BROWN (Henry), Toxteth-park, and of Liverpool, ale and HART (John), 167, Hoxton-street, Hoxton, Middlesex, MAKIN (Joseph), Monks Eleigh, Suffolk, farmer. Jan. 6; Robinson, Safford, and Grimwade, solicitors, Hadleigh, Suffolk. MARQUES (Elizabeth C.), Twyford, near Reading, widow. Jan. 28: J. C. Wootton, 2, Finsbury-circus, London. MERA (Charlott C.). 9 Royal-crescent, Cheltenham, spinster. Jan. 20; Ticehurst and Sons, solicitors, Essexplace, Cheltenham. MERCER (Rev. Wm., Sheffield. Jan. 29; Burdekin and Co., solicitors, Norfolk-street, Sheffield. MOORE (John), Pit-villa, St. John's-road, Carisbrook, Isle of Wight, gentleman. Feb. 1; J. A. Moore, Pit-villa, St. John's-road, Newport, Isle of Wight. PROPERTY PROTECTION SOCIETY.-Jan. 31; Paul J. Bishop. ROWBOTTOM Wm.), late of 1, Elizabeth-mews, England-lane, Haverstock-hill, and formerly of 21 and 4, Westmoreland Esq., 12. Clement's-inn, Strand, Middlesex. street, Marylebone, Middlesex, coachman. Jan. 22; S. J. Robinson, solicitor, 53, Gresham House, Old Broad-street, London. SMITER (Elvina), otherwise known as Mrs. Bedoschi). 5. and Williams, solicitors, Abchurch House, Sherborne Duncan-terrace, Islington, Middlesex. Feb. 13; Davies lane, London. STEELE (John), formerly of Week-green, Froxfield, after wards of Langstone, but late of Emsworth, all in the county of Southamptor, Esq. Feb. 16; Rivington aud Son, solicitors, 1, Fenchurch-buildings, London, E.C. TOMLINSON (W.), 194, Essex-road, Islington, Middlesex, draper. Jan. 14: Phelps and Sidgwick, solicitors, 3, Gre sham-street, London. TORRIANO (Chas. J., late a Lieut. in the 2nd Native Veteran Battalion in the Hon. East India Company's Service. April 4: Hensman and Nicholson, solicitors, 25, College bill, London, E.C. TUPPER Martin de Havilland), 13. Church-street, Stoke Newington, Middlesex, gentleman. Jan. 25 Wm. Blewitt, solicitor, 27, New Broad-street, London, E.C. WALLER (John and Jemima), 103, Whitechapel road, Middlesex, licensed victualler. Jan. 15; Tanqueray, Willaume, and Hanbury, solicitors, 34, New Broad-street, London. COMPANY LAW NOTES OF NEW DECISIONS. WINDING-UP-VOID AMALGAMATION-REPAYMENT OF MONEY PAID FOR VOID SHARESINTEREST.-A. was the holder of twenty-five shares in the L. bank, which in 1864 entered into an agreement for amalgamation with the H. bank, under which it was agreed that shares in the H. bank should be allotted at £6 premium to such shareholders of the I. bank as elected to accept them. A. did so elect, and had allotted to him twenty-five shares in the H. bank, in respect of which he was credited with £125 for his old shares, and he paid £150 in cash. Subsequently the amalgamation was attempted to be set aside as ultra vires, and the suit was compromised, but previously to that A.'s shares had been duly forfeited for non-payment of calls. Both banks were wound-up, and the liquidators of the H. bank brought an action against A. to recover payment of the calls, which resulted in a decision in A.'s favour. On a summons taken out by A. against the liquidators of the H. bank to enforce repayment to him of the above two sums, with interest. Held (affirming the decision of Lord Justice James, sitting for Wickens, V.C.), that the judgment in the action was conclusive, and that A. was entitled to be repaid the £150, with interest at £5 per cent. from the date of the summons, but that his claim to the £125 could not be sustained: (Alison's case, 29 L. T. Rep. N. S. 524, L. JJ.) MAGISTRATES' LAW. NOTES OF NEW DECISIONS. EVIDENCE CERTIFIED BIRTH-REGISTERED COPY.-An instrument purporting to be a copy of an entry in the Register Book of Births, and to be signed by the officer in whose custody the Register Book is stated therein to be, is admissible in evidence on its mere production under the 14 & 15 Vict. c. 99, s. 14: (Reg. v. Weaver, 29 L. T. Rep. N. S. 544. C. Cas. R.) MINES REGULATION-OWNER NOT RESPONSIBLE FOR NEGLIGENCE OF SERVANTS.— The 23 & 24 Vict. c. 151, s. 10, and rule 3, provides that whenever safety lamps are required to be used in collieries or coal mines they shall be first examined and securely locked by a person or per DISPUTE sons duly authorised for that purpose. The 22nd section provides that for neglect of the rules and general regulations the owner or agent shall be liable to a penalty of £20. Held, that the owner of a coal mine is not liable to a penalty for the negligence of his servant in omitting to lock the lamps under the above sections. When the words of a statute arc equally applicable to penal or to civil consequences, the court will construe the Fletcher, 29 L. T. Rep. N. S. 540. C. P.) statute in favour of the latter: (Dickenson v. PUBLIC HEALTH ACT HIGHWAY OR NO HIGHWAY-NOTICE TO How FAR APPORTIONMENT CONCLUSIVE. Where the expenses incurred by a local board in sewering, levelling, &c., a street have been apportioned under sect. 69 of the 11 & 12 Vict. c. 63, amongst the owners or occupiers of the premises fronting, adjoining, &c., an owner who has not given a written notice of his intention to dispute the same within three months, as required by sect. 63 of 21 & 22 Vict. c. 98, may, notwithstanding this, dispute his liability to pay, on the ground that the street is a highway. Sect. 63 of 21 & 22 Vict. c. 98 makes the apportionment after three months binding and conclusive only as to the various amounts settled by it, but not the question of highway or no highway: (Hesketh v. The Local Board of Atherton, 29 L. T. Rep. N. S. 530. Q.B.) LARCENY-INDICTMENT-CORPUS DELICTI.Prosecutor bought a horse, and was entitled to the return of 108., chap money, out of the purchase money. Prosecutor afterwards, on the same day, met the seller, the prisoner, and others, and asked the seller for the 10s., but he said he had no change, and offered the prosecutor a sovereign, who could not change it. The prosecutor asked whether any one present could give change. The prisoner said he could, but would not give it to the seller of the horse, but would give it to the prosecutor, and produced two half-sovereigns. The prosecutor then offered a sovereign with one hand to the prisoner, and held out the other hand for the change. The prisoner took the sovereign and put one half-sovereign only in the prosecutor's hand, and slipped the other into the hand of the seller, who refused to give it to the prosecutor, and ran off with it. Held, that the indictment rightly charged the prisoner with stealing a sovereign: (Reg. v. Twist, 29 L. T. Rep. N.S. 546. C. Cas. R.) THE MASTERS AND SERVANTS ACT. Ar the Guildhall Police Court on Wednesday in last week, Mr. Holmes Keall, a chemist and druggist, of Maida-vale, was summoned by Mr. James Crisp, of No. 4, Cheapside, chemist and druggist, his former employer, for breach of contract, under the Masters and Servants Act. Poland appeared for the complainant. H. N. Christmas for the defendant.-Mr. Keall had been an assistant to Mr. Crisp for about two years on the usual terms of a month's notice, his salary being £60 per annum with board and lodging. On the 9th Sept. the defendant asked leave to go out for a short time, and received permission from Mr. Crisp to do so. It appeared that his object in going out was to purchase a business at Maida-vale, which he succeeded in doing. When he returned he told Mr. Crisp what he had done, and asked to be allowed to leave forthwith. Mr. Crisp refused to allow him to do so, but said he would let him go as soon as he could get another assistant in his place. The defendant told him that he could not stay, as he had to take possession of the business the next night; but he offered to give up one month's salary to terminate the engagement in lieu of a month's notice. Mr. Crisp declined that offer, and threatened proceedings against him if he left. without the month's notice. He did leave without that notice, and twice afterwards applied for the salary due to him from the 30th June to the 9th September, less £5 for one month's notice. The money was not paid, and on the 29th November Mr. Keall took out a summons in the county court against Mr. Crisp for the amount, and on the 10th December Mr. Crisp obtained this summons against the defendant. The county court summons would not be heard until the 22nd instant. Mr. Crisp deposed that the