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Cornell University Law Library 
 
 The Moak Collection 
 
 PURCHASED FOR 
 
 The School of Law of Cornell University 
 
 And Presented February 14, 1893 
 
 IN HEnORY OF 
 JUDGE DOUGLASS BOARDMAN 
 
 FIRST DEAN OF THE SCHOOL 
 
 By his Wife and Daughter 
 A. M. BOARDMAN and ELLEN D. WILLIAMS 
 
 
Cornell University Library 
 KD 28S.A22 1877 
 
 An analytical digest of the cases publls 
 
 3 1924 017 964 242 
 
^■si^.^ 
 
 '/^l 
 
 Cornell University 
 Library 
 
 The original of this book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924017964242 
 
AN 
 
 ANALYTICAL DIGEST 
 
 OF THE OASES PUBLISHED IN THE 
 NEW SERIES OP THE 
 
 LAW JOURNAL REPORTS 
 
 AND OTHER 
 
 Contemporarg 30lepnrt£S 
 
 COURTS OF COMMON LAW AND EQUITY, 
 
 AND THE OOUET OF BANKRUPTCY, 
 
 IN THE HOUSE OP LORDS AND IN THE PRIVY COUNCIL, 
 IN THE COURT OF PROBATE, 
 THE COURT FOR DIVORCE AND MATRIMONIAL CAUSES, 
 IN THE HIGH COURT OF ADMIRALTY, 
 
 AND 
 
 IN THE ECCLESIASTICAL COURTS, 
 Feom MICHAELMAS TERM 1870 to TRINITY TERM 1875 
 
 INCLUSIVE. 
 
 By EDMUND STOEY-MASKELYNE, Esq. 
 
 AND 
 
 CECIL C. M. DALE, Esq. 
 
 BABBISTBES - AT - LAW. 
 
 LONDON : 
 
 PRINTED BY SPOTTISWOODE AND -CO., NEW-STREET SQUARE, 
 
 PUBLISHED BY EDWAED BEET INCE, 5 QUALITY COUET, GHANCEEY LANE. 
 
 1877. 
 
This Digest (containing Cases from 1870 to 1875) is in continuation o£ Ten others, 
 published at diflferent times, containing the Cases reported in the Law Journal Reports, 
 and other Contemporary Reports, since the year 1822, each of which may be had as 
 published, at the following prices : — 
 
 First, 
 
 1822 to 1828, 
 
 price 11. 
 
 lis. 6d. boards, 
 
 Second, 
 
 1828 to 1831, 
 
 price 15s 
 
 (. boards. 
 
 Third, 
 
 1831 to 1885, 
 
 price 11. 
 
 5s. boards. 
 
 Fourth, 
 
 1835 to 1840, 
 
 price 11. 
 
 10s. boards. 
 
 Fifth, 
 
 1840 to 1845, 
 
 price 11. 
 
 10s. boards. 
 
 Sixth, 
 
 1845 to 1850, 
 
 price IZ. 
 
 10s. boards. 
 
 Seventh, 
 
 1850 to 1855, 
 
 price 11. 
 
 10s. boards. 
 
 Eighth, 
 
 1856 to 1860, 
 
 price 11. 
 
 10s. boards. 
 
 Ninth, 
 
 1860 to 1865, 
 
 price 11. 
 
 10s. boards. 
 
 Tenth, 
 
 1865 to 1870, 
 
 price 11. 
 
 10s. boards. 
 
LIST OF ABBEEYIATIONS 
 
 IN THIS DIGEST. 
 
 Abbreviations. 
 Law J. Dig. 
 Law J. Eep. (n.s.) P.C. 
 Law J. Eep. (n.s.) Chanc. 
 Law J. Eep. (n.s.) Q.B. 
 Law J. Eep. (n.s.) C.P. 
 Law J. Eep. (n.s.) Exch. 
 Law J. Eep. (n.s.) Bankr. 
 
 Law J. Eep. (n.s.) M.C. 
 
 Law J. Eep. (n.s.) P. & M. 
 Law J. Eep. (n.s.) Adm. 
 Law J. Eep. (n.s.) Ecc. 
 Law J. Stat. 
 
 Law Eep. E. & I. App. 
 
 Law Eep. Sc. App. 
 
 Law Eep. P.C. . 
 Law Eep. Chanc. 
 
 Law Eep. Eq. 
 
 Law Eep. Q.B. . 
 Law Eep. C.P. . 
 Law Eep. Exch. . 
 Law Eep. P. & D. 
 
 Law Eep. Adm. & Ecc. 
 
 Law Eep. C.C.E. 
 
 ^ Be^parts. ■ 
 Law if(^'nal Digie&'S' \ ^ 
 Law Journal Eeports;We^Stefies 
 
 ^ '■# 
 
 2. '--• 
 
 I 
 
 Law Journal Statutes 
 Law Eeports . 
 
 Courts. 
 
 '--PrivJ^ouneil. 
 Chancery. 
 Queen's Bench. 
 Common Pleas. 
 Exchequer. 
 Bankruptcy. 
 
 I f ? >' I Queen's Bench, Common 
 I Pleas, and Exchequer. 
 
 Probate and Divorce. 
 
 Admiralty. 
 
 Ecclesiastical. 
 
 {House of Lords, EnglislT 
 and Irish Appeals. 
 
 {House of Lords, Scotch 
 Appeals. 
 
 Privy Council. 
 
 Chancery Appeals. 
 
 {Master of the EoUs and 
 Vice Chancellors and Chief 
 Judge in Bankruptcy. 
 
 Queen's Bench. 
 
 Common Pleas. 
 
 Exchequer. 
 
 • Probate and Divorce. 
 
 Admiralty and Ecclesi- 
 astical. 
 
 Crown Cases Eeserved. 
 
TABLE OF TITLES. 
 
 ABANDONMENT. 
 
 Abandonment op Child. [See Pakest and 
 
 Child, 7.] 401 
 Abandonment op Railways. [See Eailwat, 
 
 32.] 497 
 Abandonment of Ship. [See Maeine In- 
 
 SUBANCE.] 356 
 
 ABDUCTION, 1 
 
 ABOLITION OF TESTS, 1 
 
 ACCEPTANCE. [See Bill of Exchange.] 90 
 
 ACCOUNT. 
 
 When an Account will be decueed in 
 
 Eqthtt, 1 
 Settled Account, 2 
 ACKNOWLEDGMENT OF DEED, 2 
 ACQUIESCENCE, 2 
 ACT OF BANKRUPTCY. [See Bankruptcy.] 
 
 48 
 ACTION. 
 When maintainable. 
 
 By executor for injury to personal estate of 
 
 testator by breach of contract, 3 
 Breach of statutory duty, 3 
 Expulsion of member of insurance society 
 
 without hearing defence, 3 
 Money paid: misrepresentation, 3 
 Foreign judgment : mistake as to English 
 
 law, i 
 For- costs, 4 
 
 Effect of proceedings in previous actions. 
 Confession of plea: release with condition 
 
 subsequent, 4 
 Cross action : settlement of previous ac- 
 tion, 5 
 In other cases, 5 
 Notice of Action : Statutory Acts. 
 Under Public Health Act, 6 
 Apprehension without warrant under Larceny 
 
 Act, 5 
 Action against swrveyor of highways, 6 
 ADEMPTION. [See Advancement, Legacy.] 
 ADJUDICATION. [See Bankruptcy.] 53. 
 ADMINISTRATION 
 
 OF ESTATE IN CHANCERY. 
 Right to sue. 
 
 Suit by creditor, 6 
 
 Suit for mesne profits, 6 
 Peoof of Debts, etc. 
 
 Judgment creditor, 6 
 
 Continuing guarantee, 6 
 
 By bankers of executor, 6 
 
 By trustees of separate estate of partner, 6 
 By annuitant under award, 7 
 Eight to interest on debt, 7 
 Priority : specialty and simple contract 
 debts, 7 
 Legal and Equitable Assets, 7 
 Marshalling Assets. 
 
 As between devisee of mortgaged estate and 
 
 descended estate, 7 
 As between devisee of mortgaged estate and 
 
 personalty, 8 
 As between residuary and specific devisees, 8 
 As between devised and descended estates, 8 
 As between residuary legatee and descended 
 
 share of residue, 8 
 As between pecuniary legatee and resid/uary 
 
 devisee, 9 
 As between pure and impure personalty, 9 
 As between corpus and incoine, 9 
 As against charities, 9 
 
 Charge of debts: as from when realty is 
 charged, 
 Contract by Intestate to buy Land, 9 
 Legatees. 
 
 Charge on realty, 9 
 Payment where no residuary estate, 
 Payment out of real and personal estate rate- 
 ably, 10 
 Payment out of testator's estate and appointed 
 
 fund rateably, 10 
 Interest on legacies, 1 
 Set-off of debt barred by statute, 1 
 Pjiactice and Jurisdiction. 
 Parties, 10 
 Supplemental bill, 10 
 Administration summons, 10 
 Effect of registration as lis pendens, 1 1 
 Carrying on business of testator, 1 1 
 Discovery, ] 1 
 Costs, 11 
 
 IN COURT OF PROBATE. 
 
 [See Executor; Probate.] 
 ADMIRALTY. 
 Jbeisdiotion. 
 Generally, 11 
 
 Admiralty Court Act, 1861, 12 
 Comity Court Acts. 
 
 Demurrage: freight, 12 
 
 Collision, 12 
 
 Broker's commission, 12 
 Pirate ship, 1 2 
 Necessaries, 13 
 Damage and collision, 13 
 
TABLE OF TITLES. 
 
 Salvage, 13 
 
 Booty of war, 1 3 
 
 Foreign Enlistment Act, 13 
 Pleadikg, 13 
 Pbactice. 
 
 From County Court, 14 
 From Cinque Port Commissioner, 14 
 From registrar and merchants, 14 
 Inspection of documents, 14 
 Evidence, 14 
 
 Meference to registrar and merchants, 14 
 Consolidation of suits, 14 
 Payment out, 14 
 Damage and collision. 
 Might to begin, 14 
 Arrest of ship, 14 
 
 Claim by infant en ventre sa mere, 15 
 Salvage, 15 
 
 Bottomry: transfer from County Court, 16 
 Costs. 
 
 Security for costs, 1 5 
 Appeal for costs, 15 
 Taxation, 15 
 Bi general, 15 
 Peoctoe : Peoxt, 16 
 ADMISSION, 16 
 
 ADULTERATION OP FOOD, 16 
 ADVANCEMENT. 
 What constitdtes an Advancement, 17 
 Ademption and Satisfaction, 17 
 Powee of Teustees, 18 
 ADVOWSON. [See Chueoh, 3-6.] 116 
 AGENT. [See Peinoipal and Agent.] 459 
 AGRICULTUEAL children, 18 
 ALEHOUSE. 
 
 Geant of License. 
 Jurisdiction of special sessions, 1 8 
 Discretion of Justices, 1 8 
 Benewing application at special sessions, 10 
 Bight of appeal, 19 
 Conviction for felony, 19 
 New license : confirmation, 19 
 Eenetvai. of License. 
 Jurisdiction of Justices, 20 
 Adjournment, 20 
 Bating qualification, 20 
 Application to special sessions, 20 
 House fob Public Eefeeshment. 
 Offences. 
 
 Supplying constable on duty, 21 
 Hours of closing, 21 
 Xiquors kept for unlawful sale, 2 1 
 Sunday trading : traveller, 21 
 ALIMONY. [See DivoECE.] 231 
 AMALGAMATION. [See Company.] 46 
 AMBIGUITY. [See Will, Consteuction.] 606 
 ANIMALS, 22 
 ANNUITY. 
 
 Dueation of Annuity, 23 
 
 Amount payable, 23 
 
 To whom payable, 23 
 
 Govbenment Annuity : Miseepeesentation, 24 
 
 On what Peopeety chaegeable. 
 Corpus or income, 24 
 Exoneration of personalty, 24 
 Annuity charged on Land : Distress, 24 
 Covenant foe Payment of Annuity, 24 
 foefeitueb on bankruptcy, 25 
 APOTHECARY. [See Medical Act.] 370' 
 APPEAL, 25 
 
 APPOINTMENT. [See Powbe.] 434 
 APPORTIONMENT. 
 
 Of Rents ksti Dividends. 
 
 Under Apportionment Act, 1870, 25 
 Under previous law, 25 
 Of othee Payments, 26 
 APPRENTICE, 26 
 ARBITRATION. 
 
 Submission to Aebiteation." 
 Validity and effect of, 27 
 When revocable, 27 
 Stay of proceedings, 27 
 Pleading agreement to refer, 28 
 Making submission a rule of Court, 28 
 COMPULSOEY Refeeence, 28 
 Aebiteatoe. 
 Powers, 28 
 
 Liability for negligence, 29 
 Evidence of, in action on award, 29 
 
 AWAED. 
 
 Validity and sufficiency, 29 
 Setting aside and remitting. 
 What grounds sufficient, 30 
 Mode of procedure, 30 
 Enlarging time, 31 
 Failuee to APPOINT Aebiteatoe, 31 
 Costs. 
 
 Costs to abide event, 31 
 Discretion of arbitrator, 31 
 Power of sessions, 31 
 ARCHDEACONRIES. [See Church.] 116 
 ARMY, 31 
 ARREST FOR DEBT. [See Debtoes' Act.] 
 
 221 
 ARSON, 32 
 
 ARTICLED CLERK. [See Attoeney.] 34 
 ARTICLES OF ASSOCIATION, 133 
 ARTISANS' DWELLINGS, 32 
 ASSETS. [See Administration.] 7 
 ASSAULT, 32 
 ASSIGNMENT, 33 
 ATTACHMENT. 
 
 OF DEBTS. 
 What Debts may be attached, 33 
 Pboceduhb, 33 
 Effect of Attachment, 33 
 Foeeign Attachment: Custom of City of 
 London, 34 
 
 OF PEBSON. 
 [See Debtoes' Act.] 221 
 
 ATTOENEY AND SOLICITOR. 
 Aeticled Cleex. 
 Service under articles. 
 Time of service, 34 
 
TABLE OF TITLES. 
 
 Under unstamped articles, 35 
 Offioe or employment, 35 
 Binding clerk to a firm, 35 
 Covenant in restraint of trade, 33 
 Cancellation of articles, 35 
 
 Notices, 35 
 
 Memiber of nniversity , 35 
 Uncertificated Attokney, 35 
 
 PO'WEES AND PbTVILEGBS. 
 
 Discovery, 36 
 Authority, 36 
 Liabilities. 
 For costs, 36 
 For negligence, 36 
 Attachment against attorney, 37 
 Liability in respect of acts of partner, 37 
 summaky jueisdiotion otek, 37 
 Dealings with Client, 37 
 Bill op Costs. 
 
