250 Superior Courts: Lords Justices.-V. C. Kindersley.—Queen's Bench. RECENT DECISIONS IN THE SUPERIOR COURTS. Lords Justices. opposed and there was no other imputation of In re Wade, exparte Wade. Dec. 14, 1855; misconduct on the bankrupt, a certificate Jan. 18, 1856. BANKRUPT LAW CONSOLIDATION ACT. GAMBLING TRANSACTION. TURKISH would be granted of the second class, but not until Jan. 1, 1857. It was to be distinctly unIderstood, however, that the Court gave no SCRIP.-CERTIFICATE. RETURN OF DE- opinion whether the decision of the Commis POSIT. 66 Quære, whether "Turkish scrip" issued in June, 1854, is within the 12 & 13 Vict. c. 106, s. 201, as any government or other stock," so as to deprive a bankrupt of his certificate who purchased some of such scrip for the account and lost upwards of 2001.? In a doubtful case, where there was no other instance of misconduct against the bankrupt, and the creditors and assignees abstained from opposition, a certificate was granted but of the second class, and not until Jan. 1, 1857. sioner was correct or not. The deposit money of 201. paid on the presentation of the petition of appeal was directed to be returned, the assignees not opposing. Vice-Chancellor Kindersley. In re Ramsden's Trust. Jan. 18, 1856. HUSBAND AND WIFE. PAYMENT OF DIVIDENDS ON FUND TO WIFE.-PETITION. The petitioner was entitled to a sum of 1331. odd under a will, and it appeared that her husband had deserted her and their two children in 1845 and lived with another woman abroad, and having received no tidings of him for seven years, the petitioner married again. The dividends were ordered to be paid to her on adding a next friend for the petitioner under her present or former name, and making her second husband a copetitioner if the parties thought fit. On an appeal from the Commissioner refusing a certificate, the Court, without giving | any opinion whether the decision of the Commissioner was correct or not, granted it subject to suspension, as the case was doubtful, and the return of the deposit of 201. was ordered-the assignees not opposing. THIS was an appeal from the decision of Mr. Hopwood appeared in support of this petiCommissioner Ayrton, refusing this bankrupt tion, by Mrs. Mary Bent, for the payment out his certificate, on the ground that he had lost of Court of a sum of 1331. odd, to which she upwards of 4241. in September and October, was entitled under a will. It appeared that her 1854, by the purchase of Turkish scrip for the husband had deserted her and their two chilaccount. It appeared that in June, 1854, the dren in 1845 and lived with another woman Turkish Government had authorised a loan of abroad, and that the petitioner not having refive millions sterling to be raised at six perceived any tidings of him for seven years marcent., secured on the Egyptian tribute, and that ried again. on payment of 151. per cent., the contributor received a scrip certificate. By the 12 & 13 Vict. c. 106, s. 201, it is enacted, that "no bankrupt shall be entitled to a certificate of conformity under this Act, and any such certificate, if allowed, shall be void, if such bankrupt shall have lost by any sort of gaming or wagering in one day 201., or within one year next preceding the issuing of the fiat, or filing of the petition for adjudication of bankruptcy, 2007.; or, if he shall within one year next preceding the issuing of the fiat or the filing of such petition have lost 2007. by any contract for the purchase or sale of any Government or other stock where such contract was not to be performed within one week after the contract, or where the stock bought or sold was not actually transferred or delivered in pursuance of such contract." Swanston and Bagshawe, jun., in support; Greene for the assignees. Matheson's case, 1 De G. M'N. & G. 448; Copeland's case, 2 ib. 914. The Lords Justices said, that the loss to the estate by the purchase of scrip for a future day was a proceeding which could not be countenanced. But as Lord Eldon, in a case of a doubtful certificate, had allowed it to go, subject to the risk of its being questioned at law, and as neither the assignees nor the creditors Hetherington for the trustees. The Vice-Chancellor said, that the second marriage could not be regarded as valid, but that an order would be made for payment of the dividends to her on the petition being amended by adding a next friend to the petitioner either in her present or former name, and making her second husband a petitioner, if thought fit. Court of Queen's Bench. REASON OF NOT FENCING MACHINERY. To an action against millowners under the 7 THIS was an action to recover damages from the occupiers of a flax and wool manu Queen's Bench. factory at Stourport, Worcestershire, for injuries sustained by the plaintiff on Jan. 16 last, by reason of their neglect of duty in not fencing certain mill gearing with a shaft in motion under their direction. The defendants pleaded the general issue and also a special plea that although it was true the shaft was not properly fenced, the driving strap attached thereto, by which the plaintiff was entangled as mentioned in the declaration, was not in motion at the time, but wholly at rest, and that the plaintiff wilfully and improperly and against the will and commands of the defendants touched and caught hold of such strap, whereby the shaft was set in motion, the plaintiff well knowing that what he was doing was dangerous and contrary to the will of the defendants, and that by the act of the plaintiff himself, and not merely by the negligence of the defendants, the plaintiff sustained the injuries in question. 