custom was a month's notice on either side, unless mutually arranged to waive all such rights; and Mr. Keall stated that either party could terminate the engagement at a moment's notice on giving the other side a month's wages. Christmas took a legal objection to the summons under the third section of the Act, which said, 'Nothing in this Act shall apply to any contract of service other than a contract within the meaning of the enactments described in the first schedule to this Act;" and there was nothing in that schedule which mentioned chemists' assistants. They did not come under the head of artificer or labourer, but were in the position of clerks to whom this Act did not apply. Poland contended that although a skilled man, in the shop he was only an ordinary shopman, and as such he contended that the Act did apply to him under the head "servant," although that term did not apply to domestic servants and clerks. Sir THOMAS WHITE said he had given the greatest consideration to the case in consequence of its importance, and he had come to the conclusion that there was no doubt the defendant did not come within the Masters and Servants Act, and he must therefore dismiss the summons; at the same time he had no doubt that the defendant had acted very improperly to his master. Poland said he would ask that the judgment of the court might be respited for a week to give him time to consult his client as to whether he would ask for a case for the superior court, so as to obtain a definition as to who really was a ser vant under the Masters and Servants Act. Sir THOMAS WHITE said it was a most important question, and he would give every facility for taking the opinion of a superior court. He would, therefore, adjourn the case for a week, and if the plaintiff decided not have a case stated the summons would be dismissed. BOROUGH QUARTER SESSIONS. When holden. Monday, Jan. 5 Monday, Jan. 5 Friday, Jan. 2 Monday, Dec. 29 Tuesday, Jan. 6... Friday, Dec. 26 Tuesday, Jan. 6. Wednesday, Jan. 7 Wednesday, Jan. 8 Monday, Jan. 5 Friday, Jan. 2 Tuesday, Jan. 6.. Thursday, Jan. 1 Wednesday, Dec. 31... Friday, Jan. 2 Tuesday, Jan. 6. Thursday, Jan. 8 Friday, Jan. 2 Monday, Dec. 29 Monday, Jan. 5 Tuesday, Jan. 13 Monday, Jan. 5 Friday, Jan. 16 Saturday, Jan. 3 Thursday, Jan. 15. Thursday, Jan. 8 Thursday, Jan. 1 Monday, Jan. 5 Thursday, Jan. 8 Wednesday, Dec. 31.. Monday, Jan. 12 Wednesday, Dec. 31... REAL PROPERTY AND CONVEYANCING. LAND TRANSFER. IN a paper read on the 18th inst. before the Statistical Society of Dublin, Professor Donnell says: "If existing machinery can be adopted, and with slight modification, to the purposes of land transfer, one of the practical difficulties in the way of the introduction of a new system, viz., the expense, will be obviated. We have seen how important is an accurate survey as the basis of any improved system of registration, and how Lord Romilly's scheme of 1850 never got into working order because it necessitated the preparation of special maps by the Ordnance Survey at a considerable expense. The registration commissioners of 1857 say that a uniform map furnishes "the best means of identifying the property, and the clearest mode of indexing correctly the registered title to it." Well, in the General Valuation Office, we have a map ready prepared, and with references to the rate books, which would equally suit our system of local land transfer. This map is annually revised in accordance with the changes of occupation and ownership which have taken place since the last revision. The poor rate collector is bound under penalty to make out and deliver to the clerk of the union before the 15th Nov. in each year, a list of all tenements and rateable hereditaments in his district requiring revision. Any ratepayer may hand in a similar list. The reviser of valuation, an official of the valuation office, furnished with these lists by the clerk of the union, proceeds to the spot, and marks upon the maps the changes caused by alteration of farm boundaries, consequent upon consolidation or subdivision of holdings. Changes in the names of occupiers and lessors are also recorded. We shall best describe the nature of this work in the words of J. Ball Greene, Esq., the commissioner of valuation, in his evidence before the O'Connor Don's committee on the Tenement Valuation of Ireland: Every tenement in Ireland, from the largest farm to the most minute, is laid down on our map the Ordnance Map] and corrected annually. Then we have a schedule corresponding with the map of owners and occupiers, the area, value of the land, and the value of the buildings. The boundaries of every tenement are laid down and numbered to correspond with the terrier. As soon as a man gets worn out we give it to the draughts man to make another map. The old map is kept among the records to show the changes. Every change of boundary is compared by one of our officers on the ground with the map. Every new fence that forms a farm boundary is accurately measured on the map. We give tracings, copies, and certificates of valuation to any person requiring them at the actual expense:' (QQ. 508523). 66 How accurately this work is done, and how satisfactory it is, appears from some other observations of air. Greene before the same committee: -If there is a dispute between landlord and tenant, one of them will write to say that the quantity is wrong, and that he cannot make it out, and will ask us to send a tracing and a copy of the valuation. We send it, and it generally settles the question:' (Q. 526). "This revision has been in operation since the first issue of the tenement valuation in each county or city. The first county completed was Carlow, in 1853, and the last, Armagh, in 1865. The cost of this revision was, at first, paid by each county by presentment until 1860, since then the government have undertaken payment of one-half of the cost. Objections have, however, been taken on behalf of the Treasury, to this payment, as, except for income-tax rating, the revision is a matter of local, not of imperial, concern. "Additional work would require to be done by the reviser in making tracings of maps for the purpose of the registry; and as the revision is, except for assessment of income tax, of purely local concern, the cost of the revision would fairly be payable out of local rates; and thus the Treasury would be relieved of a payment to which, even at present, the objections are, to a large extent, well founded. "On more general grounds, the proposal to make the union the centre of local administration falls in with a growing tendency of the times. To the proper functions of the union officials-the administration of the law-have been added those of sanitation, and the preparation of lists of voters and jurors. The latter work, discharged by the clerk of the union and the rate collectors, necessarily involves a knowledge of the ownership and the owners of lands in the union; and the employment of these officials, in connexion with the land registry, would consequently form a decided check upon fraudulent transfers. would be required, and we should have to create not only a new office but a new official. But if the duties are purely ministerial, as I think they can be made, then the clerk of the union, as a resident official of great intelligence, already employed in those analogous duties to which I have referred, is marked out as the proper person to have charge of the local registry. The duties would not be very serious, for some time at least, as the plan of registry I propose is voluntary. The waste of great machinery on first efforts is of all things to be deprecated. Humble instrumentality befits small beginnings. If the scheme succeeds, larger results will bring with them improved instruments; if it fails, little has been lost, and we can begin again on a more elaborate plan." COUNTY COURTS. AYLESBURY COUNTY COURT. (Before J. WHIGHAM, Esq., Judge.) ADAMS v. London and NORTH WESTERN RAILWAY COMPANY. Railway unpunctuality-Unreasonable delay Negligence-Firebox of engine choked. IN this case Mr. W. Adams, farmer and cattle dealer, of Bushey Leys, Ellesborough, sued the London and North Western Railway Company, for £15, damages sustained by him by reason