Consolidated Chamber, Reported by H, W, B. Mackay, Esq., Barrister-at-Law BEFORE MR. JUSTICE O'HAGAN.] DOHERTY V. M'DAID.-Jan. 31. Garnishee order-Smallness of debts attached. A conditional order under the Common Law Procedure Act, 1856, s. 63, will be made against garnishees, although some of the debts which have been attached do not exceed £4. In this case judgment had been recovered against defendant at the last Londonderry Summer Assizes for £85 6s. 4d. Defendant had afterwards gone to America, the judgment being still unsatisfied. On a previous day, Mr. M'Conchy had obtained from Mr. Justice O'Hagan an order under the Common Law Procedure Act, 1856, s. 63, attaching seven debts varying in amount from £3 to £7, and owing by different persons to defendant, but the learned judge had refused, in the absence of authority, to grant the further order that the garnishees should appear to show cause why they should not pay over the debts, on account of the smallness of the sums due by them. tual will of that date, of which a translation was annexed. No executor was named in it, and there was only one child the issue of their marriage, a minor under 21. The following is a copy of the will: "We the undersigned, viz.-I, Captain Wilhelm August Von Reitzenstein, and I, his wife, Georgina Margaret Von Reitzenstein, née Halkett, hereby make in the event of our death the following will. In the event of our marriage proving childless, I, the testator, appoint as heirs-first, my wife; second, my mother, but only as regards that part of the inheritance which is due to her. Should my mother die before case I, Georgina Margaret Von Reitzenstein, née me, my wife then remains my sole heiress. In this Halkett, appoint as heirs, first, my husband; second, my father, but only as far as regards the inheritance due to him; should my father die before me, my husband then remains my sole heir. In the event of issue resulting from our marriage, we mutually appoint those descendants our heirs in equal portions, whereby however we determine that the surviving consort shall retain the usufruct of the whole inheritance for that my wife shall be the sole guardianess, and neither And I, the testator, determine more especially obliged to make an inventory, nor render an account, as in this and every case, I expressly forbid all and 1852. Signed-Wilhelm August Von Reitzenstein; every interference of the Court. Hanover, 5th Feb. Georgina Margaret Von Reitzenstein, née Halkett.” life. M'Conchy now renewed his application for the further order, stating that £4 was the smallest debt against which the order was now sought. He read the copy of the order in Murphy v. Walsh in the Exchequer (not reported) from which it appeared that Mr. Keogh had obtained an order similar to that now sought against debts, some of which did not ex-ary, ceed £4. O'HAGAN, J. then granted the further order. Court of Probate. Reported by W. R. Miller, Esq., LL.D., Barrister.at-Law. The will was enclosed in a sealed cover, bearing the following superscription: "Herein is our mutual will.-Hanover, 5th Febru 1852.-Wilhelm August Von Reitzenstein; Georgina Margaret Von Reitzenstein, née Halkett." The will was handed over by both testators according to the protocol of 18th Feb. 1852, of the Court of the Garde du Corps at Hanover to the said Court, and was deposited by the said Court with the protocol of deposition enclosed in a sealed cover, bearing the following inscription-" Herein is the will of Captain Von Reitzenstein of the Royal Garde du Corps, and of his wife, née Halkett, to be opened after the death of the one who shall die first. Handed IN THE GOODS OF WILHELM AUGUST VON REITZENSTEIN. over to the Court du Corps on the 18th of Feb Feb. 12. Foreign will-Hanover-Mutual will. ruary, 1852." In attestation. (Two witnesses.) On the death of the deceased on the 5th of December, 1864, the validity of said will was decreed for by the Royal Hanoverian District Court of HanoThe mutual will of a domiciled Hanoverian subject ver, and the widow thereby was declared competent and his wife not attested, having been, on the hus-on the part of the Court of Chief Guardianship of the band's death, duly decreed for in the proper Court in Hanover, the Court here gave administration of his goods with a certified translation of the same to the nominee under a power of attorney from the widow (no executor being named, and there being no issue save a minor under 21), who was by the Hanoverian law the party entitled in her own right, and as guardian to the minor. G. R. Price for the Baroness Von Reitzenstein, moved for letters of administration of the goods of the deceased, with a translation of his will, dated the 5th day of February, 1852, annexed, to be granted to a nominee of the applicant, his widow. In her affidavit she stated that the deceased and she had made a mu said Kingdom, to receive all demands of the inheritance, and to give an acquittance and discharge for the same. The deceased was a