 Enforcement against several defendants, 37 
 Agreement with client as to remuneration, 38 
 Examination on taxation, 38 
 Interest on advances, 38 
 Suit against London agent, 38 
 Claim for, when barred, 38 
 Lien foe Costs. 
 On documents, 38 
 
 On property recovered or preserved, 38 
 AUCTION AND AUCTIONEER, "40 
 AUTREFOIS CONVICT, 40 
 AWARD. [See Aebitkation.] 29 
 BAILMENT, 41 
 BALLOT ACT, 41 
 BANK OF ENGLAND, 41 
 BANKER AND BANKING COMPANY. 
 Banking Company. 
 LiainUty for misrepresentation by manager, 42 
 Trustee of settlement deed, 42 
 Winding up, 42 
 Bankee and Citstomeb. 
 Practice of bankers, 42 
 Proof by bankers in administration suit, 42 
 Accounts at separate branches, 42 
 Consolidation of, accounts, 42 
 Deposit of securities. 
 Separate accounts, 43 
 of title deeds to secure advances, 43 
 Under 33 Geo. 2. c. 14 {Ir.), s. 2, 43 
 Advances prohibited by charter, 43 
 Deposit for safe custody. 
 Lien of bankers, 43 
 Liability of bankers, 44 
 Specific appropriation of ftmds in hands of 
 
 bankers, 44 
 Liability of banker dealing vdth company, 44 
 Compellable to give evidence wider Companies 
 Act, 44 
 BANKRUPTCY. 
 
 JUEISDICTION OF THE CoUBT OF BaNXETJPTCY. 
 
 As to locality, 46 
 As to property, 46 
 
 Power of Cowrt to review its own orders, 47 
 In composition and Uguidation proceedings, 47 
 Digest, 1870-75. 
 
 Cases within jurisdiction of Court of Chan- 
 cery, 47 
 Act of Bankeuptcy. 
 Fraudtdent preference. 
 
 What amounts to, generally, 48 
 
 Assignment of whole property to secure fast 
 debt, 49 
 
 Pressure by creditor, 51 
 
 Pledge of partnership property, 51 
 
 Security to take effect on bankruptcy, 52 
 
 Protection of payee for value, 62 
 Absence with intent to defeat creditors, 52 
 Declaration of inability to pay, 52 
 Execution of process for 601., 52 
 Failure to comply with debtor's summoni, 52 
 Notice of act ^'bankruptcy, 63 
 Adjudication. 
 
 Petition : petitioning creditor's debt, 63 
 Tender after petition, 53 
 Joint and sepa/rate adjudication, 63 
 Annulling adjudication, 54 
 First Meeting of Creditors. 
 Power to deal with assets, 65 
 Notices, 55 
 
 Adjourned meeting ; voting, 55 
 Fresh meeting, 55 
 Proof. 
 Damages, 55 
 Contingent liability, 56 
 Debt capable of being estimated, 56 
 Injury by disclaiTner of lease, 66 
 Transferor of shares, 56 
 Official liquidator, 57 
 Executors of partner, 67 
 Advances to trader : share of profits, 57 
 Double insolvency : bill of exchange, 67 
 Double proof: joint and separate estates, 67 
 Secured creditor, 69 
 Preferential debt : payment in full, 60 
 Procedure and evidence, 60 
 MuTDAL Credit, 61 
 Trustee. 
 Appointment of trustee, 62 
 Property in reputed ownership of bankrupt. 
 
 G-eneral scope of order and disposition 
 clauses, 62 
 
 Custom of trade, 62 
 
 Consent of true owner, 63 
 
 Things in action, 63 
 
 Effect of bill of sale, 64 
 
 Apparent possession under Bills of Sale Act, 
 64 
 Proceeds of sale and seizure of goods. 
 
 Creditor holding security, 64 
 
 Trader; who is, 64 
 
 " Judgment for sum exceeding 60?.," 65 
 
 Proceeds of sale, 66 
 
 Notice of act of bankruptcy, 66 
 
 Befunding proceeds, 66 
 
 Execution under 601., 66 
 
 After-acquired property of bankrupt allowed 
 to trade, 66 
 Avoidance of volunta/ry settlement, 66 
 Avoidance of fraudulent preference, 67 
 Disclaimer of leaseholds, 67 
 Other property devolving on trustee, 67 
 a 
 
TABLE OF TITLES. 
 
 Joint and separate estate: property devoloing 
 
 on trustee of joint estate, 68 
 Powers and liabilities, 68 
 Public Examination op Bankeupt, 68 
 Oedeb of Discharor. 
 Sffect of, in general, 68 
 Senevolent motives towards debtor, 69 
 Liability incurred by fraud, 69 
 Debtor permitted to resume business, 69 
 Persons havinq Peivileoe of Paeliament, 
 
 70 
 Liquidation bt Abeanhement. 
 Proof, 70 
 
 First meeting ;, statement of affairs, 70 
 Resolution: registration, 70 
 Seizure and sale, 71 
 
 Eeservation of rights against sureties, 71 
 Title of trustee, relation back, 71 
 Prescription of bank by creditors, 71 
 Close of liquidation, 72 
 After-acquired property, 73 
 Where liquidation cannot proceed without in- 
 justice, 73 
 BemovaZ of trustee and committee of inspec- 
 tion, 73 
 Costs: pending proceedings, 73 
 Composition "with Ceeditoes. 
 Resolution for composition, 73 
 Statement and examination of debtor, 73 
 Registration of resolution, 74 
 Effect of composition. 
 
 As regards creditors, 74 
 
 As regards debtor, 74 
 Proof 75 
 
 Trustee: surplus, 75 
 Default in payment of composition. 
 
 Revival of original debt, 75 
 
 Power of Court over surety, 75 
 Power of creditors to reduce composition, 76 
 Pleading composition at law, 76 
 Peaoticb. 
 
 Absconding debtor, 76 
 Accounts, 76 
 
 Appeals and rehearings, 76 
 Contempt of Court, 77 
 Debtor summons. 
 
 By secretary of company, 77 
 
 Affidavit in support, 77 
 
 Security, 77 
 
 Dismissal: affidavit, 77 
 Evidence : Judges notes, 77 
 Examination of trustee, 78 
 Hearing, 78 
 Isstte, 78 
 New trial, 78 
 Petition, 78 
 Res judicata, 78 
 Registrar, 78 
 Service, 78 
 
 )Stoy of proceedings, 79 
 Time, 79 
 
 Transfer of proceedings, 79 
 Injunction. 
 
 " Execution and other legal process!' 80 
 Proceedings against debtor : fraud, 80 
 
 Creditor objecting to composition on personal 
 grounds, 80 
 
 ChoMcery proceedings against trustee, 80 
 
 Joint debtors, 81 
 
 Foreign action, 81 
 
 .4« affecting rights of creditors, 81 
 Eeceiteb, 81 
 Costs. 
 
 Of appeal, 82 
 
 Of trustee, 82 
 
 Of receiver, 82 
 
 Stamp duty, 82 
 BAEON AND FEME. 
 
 Celebration of Maeeiage, [See IEabeiage.] 
 361 
 
 AXTTHOEITY OF WlFE TO PLEDGE HuSBAMj'S 
 
 Ceedit, 83 
 Advancement bt Husband, 83 
 Peopeett OF Wife geneeallt. 
 
 Joint dealings by husband and wife, 83 
 Reduction into possession by h/uSand, 83 
 Survivorship, 84 
 Acknowledgment .of deed by wife. [See 
 
 Acknowledgment.] 2 
 WUl of married woman, 84 
 Equity to a settlement, 84 
 Separate Estate of Wife. 
 Liability of, 86 
 Restraint on anticipation, 85 
 Power to devise, 85 
 Married Woman's Peopeety Act, 85 
 Debts contracted before marriage, 86 
 Protection of wif^s earnings, 86 
 Transfer into name of married woman, 86 
 DOWEE AND Feeebench, 86 
 Sbpabation Deeds, 87 
 BARBATEY. [See Shipping Law, B 1.] 527 
 BAEEISTEE, 87 
 BASTAEDY, 87 
 
 BENEFICES. [See Chuech.] 116 
 BENEFIT BUILDING SOCIETY. [See Friendly 
 
 Society.] 267 
 BETTING. [See Gaming.] 269 
 BILL OF EXCHAIifGE AND PROMISSOEY 
 NOTE. 
 Form and Operation of. 
 When complete document, 89 
 Cheque not an equitable assignTnent, 89 
 Stamp, 89 
 consideeation, 89 
 Acceptance. 
 By partners, 90 
 
 By directors. [See Company.] 69 
 Acceptance against bill of lading, 90 
 Transfer fob Value, 90 
 Presentment and Notice op Dishonoue. 
 J'ime for presentment, 91 
 Duty of agent, 91 
 Notice of dishonour, 91 
 Renewal, 91 
 Payment. 
 
 Crossed cheque, 91 
 
 Cheque to order : forged endorsement, 92 
 
 Payment in error, 92 
 
TABLE OF TITLES. 
 
 Specific Appropriation op Eemittancbs to 
 
 COVER BlliS. 
 
 Crenerally, 92 
 
 Double insolvency ; Ex parte Waring, 94 
 Actions and Suits, 94 
 BILL OF LADING. [See Shippinq Law, B.] 
 
 627 
 BILL OF SALE. 
 Eeoistration. 
 WTten necessary. 
 Equitable assignment in nature of bill of 
 
 sale, 95 
 Chattels abroad, 95 
 Mxtwes, 95 
 Successive bills of which last alone registered, 
 95 
 Description of Assignor and of Attesting! 
 
 Witness, 96 
 Condition or Defeasance, 96 
 Apparent Possession, 96 
 Consideration, 97 
 License to seize after-acouired Properti, 
 
 98 
 Priority, 98 
 BISHOP. [See Church.] 116 
 BOAKD OF TEADE, 98 
 BOND, 98 
 
 BOOTY OF "WAE, 98 
 
 BOEOUGH FUNDS. [See Municipal Corpo- 
 ration.] 388 
 BOTTOMEY. [See Admiralty, 45. Shipping 
 
 Law, C] 15, 530 
 BOEOUGH VOTE. [See Parliament.] 407 
 BEAWLING. [See Church, 9.] 119 
 BEEACH OF PEOMISE TO MAEEY, 99 
 BEEAD, 99 
 BEIBEEY. [See Munioipai, Corporation, 
 
 Parliament.] 390, 403 
 BEIDGE, 99 
 
 BEISTOL IMPEOVEMBNT ACT, 99 
 BEOKEE, 99 
 BUEIAL. 
 New Burial Ground : Dweixing House, 100 
 Compensation for Disused Burial Ground 
 
 taken under statutory powees, 100 
 Burial Fees, 100 
 Sexton, 100 
 CAMPBELL'S ACT, 100 
 CANAL, 101 
 
 CAEGO. [See Shippinq Law, D.] 630 
 CAEEIEES. 
 
 Conveyance of Passengers. 
 Negligence in conveyance oj passenger, 102 
 Invitation to passsnger to alight, 103 
 Insufficient accommodation for passenger to 
 
 alight, 104 
 Contributory negligence by passenger, 104 
 Passenger travelling at his own risk, 105 
 Conveyance by railway company over other 
 compa/ny's line, 105 
 Conveyance op Passenger's Luggage, 105 
 Conveyance op Goods. 
 
 Liability as common carrier, 106 
 Special agreement, 106 
 Owner's risk, 107 
 " Parcel or package," 107 
 Loss by felony of servants, 107 
 Delivery. 
 
 Liability for misdelivery or late delivery, 108 
 Goods left in hands of carriers, 108 
 Conveyance of Live Stock, 108 
 Cxi.TCHING BAEGAIN. [See Usury.] 586 
 CATHEDEAL CLEEGY. [See Church, B.] 
 
 116 
 CATTLE. [See Contagious Diseases Act.] 
 
 185 
 CEMETEEY, 109 
 CEETIOEAEI, 109 
 
 CESTUI QUE TEUST. [See Trust and Thus- 
 tee.] 579 
 CHAMPEETY, 110 
 CHANCEEY FUNDS ACT, 110 
 CHANCEEY, HIGH COUET OF. [See Juris- 
 diction IN Equity.] 298 
 CHAEGING OEDEE. [See Judgment, 10.] 
 
 296 
 CHAEITY. 
 Charitable Trusts Acts, 110 
 Gift inter Vivos, 1 1 1 
 Devises and Bequests. 
 Validity of. 
 Gift for building, 111 
 Covenant to pay money, 111 
 Power of particular charities to receive 
 bequests, 111 
 Construction of. 
 
 What bequests are charitable, 112 ' 
 
 Lapse orfailwre ofbeguest, 112 
 Uncertainty, 112 
 Cy-pres, 112 
 Trust or condition, 113 
 Marshalling assets, 113 
 Administration. 
 Scheme, 114 
 Election, 114 
 
 Irustees and Investments, 114 
 CHAETEE, 114 
 CHAETEE PAETY. [See Shipping Law, E.] 
 
 530 
 CHEQUE. [See Bill op Exchange.] 98 
 CHILD. [See Parent and Child.] 401 
 CHIMNEY SWEEPEES, 114 
 CHOSE IN ACtoON, 114 
 CHUECH AND CLEEGY. 
 Bishop: Jueisdioticn and Functions of, 116 
 Cathedral Clergy, 116 
 Auchdeaconbies, 116 
 Colonial Clergy, 116 
 Eelinquishment op Orders, 116 
 Benefices, 116 
 Advowsons. 
 
 Presentation, 116 
 Simjony, 116 
 Devise of, 116 
 
 a2 
 
TABLE OF TITLES. 
 
 Dilapidations, 116 
 
 Sexton, 117 
 
 Chueohwardens, 117 
 
 Chdbchyaed, 117 
 
 Faculty, 117 
 
 Fees, 117 
 
 Peivate and Pkopbietaet Chapels, 117 
 
 Chtiech Building Acts, 117 
 
 Chuech Seats, 118 
 
 Offences. 
 
 Bites, ceremonies and ornainents, 118 
 
 Doctrine, 119 
 
 Disturbance in church, lip 
 Ecclesiastical Courts : Pleadinq and Peac- 
 
 TICE. 
 
 Statement of offence, 120 
 Act on petition, 120 
 Monition, 120 
 
 Commission under Church Discipline Act, 121 
 Appeal, 121 
 
 Duplex guarela and guare impedit, 121 
 Sequestration, 121 
 Suspension, 121 
 Proctor, 121 
 CHUECH BATES, 121 
 CHUECHWAEDEN. [See Chuech and 
 
 Cleegt.] 117 
 CHUECHYARD. [See Chuech and Cleegt.] 
 
 117 
 CIVIL CODE, 121 
 
 CLEEGY. [See Chuech and Cleegy.] 115 
 COAL MINES, 122 
 COLLISION. [See Admiralty, Shipping Law, 
 
 F.] 12, 13, 14, 533 
 COLONIAL CLERGY. [See Church.] 116 
 COLONIAL LAW. 
 
 Action here foe Wrongs in Colony, 122 
 Law of Particular Colonies. 
 Canada. 
 
 l^ovincial legislature, 123 
 Canadian Courts, 123 
 Avoue, 123 
 Usufructuary, 123 
 Testamentary law, 123 
 Civil code, 124 
 Ecclesiastical law, 125 
 Cape Colon!/. 
 