of the company having neglected to convey him from Aylesbury to Luton, on the 20th Oct. last, in accordance with the contract entered into by them with the plaintiff, in consequence of the train from Aylesbury to Luton having been delayed beyond a reasonable time, whereby the plaintiff was prevented from attending to his business, and sustained great damage and inconvenience. Clarke, of Wycombe, appeared for the plaintiff. Templar, of this circuit, for the defendants. The case was as follows: On the 20th Oct. last the plaintiff took a ticket at the Aylesbury station of the London and North Western Railway, for Luton, intending to go by the train which was advertised in the company's time bill to leave Aylesbury shortly before seven o'clock in the morning, and arrive in Luton at 9.28. He did not, however, as the judge elicited, state to the booking clerk that he was going to any fair, or that he wished to get there by any particular time, but took the ticket in the ordinary way. The train went very slowly as far as Marston Gate, where it pulled up for fifty-five minutes. On arriving at Cheddington the train by which he ought to have gone on to Luton had left. The station master told the plaintiff to go to an inn and try to get a horse to drive to Leighton or Luton. And he did so, but failed to get a horse. He then asked the station master to telegraph to Luton, asking somebody to sell his cattle for him, but the station master declined to undertake any responsibility about the matter. He went on to Luton by the next train, and arrived at his destination at halfpast eleven. By this time the fair, which was held on that day, was nearly over, and the plain. tiff lost the sale of thirty lean beasts which he had sent by road to the fair on the previous day. He had to bring back the cattle in like manner by road to Ellesborough, at a cost of £2 10s.; and the expenses of two men, who were with them, were about £1. He had also paid 3s. 4d. for his ticket, and, moreover, he had to keep the cattle for a week to recruit, because they were footsore. The plaintiff and his solicitor wrote to the company, asking for compensation, but their reply was that the ticket was issued to the plaintiff subject to the conditions on the company's time bills, namely-that although the times of arrival and departure were stated thereon, the company did not guarantee that the trains would arrive and depart at the times stated, nor would they be responsible for any loss or inconvenience occasioned by the delay of the trains. On behalf of the plaintiff, evidence was called to show that the delay, on the part of the defendants, was unrea. sonable, and might have been prevented by ordinary care. The engine-driver, on examination, said that the reason ot the delay at Marston-gate was that a new kind of coal was used for the first time that morning; that they could not get sufficient draught to ensure combustion, and consequently were short of steam. Moreover, the day was foggy and dull, which lessened the draught. He had sent in his report of the delay, and had been fined 10s. The coal had been used only once since the day on which the delay occurred. Mr. John Henry Miller, innkeeper, of Aylesbury, who had been a driver on the North-Western "Who should be the local registrar? This must Company's main line for fourteen years, said that depend on the nature of the registry, and the he was in the train on the morning that the delay duties which the officer would have to discharge. occurred. He went to see what was the matter, If those duties are at all of a judicial or semi-and the driver said, "We have got a new kind of judicial character, obviously a trained lawyer coal, and my man has filled the fire-box up. He has put too much on, and we cannot get a draught." Witness knew the coal well. It was Welsh coal, and was known by the company's servants as "blind coal." If the fire-box were choked, there could, in fact, be no draught, but he could not say that the fire-box was choked on this occasion. The coal was burnt regularly on the company's main line, and any quantity of steam could be got out of it, if it were burnt properly. The engines on the main line, however, generally had larger fire-boxes than those of the engines on the Aylesbury and Cheddington branch. Templar urged that there was no cause of action. The contract was one between the plaintiff and the company, and had no reference whatever to the cattle. The company simply undertook to carry the plaintiff within a reasonable time, and they did carry him. They knew nothing of the cattle which he might have had to sell at Luton. Moreover, they relied on the notice printed on their time-bills, that they would not guarantee the arrival and departure of the trains at the times specified, nor would they be responsible for loss or inconvenience caused by delay The ticket was issued subject to those conditions Clarke here interposed with the statement that in the company's time-bills they said that every attention should be paid, as far as was practicable, to ensure punctuality. Templar, continuing his address, quoted the well-know case Hurst v. The Great Western Railway Company, and read the whole of the judgment given. The essence of the case he continued, was whether the delay was reasonable and unavoidable. He then cited other cases, and argued for the reduction of damages. His HONOUR said he thought that the delay in this case had been unreasonable, and that it might have been avoided. He did not think that, on the evidence, the present was a case for a nonsuit; nevertheless, he considered that it would be his duty to reduce very considerably the amount claimed for damages. He believed that there had been culpable negligence on the part of the stoker, who had choked the fire-box. The excuse was that the coal was a kind to which the stoker was not accustomed; but it had been shown that the coal was so well-known on the line that there was a recognised name for it— "blind coal"-and if it had been properly used there would have been no want of steam, and consequently no delay. The negligence of the stoker, and, partly, also of the driver, in allowing the fire-box to be choked, was the cause of delay. If the coal had been unknown the fault would have lain with the company for putting into the hands of their men coal which was slow of ignition, and of the qualities of which the men were not informed or aware, but the coal was well known on the company's line, and it was the duty of the driver and the stoker to see that the fire was fed moderately, reasonably, and carefully. It might be true that on the occasion in question the day was heavy and unfavourable to a good draught, but the driver and the stoker, by their experience, ought to have anticipated and provided for that. The delay, then, was occasioned by neglect on the part of the company's officers. If the delay had been in consequence of "the act of God," or occasioned by any circumstance or accident over which the company's servants had no control, then there would have been no case for the plaintiff, and a nonsuit would have followed. But here the company were, according to the terms of their time-bill, under the conditions which operated as in the case of any public carrier. They undertook to forward the passenger with reasonable despatch, and if the neglect of their servants prevented the journey being accomplished with reasonable dispatch, the company were responsible. In this case, then, the company being responsible, the only remaining question was with regard to the amount of damages. Inasmuch as the plaintiff did not tell the booking. clerk that he wanted to get to Luton at a certain time (either thereby giving the company an opportunity of refusing to incur the risk, or of demanding an increased fare in respect of the risk if they chose to incur it), he was not entitled to the expenses of driving his beasts to Luton and back, to recover according to his estimate, for the loss of his market, his loss of sale, and possibly of profit; nevertheless he was entitled to more than merely nominal damages. He lost a journey to Luton and back; he lost a whole day; he lost the value of his fare; and was put to considerable inconvenience, and no doubt to some