domiciled Hanoverian, and by the law of that kingdom, as certified by the Minister for Foreign Affairs at Hanover, whose signature was duly verified by the Charge D'Affaires and Ervoy Extraordinary for England at Hanover, the will was a valid one, and the widow and the child are the testator's sole heirs, and entitled to all his property, and that the widow on her own part absolutely, and as guardian of her daughter as appointed by said Court, had the right to the disposal of same. deceased left £1,301 17s. 3d. Government New 3 per Cent. Stock in the Bank of Ireland, standing in the name of an attorney for him under power of attor The ney. The deceased had not any debts in Ireland, as alleged. The widow had nominated Mr. Samuel Campbell as her attorney to get administration. The translation had been made and certified by Mr. Dove, the official translator to the Embassy at Hanover, and his signature, as well as his official status, had been certified by the British Envoy there. KEATINGE, J.-I think you are entitled to the grant you ask for, but you must give justifying security. Order accordingly. NOTE. See the following authorities as to the judgment of a competent foreign tribunal binding the Court here.-Goods of Veiga (3 S. & T. 15); Goods of Deshais (34 L. J. Pr. 58); Goods of Da Cunha (1 Hag. 237); and see also Goods of Klingeman (3 S. & Tr. 18) as to the certificate. WOODS v. MURPHY-Feb. 20. Practice-Striking Special Jury. The Court will not order a Special Jury to be struck according to the old system, unless an affidavit be filed to shew the necessity for doing so. E. Beytagh for the plaintiff, an executor, applied to have the case tried by a special jury. Samuel Walker, for the defendant, impeaching the will, asked for a special jury to be struck according to the old system. The assets were alleged to be about £30,000, and the will purported to give legacies to charities and religious orders amounting to £21,000. No affidavit had been filed. KEATINGE, J.-I do not see any reason for making the order asked by Mr. Walker, unless his client makes an affidavit making some case for it. I have made such an order in a very few cases, and in all of them I did so on the consent, or on the application of all the parties. Court of Appeal in Chancery. taining said judgment still remains justly due, and owing to the N.B.," was Held defective in not stating what was the amount of the costs recovered. THIS was an appeal from an order made by Judge Dobbs and the question was entirely upon the sufficiency o insufficiency of an affidavit to register a judgment as a mortgage. The following is the affidavit, or so much thereof as it is requisite to consider for the case in hands:-"James Thomas Preston maketh oath and saith, that in Hilary Term, and on the 17th of January, judgment was entered up in the Court of Queen's Bench in Ireland, at suit of deponent as plaintiff, against the Rev. Jas. Cuthbert Flood, the defendant, and deponent saith that the title of said cause of action in which the said judgment was so entered up, is as follows-that is to say, James Thompson Preston, of Belfast, in the county of Antrim, Esquire, one of the registered officers of the Northern Banking Company, plaintiff, the Reverend James Cuthbert Flood, of Holywood, in the county of Down, Clerk, defendant, and deponent saith that the amount recovered by the said judgment is £258 11s. 10d. sterling for debt, besides costs." The affidavit then, which is a very lengthened one, having complied with the various other requisites of the Judgment Mortgage Act, thus concludes:-"Saith that the sum of £258 11s. 10d. sterling, secured by the said judgment, together with the costs of obtaining said judgment, still remains justly due, and owing to the Northern Banking Company, and that the said judgment is still in full force and effect in law." Judge Dobbs made an order, dated the 26th May, 1865, whereby he declared that this judgment mortgage was a valid charge on the lands which it was sought to affect by the above affidavit, which judgment mortgage his lordship held was sufficiently proved by the said affidavit of registry. The grounds upon which it was contended that this affidavit was insufficient were, that the said affidavit to register the judgment as a mortgage did not state the costs recovered by said judgment. On the other hand, it was contended that the costs need not have been stated, and this was the narrow question now for consideration. Frederick Walshe, Q.C., with Samuel Walker, now appeared in support of the appeal. This affidavit appearing on the registry in this case is insufficient. It does not comply with the provision of the 6th section of 13 & 14 Victoria, chap. 29. The party registering his affidavit might have waived his costs if he chose; then he would have nothing for costs; but [BEFORE THE LORD CHANCELLOR AND THE LORD JUS- it is absurd to say that this judgment, of which the [Reported by Oliver J. Burke, Esq,, Barrster-at-Law.] TICE OF APPEAL. FLOOD'S ESTATE.