251 cover damages for injuries sustained by the plaintiff by reason of the defendants' neglect to fence their machinery, that there did not exist any such danger as to require the fencing mentioned in the declaration. THIS was also an action to recover damages under the 7 Vict. c. 15, s. 21, for injuries sustained by the plaintiff, by reason of the defendants neglecting to fence their machinery. The pleas were the general issue, a special plea as in the above case, and also a further plea that there did not exist any such danger as to require the fencing mentioned in the declaration. Welsby in support of a demurrer to this plea; Maynard, contrà. The Court said, that the 21st section which required all parts of the mill gearing in a factory to be securely fenced, did not limit it to where there was any danger, but laid it down as a general rule, which the defendants had disobeyed. The demurrer to the 3rd plea would therefore be allowed. Regina v. Allerton and others. Jan. 19, 1856. QUO WARRANTO.-VESTRYMEN. By the 7 Vict. c. 15, s. 21, it is enacted, that " every flywheel directly connected with the steam-engine or water-wheel or other mechanical power, whether in the enginehouse or not, and every part of a steam-engine and water-wheel, and every hoist or teagle, near to which children or young persons are liable to pass or be employed, and all parts of the mill gearing in a factory, shall be securely fenced; and every wheel race not otherwise secured shall be fenced close to the edge of the wheel race; and the said protection to each part shall not be removed while the parts required to be fenced are in motion by the action of the steam-peared that certain persons who had not paid engine, water-wheel, or other mechanical power for any manufacturing process." Welsby in support of a demurrer to this plea; M. Smith and Fry, contrà. Held, that the 18 & 19 Vict. c. 120, s. 16, which provides that no person who has not paid his parochial rates shall join or vote in the election of vestrymen, does not exclude such persons from being put in nomination for the office of vestrymen. THIS was a rule nisi for a quo warranto on the vestrymen of St. Clement Danes. It ap any such election for any parish, or any ward of any parish, or be deemed a ratepayer thereof, or be entitled to do any act as such under the Act, unless he have been rated in such parish to the relief of the poor for one year next before the election, and have paid all parochial rates, taxes, and assessments due from him at the time of so voting or acting," &c. their parochial rates had been rejected by the churchwardens and overseers to be put in nomination for the office of vestrymen under the 18 & 19 Vict. c. 10, s. 16, which provides, that The Court said, that without giving any opi-"no person shall be entitled to join or vote in nion whether the action could be sustained, the special plea, all the facts of which must for the present purpose be assumed to be true, was an answer to the action. The Factory Acts had been most salutary in their effects, but they would be most oppressive if the present action could be maintained. Although the shaft in question was not fenced as it ought to have been, the plaintiff knowing the danger, and contrary to the defendants' orders and warning wilfully laid hold of the strap, and so caused the injury. It was not the intention of the Legislature to protect parties from the consequences of their own gross misconduct and want of ordinary care, and the plaintiff could not bring an action for the injury which he had caused himself. The defendants were therefore entitled to judgment. Pashley, for the defendants, said, that all the vestrymen were willing to resign; Frideaux for others of the vestry; Shee, S. L., in support of the rule. The Court made the rule absolute, on the understanding that the parties resigned within 10 days and paid the costs of the prosecution, and that no further proceedings should be taken. Denton v. Great Northern Railway Company. Doel v. Sheppard and others. Jan. 18, 1856. RAILWAY COMPANY.-TIME TABLES.-AC FACTORY ACT. FENCING MACHINERY, — WHERE DANGER. The 7 Vict. c. 15, s. 21, which directs that all parts of the mill gearing shall be securely fenced, is not limited to such parts where there may be danger. A demurrer was therefore allowed to a plea setting up as a defence to an action to re TION FOR BREACH OF CONTRACT AND A railway company, by time tables prepared 252 Superior Courts: Queen's Bench.-Common Pleas.-Crown Cases Reserved. pass for seizing the plaintiff's goods by distress for rent. notice of their discontinuing their train, but the defendants still continued the former time tables: Held, that the plain- THIS was a rule nisi to set aside the verdict tiff, who had attended at the defendants' for the defendant and for a new trial of this station in consequence, and applied for a action of trespass for seizing the plaintiff's ticket to H., and was only given one to the goods by distress for rent. On the trial before junction, was entitled to sue for the da- Platt, B., at Liverpool, parol evidence was tenmages he had thereby sustained by his de-dered and admitted of the date of an agreement tention at the junction. which was undated to show that the rent was due thereunder. E. James and Heath showed cause; Milward in support. IT appeared