expense. He was, therefore, clearly entitled to, say, 40s. damages. Templar asked for leave to appeal. Clarke protested against it. It was very hard to appeal against a plaintiff who had got a verdict for only 40s. That sum would not cover the fees. The JUDGE said that all the court fees out of pocket, with the usual other costs, would be allowed. He did not like to saddle the plaintiff with a law-suit; and suggested that Mr. Templar should next court day apply again, if before then the company had not changed their mind as to the expediency of appealing. Templar, however, pressed his application, and His HONOUR acceded to it. NORWICH COUNTY COURT. Railway company-Unpunctuality-Negligence- E. Moore (from the office of W. Shaw, the solicitor to the company), appeared for the defendants. On the usual proclamation by the high bailiff, Moore rose to move the court under sect. 20 of 19 & 20 Vict. c. 108, which is as follows: "If an action be brought by an officer of a County Court in the court of which he is an officer, except in the case of the registrar suing as official assignee, the judge shall, at the request of the defendant, order that the venue be changed, and that the cause be sent for hearing to the court of some convenient district of which he is not the judge; and the registrar of the first-mentioned court shall forthwith transmit by post to the registrar of such last-mentioned court a certified copy of the crder for changing the venue as entered in the minute book; and the judge of such last-mentioned court shall appoint a day for the hearing, notice whereof shall be sent by post or otherwise by the registrar of such last-mentioned court to both parties." Moore was proceeding to say that he understood that the plaintiff was deputy-registrar of the court when His HONOUR remarked that he (Mr. Moore) understood what was not the fact. The plaintiff occasionally acts for his father for about the space of two hours once a month. There was only one deputy-registrar in his entire district. It was perhaps unfortunate to have an invalid registrar; but there could be no depuputy-registrar who was not legally appointed by him (his Honour) in writing, and certified by the Lord Chancellor, which the plaintiff was not-only acting as he did from month to month when his father did not come. Moore asked that a note might be taken of his application, which, however, was refused. He then begged his Honour's attention to the fact that the plaintiff's claim was for loss of time, owing to delay of trains on the defendants' railway, and he contended at the outset that no such action could be maintained. His HONOUR observed that that could be seen after the plaintiff had stated his case, when Mr. Moore would have an opportunity of cross-examination. However, he might remark that the plaintiff's particulars contained three separate charges of complaint for loss of time, for which he had put down a lump sum of £4 4s.; and he wished to know how much the plaintiff claimed for each. The plaintiff said that the first paragraph in his particulars referred to the 6th Nov., when he was a passenger from Fakenham to Norwich. The time-table for that month announced a train to leave Fakenham at 5.55 p.m., and to arrive at Norwich at 7.30 p.m.; but it did not reach its destination until 9.30 p.m.; two hours later than it would have done. For this detention, however, he would only claim the nominal damages of 6d. His HONOUR suggested whether it would not be better to strike out the first item altogether, and confine their attention to the second and third items. The plaintiff assenting, proceeded to state that the second loss of time of which he complained occurred on the 11th of the same month, when he had arranged for leaving Walsingham by the train published to start at 7.11 a.m., and to arrive at Norwich at 9 a.m.; but that train did not run at all. His HONOUR.-Did not run at all? The plaintiff said it did not. The train stated to leave Walsingham at 9.21 a.m., and to reach Norwich at 11.25 a.m., did not arrive from Wells until after 12 noon on the day in question, by which he was detained at Walsingham three hours. The consequence was that he did not get to Norwich until 1.42 p.m. He expected to reach Homersfield, where he had some business, at 3 8 p.m.; but when he found the train did not run, he took a horse and trap from Norwich, at which he arrived back again to take the last train to Walsingham; but as he had to see some people in Norwich, that was impossible, and he remained there all night, but for which he made no charge for expenses. He charged, however, £1 1s. for horse hire from Norwich to Homersfield; and as a professional man, he claimed £2 28. for loss of time, which he did not think would be considered too much. On the following day, he took a ticket from Norwich to Fakenham by the 12 noon train; but on arriving at Kimberley it was found that two or three trucks in a goods train had blocked the main line, and there was a detention of two hours till another train came from Dereham to carry the passengers forward. For this he claimed £1 1s. for loss of time. This was his third complaint; and with regard to it he would add that he made a personal examination of the line at Kimberley, where he found the metals in a dilapidated condition. In cross-examination, the plaintiff said that he used his season ticket from Walsingham to Faken ham on the 11th Nov., and that he did not take a through ticket at Fakenham to Homersfield, but only a ticket to Norwich. He had read the conditions prefixed to the company's tables, which state that all that can be done will be done to secure punctuality in the departure and arrival of the trains, but that these are not guaranteed. He was neither an architect nor an engineer, but he had no hesitation in saying that the rails at Kimberley were in bad condition when he saw them on the 12th Nov. This was the plaintiff's case. Moore, for the defendants, said that his answer to the action was that the train did not run from Wells on the morning of the 11th Nov. in consequence of an accident which could not by any possibility have been foreseen; that a railway company was not liable for an accident unless it was shown to have taken place through gross negligence; that under no circumstances could the plaintiff recover damages for loss of time; and that he had adduced no evidence to show that the non-departure of the train on the morning in question was not a pure accident. His HONOUR asked what could be greater negligence than a train which was advertised to run and did not run? Moore submitted that it rested upon the plaintiff to prove that it could have been run. His HONOUR was of a different opinion, and thought the onus probandi lay upon the defen dants. Moore essayed to fortify his contention by quoting several decisions in railway districts; but as this failed to convince his Honour that the plaintiff had no case, he proceeded to call evidence as to the cause of the non-running of the train from Wells on the morning of the 11th Nov., and the delays arising out of this. The first wit ness was John Phillips, who said that he was the driver of the train which was appointed to start from Wells at 7 a.m., on the day alluded to, but which did not run in consequence of the bursting of a tube in the boiler about a quarter of an hour previously. It was a pure accident, such as no care could have prevented. In other respects, the engine was in good order. There was no other engine at Wells to take on the train, which could not be started until an engine arrived from Norwich. He had been twenty-three years in the defendants' service. The engine spoken of was taken by himself out of the factory at Stratford new in 1862. Thomas Stevenson, district superintendent at Norwich, narrated the steps which were had recourse to by him on receiving information by telegraph of the bursting of the tube, so as to prevent inconvenience to the public. The engine which took the train from Wells was the one which left Norwich at 7 a.m. William Ward, sub-inspector of permanent way on the Great Eastern Railway, said that he was at Kimberley station immediately after the trucks went off the siding on the 12th Nov. He examined the metals, and found