-Dec. 1, 1865. affidavit of registry is sufficient evidence, was complete, that it was a complete record, until the costs were either added, being taxed, or waived-here waived ROONEY, APPELLANT; THE NORTHERN BANKING COM- they were not. Now, no execution could ever issue on a half completed judgment. Suppose the judgAffidavit to register judgment as a mortgage-Insuffi.ment only contains two lines, and for some reason or ciency of St. 13 & 14 Vict. ch. 29, sec. 6.-Omis- other was not yet perfected or made up, without sion in the affidavit of the costs. PANY, RESPONDENTS. even mentioning the debt, could execution issueissue on an incomplete judgment? It is absurd, it is superfluous to cite cases on this point; however, cases have been decided on this point, namely:-Butler v. Bulkeley (1 Bingh. 233); Slater v. Slack (3 N. & M. 717); Pierce v. Derry (4 Q.B. N. s. 635); in fact, if it were otherwise, the certainty of the incumbrances 1 entry of the incipitur and not merely from the final completion of the judgment after the taxation of costs. THE LORD CHANCELLOR. The question is here whether the affidavit to register a judgment as a mortgage complies with the Act which requires the amount of debt, damages, and costs to be stated in the affidavit. This is a species of execution substituted for all other forms against the lands, and the party so obtaining execution is entitled to hold them until the demand is paid. The principal object of the Act is that persons lending money on the estates can go to the registry office and may know that they are safe in so lending, and therefore it is that the Act requires it to be stated what the debt, damages, and costs for which the lands are taken, as it were, in execution are. Now if a man is about to lend money on an estate which is so taken in execution, or more correctly to speak, upon which a mortgage is to be found for a paltry sum, how does this give either the lender of the money or the owner of the estate any information as to what sums are exactly charged as judgment mortgages thereon, for the costs until they appear on the judgment are unascertained, and may be one hundred times greater than the debt. In this case no costs whatever appear on the affidavit of registry. It is true that if the party waived his costs that there would be no question about it, for it would appear to so by the affidavit, and the judgment would be made up to the day. It has been urged strongly upon us the inconvenience that would flow from disallowing the claim in this case, from deciding that the judgment is incomplete until oither the costs are taxed or waived as the case may be. Well greater inconveniences would arise if we decide in favour of the Northern Bank. If a man recovering a secured by judgments would never be arrived at, because no one would know whether the judgment would, if ever, be complete, and mortgages might be in existence on a half-complete judgment. Why, a £50 debt might appear on the judgment roll as recovered-a statutable mortgage had thereunder-and no costs being included, a lender of money would never be secure who had this £50 judgment before him with costs unascertained, for at any subsequent moment the judgment creditor for a paltry sum of £50, might append his costs to the roll, which costs might be £500, as if he had to bring a multitude of wit nesses to prove the debt from England, whose position might be that of noblemen, or the witnesses might be brought from Hong Kong; that would swell the costs to, nay, even thousands. If the Court take an opposite view of this case, there will be no certainty of incumbrance on any estate as appearing on the record. Law, Q.C., with Andrews, for the Northern Bank, -It is submitted that the issuing of execation is a waiver of costs. It is an unheard of proposition that a judgment is bad until the taxation of costs. Let us suppose that instead of "besides costs," our affidavit had a blank for costs, and that same was on the judgment roll. [Lord Chancellor. That would clearly be nothing for costs; that would be no claim made for costs.] See the enormous evil that will be worked if this judgment is condemned to fall on this ground. After the Summer Assizes each year it would be absolutely impossible for the successful party to tax his costs until the November following, and in the meantime in place of hurrying to register the judgment as a mortgage, as we have done, the successful party, after obtaining his judgment in August or at the end of the month of July, would be compelled to hold over until the taxing master would sit in November, and meanwhile, of course, the pro-judgment is desirous to take immediate advantage perty would be swamped or made away with else- thereof, he must forego his costs: he must waive all where. The judgment then would be absolutely rights thereto-here it does not appear that there was useless. But the words of the sixth section of the any waiver, but on the contrary it says that a sum of