that the defendants by their time tables for March last, which were prepared and exhibited to public view by their authority, stated that a train left Peterborough The Court said that the evidence tendered at a certain hour, and went on to Hull the same did not vary the terms of the written agreement, night, but it appeared that the railway com- which did not on the face of it show when it pany, whose train met the defendants' one at was to operate, and that it was properly adthe Milford Junction, had given notice on Feb. mitted in accordance with Murray v. Earl of 27, that their train would be discontinued. | Stair, 2 B. & C. 82. The rule was therefore The defendants still continued their former discharged. tables, and the plaintiff in consequence applied for a ticket to Hull, when he was informed he could not go beyond the Milford Junction Sta Crown Cases Reserved. tion that night; and he thereupon brought this Regina v. Austin and another. Jan. 19, 1856. action in the Clerkenwell County Court to re- INDICTMENT.-ADMISSIBILITY IN EVIDENCE cover damages for his detention there, by rea- OF DEPOSITIONS OF FOREIGNER BEING son of their breach of contract or false representation. The matter now came on in the form of a special case on the suggestion of the County Court Judge. Maynard for the plaintiff; Hugh Hill for the defendants. ABROAD. Held, that the depositions of a foreigner taken abroad are not admissible in evidence on an indictment. Carter appeared in support of this prosecution, and contended that the depositions of a foreigner, although taken abroad, were admissible in evidence. receivable, and quashed the conviction accord- Regina v. Shepherd. Jan. 19, 1856. The Court said, that the plaintiff was entitled to recover both on the ground that there was a contract and also a false representation. It was the same as if the defendants should publish a contract in express terms, that in consideration of their customers coming to a particular station at a particular hour a train would run, and that on paying the fare he should have a ticket to any other station. A prejudice must result to any person who came, having made arrangements with a view thereto, and tendered his fare. It was a promise made to the public generally and was the same as if the parties were present, upon the performance of a condition, upon the compliance with which it became absolute. And the fact that part of the line was not the defendants' property, made no difference. With respect to the false representation, the time table was published after notice given to the defendants that the THIS was an indictment against the prisoner, train would be discontinued, and they knew in the employ of the Post Office, for stealing a it to be false. The plaintiff believed the re-post letter. It appeared that the authorities presentation, went to the station and suffered had reason to suspect the prisoner, and that a a pecuniary loss in consequence, for which he had his remedy by action. The judgment of the Court below was therefore right, and the plaintiff was entitled to judgment. Held, that a letter which was delivered at the window of the General Post Office to an inspector, who locked it up until the following day and then handed it to another inspector, who placed it among other letters to be sorted by the prisoner, who abstracted it, was not a "post letter" within the 7 Wm. 4, and 1 Vict. c. 36, s. 26, and that the of fence was one of larceny. letter containing money was delivered to an in- The Court said that according to Regina v. Rathbone, 2 Moo. C. C. 242, the letter was not a post letter within the meaning of the 7 Wm. 4, and 1 Vict. c. 36, s. 26, and that it was only a common larceny. The Legal Observer, AND SOLICITORS' JOURNAL. "Still attorneyed at your service."-Shakespeare, SATURDAY, FEBRUARY 2, 1856. COMMENCEMENT OF THE SESSION the consideration of various measures, as OF PARLIAMENT 1856. HER Majesty opened the Session of Parliament in person on Thursday last, the 31st January. At the time we write, we are not in possession of the usual copy of the Royal Speech, and must not, therefore, venture to comment on a Document of such State importance. Nor as yet can we record the proceedings in Parliament, or the various projects which will be announced or notices given for Parliamentary discussion. We usually extract from the Queen's Speech only such part as directly relates to intended amendments or alterations in the Law; but on this occasion we shall submit to our readers the whole of the Address which her Majesty has been advised to make to the two Houses, and we are induced to this course in consequence of the important and unexampled position of public affairs. The Speech will, no doubt, contain such intelligence of the progress made towards the termination of the War, and the speedy establishment of Peace, as the Government can truly and confidently announce. Her Majesty's communication to Parliament is of a solemn nature, and will become an important historical document : we must not, therefore, expect anything more than the accurate intimation of the present state of the negotiations for a Peace which we trust will be both satisfactory and enduring. Although, in general, we interfere not in public affairs or political events, we may be allowed as Lawyers to hail the prospect of Peace, because, amongst all other blessings, it will enable the Government to return to VOL. LI. No. 1,456. well for the improvement of the Law, as the