 Insolvent ordinance, 1843, 126 
 Boman Dutch law, 1 26 
 Ceylon, 126 
 East India, 126 
 Gibraltar, 126 
 Jersey, 126 
 Malta, 126 
 Mauritius, 127 
 Natal, 127 
 
 New South Wales, 127 
 New Zealand, 127 
 Fenang, 127 
 South Australia, 127 
 Victoria, 127 
 COMMON EMPLOYMENT. [See Master and 
 
 Servant.] 369 
 COMMON. 
 
 Eights of Commonbbs, 129 
 Evidence of Eight. 
 
 Appwrtenant or in gross, 129 
 Exohidve right of pasturage, 130 
 COMPANY. 
 
 Peomotee's Eights aito Liabilities under 
 
 Contract, 131 
 Prospectus, 132 
 Eeoisteation op Companies. 
 
 Under Joint Stock Companies Acts, 1856 and 
 
 1857, 132 
 Mutual Inswranee Association, 132 
 Company whose constitution is inconsistent with 
 the Act. 133 
 Management and Constitdtion of Company. 
 Memorandum and articles of association, 133 
 Jurisdiction of equity to interfere, 133 
 Liability of company for acts of agent. 
 Contracts and agreements, 134 
 Fraud by agent, 134 
 Bemedy against company transgressing par- 
 liamentary limits, 134 
 Officers, 134 
 Authority to enter appearance for trustee of 
 
 banking company, 135 
 Directors. 
 Powers. 
 
 As to funds of company, 135 
 Purchases, 136 
 
 As to contracts to take shares, 136 
 Powers individually, 136 
 Inequitable use of powers, 136 
 Liabilities. 
 
 Personal liability under contract, 136 
 Liability for breach of trust, 137 
 lAahUity for misrepresentation or omis- 
 sion in prospectus, 137 
 Incapacity of director to profit by his 
 
 office, 138 
 Liability in respect of overdrawn banking 
 
 account, 139 
 lAability for solicitor's costs, 139 
 Liability of directors as shareholders. 
 Directors qualification, 139 
 Paymentfor shares, 141 
 Borrowing powers, 142 
 Debentures, 142 
 Acts ultra vires. 
 
 Contracts and agreements, 143 
 Batifioation by shareholders, 143 
 Begister of shares. 
 
 Batification of register, 144 
 Suit to remove name, 144 
 Description of firm, 144 
 Powers of majority of shareholders, 145 
 Capital. 
 Seduction and redistribution, 1.45 
 Expenditure chargeable to capital, 145 
 Bight of preemption as against company, 146 
 Schem/i of arrangement under Joint Stock 
 Companies Arrangement Acts, 1870, 146 
 Amalgamation and Teansfee of Business. 
 Validity of amalgamation. 
 
 Variation between two parts of contract, 
 
 146 
 Beconsiructioii under sect. 161, 146 
 
TABLE OF TITLES. 
 
 Effect of amalgamation on rights of companies, 
 
 147 
 Setting aside amalgamation, 148 
 Novation of contract by policy holder or annui- 
 tant, 149 
 Application for or acceptance of shares in 
 
 new company, 130 
 Dealings with shares after amalgamation. 
 151 
 Suits and Proceedings. 
 Bill by one shareholder, 151 
 Plaintiff company ordered to give security for 
 
 costs, 152 
 Debtor's summons by secretary of company. 
 152 
 Shakeholdbbs. 
 Allottees. 
 
 Persons who have signed the m^morand/um 
 
 of association, 152 
 Persons who have applied for shares. 
 Scripholders, 153 
 Application in name of married woman, 
 
 163 
 Conditional application for shares. 
 Officer of company, 153 
 Condition as to liability of applicant, 
 153 
 Allotment of shares to directors for dis- 
 tribution, 154 
 Notice of allotment. 
 
 What notice sufficient, 154 
 Notice through post, 154 
 Bescission of ultra vires allotment, 155 
 Agreement to take shares. 
 What amovmts to, 165 
 Bight of repudiation, 155 
 Fully paid up shares. 
 
 Subscription of memorandum, 156 
 J^ayment in bonds, 157 
 Payment in cash within sect. 26 of the Com- 
 panies Act, \i^1, 167 
 Transferee of bonus shares with notice, 159 
 , Rectification of register where contract not 
 registered, 169 
 Contributories entitled to set-off, 169. 
 Transfer of shares. 
 Liability of person talcing transfer in 
 
 name of infant, 1 69 
 Bight of transferee to indemnity. 
 Implied contract by transferee, 159 
 Bight against real pwchaseir where trans- 
 feree an infant, 160 
 Effect of guaranty by t/ransferor, 161 
 Pwrchase of shares in naine of trustee, 161 
 Shares held in joint names, 161 
 Begistration and validity of transfers, 162 
 Transfer or registration after winding-up, 
 
 or calls being dMe, 162 
 Misdescription and mistake, 162 
 Irregularity : directors interested, 162 
 Enforcement of equitable right to be regis- 
 tered as shareholder, 1 63 
 BuUs of Stock Exchange, 163 
 Bankrupt contributory, 163 
 Forfeiture of shares, 163 
 lAability limited by contract, 164 
 
 Shares subject to lien by company, 164' 
 Preference shares, 164 
 Past members. 
 
 Extent of their liability, 164 
 
 Debt to bank : appropriation of payments, 
 
 165 
 Transfer to infant, 165 
 Transfer more than u. year before winding- 
 up, 165 
 Application of contributories of past mem- 
 bers, 165 
 Belatioe rights of past and present members, 
 
 166 
 Affidavit by official liquidator : compromises, 
 166 
 Shareholder in foreign company, 166 
 Distribution of surplus, 166 
 Scire facias against shareholder, 167 
 Ceeditobs. ' 
 
 Proof of debts. 
 Secured creditors. 
 Bight of proof, 167 
 Amount of proof : deductions, 167 
 Bill holders. 
 
 Acceptance by director pending winding- 
 up, 169 
 Douhle proof, 169 
 Authority to accept bills, 169 
 Bondholders: notice: equities, 169 
 Debenture holders, 1 70 
 Policy holders, 170 
 Judgment creditors, 170 
 Improper loan, 170 
 Prospective claims and claims for damages, 
 
 170 
 Proof by officer of company, I7I 
 Claim for prof essional services, 171 
 Statute of Limitations, 171 
 Interest, 171 
 
 Proof by nominee of company, 172 
 Effect of winding-up order or amalga/mation 
 on rights of creditors, 172 
 
 WiNDIKG-UP. 
 
 On petition. 
 Bight to order ex debito justitim. 
 Creditors, 172 
 Shareholders, 172 
 Liability to winding-up order, 
 Nu/mber of m,embers, l73 
 Company unable to pay debts, 173 
 Disputed debt, 173 
 Benefit building society, 173 
 Unregistered company, 173 
 Bailway company, 174 
 Question of advantage, 174 
 Demurrable petition : petitioner in arrear of 
 
 calls, 174 
 Petition of debenture holder, 174 
 Bight to have petition dismissed, 174 
 Jurisdiction. 
 
 In voluntary vnnding-up, 1 74 
 Winding-up under supervision : rights of 
 single shareholder, 176 
 Practice. 
 Branch of Court: concurrent proceedings, 
 176 
 
TABLE OP TITLES. 
 
 Advertisement of petition, 175 
 
 Service, 175 
 
 Prod/uction of documents, 175 
 
 Examination of witnesses, 176 
 
 Evidence on hearing of summons, 176 
 
 Enrolment of order, 176 
 [Aquidator. 
 
 Appointment and removal, 177 
 
 Powers, 177 
 
 Liability to action by creditor, 177 
 
 Cosis of 177 
 Compromises and arrangemerds. 
 
 Deed purporting to release debts, 177 
 
 Compromises tmder sees. 160-163, 178 
 
 Sale of assets abroad and release of a class 
 of contributories, 178 , 
 
 lAen on shares, 178 
 Costs. 
 
 Priorities, 178 
 
 How payable, 179 
 
 Security for costs, 179 
 Effect of winding-up order. 
 
 Staying execution or other proceedings, 179 
 
 Leave to proceed, 179 
 
 Distress for rent, 180 
 
 Protected transaction, 180 
 
 Sequestration, 180 
 
 Lien under previous agreement, 180 
 
 COMPENSATION, 180 
 
 COMPOSITION DEED. 
 What Peopbrtt passes to Tkustees, 181 
 Eights of Ckeditoes. 
 Bights against surety and against trustee as 
 
 stakeholder, 181 
 Proof. 
 
 Creditor liot executing, 181 
 Time of proof , 181 
 JuEisDicTioN of Cotjrt OF Equitt, 181 
 Pleading Deed, 181 
 COMPROMISE, 182 
 CONDITION. 
 Condition in Eesteaint of Alienation, 182 
 Condition in Eestbaint op Teade, 182 
 Impossible Condition, 182 
 Foefeitttee: Conditional Limitation, 182 
 Condition Peecedent, 183 
 
 CONPIEMATION OF SALES ACT, 183 
 
 CONFLICT OF LAWS. 
 Succession to Peopeett, 183 
 Administeation, 183 
 
 Execution of Trusts of Settlement, 183 
 Deposit of Title Deeds, 184 
 Bankruptcy and Insolvency, 184 
 Peobate of Will, 184 
 
 CONSOLIDATION OF SECUEITIES. [See 
 
 MOETGAGE.] 384 
 
 CONSPIRACY, 184 
 CONSTABLE, 184 
 CONSTEUCTIVE NOTICE, 184 
 CONSTEUCTIVE TEUST, 185 
 CONTAGIOUS DISEASES ACT, 185 
 CONTEMPT OF COUET, 185 
 
 CONTEABAND OF WAE. [See Marine In- 
 
 SUEANCE, 362.] 
 
 CONTEACT. 
 Consideration. 
 
 Mutuality, 186 
 
 Forbearance to sue, 186 
 
 Public policy, 186 
 
 Bepresentation by donor, 187 
 When complete. 
 
 Acceptance of offer by letter, 187 
 
 Transmission by post, 188 
 
 By telegram : mistake of telegraph clerk, 188 
 Eatification, 188 
 Construction. • 
 
 Words ejusdem generis, 188 
 
 Words of expectancy, 188 
 
 Alternative contract, 188 
 
 Description of subject-matter, 188 
 
 Condition precedent, 189 
 
 Work and labour, 189 
 
 Contract to teach apprentice, 190 
 
 Implied warranty, 190 
 
 Implied indemnity, 191 
 
 Implied negative clause, 191 
 
 Implied condition : personal skill, 191 
 
 Interest, right to, 191 
 
 Lex loci, 192 
 Evidence. 
 
 Parol evidence to vary, 192 
 
 Evidence of custom of trade, 192 
 
 Contemporaneous verbal promise, 192 
 
 Partial spoliation of written contract, 192 
 Eesoission and Ebctification, 192 
 Statutory Liability, 193 
 Assignment of Contract, 193 
 CONTEIBUTOEIES. [See Company.] 162 
 CONTEIBUTOEY NEGLIGENCE. [See Neg- 
 ligence.] 396 
 CONVEESION, 193 
 CONVICTION, 193 
 COPYHOLDS. 
 Custom. 
 
 Heriot custom, 193 
 
 Grant for lives in reversion, 193 
 Admission. 
 
 Heir, 193 
 
 Bemainder-man, 194 
 Fines : Infant's Copyhold, 194 
 Enfranchisement, 194 
 COPYRIGHT. 
 EegIsteation, 194 
 License to Publish, 195 
 Copyright of Designs, 195 
 Deamatic Copyright, 195 
 Infringement and Piracy, 196 
 Extension of Term, 196 
 CORONER, 196 
 CORPORATION, 197 
 COSTS AT LAW. 
 Costs of Plaintiff. 
 
 Bule as to plaintiff's costs under County Court 
 Act, 1867, 30 & 31 Vict. c. 142, 197 
 
 Arbitration, 193 
 
TABLE OF TITLES. 
 
 Judgmetit hy consent in ejectment, 198 
 
 Admiralty jurisdiction of County Court, 199 
 Costs of Pkosectition, 199 
 Costs of Appeal, 199 
 jueisdiction to awaed. 
 
 Interest on costs of appeal, 199 
 
 Costs out of money taken from convict at 
 apprehension, 199 
 
 Discretion of judge, 199 
 
 Bule to enter nonsuit, 199 
 Sbciteity FOE Costs, 200 
 Taxation. 
 
 CounseVsfees, 200 
 
 Parliamentary election petitionj 200 
 
 Costs to abide event, 200 
 
 Scale of taxation, 200 
 Action to Recover, 200 
 COSTS IN KQUITY. 
 Infoemation and Bill, 201 
 Impeopek Allegations in Pleadings. 
 
 Irrelevant charges, 201 
 
 Charges of fraud vMhdiravm, 201 
 Demueeee. 
 
 Ore terms, 201 
 
 Neglect to raise defence by demurrer, 201 
 Accounts and Enquieies, 201 
 Pluealitt of Suits, 202 
 Appeal, 202 
 
 Administeation Suits, 202 
 FOEBCLOSUEB Suits, 203 
 Suit to eesteain Infringement of Trade 
 
 Mark, 203 
 Specific Peefoemanoe, 203 
 Petitions. 
 
 Two petitions, 203 
 
 Stop order, 203 
 
 Bespondent appearing unnecessarily, 203 
 
 Payment out and reAnvestment, 203 
 Motions, 204 
 . Disclaiming Defendants, 204 
 Teustees and Executors, 204 
 Appoetionment of Costs, 204 
 Costs of the Day, 205 
 County Court Scale, 205 
 Security for Costs, 205 
 Taxation. 
 
 Eight to tax, 205 
 
 Summons in matter of charity, 206 
 
 Order to tax : name of partnership, 206 
 
 Discretion of Taxing Master, 206 
 
 Scale of taxation. 
 Higher or lower, 206 
 Chancery or Parliamentary, 206 
 Issues tried by Court, 206 
 
 Briefs to counsel: third counsel, 206 
 
 Evidence and witnesses, 207 
 
 Costs partially awarded, 207 
 COUNSEL, 207 
 
 COUNTY BUILDINGS LOANS, 208 
 COUNTY COEONEE, 208 
 COUNTY COURT. 
 
 JuEISDICTION OF CoUNTY COUET. 
 
 Jurisdiction at law. 
 
 County Court district, 208 
 Amendment, 208 
 
 Contempt, 208 
 Committal of debtor, 209 
 Execution against high bailiff, 209 
 Effect of warrant of possession, 209 
 Costs of action remitted, 209 
 Jurisdiction in Equity, 209 
 Admiralty, 209 
 Probate, 210 
 Bankruptcy, 210 
 Teansfer of Action oe Suit. 
 To superior Court, 210 
 To adjoining district, 2! 1 
 New Trial, 211- 
 Interpleader, 211 
 Appeal. 
 