Judgment Mortgage Act are "The creditor under any £ has been recovered besides costs, that is tosuch judgment decree, order, or rule shall know or gether with costs; why that is an averment that costs believe that the person against whom such judg-were recovered, and it implies that no waiver takes ment decree, order, or rule is entered up, obtained, place, the very words, besides costs, show that the costs &c. .. It shall be lawful for each crewere not waived. We are both then of opinion on ditor to make an affidavit." Now a great deal de- these grounds that the affidavit is defective in this pends on the meaning of the expression "entered up." instance, and that the security must fall. It can't be We contend that it means the entry of the judgment helped, and is to be regretted. on the record. It was from ancient times the custom THE LORD JUSTICE OF APPEAL said that he had not to complete the roll by transcribing the whole pro-listened with considerable attention to the case, and he ceedings into it, but to enter only what is called the in- could not conceive anything more disastrous than this, cipitur, but the roll was not then completed. By the that an execution could issue on an inchoate judgment; 1 & 2 Vict., c. 110, interest runs on a judgment all certainty of discovering incumbrances would disapdebt in England from the time of the entry of a pear. His Lordship entirely concurred in the opinion judgment; and a question arose in Newton v. The arrived at by the Lord Chancellor. Grand Junction Railway Company (16 M. & W. 139) as to what "the term of the entry of a judgment" meant, and from what time interest was to [BEFORE THE LORD CHANCELLOR AND THE LORD JUSbe calculated in reference to signing the judgment the 1 & 2 Vict., c. 110, giving interest "from the time entering up judgment;" and the contention there was whether interest ran from the entry of the incipitur or from the time of perfecting the judgment after the taxation of costs, and the Court there held that interest runs on a judgment debt from the time of the TICE OF APPEAL.] IN RE EDWARD THORNTON.-Feb. 8. Bankruptcy Advance of moneys to bankrupt on security of goods consigned to consignees Notice, al sence of. Where a bank made advances to T. upon the faith that said bank was to be repaid said advances out of the proceeds of certain goods which were ship ped by said T. to certain foreign consignees, and where T. had instructed said foreign consignees to remit to said bank the proceeds thereof, but the goods were at the time in the order and disposition of T. (who afterwards became a bankrupt), with the consent of said bank-Held (reversing the order of Judge Berwick), that the bank not having given to the consignees notice of their said transactions with T. the property was not taken out of the order and disposition of T., and therefore the produce of said shipments vested in the assignees. THIS was an appeal from an order made by Judge Berwick in the Court of Bankruptcy. The struggle here was between the assignees, who are the appellants, on the one hand, and the Merchant Banking Company of London on the other. The facts of the case are stated in the judgment of Judge Berwick, supra, p. 16, from which the following is gathered Judge Berwick held that the said bank were entitled to retain in their hands, to the prejudice of the assignees, certain sums amounting to £665, received from foreign consignees by them the said bank since the bankruptcy of Edward Thornton on the 24th July, 1864, on account of shipments, or consignments made by the bankrupt to his said foreign consignees, and said learned judge further held that said bank was also entitled, to the prejudice of said assignees, to receive any further sums that might be made available from those parties, for monies due by them to said bankrupt. Heron, Q.C. (with Murphy) appeared for the assignees, and relied upon Thompson v. Speirs (13 Sim. 471), and the cases collected at that page. Kernan, Q.C., and J. E. Walsh, Q.C., were for the assignees. As the authorities here are identically the same as those cited below, and as the Lord Chancellor takes a view opposed to Judge Berwick, the arguments on both sides are collected in both judgments. THE LORD CHANCELLOR.—I think in all the autho rities referred to by Judge Berwick, there was a specific appropriation of the cargo for the purposes of the debt due. The question is, does this specific appropriation apply to these particular cargoes? It occurs to me that the dealings in all proba bility amounted to nothing more than an undefined indefinite arrangement. I call it an indefinite arrangement, because it was not pointed to any particular goods, but an arrangement to make advances which should be covered by the proceeds of the consignments by the bankrupt. Now, reaching that stage of the case, I would have no difficulty in affirming the order of Judge Berwick, but then there is the latter part of the argument-namely, were those goods at the time of the