public good, which have been suspended or retarded by the mighty struggle in which the nation has been engaged, Let us hope that no delay, which can possibly be avoided, will take place; and that before the Budget of the Chancellor of the Exchequer comes out, there will be a final ratification of the Treaty of Peace, and thus the members of the Profession may be enabled to look forward to an early diminution of the Tax on their hard-earned incomes. The following is a copy, just received, of the Speech : "MY LORDS AND GENTLEMEN, "Since the close of the last Session of Parliament, the arms of the Allies have achieved a signal and important success. Sebastopol, the great stronghold of Russia in the Black Sea, has yielded to the persevering constancy and to the daring bravery of the Allied forces. The naval and military preparations for the ensuing year have necessarily occupied my serious attention; but while determined to omit no effort which could give vigour to the operations of the war, I have deemed it my duty not to decline any overtures which might reasonably afford a prospect of a safe and honourable peace. Accordingly, when the Emperor of Austria lately offered to myself and to my august Ally the Emperor of the French, to employ his good offices with the Emperor of Russia, with a view to endeavour to bring about an amicable adjustment of the matters at issue between the contending Powers, I consented, in concert with my Allies, to accept the offer thus made, and I have the satisfaction to inform you that cer P 254 Commencement of the Session of Parliament, 1856. tain conditions have been agreed upon which of my subjects engaged in trade. Measures I hope may prove the foundation of a gene- will be proposed to you for remedying this evil. ral Treaty of Peace. "Negotiations for such a treaty will shortly be opened at Paris. "In conducting those negotiations I shall be careful not to lose sight of the objects for which the War was undertaken; and I. shall deem it right in no degree to relax my naval and military preparations until a satisfactory Treaty of Peace shall have been concluded. "Although the War on which I am engaged was brought on by events in the South of Europe, my attention has not been withdrawn from the state of things in the North, and, in conjunction with the Emperor of the French, I have concluded, with the King of Sweden and Norway, a Treaty containing defensive engagements applicable to his Dominions, and tending to the preservation of the balance of power in that part of Europe. "I have also concluded a Treaty of Friendship, Commerce, and Navigation with the Republic of Chili. I have given directions that these Treaties shall be laid before you. "Measures will also be proposed to you for improving the laws relating to partnership by simplifying those laws, and thus rendering more easy the employment of capital in commerce. "The system under which Merchant Shipping is liable to pay local dues and passing tolls has been the subject of much complaint. Measures will be proposed to you for affording relief in regard to those matters. "Other important measures for improving the law in Great Britain and Ireland will be proposed to you, which will, I doubt not, receive your attentive consideration. 66 Upon these and all other matters upon which you may deliberate, 1 fervently pray that the blessing of Divine Providence may favour your councils, and guide them to the promotion of the great object of my unvarying solicitude, the welfare and happiness of my people." We have time only to notice that the "GENTLEMEN OF THE HOUSE OF prominent amendments at present contem COMMONS, "The Estimates for the ensuing year will be laid before you. You will find them framed in such a manner as to provide for the exigencies of War, if Peace should unfortunately not be concluded.. "MY LORDS AND GENTLEMEN, .{ "It is gratifying to me to observe that, notwithstanding the pressure of the War, and the burthens and sacrifices which it has unavoidably imposed upon my people, the resources of my Empire remain unimpaired. I rely with confidence on the manly spirit and enlightened patriotism of my loyal subjects for a continuance of that support which they have so nobly afforded me, and they may be assured that I shall not call upon them for exertions beyond what may be required by a due regard for the great interests, the honour, and the dignity of the Empire. "There are many subjects connected with internal improvement which I recommend to your attentive consideration. "The differences which exist in several important particulars between the Commercial Laws of Scotland and, those of the other parts of the United Kingdom, has occasioned inconvenience to a large portion plated by the Government are, 1st, the Assimilation of the Commercial Laws in England, Ireland, and Scotland. 2nd, the Extension of the Law of Partnership in order to facilitate the employment of capital._ 3rd, the relief of Merchant Shipping from Local Dues and passing Tolls. PEERAGES FOR LIFE. Ir is unquestionable that the Crown has the power of creating Peerages for Life, as well as limitations to Heirs Male, or Heirs general. This undoubted power as to LifePeerages has been rarely exercised; and in a constitutional point of view is objectionable; at least it might become so, if it were frequently exercised. The instances in which Peerages for Life have been granted are as follow: The Earl of Huntingdon, in 1377. The Duke of Exeter, in 1416. |