships should be of opinion that the principle of the Bill ought in any respect to be adopted, it should be carried into effect by a public and not a private Bill, and there was no reason for giving a preference to the South Sea Company, originally established to carry on trade in the South Sea fisheries.1 If this Bill were passed, all the insurance and many other companies would be entitled to similar powers.

6th. The main point in support of the Bill 1st. The alteration of the rule of law was, that the company would secure cestui that trustees shall not be placed in a situa- que trusts from the losses they now sustain tion in which their duties and their in- by the malversation of individual trustees. terests conflict; that whilst they would be On the other hand, it was contended that bound to execute the trust at as little ex- those cases were few in number and did not pense as possible in favour of the parties justify a new law, and that the frauds, failbeneficially interested, their interest would ures, neglect, and mismanagement of pubinduce them to obtain as large a profit as lic companies, were quite as numerous as possible out of the trust funds to divide those of individual trustees, and in case of amongst the shareholders by whom they failure, the extent of mischief would be were elected, and the danger was, that if the enormous. Indeed, the winding up of a present board of directors did not make a joint-stock trust company would be attended good dividend, they would be displaced at the next annual meeting to make room for less scrupulous persons.

with incalculable mischief. The accounts of all the trusts must be taken before the parties entitled could be paid, and there would be the expense of transferring every separate trust to new trustees.

2nd. It was proposed to abrogate another rule of law, by which trustees were personally responsible for their acts and deeds. to an unlimited extent. Here it was proposed that not only the company at large slave trade.

'It appears they were also engaged in the

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