 Case on appeal, 211 
 Notice of appeal, 212 
 Time for giving security, 212 
 Death of respondent, 212 
 Costs, 212 
 Officees op the Court, 212 
 COUNTY DEBENTURES, 212 
 COUNTY JUSTICES, 212 
 COUNTY PROPERTY, 212 
 COURTS OF JUSTICE (SALARIES AND 
 
 FUNDS) ACT, 1869, 212 
 COVENANT. 
 
 Covenant in Restraint of Teade, 212 
 Covenant to Settle Property, &c., 213 
 Covenants fob Title and Quiet Enjoyment. 
 Mine : damage by working : appointee, 213 
 Lease for lives, 213 
 Notice of restrictive covenant, 214 
 Covenant to pay Premiums on Policy, 214 
 Limitation of Coviotant in Terms General, 
 214 
 CRIMINAL INFORMATION. [See Libel.] 333 
 CRIMINAL LUNATIC. [See Lunatic, 15-17.] 
 
 344 
 CROWN, 214 
 CROWN LANDS, 215 
 CRUELTY. [See Divorce.] 229 
 CUSTOM, 215 
 
 CUSTOMS. [See Revenue, A.] 610 
 CY-PRES, 216 
 
 DAMAGE AND COLLISION. [See Admiralty, 
 10, 14-18, 34. Shipping Law, F.] 12, 13, 
 14, 533 
 DAMAGES. 
 When Recoverable: Liquidated Damages oh 
 
 Penalty, 216 
 Measure and Ceiterion of. 
 Sale of realty : defect of title, 216 
 Default in delivery of goods, 217 
 Contract of indemnity against breaches of 
 
 covenant, 218 
 Breach of covenant to repair, 218 
 In other cases, 218 
 Seduction of damages, 218 
 Remoteness of Damage, 219 
 Special Damage, 220 
 In Suit for Injunction, 220 
 DEBENTURES. [See Company.] 242 
 
TABLE OF TITLES, 
 
 DEBTOR AND CEEDITOE. 
 
 Assignment op Debt, 220 
 Sbct7eity foe Debt. 
 
 Charge on sums to become due from creditor, 
 220 
 
 Lien on policy, 220 
 
 PiYMENT. 
 
 Payment hy stranger : ratification, 220 
 Term of loan: option, 221 
 Appropriation of payments, 221 
 
 DiSCHAEGE OF DeBT. 
 
 By release, 221 
 
 By accepianoe of new debtor, 221 
 Interest, 221 
 Peattdulent Debtoe, 221 
 DEBTOR SUMMONS. [See Banketjptcy.] 77 
 DEBTORS ACT. 
 
 Abolition of Impeisonment foe Debt. 
 Enforcement of order of Irish Court of Chan- 
 cery, 221 
 Contempt of Court, 221 
 Defaulting trustee, 221 
 Defaulting attorney, 222 
 Person arrested under sec, 6, 222 
 Foreign attachment, 222 
 Pendency of bankruptcy proceedings. 111 
 Order for committal under sec. 5, 222 
 Feaudulent Debtoes, 223 
 DECLARATION OF TITLE. [See Land Re- 
 
 GISTKT.] 303 
 
 DEED. 
 
 •ExEcnTioN. 
 Escrow, 224 
 
 Evidence of execution, 224 
 Paeties: PEitsoNS having Powers of Dis- 
 tress, 224 
 Consteitction of. 
 Parcels, 224 
 General words, 224 
 Limitations. 
 
 Habendum invalid, 224 
 Eule in, Shelley's case, 224 
 " Survivor " read " other," 224 
 Option as to time of payment, 225 
 Conditions. [See Condition.] 182 
 Contemporaneous documents, 225 
 RECTrFicATiON, 225 
 DEFAMATION. [See Libel, Slandee.] 331, 548 
 DEMONSTRATIVE LEaACY. [See Legacy.] 
 
 324 
 DEMURRAGE. [See Admibalty, Shipping Law.] 
 
 12, 537 
 DEMURRER. [See Costs, Pleading in Equity.] 
 
 201, 430 
 DESERTION. [See Divoece.] 229 
 DESIGNS. [See Cofyeight.] 196 
 DETINUE, 225 
 
 DEVISE. [See Chaeity, Will.] Ill, 602 
 DILAPIDATIONS. [See Chqech.] 116 
 DIRECTORS. [See Company.] 135 
 DISCOVERY, 226 
 
 DISENTAILING ASSURANCE. [See Fines 
 ANP Ebooveeies.] 256 
 
 DISORDERLY HOUSE, 226 
 DISSENTERS, 226 
 DISTRESS, 226 
 
 DISTRIBUTIONS, STATUTE OF, 226 
 DIVORCE. 
 Jiteisdiotion. 
 Domicil, 227 
 Power to make rules, 227 
 Legitimacy Dbclaeation Act. [See that title.] 
 
 320 
 Nullity of Maeeiage. 
 
 Defect in the contract. [See Maeeiage.] 361 
 Defect in the parties, 227 
 Suit barred by delay, 227 
 Dissolution of Maeeiage. 
 When suit Tnaintainable. 
 Condonation, 228 
 Previous judicial separation, 228 
 Delay, 228 
 
 Insanity of respondent, 228 
 Effect of, 228 
 Judicial Sepaeation. 
 
 Wife's adultery no bar to suit, 228 
 When granted in suit for dissolution. 
 Suit by husband, 229 
 Suit by wife, 229 
 Restitution of Conjugal Rights, 229 
 Cruelty, 229 
 Desbktion, 229 
 
 Connivance and Collusion, 230 
 Paeties, 230 
 Pleading. 
 
 To jurisdiction, 230 
 Adultery after filing of petition, 230 
 Particulars of cruelty, 230 
 Amendment of Petition, 230 
 Evidence. 
 
 Queen's Proctor intervening, 230 
 Identity, 230 
 
 Admissibility under separation deed, 230 
 Agent of husband employed to watch wife, 230 
 Witness, 231 
 Alimony. 
 Alimony pendente lite. 
 
 Effect of separation deed, 231 
 Pending appeal by wife, 231 
 Plea to jurisdiction, 231 
 Permanent alimony. 
 After decree made, 231 
 Increase of alimony, 23 1 
 Payment of arrears, 231 
 Allowance for children, 232 
 Childeen: Custody op, 232 
 Alteeation of Settlement, 232 
 Peactice. 
 Petition, 
 Amendment, 233 
 Withdrawal of petition, 233 
 Answer to petition for aXimony, 233 
 Service. 
 Personal, 233 ' 
 
 Substituted, 233 
 Issues, 233 i 
 
 Dismission of respondent, 233 
 Staying proceedings, 233 
 
TABLE OF TITLES. 
 
 New trial, 234 
 Reheariiig, 234 
 Decrees and orders. 
 
 Shewing cause against decree nisi, 234 
 Reversing decree nisi, 234 
 Time for making decree absolute, 234 
 Suspending decree absolute, 234 
 Order for payment of tnoney, 234 ' 
 Damages, 235 
 • Appeal: wliether stay of proceedings, 235 
 Costs. 
 Of wife. 
 Intervention of Queen's Proctor, 235 
 Suit for dissolution: failure of charges, 235 
 Judicial separation, 235 
 Sestitution of conjugal rights, 236 
 Unsuccessful suit, 235 
 Costs against separate estate of wife, 235 
 Costs against petitioner, 236 
 Claim, for damages, 236 
 Costs after de(yree absolute, 236 
 Security for costs, 236 
 Proctor's or attorney's lien, 236 , 
 BOCK, 236 
 DOMICIL. 
 
 Acquisition or Change of, 236 
 Law of Countkt of Domicil whkk appli- 
 cable, 237 
 DONATIO MORTIS CAUSA, 237 
 DOWER, 237 
 DRAINAGE AND IMPOVEMENT OE LANDS, 
 
 238 
 DRAMATIC COPYRI&HT. [See Copybibht.] 
 
 196 
 DUPLEX QUERELA. [See Chuech.] 121 
 EASEMENT. 
 
 CoNSTBTJCTION OF GbANT OF EASEMENTS: REA- 
 SONABLE User, 238 
 Implied Grant, 238 
 AcauisiTioN OF Easements by Peescbiption, 
 
 239 
 ExTiNauisHMENT : Altebation of Dominant 
 
 Tenement, 239 
 Pabticdlae Easements, 239 
 Obstbtjotion of Easements. [SeelNJirNCTioN.] 
 284 
 EAST INDIA COMPANY, 239. 
 ECCLESIASTICAL LAW. [See Chtoch and 
 
 Cleegy.] 115 
 EJECTMENT, 239 
 ELECTION. 
 
 Where it arises, 240 
 Peoof of Election by Condtjot, 240 
 Suit to Asoebtain Value, 241 
 ELECTION TO PARLIAMENT. [See Parlia- 
 ment.] 403 
 ELEMENTARY EDUCATION ACT, 241 
 EMBEZZLEMENT. 
 Indictment: Theee Distinct Acts, 241 
 Clerk or Servant, 241 
 ENDOWED SCHOOLS ACTS, 242 
 ENFRANCHISEMENT. [See Copyholds.} 194 
 ENTAIL, 242 
 
 DxoBST, 1870-75. 
 
 EPPING FORESTS ACT, 242 
 EQUITABLE ASSIGNMENT, 242 
 EQUITABLE MORTGAGE. [See Moetgaqe.] 
 
 385 
 EQUITABLE SET-OFF. [See Set-off.] 522 
 ERROR, 242 
 
 ESCROW. [See Deed.] 224 
 ESTOPPEL. 
 
 By Matter of Recobd and Quasi of Re- 
 cord, 243 
 By Deed, 244 
 In Pais. 
 
 By acceptance of estate, 244 
 By acceptance of biU of exchange, 244 
 By conduct and representation, 244 
 EVIDENCE. 
 Admissibility. 
 Parol evidence to vary or explain written docu- 
 ment. 
 7b explain will, 245 
 To vary promissory note, 246 
 Of collateral verbal agreement, 246 
 Of usage of trade, 246 
 Of right of common, 246 
 Ees inter alios acta: receipt, 246 
 Certified copy of record, 246 
 Certified copy of register of births, 246 
 Judge's notes, 246 
 
 Statement by witness contradictory of his evi- 
 dence, 247 
 Lunatic witness, 247 
 Sufficiency and Effect. 
 Admissions, 247 
 Receipt, 247 
 Of foreign law, 247 
 Obscwe written documents, 247 
 Of execution of deed, 247 
 Of negligence, 247 
 Of legitimacy, 247 
 Of posting of letters, 248 
 Secondary Evidence of Lost Document, 248 
 Onus of Peoof, 248 
 Presumptive Evidence, 248 
 Evidence disclosing. Felony, 248 
 In Criminal Cases. 
 Confession, 248 
 Evidence vf co-d^endant, 248 
 Evidence of prisoners wife, 248 
 Of trader in liquidation on indictment under 
 
 Debtors Act, 249 
 In support of particular indictments, 249 
 Depositions, 249 
 EXCISE, 249 
 EXECUTOR. 
 Appointment of Executor. 
 
 Executor according to the tenor, 250 
 Executor for property not named in the will, 
 250 
 Powers, Rights and Duties. 
 Retainer of debt, 25,0 
 Sale of leaseholds, 251 
 Power to charge and mortgage, 251 
 Carrying on testator's business, 251 
 Right to sue in representative capacity ^ 261 
 b 
 
TABLE OF TITLES. 
 
 Bight to interest, 251 
 
 Executor of executor : right to costs, 251 
 
 Eight of, to surplus, 251 
 
 Bight to be refunded, as against legatees, 252 
 
 Executor durante minore estate, 252 
 
 Legacy/ to executor, 252 
 Liabilities. 
 
 Bights of creditors, 252 
 
 Liability as partners, 252 
 
 Husband of residuary legatee, 252 
 
 Involuntary losses, 252 
 
 Galls on shares, 262 
 
 Devastavit, 252 
 
 Garnishee order against executor, 252 
 
 Executor de son tort. 
 Extent of liability, 252 
 Belief in suit against, 252 
 
 Purchase from, legatee, 253 
 
 Ad/uertisement for claims, 253 
 Eenttnciation, 253 
 
 EXECUTOEY GIFT. [See Tbust, Will, Con- 
 
 STEUOTioN.] 573, 624 
 EXECUTION. [See JuDOMENT.] 294 
 EXPLOSIVE SUBSTANCES, 263 
 EXTRADITION, 253 
 FACTOE. 
 
 Agent enteusted with the Possession of 
 
 Goods, 254 
 Transactions Protected by Factors Act, 254 
 FACTOEY, 254 
 
 FACULTY. [See Church and Clergy.] 117 
 FALSE IMPEISONMENT, 255 
 FALSE PEESONATION, 255 
 FALSE PEETENCE. 
 
 What constitutes the Offence, 255 
 Etidence, 265 
 FALSE EEPEESENTATION, 255 
 FALSIFICATION OF ACCOUNTS, 266 
 FEES, 266 
 FELONY, 256 
 
 FINES. [See Copyholds.] 194 
 FINES AND EECOVEEIES, 256 
 FIEE ENGINE, 256 
 FISHEEY, 256, 521 
 FIXTUEES. 
 
 Trade Fixtures: Eegistration of Deed, 
 Mortgage in fee, 266 
 Mortgage of leaseholds, 257 
 FOEECLOSUEE. [See Mortgage.] 386 
 FOEEIGN ATTACHMENT. [See Attach- 
 ment.] 34 
 FOEEIGN ENLISTMENT ACT, 257 
 FOEEIGN JUDGMENT, 257 
 FOEEIGN COUET: JURISDICTION, 257 
 FOEEIGN LAW, 258 
 
 FOEEIGN SHIP. [See Shipping Law, K.] 243 
 FOEE SHOEE, 258 
 FOREST OF DEAN, 258 
 FORFEITURE. 
 Forfeittjbb on Bankbuptoy or Alienation. 
 
 When the forfeitu/re takes effect, 259 
 Gift over to wife and children, 260 
 Name and Arms Clause: Ignorance no 
 
 Protection, 260 
 On Breach of Covenant, 260 
 Condition in Contract of Sale of Land, 260 
 On Felony, 260 
 FORGERY, 260 
 
 FRAUD AND MISREPRESENTATION. 
 Liability to Suit or Action. 
 Suppression of mortgage deed, 260 
 Fraud by agent ofcom/pamy, 261 
 Misrepresentation of law, 261 
 In general, 261 
 Delay, whether a defence, 261 
 As Ground of Defence, 261 
 What Transactions will be set Aside, 261 
 Jurisdiction of Court of Chancery, 262 
 Fraud by Agent dnder 24 & 25 Vict. o. 96, 
 262 
 FRAUDS, STATUTE OF. 
 