them in very good condition, observing neither defect in the road or rail. The main line was cleared about 2.35 p.m. Samuel Long, platelayer, gave corroborative evidence as to the state of the line at Kimberley, but in cross-examination admitted that a portion of it was out of gauge, caused by the trucks, in coming off the metals, slightly forcing it from its exact position. William Smith, driver of the goods train at Kimberley on the 12th Nov., also ascribed the trucks getting off the siding there as purely acci. dental, such as no foresight could have prevented, and which could not be accounted for. This being the defendants' case, The plaintiff, on the invitation of the court, briefly commented on the whole facts, contending that the published time tables of a railway company were a promise that the trains would run; and that if they did not, the company was liable for the breach of faith. With reference to the episode of the 11th Nov., his complaint was that the defendants were guilty of negligence in not being able to run a train from Wells, which was a terminal station, from the fact that they had no second engine there, which they ought to have had. He had only to say in conclusion, that he would not have minded much if he had been but delayed once in a week; but seeing that this occurred no fewer than three times in one week, he submitted that he had sustained such special and substantial damage as entitled him to the judgment of the court. Moore followed, per contra, arguing that all the evidence went to show that the delays in question were ascribable to pure accident, and therefore that the company could not be held liable. His HONOUR said that the case was a most important one-so important, indeed, that he should like to give a decision in it which might be looked upon as a precedent-not only for the Great Eastern Railway, but for every railway in the kingdom. As at present advised, he was against the defendants on both points which had been raised by their advocate, in which he contended that the delays could not have been helped, and that damages could not be recovered for loss of time. He was disposed to think that there was negligence, gross negligence, in having only one engine at a place like Wells, the terminal station for two lines of railway. There was nothing to take a railway company out of the law of respon sibility which attached to the mode of travelling in the old coaching days, by which, if one horse broke down, the proprietor of the coach ought to be in a position immediately to supply its place with another, or be held liable for the delay. With regard to the contention that the plaintiff could not recover for loss of time, he (his Honour) was ready to admit that had the plaintiff been a traveller for pleasure, he could not have recovered, but he hardly thought this could apply to a prefessional man, the nature of whose business called him to different places. However, he should carefully weigh the whole facts before giving his judgment; and if either side could submit any thing fresh to him bearing upon the points which had been raised, he would be glad to receive it. If, when he gave his judgment, it was considered on either side of a nature which it was desirable to have reviewed in the court above, he would not be indisposed, on proper cause shown, to grant a case; for, as he had previously observed, the points which had been raised were of the greatest importance alike to railway companies themselves, and the whole travelling community. Judgment reserved. READING COUNTY COURT. PRENTIS v. MORTIMORE. Agreement between solicitor and client-Set-offBill of costs in liquidation to be taxed by registrar, although liquidation fell through5 B. R. 1871. HIS HONOUR now delivered judgment as follows: In these two actions brought by the same plaintiff against the same defendant, the facts and circumstances are nearly identical, although the causes of action are certainly distinct. The plaintiff, a grocer in Reading, being in difficulties, instructed the defendant, a solicitor in London, to appear and defend several actions brought against him at the end of last year and beginning of the present year, and during that period and up to April last, paid defendant's clerk large sums of money, amounting, as the plaintiff deposes, to £60 or £70; but as the defendant's clerk deposes to less than £50, on account of instalments and costs payable to the plaintiff in such actions, and the charges and expenses of the defendant Mortimore in defending such actions for the present plaintiff. No account of such payments to the defendant's clerk was kept by the defendant or his clerk, but vouchers for about £35, paid in various sums for instalments and costs, were produced by the defendant's clerk, and the defendant's clerk further deposed that he had sent several other vouchers to the plaintiff, and that except about £2 or £3 for incidental expenses of journeys, messages, &c., the whole of the money advanced by the plaintiff was applied in payment of instalments and costs. The plaintiff denies that he ever received any vouchers from the defendant, and never saw the vouchers produced in court previously to such production. It is quite clear that the defendant was guilty of gross neglect in permitting his clerk to receive moneys from the defendant without keeping proper accounts and giving proper receipts, and although it is perhaps not absolutely necessary for me to express an opinion on this part of the case, I think that it will be convenient and proper for me to say that on the balance of the evidence before me, am of opinion that the plaintiff advanced at least £65 to the defendant's clerk, and that the discrepancy between their evidence on this point may possibly be accounted for by a particular sum of £18, which the plaintiff positively swore to have paid to the defendant's clerk under special circumstances, and which the defendant's clerk did not venture positively to deny, although he stated that he believed he had never received it. At the end of March in the present year, according to the defendant's evidence, the defendant advised the plaintiff to present a petition for liquidation and free himself from his liabilities, and thereupon the plaintiff asked the defendant if he could do it for £50, but ultimately offered and promised to pay the defendant £60 for the expenses of liquidation, viz.: £10 in cash, and £50 by a promissory note of Mr. F. Halliday, dated the 25th March 1870, for the above amount, with interest at £5 per cent. per month, payable on demand. On the 9th of April, the defendant filed the petition for liquidation by the plaintiff in this court, and on the same day the defendant obtained the promissory note of £50 from the plaintiff, but only upon his, the defendant's, varying his agreement as to the costs of the liquidation and undertaking to carry him through for £40 instead of £60; and the defendant, on cross-examination, stated that he did so because he would never have obtained the promissory note without. The defendant then signed the following memorandum :-"Received of Mr. Thomas Prentis a promissory note of Mr. Frank Halliday for £50, and I undertake in the event of the said note being duly paid to return to Mr. Prentis the sum of £20 thereout. (Signed) T. H. MORTIMORE, 9th April 1873." The £10 cash had previously been paid to the defendant but no mention of it was made in this memorandum; and in the petition for liquidation the promissory note for £50 was returned as part of the debtor's estate, but no mention was made of the £10 paid to the defendant, nor of the £20 agreed to be repaid by him, which I regret to say has very much the appearance of a fraud upon the plaintiff's creditors, but may have happened through inadvertence, and I trust that such was the case. So far the plaintiff and defendant are substantially agreed, except that the plaintiff states that no other sum than £40 was ever mentioned as the costs of the liquidation. The plaintiff and defendant are further agreed that previously to the filing of the petition a conversation took place between them as to the costs of defending the action at the beginning of the year. The defendant deposes that it merely amounted to this, that