bankruptcy, in the order and disposition of the bankrupt? Now that they were is very plain; he could do with them as he liked even after that memorandum or paper of the 4th of July, 1864 (supra page 17); he could have given them any destination he pleased; he could have written to have them sent to any other persons or to any other place in the world he wished, and therefore they were in the order and disposition and power of the bankrupt. But that would not affect the case unless we come to the conclusion that they were in the order and disposition of the bankrupt, with the consent of the true owner. The true owners, the bank, could, as Mr. Kernan has informed us, have filed a bill in this Court to restrain the bankrupt from tampering with that property or dealing with it in a manner adverse to their interests. On the 20th July the bankruptcy of the party takes place, but up to that time the bank did not give any notice whatever to the consignees, nor for nearly a month afterwards, not until the 10th August, do they give any notice. There was in this manifestly no intention on their part to give any notice, or to take any step to apprise the consignees, no doubt, relying upon the proceeds of those goods coming to them in the usual way, and upon the honest dealings of the bankrupt, and it is pretty plain that the bankrupt himself had no intention of sending notice to these consignees. The consignees themselves never knew that in making those consignments any advances had been made by any body to the bankrupt, and therefore there was an absence of intention to give notice by either party, either the banking company or the bankrupt. Now that notice was essential, and cannot be controverted. It is sustained in every case that has been cited. In the case of Hunt v. Mortimer (10 Barn. & Cress. 47), the reason the notice became unnecessary was because the money was received before the bankruptcy. Each particular case depended very much on the nature of the transaction; in some cases there is a specific appropriation, and in some the contrary. All the cases depend upon their own particular facts, but they all lay down the proposition, and I cannot find it anywhere omitted, that notice of some sort is necessary to the person who has the dominion of the property, in order to take it out of the order and disposition of the bankrupt. In all the cases it is laid down that you are bound either to obtain possession or to go as far as you can to obtain possession. If you send your notice in time, and that it reaches the party to whom it is directed there the transaction is complete; but if by the delay of post or the distance of the place, you cannot be certain that notice did reach in time, still you did your part, and you can rest satisfied that the notice will reach the party sometime. You having despatched your notice to the consignees, the goods were no longer in the order and disposition of the bankrupt. That notice must be given by somebody to the consignees, is incontrovertible. The question here is, what is the effect of the whole of the transaction? The counsel for the bauking company have argued that it was part of the contract between the bank and the bankrupt that he should give notice to the consignees himself. Now, if such a rule as that were admitted, there would be no security for the commercial world. It has always been understood that that should be the act of the party making the advances. The bankrupt otherwise could keep the goods in his order and disposition by promising to give notice, and not doing so; and in my mind it would put an end to the whole doctrine as to giving notice if that course could prevail. Then again it was contended that there was a fraud in this case by the bankrupt not giving notice. Now, the term "fraud” is very difficult to apply 64 here. The bankrupt did not withhold the notice in contemplation of bankruptcy in order to defeat his general creditors through the assignees. It was ne glect, on the confidence of the bankrupt that he was a solvent person, and that nothing was going to happen to him to frustrate his arrangement with the bank. In the case of Re Jones, the party was an attorney, and he was bound to tell his client that notice should be given in the transfer of the certificates of the railway company. He practised a fraud-a gross fraud-on his client in the matter, a much higher species of fraud than we have here. The attorney omitted to register the deed so as to give validity to the note. That appears to me to be a higher and stronger case than this; for here we have nothing more than too great confidence, security, and trust that the bankrupt | would be able to carry out the arrangement with the bank. Upon the whole of the case I am clearly of opinion that this order in the suit cannot be sustained, and the case must be remitted back to the Bankrupt Court to be in this respect amended. The Lord Justice of Appeal was unable to attend to-day, but from what he heard yesterday he was