 Contracts required to be in Writing. 
 To ansiLzr debt or default of another, 263 
 Interest in land. 
 What is, 263 
 
 Collateral verbal agreement, 264 
 Description of vendor, 264 
 Contract by letters, 264 
 Notice to treat, 268 
 Signature by agent, 265 
 Agreement not to be performed within a year, 
 
 265 
 Sale of goods. 
 
 What memx>randum sufficient, 265 
 Signature by agent, 265 
 Part Performance, 266 
 Non-Application of, in Cases op Fraud, 266 
 FEAUDULENT CONVEYANCE, 266 
 FEAUDULENT DEBTOE, 267 
 FEAUDULENT PREFERENCE, 267 
 FREIGHT, 267 
 
 FRIENDLY AND OTHER SOCIETIES. 
 Benefit Building Societies. 
 Borrowing powers, 267 
 Advanced menibers, 267 
 Disputes between members. 
 Equity jurisdiction, 268 
 Beference to arbitration, 268 
 Winding-tip, 268 
 Friendly Societies, 268 
 GAME. 
 
 Grant or Reservation of Right of Shoot- 
 ing, 268 
 Prevention of Poaching Act, 269 
 GAMING. 
 Suppression op BETTmo-HousES, 269 
 Vagrant Act Amendment Act, 270 
 GARNISHEE. [See Attachment.] 33 
 GAS, 270 
 
 GENERAL AVERAGE. [See Marine Insur- 
 ance, Shipping Law.] 357, 544 
 GIFT, 271 
 GOLD FIELDS ACT, 271 
 
TABLE OF TITLES. 
 
 GUAEANTIE. [See PRmctPAi, akd Stjeett.] 
 
 464 
 GUARDIAN. [See Infant.] 282 
 GUNPOWDER, 271 
 HABEAS CORPUS, 272 
 HABITUAL CRIMINALS, 272 
 HACKNEY CARRIAGE, 272 
 HARBOUR, 273 
 
 HEALTH. [See Public Hbaith.] 486 
 HEIRLOOMS, 274 
 HERESY. [See Chtjecs, 22.] 120 
 HERIOT, 274 
 HIGHWAY. 
 
 Pebsumption of Owneeship, 274 
 
 Dedication op Highway, 274 
 
 Liability to Repair, 275 
 
 Exemption peom Highway Rate, 275 
 
 DrVBETING AND STOPPING Up. 
 
 Notice of vestry meeting, 275 
 
 Form of certificate, 275 
 
 Notice of appeal, 276 
 Nuisances and Obstetjctions. 
 
 Bight to plough np, T1& 
 
 Bight to carriage way across foot pavement, 
 276 
 
 Cttstom to obstruct invalid, 276 
 
 Powers of highway board to dig up highway, 
 276 
 
 Obstruction of navigable lake, 277 
 Enoeoachment, 277 
 stteveyoe of highways. 
 
 Liability for negligence, 277 
 
 Liability for trespass by order of board, 277 
 
 Notice of action against, 277 
 
 Mandamus to summon a vestry, 277 
 
 Surveyor's accounts, 277 
 Peesonal Liability of Membees of Highway 
 BOAED, 278 
 
 HOPS. [See Tithes.] 564 
 
 HOSIERY, 278 
 
 HOTCHPOT. [See Will, Construction.] 621 
 
 HOUSE OF LORDS, 278 
 
 HUSBAND AND WIFE. [See Baeon and 
 
 Feme.] 83 
 ILLEGITIMACY, 278 
 IMPRISONMENT FOR DEBT. [See Debtoes 
 
 Act.] 221 
 INCLOSURE. 
 
 Right op Pastdeage of Lord of Manor, 279 
 
 Eight of Spoeting of Loed of Manoe, 279 
 INCOME TAX, 279 
 INDECENT ASSAULT, 279 
 INDEMNITY, 279 
 INDICTMENT. 
 
 FoBM AND Requisites in Pabticulab Oases, 
 280 
 
 Amendment, 280 
 
 Costs, 280 
 
 INFANO'. 
 Madttenakoe. 
 
 On what property chargeable, 280 
 
 Bequest for benefit of infant, 281 
 Maintenance by mother, 281 
 Advancement, 281 
 
 Powers of Court of Chancery oyer Infant's 
 Property. 
 8als of reversion, 281 
 
 Sale of mme than required: conversion, 281 
 Raising fine on copyholds, 281 
 Settlement of property of ward of Court, 281 
 Religious Education, 281 
 Contracts op Infant, 281 
 Suit to Recover Land, 282 
 Guardian. 
 Appointment, 282 
 Powers and duties, 282 
 Infants' Relief Act, 1874, 282 
 INFERIOR COURT. [See County Court.] 208 
 INJUNCTION. 
 
 Jurisdiction of Court of Chanceet to 
 grant. 
 Against Commissioners for Bediiction of Na- 
 tional Debt, 283 
 To restrain libel, 283 
 When granted in Particular Cases. 
 
 Not granted for breach of agreement which 
 
 Court could not enforce, 283 
 Absence of negative words not regarded, 283 
 To restrain proceedings in other Courts. 
 To restrain action at law, 283 
 To restrain proceedings in Probate Court, 
 
 284 
 To restrain proceedings in police-court, 284 
 Light and air, 284 
 Interference with water, 284 
 Nuisance. 
 Sewers, 285 
 
 Erection of national school, 285 
 Acquiescence, 285 
 Obstruction of street: suit by reversioner, 
 
 286 
 Visible damage : smoJce nuisance, 286 
 Bailways Clauses Act, 286 
 Prospective nuisance, 286 
 Interference with right of shooting, 286 
 Trespass, 286 
 Secret preparation, 287 
 Sale of goodwill, 287 
 Confidential communication, 287 
 Injurious document, 287 
 Against public bodies, 287 
 Inequitable use of powers by directors, 288 
 Damages, 288 
 
 Practice in Suits foe Injunction. 
 Pairties, 288 
 
 Injunction before bill fled, 288 
 Motion ordered to stand till the hearing, 288 
 Interlocutory injunction, 288 
 Mandatory injunction, 288 
 INNS OF COURT, 289 
 INNKEEPER. 
 
 lAen on goods, 289 
 lAahilityfor loss of goods, 289 
 INSPECTORSHIP DEED. 
 
 Jurisdiction of Court of Bankruptcy, !I89 
 Aptee-acuuired Property, 290 
 b2 
 
TABLE OF TITLES. 
 
 Proof : Intebbst subseqtjknt to Bankedptcy, 
 
 290 
 Liability of Inspeotoiis, 290 
 INSURANCE. 
 
 Insurance Companies, 290 
 Mutual Insueanoe Association under Sta- 
 tute, 290 
 Life Policy. 
 
 Proviso avoiding policy if declaration untrue, 
 
 291 
 Limitation of liability of insurance company, 
 
 291 ' 
 Policy effected by creditor, 291 
 Mortgage of policy, 291 
 Assignment : notice, 291 
 PrEE Policy. 
 
 Misdescription, 291 
 Construction: risk, 291 
 Subrogation, 292 
 INTEREST, 292 
 INTERNATIONAX LAW, 293 
 INTERPLEADER. 
 At Law. 
 
 Equitable rights, 293 
 
 Jurisdiction and practice of County Court, 293 
 In Equity, 293 
 INTERROGATORIES. [See Practice at Law, 
 
 Practice in Eouity.] 441, 451 
 INTESTATES, 293 
 INVENTIONS, 293 
 
 INVENTORY DUTY. [See Scotch Law.] 521 
 INVESTMENT. [See Trustee.] 
 ISLE OF MAN, 294 
 JERVIS' ACT. [See Justices, Jurisdiction.] 
 
 301 
 JOINT TENANTS. 
 When Joint Tenancy arises, 294 
 Rights of Joint Tenants, 294 
 JUDGMENT. 
 Execution. 
 
 Bight to issue immediate execution, 294 
 "Actual seizure" under Mercantile Law 
 
 Amendment Act, 294 
 Bights of execution creditor, 295 
 Charges on Land under 27 & 28 Vict. c. 112 
 Lands actually delivered in execution, 296 
 Bemedies of creditor, 295 
 Form of order for sale, 296 
 Charging Order on Shares or Stock, 296 
 Committal of Debtor, 296 
 Effect of Judgment against one of several 
 
 Wrong-doers, 296 
 Foreign Judgment, 296 
 JUDICATURE ACT, 296 
 JUDICIAL SEPARATION. [See Divorce.] 298 
 JURISDICTION AT LAW. 
 Court of Error, 296 
 Trial at Bar, 297 
 
 Over Action remitted to County Court, 297 
 Breach op Promise op Marriage, 297 
 Over Justices of the Peace, ,297 
 Reference to Arbitration, 297 
 JURISDICTION IN EQUITY. 
 
 General Principles governing Exercise of 
 Jurisdiction. 
 Mistake, 298 
 
 Where statutory remedy has not been had re- 
 course to, 298 
 Assumption of jurisdiction by fictitious issue, 
 298 
 Concurrent Jurisdiction vtith other 
 Courts. 
 With Courts of law. 
 Fraud or misrepresentation, 298 
 Money demand, 298 
 Delivery wp of bond, 298 
 Lnhel, 298 
 
 Specific performance. [See that title.] 550 
 With Court of Bankruptcy, 299 
 In respect of Persons and Property out op 
 
 THE Jurisdiction, 299 
 Over Particular Persons. 
 
 Commissioners for Bed/uetion of National 
 
 Debt, 299 
 Members of Inns of Court, 299 
 Executor who has not proved or renounced, 
 
 300 
 Against Crown, 300 
 Over persons in contempt, 300 
 Under Particular Acts of Paellament, 
 
 300 
 In general, 300 
 JURY, 300 
 
 JUSTICE OF THE PEACE. 
 Jurisdiction of Justices. 
 Joint information : several convictions, 301 
 Order for payment of money, 301 
 Claim of right, 301 
 In particular cases, 301 
 Quarter Sessions. 
 Notice of appeal, 302 
 Power to make rules, 302 
 Power to order justices to pay costs, 302 
 Appeal to, referred to arbitration, 302 
 Power to state case to superior Court, 302 
 Table of fees, 302 
 Adjournment, 302 
 Licensing, 302 
 Jurisdiction and Peactice of Superior Court. 
 Time for certiorari, 302 
 Amendment of order of justices, 302 
 Case stated, 303 
 
 Power to order justices to pay costs, 303 
 Mandamus, 303 
 LACHES, 303 
 LAND DRAINAGE, 303 
 LAND REGISTRY, 303 
 LAND TAX, 303 
 LANDED ESTATES COURT, 304 
 LANDLORD AND TENANT. 
 The Tenancy. 
 
 Constitution of the tenancy : new tenancy after 
 
 determination of prior tenancy, 304 
 Nature of tenancy. 
 
 Tenancy from year to year, svhject to agree 
 
 ment void as lease, 304 
 Grantee of right of shooting, 304 
 
TABLE OF TITLES. 
 
 Notice to quit, 305 
 Rent. 
 
 Payment before due, 305 
 Distress for. 
 
 What goods may be taken in distress, 305 
 Effect of, on proceedings by landlord, 305 
 Where tenant bankrupt, 306 
 Excessive seizure, 305 
 Special power to distrain on lands not in- 
 cluded in the tenancy, 306 
 Seizure by sheriff: 8 Ann, o. 14, s. 1, 306 
 Valuation between Incomino and Octho- 
 
 iNQ Tenant, 306 
 Warrant of Possession by Landlord, 306 
 Encroachment, 306 
 iMPUiiD Duties arising from the Relation 
 
 OF Landlord and Tenant, 306 
 RiSHT TO Moneys under Fire Policy, 307 
 
 LANDS CLAUSES CONSOLIDATION ACT. 
 Purchase and Taking of Lands. 
 Power to take lands. 
 
 Forpublic improvements, 307 
 Certificate of subscription of capital conclu- 
 sive, 308 
 Notice to treat. 
 
 Abandonment of notice, 308 
 Description of tenants interest, 308 
 Specific performance against railway company. 
 Compulsory purchase, 308 
 Purchase by agreement, 308 
 Vendor's lien, 309 
 
 '^hat lands company can be compelled to take, 
 309 
 Eights of Landowners in respect to Com- 
 pensation. 
 Interest created after notice to treat, 309 
 Lands injuriously aff'ected, 309 
 Injury from severance, 310 
 Tunnel under cuUde-sao forming public way, 
 
 310 
 Principle of assessing compensation for land 
 
 devoted to religious purposes, 311 
 Bight of action in respect of rights of common, 
 
 311 
 Eight of landowner to interest, 311 
 Assessment of Compensation. 
 By justices or jury. 
 
 Computation of tenant's interest, 311 
 Time for issuing summons, 311 
 Arbitration. 
 
 Time for Tnaking offer, 311 
 
 Powers of umpire; reference by consent, 
 
 311 
 Setting aside award, 312 
 Application of Compensation. 
 Reinvestment in land, 312 
 New buUdimgs : repairs and improvements, 
 
 3)2 
 Land im, the Isle of Man, 312 
 Leasehold land, 312 
 
 Becou/pvng sums laid out on building by 
 rector, 312 
 Payment out. 
 Person absolutely entitled, 312 
 To tenant in tail a 1 ^ 
 
 To vendors under specific performance decree, 
 313 
 
 To cestuis que trusts attaining vested inter- 
 ests, 313 
 
 Sight to dividends. 
 
 Tenant for life of leaseholds, 313 
 Disused burial ground, 313 
 Payment of, to charity, 313 
 East India Stock, 313 
 Practice as to petitions. 
 Service, 313 
 Two funds, 313 
 SupERi-Luous Lands, 313 
 Costs. 
 
 Tenant for Ufe, 314 
 0/ reinvestment. 
 Bedemption of Land Tax, 314 
 Purchase-money of leaseholds, 314 
 Purchase under open contract, 314 
 Costs of mortgages and annuitants, 314 
 Apportionment between different companies, 
 
 314 
 Costs unnecessarily incurred, 315 
 Investment. 
 
 On mortgage, 315 
 
 Costs incurred by tenant for life, 315 
 Deposit under 85th section. 
 Lien on, for costs, 315 
 Costs of abortive proceedings, 315 
 Transfer of fund to credit of cause, 316 
 Vendor's lien for costs of arbitration, 315 
 Special Act, 316 
 LAPSE. [See Will, Oonstbuction, E 8 ; H 
 
 4, 7.] 605, 608 
 LARCENY. 
 What amounts to Larceny. 
 
 Taking money paid under a mistake by a Post 
 
 Office clerk, 316 
 Taking and depositing rabbits, and subse- 
 quently removing them, 316 
 Forcibly taking warrants from bailiff of Court, 
 
 316 
 Money obtained by servant on pretence of pay- 
 ing fellow servant, 317 
 Wrongful refusal to return change out of 
 m^ney paid, 317 
 Indictment, 317 
 
 Notice of Action under Larceny Act, 1861, 
 317 
 LEASE. 
 