such costs should be put into the list of debts at a lump sum of £25. The plaintiff deposes that nothing was said to this effect and that he never read the list of creditors, but that previously to filing the petition, and handing over the promissory note, and taking the defendant's undertaking to repay the £20, he said to the defendant "I suppose we are square up to this time," and the defendant said, in reply," certainly." Upon this part of the transaction, I think, on the balance of evidence before me, that the real agreement between the parties must be held to have come to this: That if the liquidation was carried out the defendant was to limit his claim to £25 against the estate and look to obtain his costs of the liquidation, not exceeding £40, out of the £50 promissory note returned as an asset, but if the liquidation fell through he was to limit his claim against the plaintiff to such last-mentioned costs not exceeding £40, payable out of the promissory note for £50. In the latter case the defendant would also have had to repay the £20 according to his undertaking, but in the former case it is difficult to say what the parties contemplated, as £10 part of the balance or sum of £20 would have passed to the trustee in liquidation, and the remaining £10 ought certainly also to have been paid to such trustee, and both would have been divisible amongst the creditors. The £50 promissory note, together with £2 10s. for interest, was duly paid to the defendant by the drawer. The petition for liquidation fell through for want of a sufficient number of creditors at the first meeting, when no resolution was proposed nor any adjournment moved. The plaintiff then brought his action in this court to recover back the £20 on the undertaking. The defendant pleaded as a set-off the amount of a bill of costs (234 17s. 9d.) for defending the actions already mentioned, which, although it had never been delivered, he had a right to do, according to the case of Brown v. Tibbits (11 C.B., N. S., 855); but as he had delivered no bill of costs, neither had he delivered any particulars of his set-off within the time required by the County Courts Acts, and consequently there was a verdict for the plaintiff, and the set-off was disallowed. Under the cir cumstances, however, I allowed a new trial, with liberty to plead the set-off, on payment of costs by defendant, and on his bringing the money into court, and after hearing it, I am still of opinion that the plaintiff is entitled to recover, and that the defendant is not entitled to the claim which he has made as a set-off in that action, as I think the same was released by him on obtaining the promissory note, and further that it was previously satisfied substantially, if not fully, by the payments made on account to his clerk. The plaintiff subsequently brought the second action to recover £42 10s., the balance of the promissory note of £50, £10 cash and £2 10s. interest on the note (after deducting the £20 sued for in the first action on the undertaking) as money had and received by defendant to the use of the plaintiff, and the defendant has pleaded as a set-off his un. taxed bill of costs in the liquidation, amounting to £38 8s. 9d., and also a further set-off of £14 178. 9d., the unsatisfied balance of his bill of costs for defending the actions already mentioned, after deducting the £20 due on his undertaking and claimed in the first action. On the grounds which I have already mentioned, and particularly the view which I take of the real agreement between the parties, I disallow the second item of the set-off, but I allow the first item of the bill of costs in liquidation, subject to taxation by the proper officer, whom I think to be the registrar of this court in bankruptcy, under the fifth rule of the Bankruptcy Rules 1871. There will be a verdict for the plaintiff in the first action for £20 with costs, on the higher scale, payable in fourteen days, and there will be a verdict for the plaintiff in the second action for £42 108., subject to the defendant's set-off of £38 Ss. 9d., or so much as the proper taxing officer may have found or may find to be due, with costs according to the amount ultimately recovered by the plaintiff, payable in a month; costs of application for new trial to be included. The plaintiff and defendant agreed that the costs of liquidation should be taxed by the registrar, without prejudice to the defendant's right to appeal in both actions. BANKRUPTCY LAW. NOTES OF NEW DECISIONS. PARTNERSHIP-SEPARATE ESTATE-PROFITS OF SEPARATE ESTATE SET TO PROFIT AND Loss ACCOUNT-JOINT ESTATE.-C. and M., who carried on business as ship chandlers, each applied in his own name for certain shares in a shipowners' company. Each paid the application and allotment money on the shares allotted to him, and the shares were registered in the names of the partners severally. Each partner drew upon the partnership funds for the payment of calls upon the shares, and the amounts so drawn were debited in the books of the firm to the individual partners, and opposite to these entries in the books of the firm each partner signed his initials in red ink. The dividends on the shares were, however, carried to the profit and loss account of the firm. The holding of ships or shares in shipowning companies formed no part of the business of the firm, but it appeared that the partners had purchased the shares under the impression that the possession of them would be the means of introducing custom and business to the partnership. C. became bankrupt and M. claimed the shares standing in C.'s name, as joint estate of the firm: Held (reversing the decision of the Chief Judge in Bankruptcy, that the entries in the books of the firm amounted to a statement in writing signed by the partner that the shares were to be separate and not joint estate, and that the mode of dealing with the dividend was not contradictory of that statement, inas. much as the effect of it was the same as if the partners (who each held an equal number of the shares) had been separately credited with the dividends: (Ex parte Bolland; re Clint, 29 L. T. Rep. N. S. 525. Chan.) ANTENUPTIAL SETTLEMENT BY A TRADERCOVENANT TO SETTLE ALL AFTER ACQUIRED PROPERTY OF HUSBAND-BANKRUPTCY-INVALIDITY OF COVENANT.-A covenant in an antenuptial settlement by the husband to settle upon such trusts as the trustees should require all the real and personal estate of or to which he should become possessed or entitled during the coverture, is void as against his trustee in bankruptcy as being against public policy, and an attempt to withdraw the whole of his property from the just claims of his creditors: (Ex parte Bolland; re Clint, 29 L. T. Rep. N. S. 543. Bank.) Chief Judge in Bankruptcy on the 28th July last. The appeal was from an order made by the This order was made upon the application of signees in bankruptcy of Mr. George Motion, who Messrs. Davis and Wigginton, the present asHay and E. N. Briggs in the distillery business of was formerly in partnership with Messrs. John Grimble and Co., in Albany-street, and the order declared void a sale made in 1869 by Mr. Staunton, the then assignee of the bankrupt's estate, of the bankrupt's interest in the business to his partners, Messrs. Hay and Briggs, for £13,025., on the ground that the sale was improperly made and at an undervalue. The sale was made under an agreement dated the 15th April 1869, and was afterwards sanctioned by an order of the Court of Chancery on the 15th July 1869, made in two partnership suits of Hay v. Motion and Motion v. of April 1864, for the dissolution of the partnerHay, in which a decree had been made on the 30th ship, and the sale of the whole business as a interest to his partners, they sold and assigned After the sale of the bankrupt's going concern. the whole business to Mr. George Maule. The order of the Chief Judge declared this sale also to be void, and directed the whole business to be sold decree in the partnership suits, and gave Mr. as a going concern, as originally provided by the afterwards advertised to be held on the 19th inst. Maule liberty to bid at the sale. The sale was The suit of Maule v. Davis was instituted by Mr. Messrs. Davis and Wittington, and was, by