of the same opinion. If I had formed a different opinion to-day, I would have adjourned the case to have it fully re-argued before him; but what I have heard to-day has only gone further to strengthen the opinion in which he joined me. I myself have no doubt whatever on the subject, and therefore I am bound to say that I cannot sustain the order of Judge Berwick. and merits. By an order, bearing date 11th of November, 1864, it was ordered by the Lord Chancellor that an injunction should issue to restrain the respondent, his servants, workmen, and labourers from levelling, lowering, or removing any portion of the premises leased to said respondent by lease of the 28th of February, 1863, save bona fide, in order to render said premises suitable for building or ornamental purposes, and it was thereby referred to Master Brooke to take an account of any sand already removed save for such Said Master having examined into the purposes. several matters referred to him, found that the respondent had not removed any sand, except bona fide, To this findfor building and ornamental purposes. ing of the Master the petitioner excepted; and the first exception so taken was, that the Master ought not to have so reported, but should have reported that no part of the sand removed by the respondent had been removed bona fide for such purposes; secondly, that the Master should have found that large quantities of sand had been removed not bona fide, and that he should have taken an account of what was so removed; and thirdly, that the Master should have found that sand to the value of £271 12s. 8d. had been removed by the respondent otherwise than bona The petition upon which the fide for such purposes. injunction was granted was presented by John Clelland, of Stormount Castle, in the county of Down, against the respondent, William Barry Ritchie, of Mount Pottinger, in the same county. The petition prayed that said respondent might be restrained by injunction, and also his servants, workmen, and agents, from committing waste in the premises demised by a certain lease of the 28th of February, 1863, and from carrying away the sand and gravel therefrom, or removing the same save for levelling said premises in such a way as might be necessary for the purposes of building, or the ornamental disposition of the same; and that an account might be taken of the several quantities of sand and gravel so worked, raised, and taken away out of and from the said premises by said William Ritchie, his servants, &c. The facts of the case are very shortly these:-That by indenture bearing date the 28th of February, 1863, and made between the petitioner of the one part, and the respondent of the other, the said petitioner did thereby demise to the said respondent, William Barry Ritchie, his executors, administrators, and assigns, all that piece or parcel of land in the townland of Ballybrackamore, containing seven acres and fifteen perches, lessee "would not commit any wilful or voluntary English statute measure, as in a map to the lease anwaste, spoil, or destruction upon said premises."nexed, "together with the right of digging, lowering, Lessee commenced to build upon and improve the surface of the grounds, but to aid him in doing so he "removed" sand therefrom, and sold same for profit. Master Brooke, to whom the case was referred, reported that the sand was removed bona fide. Held, allowing exceptions to said Master's report, that although the lessee might remove the sand bona fide, yet that he was not empowered to sell any portion thereof, and that his doing so was waste; and that too though the monies realized by the sale thereof were expended on the improvements of the said demised premises. Court of Chancery. Reported by Oliver J. Burke, Esq., Barrister-at-Law Clelland v. Ritchie.—Nov. 10, 13; Dec. 18, 1865. Landlord and Tenant-Waste-Injunction to restrain-Removing sand off demised premises for sale. Lessor, by indenture bearing date the 28th day of Feb. ruary, 1863, demised certain premises, together with the right of digging, lowering, levelling, and removing" any portion of the said premises, so as to make same suitable for building or ornamental purposes, to hold to said lessee for 9999 years, and said indenture contained a covenant that said and levelling and removing any portion of the afore said piece or parcel of ground thereby limited or appointed by way of lease or otherwise so as to make the same suitable for building or ornamental purposes excepting thereout unto the said John Clelland, his heirs and assigns, all minerals and fossils, and all royalties whatsoever," Habendum all and singular the premises subject to the yearly tenancies unto said William B. Ritchie, his executors, administrators, and assigns for 9999 years, subject to the rent of £42 118. 3d. The indenture then contained a covenant that said Ritchie " should nor would do, THIS case came before the Court on report, exceptions, suffer, or commit any wilful or voluntary waste, |