 Agreement fob Lease, 318 
 Usual clauses, 318 
 Agreement for sub-leaseby reference to original 
 
 lease, 318 
 Option as to term of lease, 318 
 Separate contract for building leases, 318 
 Collateral parol agreement, 318 
 Lease. 
 
 Reservation of right to game, 318 
 
 General words : lights : implied contracts, 
 
 318 
 Bates, taxes, and assessments, 319 
 
 As between landlord and tencmt, 319 
 
TABLE OF TITLES. 
 
 As respects injury to stranger, 319 
 
 Covenant not to assign. 
 Breach of covenant, 319 
 Bight of landlord to refuse consent to assign- 
 ment, 320 
 
 Covenants as to user of premises. 
 To use as post-office, 320 
 Not to fermit sale by auction, 320 
 
 Compensation for goodwill of alehouse, 320 
 
 Power of distress, 320 
 
 Power of re-entry, 321 
 
 Forfeitwe: waiver, 321 
 
 Notice to quit, 321 
 
 Unsealed lease not binding on assignee of re- 
 version, 321 
 
 Variation of lease by collateral parol agree- 
 ment, 321 
 Disclaimer in Bankkuptct, 322 
 Renewable Leaseholds, 322 
 Assignment, 322 
 Stirebndee. 
 
 Rights of sub-lessee, 322 
 
 By trustee in bankruptcy as against purchaser 
 of fixtures, 322 
 LEGACY. 
 
 Who take as Legatees. 
 
 Misdescription oflegatee : evidence, 323 
 
 Legacy to executor, 323 
 What Property passes. 
 
 Share of leaseholds held in partnership, 323 
 
 Railway shares, 324 
 
 Shares standing in specified names : falsa de- 
 7nonstratio, 324 
 
 Securities for money, 324 
 
 Money due, 324 
 
 Legacy for infant's maintenance, 324 
 What Intpjiest Legatee takes. 
 
 Separate use with direction to settle, 324 
 
 Absolute gift by implication, 324 
 
 Gift cum onere, 324 
 Vested or Contingent, 324 
 Specific, Demonstrative or General, 324 
 Cumulative or Substitutional, 32S 
 Conditional. 
 
 Non-compliance through ignorance, 325 
 
 Impossible condition, 325 
 Ademption and Satisfaction. 
 
 Advancement to child, 326 
 
 Legacy for particular purpose, 326 
 
 Gift of balance, 326 
 
 Payment of debt, 326 
 
 Adeemed devise : intermediate rents, 327 
 
 Conversion of property specifically given, 327 
 Perpetuity, 327 
 Interest on, 327 
 Legacy Free of Duty, 327 
 What Property is applicable to the Pay- 
 ment of Legacies, 327 
 LEGACY AND SUCCESSION" DUTY. 
 Legacy Duty. 
 
 Money to be laid out in land, 327 
 
 Legitimated child of foreigner, 327 
 
 Foreign domicil : estate pm- autre vie, 327 
 Succession Duty. 
 
 When payable; 
 
 Testator domiciled abroad, 327 
 Assignees of insured person, 327 
 Accumulations of income, 328 
 Succession : alienation by remaindermxm to 
 
 corporation, 328 
 Charge of, upon proceeds of sale, 32S 
 Value of succession : allowance in respect of 
 annuity, 328 
 Double Duty, 329 
 LEGITIMACY DECLARATION ACT. 
 Presumption op Marruge, 330 
 Domicile, 331 
 Claim to Babonetcy, 331 
 Evidence, 331 
 LEX LOCI, 331 
 LIBEL. 
 What is Actionable. 
 
 Disparagement of tradesman, 331 | 
 
 Inuendo, 331 
 Publication, 331 
 Privileged Communications. 
 Public meeting, 331 
 
 Public interest : Admiralty minute, 331 
 Military court of inquiry, 331 
 Bishop's charge, 332 
 
 Communication between agents at parliamen- 
 tary election, 332 
 Practice and Pleading in Action for Libel. 
 Married woman having protection order, 332 
 Evidence in support of declaration, 332 
 Plea of Justification, 332 
 Interrogatories, 332 
 Belief in Equity, 332 
 Criminal Information, 333 
 LICENSING. [See Alehouse.] 18 
 LIEN, 333 
 
 LIFE INSURANCE. [See Insurance.] 290 
 LIGHT AND AIR. 
 
 Effect op Prescription Act, 333 
 Construction of Grant, 333 
 Suit for Injunction to restrain Inter- 
 ference with Light and Air. 
 When maintainable. 
 Enlargement of windows by plaintiff', 333 
 Angle of forty-five degrees, 334 
 Amount of injury, 334 
 Personal inspection by Judge, 334 
 Lighting and Watching Rate, 334 
 LIMITATIONS, STATUTE OF. 
 
 When the Statute opeeates as a Bar. 
 
 3 possession. 
 
 By tenant for life under will, 334 
 
 By trustees, 335 
 Rent. 
 
 Seriot, 335 
 
 Person wrongfully claiming, 335 
 Tenancy at will : trust, 335 
 Express trust, 335 
 Concealed fraud: bond fide purchaser for 
 
 value, 336 
 Mortgagor and mortgagee, 336 
 Interest on legacy, 336 
 Partners : fiduciary relation, 337 
 Debtor and creditor, 337 
 
TABLE OF TITLES. 
 
 Private Act restraining alienation, 337 
 When the Statutk begins to eun. 
 Siiccessiie disabilities, 337 
 As against remainderman. 
 Waste, 337 
 
 Tenant in tail creating base fee, 338 
 Tenancy at will, 338 
 Enoroaohment hy tenant, 338 
 Breach of duty by bailee, 338 
 As against solicitor to promoters of company, 
 338 
 How THE Statute mat be barked. 
 What acknowledgment sufficient, 338 
 Acknowledgment by one Joint mortgagee, 338 
 What ainounts to a promise to pay, 338 
 Payment of interest and part payment, 339 
 Set-off of Debt barred by Statute, 339 
 LIMITED OWNEES' EESIDENCES, 339 
 LIQUIDATION BY AEEANGEMENT. [See 
 
 Bankrtjptoi.] 70 
 LIS PENDENS, 339 
 LOCAL GOVEENMENT ACTS, 486 
 LOCKE KING'S ACT. [See Administration.] 
 
 6 
 LOCOMOTIVE, 339 
 LONDON. 
 Small Debts Court; Eemoval op Eeois- 
 
 trab, 340 
 City of London Court, 340 
 Lord Mayor's Court; Jurisdiction. 
 iVew trial, 341 
 Leave to appeal, 341 
 Attachment, 341 
 
 Dishonour of bill or cheque within City, 341 
 Sale of goods, 341 
 Application for prohibition, 341 
 LORD'S DAY, 342 
 LUNATIC. 
 
 Jurisdiction in Lunacy. 
 Lunatic foreigner, 342 
 Appointment of new trustee, 342 
 Practice rtf Lunacy. 
 
 Sale or lease of lunatic's estate, 342 
 Costs and allowances out of estate, 342 
 Summary powers as to realty where estate small, 
 
 342 
 Attending proceedings, 342 
 Property of LrNATXc. 
 Conversion, 343 
 
 Bights of presumptive next-of-kin, 343 
 Iden on hmafi(fs legacy for past maintenance, 
 343 
 Suits and Proceedings by and against 
 Lunatics. 
 Suit by limatio partner for dissolution, 343 
 Lunatic not so found by inquisition, 343 
 Maintenance of CriHinai Lunatic, 344 
 Maintenance of Pauper Lunatic, 344 
 MA.GISTEATES. [See Justice.] 301 
 MAINTENANCE, 345 
 MALICIOUS INJUEY TO PROPEETY. 
 What constitutes Malice, 345 
 Ehasonable Supposition of Eight, 345 
 Information : Ownership of Prosecutor, 345 
 
 MALICIOUS PEOSECUTION, 345 
 MANDAMUS. 
 When it Lies. 
 
 Bight of applicant, 346 
 To Lords of Treasury, 346 
 Costs, 346 
 MANDATQEY INJUNCTION. [See Injunc- 
 tion.] 288 
 MANOE, 347 
 MANSLAUGHTEE, 347 
 MAEINE INSUEANCE. 
 
 Validity of Contract of Insurance under 
 Provisions of 30 Vict. c. 23. 
 Specification of names of underwriters, 347 
 Policy exceeding twelve months, 347 
 Stamp. 
 
 Action on mistamped slip, 348 
 Admissibility of unstamped document, 348 
 Avoidance of Policy. 
 Concealment. 
 Material fact : what is, 348 
 Facts subsequent to initialing slip, 349 
 Mistake in name of ship, 350 
 Mection to avoid contract, 350 
 Misrepreseniation, 351 
 Megal voyage, 351 
 Construction of particular Policies. 
 Policy of insurance against losses as carriers, 
 
 351 
 During stay and trade, 351 
 " Freight," 352 
 Restraint of Princes, 352 
 Contraband op War, 352 
 EisKs Insured Against. 
 
 Inception of risk : "from loading." 
 Reassurance, 363 
 Chartered freight, 353 
 Duration of risk, 363 
 Description of risk, 353 
 Declaration of risk, 354 
 Variation of risk, 354 
 Partial and Total Loss. 
 
 Of vessel : mode of assessing under separate 
 
 outward and homeward policies, 354 
 Of cargo, 355 
 Of chartered freight, 355 
 Constructive total loss, 366 
 Notice of Abandonment. 
 When necessary, 356 
 What am/junts to acceptance, 356 
 Seaworthiness. 
 Warranty of. 
 Implied warranty : policy on cargo, 356 
 Bepresentation as to seaworthiness: time 
 policy, 356 
 Evidence of, 357 
 General Average, 357 
 Insurable Interest, 358 
 Valued Policy, 359 
 Assignment of Policy. 
 Termination c(f interest, 359 
 Bight of assignee to sue, 369 
 Actions and Suit. 
 
 Undisclosed principal, 359 
 
 Suit in equity for return of premium, 359 
 
TABLE OF TITLES. 
 
 MuTUAi, Marinb Instthanob Association. 
 Rules and consUty,tion, 360 
 Contract between society and members, 360 
 MARKET. 
 
 Eight of Sale, 360 
 Tolls, 361 
 Enlaroement, 361 
 MAEKET OVEET. [See Trover.] 570 
 MAREIAGE. 
 Formalities. 
 
 Celebration without license, 36 1 
 Publication of banns, 361 
 
 FOKPEITUEE UNDER MaRRIAGE AcT, 361 
 
 MAEEIAGE SETTLEMENT. 
 
 Covenant or Agreeubnt for Settlement. 
 Agreem,ent by wife's father ^ 362 
 Covenant by husband to settle lands on " issue," 
 
 362 
 Marriage articles. 
 
 Construction and effect of, 362 
 Eight to syedfic performance, 362 
 Construction of Settlfment. 
 Mdest son, 362 
 4s to separate use, Ac, extending to second 
 
 marriage, 363 
 Gift over to class : when class to be ascertained, 
 
 363 
 Vesting : gift over. 
 Provision for issue of children dying before 
 
 becomiiig entitled, 363 
 Trusts for children: child predeceasing 
 
 tenant for life, 363 
 Divesting clause : eldest son, 363 
 Personal representatives, 364 
 Trust for next-of-kin of wife not binding on 
 
 her, 364 
 Shifting clause, 364 
 
 Covenant to settle after-acquired property. 
 To what property it extends, 364 
 Validity of, as against creditors of husband, 
 365 
 Investment in Names of Trustees of Settle- 
 ment, 365 
 Election, 365 
 Effect of Divorce on Settled Property of 
 
 "Wife, 365 
 Jurisdiction, &c., of Court of Chanceet. 
 Mortgage authorised for rebuilding mansion- 
 house, 366 
 Mistake: rectification, 366 
 Bill to set aside settlement by lunatic, 366 
 Equity to a settlement, 366 
 MAEEIED WOMAN'S PEOPERTY ACT. [See 
 
 Babon and Feme.] 85 
 MARSHALLING ASSETS, 366 
 MASTER AND SERVANT. 
 Contract of Service. 
 Non'disclosure of material fact, 366 
 Construction of contract. 
 Service for " twelve months certain," 367 
 Forfeiture of " all wages due," 367 
 Liability of Master for Injury to Servant. 
 Breach of statutory duty, 367 
 Ignorance of servant of defective state of ma- 
 chinery, 367 
 
 Eight of Action by Master for Loss of 
 
 Service, 368 
 Liability of Master for Acts of Servant. 
 Evidence of employment of servant by master, 
 
 368 
 Whether servant acting within the scope of his 
 
 employment, 368 
 Liability as against licensee to use premises, 
 
 369 
 Dangerous animal; evidence of knowledge of 
 
 servant, 369 
 Negligence of fellow-servant : commxin employ- 
 ment, 369 
 Summary Jurisdiction under Master and 
 Servant Act, 1867. 
 Complaint against servant for not entering 
 
 into service, 369 
 Breach of contract to employ, 369 
 Claim for wages, 369 
 Absence without lawful excuse, 370 
 MEDICAL ACT, 370 
 MEMOEANDUM of ASSOCIATION. [See 
 
 Company.] 133 
 MEECANTILE LAW AMENDMENT ACT, 
 
 1856, 370 
 MEECHANT SHIPPING ACTS, 370 
 MERGER, 371 
 MERSEY DOCK ACTS, 371 
 METROPOLIS. 
 Buildings. 
 
 General line of building, 371 
 " Vacant ground," 372 
 Dangerous structure, 372 
 District surveyor' s fees, 372 
 Streets. 
 
 Eepair of footway over private cellar, 372 
 New street. 
 
 Expenses of paving, 372 
 Liability to repair, 374 
 Apportionment of sewers' rates, 374 
 Metropolitan Commons, 374 
 Metropolis Gas Act, 1860, 374 
 MIDDLESEX SESSIONS, 375 
 MILITIA, 376 
 MINES. 
 Eesehvation of Minerals, 375 
 Rights of Surface Owner to Support, 375 
 Covenants as to Working, 376 
 Damage foe Wrongful Woeklng, 376 
 Damage by Escape of Water, 377 
 Custom of Cornwall, 377 
 Account against Mining Association, 377 
 Neglect of Statutory Regulations, 377 
 MISDEMEANOUR, 378 
 MISEEPEESENTATION. [See Fraud.] 259 
 MISTAKE, 378 
 
 MONITION. [See Church and Clergy.] 120 
 MORTGAGE. 
 
 VaIidity of Mortgage. 
 
 Mortgage by trustee under power. [See 
 
 JPo-WBR.] 439 
 Mortgage by company, 379 
 Legal Rights op Mortgagee, 379 
 
TABLE OF TITLES. 
 
 What Peoperty passes. 
 
 StocJc in trade : inventor^/, 379 
 
 Fixtures. [See that title.] 256 
 Ageeement not to call in Mobtqage Monby, 
 379 
 
 MOETGAGE BY WAY OF TRUST FOE SalB, 379 
 
 Mobtqage of Policy of iNstrKANCE, 380 
 MOETGAGE of Ship oe Feeight, 380 
 Po-wBB op Sale. 
 