special Maule in Vice-Chancellor Bacon's Court against leave, heard originally before the Court of Appeal. By the bill Maule expressed his readiness to have it declared that the sale of the bankrupt's interest in the business was not binding on his estate, but Mr. Maule sought to have it also business, or on the bankrupt's interest in it, for declared that he is entitled to a charge on the the £13,025, which he advanced to Hay and Briggs to enable them to pay for the bankrupt's interest, which they purchased. Swanston, Q.C. and Sterling were for Mr. Maule. J. W. Chitty and Romer appeared for the assignees. The LORD CHANCELLOR said that in their Lordships' opinion the respondents had failed to prove any such fraudulent scheme as they alleged on the part of the bankrupt's partners to obtain his share in the business at an under value. Nothing which occurred before the agree ment of the 15th April 1869, appeared to require or to warrant the inference of a fraudulent purpose. The provisious of that agreement were prima facie fair and proper, and upon the whole evidence their Lordships did not doubt that Mr. Staunton and his solicitor, in entering into the agreement, acted with an honest purpose. The objection to this agreement, which was mainly relied on by the Chief Judge, was founded upon the construction of sect. 137 of the Bankruptcy Act of 1861, which gives the assignees of a bankrupt power, with the sanction of the court, to sell by private contract the bankrupt's book debts and the goodwill of his trade or business. Their Lordships thought that section did not apply to a sale by the assignee of a bankrupt's share in the goodwill of the business, and his interest in the book debts of a dissolved partnership, especially in the case of a sale to the bankrupt's partners, who were generally the most advantageous purchasers of his interest. Nor did their Lordships think that there was any force in the objection founded upon the existence of the previous order of the Court of Chancery for the sale of the whole business as a going concern. Notwithstanding that order, the Court of Chancery had power to give effect to the agreement, and that which would be no objection to the agree ment in the court which made the original order, could be no objection to it in another court. But, though their Lordships were satisfied that no case of fraud had been made out by the respondents, they were by no means satisfied that there had not been material error in the mode in which the value of the bankrupt's interest had been ascertained. They were relieved from any difficulty as to this part of the case by the submission of the appellant to pay, in addition to what he had already paid for the bankrupt's interest, such sum as, upon inquiry, might prove requisite to make up the full value of the bankrupt's interest. Their Lordships did not think that the whole sale ought to be set aside, upon the ground of error, in the absence of fraud, but an inquiry would be directed to be made by one of the registrars in bankruptcy as to what additional sum ought to be paid by Mr. Maule for the bankrupt's interest. His Lordship said it was his duty to add that if their Lordships had agreed with the Chief Judge in his view of the facts of the case they would have been unable to concur in the propriety of his decision that it was competent to the Court of Bankruptcy to work out the original decree of the Court of Chancery in the partnership suits. With the interpretation put by the Chief Judge upon sect. 72 of the Bankruptcy Act 1869, their Lordships could not agree. That section gave to the Court of Bankruptcy very large powers to decide all questions necessary for the proper administration of a bankrupt's estate; but it did not enable the assignees to draw within the jurisdiction of the Court of Bankruptcy the owners of property which was not vested in the assignees, and who were not originally subject to the jurisdiction in bankruptcy, and still less did it enable the Court of Bankruptcy to work out a decree for the dissolution of a partnership previously made by the Court of Chancery. No doubt the Court of Bankruptcy would be able to compel a purchaser to reconvey property of a bankrupt which he had fraudulently acquired, and a prior order of the Court of Chancery made by consent would not stand in the way of this being done; but in such a case as the present, where the purchase money had been already paid and distributed among the creditors, who had received 20s. in the pound, such an order would only be made upon the ordinary equitable terms of refunding the purchase money, and assignees in bankruptcy were as much bound as any other plaintiffs to return the purchase money in such a case. With regard to the suit of Maule v. Davis, their Lordships thought the plaintiff could not sustain it, and the bill must be dismissed with costs. Mr. Maule would, however, be entitled to receive his costs in the bankruptcy motion, so far as they had been increased by reason of the charges of fraud, and he might set-off those costs against the costs in the suit. The LORDS JUSTICES concurred. LIVERPOOL COUNTY COURT. (Before Mr. Registrar WATSON.) Bankruptcy Act 1869-Liquidator's right lo prove THIS was an application to register certain resolutions of creditors, whereby they determined to liquidate the affairs of the debtor, by arrangement, and to appoint Mr. Bolland trustee. The question at issue involved an important point of practice. It appeared that the debtor was a shareholder in the County Palatine Loan Company, now in liquidation, and held twenty £10 shares. He became a director, and introduced many of his friends who were desirous cf obtaining loans from the company, and in some cases he became guarantee for repayment of the loans. In respect of three such loans he was surety to the extent of £107, and on default of the original borrowers he became liable for principal as well as interest, the latter computed at the rate of 216 per cent., and making £528. He also borrowed on his own account £30, of which he repaid £10, and the claim of the company in respect of this loan was £409 13s. 2d. He was also liable on unpaid calls on his shares of £4 each, amounting to £80. At the first meeting of his creditors trade debts were proved which amounted to £684, and a proof of debt was tendered by the liquidator of the loan company for £1066. That proof was objected to by the chairman, on the ground that the rate of interest was exorbitant, and could not in equity be enforced. The trade creditors thereupon resolved to ignore the claim and liquidate the estate by arrangement, and appoint their own trustee. Alsop, for the liquidator, insisted upon his right to vote, notwithstanding the objection to his proof. Sampson, for several of the trade creditors, admitted the right of a creditor to whose proof objection had been raised to vote, but in this instance he submitted that a liquidator had no such right in competition with the rest of the creditors. Alsop submitted that by virtue of the 95th and 133rd section of the Joint Stock Companies Act the official liquidator had full power to vote, and he accordingly signed a resolution to liquidate and to appoint the liquidator trustee. Both those resolutions were tendered for registration, and the matter came before the registrar on the question of registration. Sampson and Alsop, solicitors, appeared for the parties concerned. The Registrar said the first question before him was the consideration of the objections to the proofs of debt. The first referred to was marked objected to" on the ground of the bill of exchange given to the creditor not having been produced at the meeting. Sampson now produced the bill, and the registrar held it sufficient to cure the defect of its non-production at the meeting. The next objection taken was to the right of the liquidator to vote at the meeting. on by them without endorsement, but with a guarantee of payment at maturity to the Agra and Masterman's Bank, to be held by them as security, they allowing Barneds to draw upon them in separate bills for £50,000. This sum of £50,000, less discount and charges, passed to the credit of Messrs. Fernie Brothers and Co. at Barned's, and was drawn out by them. On