 Whether extinguished on transfer, 380 
 Surplus proceeds of sale, 380 
 Effect of sale on mortgagee's legal rights, 380 
 Sale of minerals apart from surface, 380 
 Peioeities of Moetgagees. 
 
 Effect of /rand or suppression, 380 
 Priority by obtaining legal estate. 
 Neglect to examine title deeds, 381 
 Mortgage by underlease : assignment of re- 
 version, 381 
 Notice of segtiestration, 382 
 Chose in action : commission in army : notice, 
 
 382 
 Constructive notice, 382 
 Further advances with notice of subsequent 
 
 charge, 382 
 Priority as between equitable mortgagee and 
 
 creditor obtaining charge, 383 
 As between depositees of earlier and later title 
 
 deeds, 383 
 Postponement of mortgagees under section 5 of 
 
 Partnership Act, 1875, 383 
 Priority by registration, 383 
 Irish Registration Act, 384 
 CoNSOLroATION OF Sectteities, 384 
 MASsKALUira, 384 
 
 Peimaby and Collateeal Secueitibs, 384 
 Meegee op Mortgage Teem, 384 
 Accounts. 
 
 Appropriation of balances, 384 
 Mortgage of live stock, 384 
 Discounts on renewal of hill, 384 
 Equitable Mobtoage. 
 
 Remedy of equitable mortgagee, 385 
 Deposit of share or stock certificates, 385 
 Deposit of title deeds, 385 
 Teansfee op Mobtqage, 385 
 Title Deeds, 385 
 
 FOEECLOSUEE AND EeDEMPTION SuITS. 
 
 Pwrties: judgment creixtors, 386 
 Forecloswe decree. 
 
 Jurisdiction, 386 
 
 Tuning into decree for sale, 386 
 
 Form of disputes between defendants, 386 
 Opening foreclosure, 386 
 Redemption suit. 
 
 Refusal of mortgagee to account, 386 
 
 Effect of dismissal of suit, 386 
 Costs. 
 
 Interest on, 386 
 
 Administration suit by mortgagee, 386 
 
 In general, 386 
 
 JUBISDICTION UNDER TeUSTEE AcT, 387 
 
 MORTMAIN, 387 
 MUNICIPAL COEPOEATION. 
 PowEES OF Municipal Cobpoeations, 
 Digest, 1870-75. 
 
 Powers as to dangerous buildings, 387 
 
 Buildings used as watch-houses, 387 
 
 Powers of corporation acting as local board, 
 387 
 
 Right to take tolls, 388 
 
 Expenses payable out of borough fund, 388 
 Qualifications of Aldeemen, Town Coun- 
 
 cilloes, and Bubqesses, 388 
 Municipal Elections. 
 
 Under the Municipal Corporation Acts, 389 
 
 Under the Ballot Act, 1872, 389 
 
 COEEDPT PeACTICES. 
 
 Petition. 
 
 Who may be made respondent, 390 
 Amendment, 390 
 Costs, 390 
 Particulars: form and delivery, 390 
 Amendment of list of objections, 391 
 Several offences : accumulative penalties, 391 
 MUSIC, 391 
 
 MUTUAL BENEFIT SOCIETY, 391 
 MUTUAL CEEDIT. [See Bankeuptcy.] 61 
 NATIONAL DEBT, 391 
 NATURALIZATION, 392 
 NECESSARIES. [See ADMraALTY, Shipping 
 
 Law.] 13, 545 
 NEGLIGENCE. 
 Negligence in the Caee of Animals. 
 Scienter: knowledge of servant, 392 
 Runaway horses, 392 
 Injury to passenger in omnibus, 392 
 Keeping dangerous horse in field, 393 
 Negligence in keeping Peopebty in Unsafe 
 Condition. 
 Poisonoics leaves and clippings of trees, 393 
 Care of ship, 393 
 
 Using defective wagon on railway, 393 
 Dangerous state of highway, 393 
 Unsafe bridge, 393 
 Neglect to repair fences, ^c, 394 
 Damgerous grating over sewer, 394 
 Maintenance of towing path, 394 
 Level crossings over railways, 395 
 Damage by fire from railway banks, 395 
 Escape of water. 
 
 Collecting water on land, 395 
 
 As between occupiers of upper and lower 
 
 fibers, 395 
 Escape from pipe of water works company, 
 395 
 Insufficiently burying sunken anchor, 396 
 Injury to consignee usmg premises, 396 
 Unforeseen accident from acts of skilled work- _ 
 m^n, 396 
 Conteibutoey Negligence, 396 
 Negligence by Peesons m Paeticulae Eela- 
 
 TIONS. 
 
 Valuer or arbitrator, 397 
 
 Patent agent, 397 
 
 By solicitors. [See Attorney.] 36 
 
 By broker. [See Beokee.] 99 
 
 By imnkeeper. [See Innkbepbb.] 289 
 
 Cab owner letting out cab to cab driver, 398 
 
 Livery stable keeper, 398 
 
TABLE O'P TITLES. 
 
 Bailee of bills, 398 
 Statutoky Neslihbnce, 398 
 Damaobs, 399 
 NEGOTIABLE INSTRUMENT, 399 
 NEW TRIAL. [See Peaotice at Law, Peao- 
 
 TiOE IN Equity.] 444, 453 
 NOTICE OF ACTION, 392 
 NOTICE OP DISHONOUE. [See Bixi op Ex- 
 change.] 91 
 NOTICE TO aUIT. [See LANraoBD and Ten- 
 ant, 1, 5 ; Lease', 24.] 304, 321 
 NOVATION, 399 
 NUISANCE. 
 
 When eesteained in Eotjity, 399 
 Action foe, 399 
 Abatement of. 
 
 Smoke nuisance, 399 
 
 Water dropping from bridge over highway, 
 
 400 
 Overcrowding houses, 400 
 " Owner of premises," 400 
 Indictment; Indecency, 400 
 
 NULLITY OF MAEEIAGE. [See Divoece.] 
 
 227 
 OBSCENE BOOK, 401 
 OFFICIAL LIQUIDATOR. [See Banketjptcy.] 
 
 67 
 ONUS OF PROOF. [See Evidence.] 248 
 OPTION, 401 
 ORDER AND DISPOSITION. [^ee Bank- 
 
 EUPTCY.] 62 
 
 OVERSEERS, 401 
 PARENT AND CHILD. 
 
 Gift by Paeent to Child. [See Advance- 
 ment.] 17 
 
 Gift ' by Child to Parent. [See Undue 
 Influence.] 684 
 
 Custody and eeligious Education of Child, 
 401 
 
 Maintenance of Child, 402 
 
 PowEE TO Appoint Guaedian, 402 
 
 Abandonment of Child, 402 
 
 PARKS REGULATION ACT, 402 
 PARLIAMENT. 
 
 Peivileqe of Paeliament, 403 
 Election op Membees. 
 Bribery and corruption. 
 
 Corrwpt practices by agent before joint can- 
 
 didatv/re, 403 
 Votes after notice of disqualification by 
 bribery, 404 
 ■ Election petitions. 
 
 What matter may be enquired into, 404 
 Inspection of marked register, 404 
 Certificate of witness, 404 
 Effect of dissolution of Parliament, 404 
 Scrutiny, 404 
 Costs, 405 
 Election expenses : right of returning officer, 
 
 405 
 Duties of presiding officer, 405 
 Beturn to the cleric of the Crown, 405 
 Ebgisteation. 
 
 Segister, how far conclusive, 405 
 Qualification. 
 For coimty vote. 
 
 Peer ofParUament, 405 
 
 Forty shilUng freeholder, 406 
 
 Bmit-charge, 406 
 
 Interest in land : equitable freehold, 406 
 
 Leasee of chattel rent-charge, 407 
 
 Sub-lessee, 407 
 
 Occupation franchise: rateable value, 
 
 407 
 Sating members, of firm, 407 
 Separate landlords and rating, 407 
 Borough vote : unity of occupation, 407 
 For borough vote. 
 
 Bating qualification, 407 
 Dwelling-house, 408 
 Successive occupation, 408 
 Occupation as "owner or tenant," 408 
 Besidence, 409 
 Lodger franchise, 409 
 Notice of claim, 409 
 Notice of objection. 
 Sufficiency, 409 
 Service by post, 410 
 Property in borough, 410 
 Amendment of description, ^c. 
 County vote, 410 
 Borough vote, 410 
 Practice on appeals, 410 
 
 PAROCHIAL ASSESSMENT. [See Rates.] 506 
 
 PARTIES. 
 
 To Action at Law, 411 
 
 To Suits in Equity. 
 Misjoinder of plaintiffs, 411 
 Suits for reUef on ground of fraud, 411 
 Parties for costs only, 411 
 Suit to establish common rights, 411 
 Suit for abatement of enclosures, 411 
 Bepresentative suit by shareholder, 411 
 Foreclosure suit, 412 
 Administration and partition suits, 412 
 Dispensing with personal representative, 412 
 Suits for breach of trust, 412 
 Suit by one cestui que trust, 412 
 Bill by bankrupt, 412 
 
 PARTITION. 
 
 ^ Disputed Question or Law, 412 
 ^ Sale under PaetitiOn Act, 1868, 31 & 32 
 Vict. c. 40. 
 Prayer of bill for sale, 412 
 
 Married woman, 412 
 
 Infants, 413 
 
 Persons of unsound mind, 413 
 Interests of persons unascertained, 413 
 Compulsory sale, 413 
 Powers under 5th section, 413 
 Absence of parties interested, 413 
 Sale under decree made before the Act, 414 
 Where persons out of the jurisdiction, 414 
 Effect of decree in effecting conversion, 414 
 Costs. 
 Infant plaintiffs, 414 
 Apportionment, 414 
 
TABLE OF TITLES. 
 
 EARTNEESHIP. 
 
 How CONSTITUTED : Pabticipation in Pro- 
 fits, 414 
 
 CONSTEUCTION AND EjTECT OF PaBTNEESHIP 
 
 Aeticles. 
 Provisions as to shares of partners on death 
 
 or retirement, 415 
 
 Arbitration olarise, 415 
 
 Property of Partnership. 
 
 Constructive notice by joint occupation, 415 
 Distress and seizure on pa/rtnership property, 
 
 415 
 Conversion of land into personalty, 416 
 What constitute Profits of Partnership, 
 
 416 
 Liabilities of Partners for Acts of Co- 
 partners. 
 Misapplication of client's money by solicitor, 
 
 416 
 Authority to bind co-partner by banking ac- 
 count, 416 
 Acts of co-partner after dissolution, 417 
 Powers of manager of partnership, 417 
 Dissolution of Partnership. 
 Accounts: right to interest, 417 
 Return of premium, 417 
 Death of Partner. 
 
 lAdbility of executors and surviving partners 
 continuing deceased partner's assets in busi- 
 ness, 417 
 Liability of executors as partners, 418 
 Bights of executors of deceased partner. 
 Completion of subsisting contracts, 418 
 Valuation of assets which cannot be sold, 
 418 
 Priority of creditors, 418 
 Rights op Creditors of Bankrupt or In- 
 solvent Partnership, 419 
 Practice in Partnership Suits. 
 Suit by lunatic partner, 419 
 Costs, il^ 
 
 PARTY WALL.] See Bristol Improvement 
 Act.] 99 
 
 PASSENGER, 419 
 
 PATENT. 
 Validity. 
 
 Application of new material to purpose not 
 new, 419 
 
 Combination of known articles for new pur- 
 poses, 420 
 
 Bight of retiring partner to dispute validity 
 of patent, 420 
 Specification : TrHETHER too large, 420 
 Disclaimer. 
 
 Construction, 420 
 
 TaUng off fie, 420 
 Sealings. 
 
 Priority, 420 
 
 Practice, 421 
 License: Non-Registration, 421 
 Covenant to assign future Rights, 421 
 Infringement. 
 
 What amownts to, 421 
 
 Onus of proof , 422 
 
 Bight of action : articles for me of Crown, 
 422 
 
 Bight to publish threats of proceedings, 422 
 Prolongation of Term, 423 
 Jurisdiction and Practice in Equity. 
 
 Discovery, 423 
 
 Inspection, 423 
 
 Particulars, 423 
 
 Issues, 424 
 
 Evidence of tiser, 424 
 
 Interlocutory injunction, 424 
 
 PAUPER. [See PopR Lav.] 432 
 
 PAVING-, 424 
 
 PAWNBROKER, 424 
 
 PEDLARS, 424 
 
 PEERAGE, 424 
 
 PENAL SERVITUDE, 424 
 
 PENALTY. 
 
 Relief in Euuity, 425 
 
 Penal Enactment : Mens Rea, 425 
 
 Appropriation of Penalties : Receiver of 
 Metropolitan Police, 425 
 PENSION, 426 
 PERJURY, 426 
 
 PERPETUITY. [See Remoteness.] 509 
 PETITION OF EIGHT, 426 
 PETROLEUM, 426 
 PEWS. [See Church.] 118 
 PIER, 427 
 
 PILOTAGE. [See Shipping Lav, R.] 546 
 PIRATE SHIP, 427 
 
 PLACES OF WORSHIP SITES ACT, 427 
 PLEADING AT LAW. 
 
 Declaration, 427 
 
 Plea. 
 Fraud, 427 
 Law of Scotland, 427 
 Non-issuable plea, 428 
 Defect in plea cured by replication, 428 
 Plea of release with condition subsequent, 428 
 
 Equitable Pleas, 428 
 
 Assignment of Error in Fact, 429 
 
 In Particular Actions, 429 
 
 PLEADING IN EQUITY. 
 Bill. 
 
 Scandal, 429 
 
 Offer to do equity, 429 
 Demcreek. 
 
 Want of equity, 430 
 
 Want of parties, 430 
 
 Multifariousness, 430 
 Demureer and Answer, 430 
 Pleas and Depknoes. 
 
 Legal personal representative, 430 
 
 Settled account, 430 
 
 Delay, 431 
 Answer: Sufficiency, 431 
 
 PLEDGE, 431 
 
 POACHING. [See Game.] 268 
 
 POISONS, 431 
 
 POLICE, 431 
 
 c2 
 
TABLE OF TITLES. 
 
 POLICY. [See Insurance, Marine Insueahce.] 
 
 240, 347 
 POLLUTION OF STREAM, 431 
 
 POOR LAW. 
 Gtiaedian: Liability fob Sehinq Goods to 
 
 Parish, 432 
 Overseers' Accounts. 
 Certificate of treasv/rer, 432 
 Fassing of jury lists, 432 
 Compensation to Officers fob Deprivation 
 
 of Office, 433 
 Relieb'. 
 
 Non-liability of grandohMdrm, 433 
 " Valvable security " belonging to 'pauper, 433 
 In Scotland, 433 
 Removal. 
 Jwisdiction of borowgh sessions, 433 
 Irremoveability. 
 