the 8th March, the day on which the first batch of bills was drawn, Messrs. Fernie Brothers and Co. gave to Barned's Banking Company a guarantee in the following terms:48, Brown's-buildings, Exchange, Liverpool, 6th March, 1866. TO BARNED'S BANKING COMPANY (LIMITED). Gentlemen,-We hereby guarantee to you the due they came endorsed by us: Sampson contended that the Joint Stock Companies Act only conferred power upon a liquidator to prove and rank for dividend, and that in the absence of any authority the liquidator could payment of the undermentioned drafts the same as if not vote. Assuming he could vote, he had no power to accept a composition. The debtor's petition was for either composition or liquidation; and, as the liquidator could not accept the former, he had no right to vote for the latter, as one of the principles of the Act was that all creditors should be on an equality. Alsop argued that by the 80th section of the Bankruptcy Act 1869, a company might vote by an agent duly authorised, and in the present instance the company, although in liquidation, did, by virtue of one of the sections of the Joint-Stock Companies Act, continue in existence for the purpose of winding-up, and the liquidator became its agent for that purpose, and as such agent had a right to vote. The registrar assented to the latter argument, and held that the liquidator, as the agent of the company, was entitled to vote. Sampson then took exception to the claim of the company in respect of interest, but the registrar held that the debtor being a party to the promissory note, on which the company claimed, and the amount of interest to be paid being specifically stated on the face of the document, he was liable for the amount claimed. The parties then came to an agreement to nominate the liquidator as trustee, and tendered a resolution signed by the creditors to that effect, but it was refused registration on the ground that it was not the resolu tion passed at the meeting. A new meeting of creditors was ordered. Friday, Dec. 19. (Before J. F. COLLIER, Esq., Judge.) Re FERNIE BROTHERS AND CO. Bankruptcy Act 1861-Deed of inspectorship -Right of proof of debt-Guarantee-Bills of Exchange. A. entered into a guarantee to meet bills drawn by B. and accepted by C. for £50,000 to the same extent as if endorsed. The bank parted with the bills, and they were discounted by A. without indorsement, and all the parties thereto failed. Held, that the bank which accepted the guarantee having parted with the bills without indorsement by A., deprived themselves of the right of proving against the estate of A. A.'s name not being on the bills, there was no right of proof against his estate. The true test of right of proof was this, could the bank which accepted the guarantee have sued successfully on the guarantee without having the bills in their hands? THIS was an application for the admission of a proof of debt for £50,000, against the estate of the debtors, shipowners in Liverpool, who executed a deed of inspectorship in 1866. The facts of the case are fully set forth in the judgment of the court. Wheeler and Bigham, instructed by Freshfields, of London, supported the proof. Gully, instructed by Hull, Stone, and Fletcher, opposed. His HONOUR, in giving judgment, said: In this case I am asked to allow the official liquidators of Barned's Banking Company to rank as creditors against the estate of Messrs. Fernie Brothers and Co., for a sum of £50,000 under a certain letter of guarantee hereafter referred to. The facts of the case are these. In the early part of the year 1866, Messrs. Fernie Brothers and Co., of Liverpool; Messrs. W. H. Daunt and Co., of Liverpool; Messrs. M'Ewen, Bryson, and Co., of Glasgow; and Messrs. James Watson and Co., of Glasgow, desired to raise £50,000 for operations on the Stock Exchange. Arrangements were made with Barned's Banking Company for the advance of the money. Barned's bank, however, not being in a position to provide ready money to such an amount, entered into negotiations with the Agra and Masterman's Bank in London, the ultimate result of which was that on the 6th March four bills of exchange for £5000 each, and on the 15th March six bills for £5000 each, were drawn by Messrs. W. H. Daunt and Co., the first four on Messrs. M'Ewen, Bryson, and Co., and the last six on Messrs. James Watson and Co. These bills were on or about the dates on which they were drawn paid into Barned's Bank, and were immediately passed' W. H. Daunt and Co.,'on M'Ewen Bryson, and Co., £5000 at six months' date, dated 6th March. W. H. Daunt and Co., on M'Ewen, Bryson, and Co., £5000 at six months' date, dated 6th March. W. H. Daunt and Co., on M'Ewen, Bryson, and Co., £5000 at six months' date, dated 6th March. W. H. Daunt and Co., on M'Ewen, Bryson, and Co., £5000 at six months' date, dated 6th March. All due 9th September next.-We are, gentlemen, FERNIE BROS. & CO. your obedient servants, On the 9th April, Messrs. Fernie Brothers and Co, gave Barned's Banking Company a further letter of guarantee in the following terms: Liverpool, 9th April, 1866. TO BARNED'S BANKING COMPANY (LIMITED). Gentlemen,-In reference to the operation of the advance of £50,000 in the acceptances of the Agra and Masterman Bank at three months' date against deposits of certain bills of exchange drawn at six months' date by Messrs. W. H. Daunt and Co., as follows: £20,000 on M'Ewen, Bryson, and Co., due 9th Sept. £30,000 on James Watson and Co., due 18th Sept. In consideration of your giving your guarantee to the Agra and Masterman Bank for the transaction, we hereby guarantee due payment of the above acceptances of Messrs. M'Ewen, Bryson, and Co., and James Watson and Co., to the same extent as though we were endorsers thereon.- We remain, gentlemen, yours faithFERNIE BROS. and CO. fully, All the parties engaged in the transaction failed, and none of the bills were paid at maturity. I am of opinion that there was good consideration for both the guarantees. But by the language of the guarantees, the liability of Fernie Brothers and Co., is expressly limited to their liability as endorsers; all that they undertake to do is to place themselves with regard to Barneds in the same position as endorsers. If it had been intended that the guarantee should be one simply of due payment of the bills at maturity, it would have been easy to have so framed it, as was, in fact, done in the guarantee which Barned's gave the Agra and Masterman's in respect of these very bills. I cannot suppose that the managers of Barned's Bank were ignorant of the effect of this limitation. They, therefore, knowing of the limitation and of its effect in the case of the first batch of bills, parted with the bills, after having received the first guarantee, and in the case of the second batch accepted a guarantee in the same terms, after having parted with the bills, in both cases without endorsement. Nor is there, in my opinion, anything extraordinary or unreasonable in their so doing, or any reason to think that a full knowledge of the meaning and effect of the limitation was not in their minds; for if they had remained solvent, and the billa had not been paid at maturity, they would, in the natural course of business, have again become the holders, they would have had to pay the Agra and Masterman's Bank, and would then have been entitled to have their bills back-indeed, at any time by securing the Agra and Masterman's, they could have again made themselves the holders. In my opinion, by parting with the bills they deprived themselves of their remedy as holders, and, as a matter of fact, the Agra and Masterman's Bank have proved as the holders against the estates of M'Ewen, Bryson, and Co., and James Watson and Co. The test is, could Barneds have sued successfully on this guarantee without having the bills in their hands? I think not. I am therefore of opinion that they have no claim to rank as creditors in respect of the sum claimed under it. Gully asked that the costs should follow the result. His HONOUR assented. Wheeler said that as there was no necessity to give notice of appeal, except for the purpose of reducing the amount of deposit below £20, he had nothing to say until he had consulted with his clients. |