 Brealc of residence, 433 
 Unemancipated child, 434 
 Division ^parish, 434 
 Pauper Lunatic. 
 
 Order for maintenance of criminal lunatic, 
 
 434 
 Administration to guardians, 434 
 
 POOR RATES. [See Rates.] 499 
 PORT, 434 
 PORTIONS, 434 
 POST-OFFICE, 434 
 POSTAL DUTIES, 434 
 POWER. 
 
 Construction: Gift by Implication, 435 
 Execution of Power of Appointment. 
 Execution by will. 
 
 General absolute bequest, 435 
 
 General bequest and subsequent special 
 
 words, 435 
 Construction reddendo singula singulis, 435 
 Execution by deed and will, 435 
 Formalities : instrument delivered, 436 
 Defective execution when aided, 436 
 Excessive execution. 
 Cy-pres, 436 
 
 Appointment to trustee for objtcts of power, 
 436 
 Appointment of life interest with power to ap- 
 point by will, 436 
 Invalid appointment of life interest to husband, 
 
 436 
 Power of appointment to appointee with con- 
 sent of stranger, 437 . 
 Non-exclusive power : gift of legacies to ex- 
 cluded objects of power, 437 
 Perpetuity and remoteness, 437 
 Construction and effect of appointment. 
 " BesidiK " where fund diminished, 437 
 French law of community ; reference back 
 
 to instrument of donation, 438 
 Conversion, 438 
 In general, 438 
 Power of revocation, 438 
 Appointment to donee of absolute power, 438 
 Insolvency of donee, 438 
 Power of Sale, 438 
 
 Powers to Raise and Chabse Portions, 439 
 Power of Advancement, 439 
 
 PRACTICE AT LAW. 
 Service of Process. 
 Service on company, 440 
 Service out of jurisdiction, 440 
 Service out of jumsdiotion of Palatine Cov/rt, 
 440 
 Amendment, 440 
 Interbosatories, 441 
 By plaintiff. 
 
 As to defendants title, 441 
 
 As to payment by defendant where discovery 
 
 would be granted in Equity, 441 
 In action for negligence, 441 
 In action for seduction, 441 
 In libel: tendency to criminate, 441 
 Cross interrogatories discrediting witness, 
 441 
 By defendant. 
 Before plea, 441 
 Privileged communication, 441 
 When money paid into Court, 442 
 In ejectment, 442 
 Answer. 
 
 Insufficiency, 442 
 
 Abandonment of right to answer, 442 
 Witnesses: Order for Examination before 
 
 Trial, 442 
 Affidavit, 442 
 Payment into Court, 443 
 Contempt of Court, 443 
 Notice of Trial, 443 
 
 Signing Judgment at Master's Office, 443 
 Judges' Notes : Stamp, 443 
 Trial of Issue of nul tiel Record, 443 
 Trial at Bar, 443 
 Trial of Undefended Cause, 443 
 New Trial, 444 
 
 Abatement: Judgment nunc pro tunc, 444 
 Taking Documents off File, 444 
 Staying Proceedings. 
 
 On injumction by Court of Admiralty, 444 
 
 Action brought mthout authority, 444 
 
 On ground of non-payment of costs of previous 
 
 trial, 444 
 Until security for costs is given, 444 
 Eekob, 444 
 Appeal, 444 
 
 PRACTICE IN EQUITY. 
 Abatement, 445 
 Administration Summons, 445 
 Affidavit. 
 
 Form of jurat : lunatic witness, 446 
 
 Affidavit sworn abroad, 446 
 
 TaUng offfiU, 446 
 
 Unfiled affidavits, 446 
 
 Affidavit after evidence closed, 446 
 
 Cross-examination on affidavit, 446 
 Amendment. 
 
 Of bill or information, 446 
 
 Of interrogatories, 447 
 
 Of petition, 447 
 Answer. 
 
 Form of, 447 
 
.' TABLE OP TITLES. 
 
 Admissibility in evidence, 44:7 
 
 Plea coupled with answer : irregularity/, 447 
 
 Sufficiency, 447 
 Appmax akd Ek-heabing. 
 
 Eight to appe(d, 447 
 
 Effect of enrolment of order, 447 
 
 Mode of appealing, 448 
 
 Advancing appeal, 448 
 
 Hearing of, 448 
 
 IVotn County Court, 448 
 Appeaeanob, 448 
 Bill. 
 
 Delivery of copy to person not party, 448 
 
 Taking pro confesso, 448 
 
 Schedules, 448 
 Ceetiobaei, 448 
 Chiep Clerk's Certificate, 449 
 
 CONCUEBENT SulTS, 449 
 
 Contempt, 449 
 
 Damages, 449 
 
 Demueeee : Setting Down, 449 
 
 Deposition: Taiung off File, 450 
 
 Dismissal. 
 
 For want of prosecution, 450 
 
 Charges of fraud not proved, 450 
 Enrolment op Decree or Oedee, 450 
 Eyidence. 
 
 Notice to read, 451 
 
 Vivd voce at hearing, 451 
 
 Cross cause, 451 
 
 Burden of proof, 45 1 
 
 Oral examination on oath, 461 
 Hearing in Pritate, 451 
 Interest on Money repaid, 451 
 Interrogatoeies, 451 
 Investment, 452 
 
 ISSITE, 452 
 
 Lis Pendens, 452 
 Long Vacation, 452 
 Motion, 452 
 Nb exeat regno, 462 
 Next Feiend, 453 
 New Trial, 45'3 
 Orders and Decrees. 
 Service : effect of, 453 
 Correction of error, 463 
 Form of, 453 
 Partition Suits, 453 
 Paeties, 463 
 Payment and Transfer. 
 Into Cowt, 463 
 Out of Court. 
 
 To tenant in tail, 464 
 To married woman, 464 
 In other cases, 454 
 Petitions, 464 
 Pro Confesso, 455 
 Production of Documents, 455 
 Beceitbr, 465 
 Bevitor and Supplement. 
 Order of revivor. 
 Death of sole plaintiff, 455 
 Transfer of plaintiff's interest, 455 
 Death of petitioner, 455 
 Devolution of defendants interest on co- 
 plaintiff, 455 
 
 Absence of personal representative, 465 
 Defective suit : leave to take proceedings off 
 
 file, 455 
 Special circumstances, 456 
 Revivor for costs, 485 
 Supplemental bill. 
 
 Change of interest after decree, 456 
 Facts discovered since decree, 456 
 Sales and Purchases under Direction op 
 the Court. 
 Mode of conducting, 456 
 Opening biddings, 456 
 Sale of infants property, 466 
 Sequestration, 466 
 Serticb. 
 
 Of petition, 456 
 Of decree, 456 , 
 
 Out of jwrisdiotion, 456 
 Substituted service, 457 
 Short Cause, 457 
 Special Case, 457 
 Speciai. Examiner, 457 
 Staying Proceedings. 
 Pending appeal, 457 
 In other cases, 458 
 Stop Order, 458 
 Subject-matter, 458 
 Suit in Forma Pauperis, 458 
 Transfer of Cause, 458 
 Witness, 468 
 PBECATOEY TEUST. [See Trust, A 11, 12 ; 
 
 Will, Consteuction, K.] 674, 616 
 PEE-EMPTION, 468 
 PEESCEIPTION, 468 
 PEESENTATION. [See Chuech.] 116 
 PEESENTMENT OF BILL OF EXCHANGE. 
 
 [See Bill of Exchange.^ 91 
 PEESUMPTION. 
 Of Death, 458 
 Of Marriage, 459 
 Age of Child-bbaeino, 459 
 Of Owneeship of Highway, 459 
 
 PEEVENTION OF CEIME, 459 
 PEINCIPAL AND AGENT. 
 
 EeLATION op PRIfrCIPAL AND AgENT HOW 
 
 Constituted, 469 
 Eights and Liabilities of Principal. 
 Liability to indemnify agent, 459 
 lAoMlity as affected by usage or custom of 
 trade. 
 When usage is binding on principal, 459 
 Evidence cf custom making agent liable, 460 
 Bules of Stock Exchange, 460 
 Liability of disclosed principal on written con- 
 tract by agent, 460 
 Liability of undisclosed principal. 
 
 Where principal has settled with agent, 460 
 Election to treat agent as debtor, 461 
 Bights of principal against third parties. 
 Fraudulent scheme by agent, 461 
 Foreign correspondent of English agents, 461 
 Set-off against principal, 461 
 Authority of Agent. 
 
 Factors : " agent entrusted," 462 
 
TABLE OF TITLES; 
 
 Commission agent and foreign principal, 462 
 
 House agent, 462 
 
 Managing director of company , 462 
 
 Contract by letter, 462 
 
 Evidence of extent of authority , 462 
 Liabilities and Duties of Agents. 
 
 Incapacity of agent to profit hy his agency, 462 
 
 Suit for account against agent : damages for 
 negligence, 463 
 
 Liability in respect of money paid by mistake, 
 464 
 
 Liability of broker in trover, 464 
 
 Fraud by agent, 464 
 
 Confidentiajj agent : trade secret, 464 
 EiQHT OF Agent to Commission, 464 
 
 PKINCIPAL AND SURETY. 
 
 Validity and Construction of Guaeantie. 
 Consideration for. 
 
 Withdrawal of proceedings, 464 
 JPrattduient preference, 465 
 Promise by chairman of local board, 465 
 Continuing gtiarantie, 465 
 Payment by Surety: Effect of. 
 
 Bights of surety under limited guarantie, 466 
 
 Set-off, 466 
 
 Marshalling, 466 
 
 Contribution between co-sureties, 466 
 
 DiSCHAEGE OF SuBETY. 
 
 Payment by principal. 
 
 Appropriation of payments by creditor, 467 
 Payment in contemplation of bankruptcy, 
 467 
 Giving time, 467 
 Laches by creditor, 467 
 Composition with principal debtor,^ i6^ 
 Guarantie for honesty of servant, 468 
 PEIOEITY, 469 
 
 PKIVATE CHAPEL. [See Church.] 117 
 PRIVILEGE OF PARLIAMENT, 469 
 PRIVILEGED COMMUNICATION, 469 
 PEIVY COUNCIL, 469 
 PEIZE OF WAE, 469 
 PEO CONFESSO. [See Practice in EauiTY.l 
 
 458 
 PROBATE AND ADMINISTRATION. 
 Jurisdiction of Court of Probate. 
 WUl of realty, 470 
 Probate granted abroad, 470 
 Setting aside will on ground of undue in- 
 fluence, 471 
 Grant of Probate oe Administeation. 
 To whom granted. 
 
 When refused to executor, 471 
 
 Executor for all property not named in will, 
 
 471 
 Substituted executors, 471 
 Substituted trustees, 471 
 To husband of wife convicted of felony, 471 
 When necessary to cite husband, 471 
 To husband's estate after judicial separation, 
 471 
 Chose in action, of wife not reduced into pos- 
 session, 472 
 To guardian without citing next-of-kim, 472 
 
 To unsuccessful opponent of will, 472 
 
 Receiver, 472 
 
 Next-of-kiii. 
 
 Grant to nominee, 472 
 ■>im,t grant, 472 
 _ ' jatee, 472 
 Grant to stranger: special circumstances, 
 
 473 
 Guardians of union as creditors of pauper 
 
 lunatic, 473 
 Equitable creditor, 473 
 Of what granted. 
 Will of married womat), having protection 
 
 order, 473 
 Alterations in military will, 473 
 Words introduced by mistake, 473 
 Eraswre and substitution of legatee, 474 
 Offensive paragraphs, 474 
 Two mils. 
 French and Fhglish: incorporation by 
 
 reference, 474 
 Scotch disposition and settlement, 474 
 Inconsistent wills, 474 
 Will in execution of power, 474 
 Contingent will, 474 
 
 Will and codicils im England without codicils 
 abroad, 474 
 Grant of Administration Limited. 
 
 To bequest to child of married woman under 
 
 1 Vict. c. 26, s. 33, 475 
 To trust property, 475 
 To property in Court of Chancery, 475 
 To property remitted from India, 475 
 Grant to legatee where executor out of juris- 
 diction, 475 
 Supplementing limited grant, 476 
 Administration Pendente Lite, 476 
 Administration Bono, 476 
 Eenunciation, 476 
 Witnesses: Examination. 
 
 Witness described as " elderly person,'' 476 
 Witness neither old nor infirm, 476 
 Evidence. 
 
 Legitimacy, 476 
 Execution of lost will, 476 
 Pleading and Practice. 
 Estoppel. 
 
 Order of Court of Chaiicery, 476 
 Withdrawal of caveat, 477 
 Survivorship: form of procedure, 477 
 Service, 477 
 Motion, 477 
 Subpcena, 477 
 Property allowed to be sworn under different 
 
 amounts, 477 
 Revocation suit : interest, 477 
 Testamentary suit. 
 Examination of next-of-kin, 477 
 New trial, 477 
 Order to attend for examination, 477 
 Compromise, 477 
 
 Change of proctor or attorney, 477 
 Costs. 
 
 Costs out of estate in testamentary suit. 
 Unsuccessful claim, 478 
 Unsuccessful opposition, 47& 
 
TABLE OF TITLES. 
 
 Charge mi real estate, 478 
 Estate in hands of purchaser for vahie 
 without notice, 478 
 Plea of undm infiiicnce in testamentary suit, 
 
 478 
 Executor condemned in costs, 479 
 Costs against Queen's Proctor, 478 
 Calling in probate, 479 
 Taxation of costs : compromise, 479 
 Probate Duty, 479 
 PROCTOR. [See AanrrB/vT.TY, 16; Church and 
 
 Clkeqt.] 121 
 PRODUCTION AND INSPECTION OF DOCU- 
 MENTS. 
 AT LAW. 
 Right to Production. 
 Priwleged communications. 
 Confidential letters, 480 
 Medical reports, 480 
 Interrogatory evidence, 480 
 In action for breach of promise of marriage, 
 
 480 
 Libel, 480 
 
 Fraudulent misrepresentation, 480 
 Infringement of patent, 481 
 Practicb in Particular Cases. 
 
 Mandamus to directors of company, 481 
 Officer of body corporate, 481 
 Documents not in possession of party interro- 
 gated, 481 
 Attachment for non-production, 481 
 Costs of inspection, 481 
 IN EQUITY. 
 
 Right to Production. 
 Privileged communications. 
 Solicitor and client, 481 
 Counsel's opinions, 481 
 Helevanay. 
 
 Names and addresses of customers, 482 
 Documents relating to pa/rty's own title, 482 
 Partnership booJcs, 482 
 Court rolls, 482 
 
 In suit to establish right of common, 482 
 Numerous documents : comparison of hand- 
 writing, 482 
 Documents in constant use, 483 
 As against mortgagee, 483 
 As against executors retaining assets in busi- 
 ness, 483 
 Practice m PABTicutAR Cases. 
 Discretion of Cov/rt, 483 
 Plea by defendant to whole relief, 483 
 Form of order to malce affidavit, 483 
 Form and sufficiency of affidavit, 483 
 Vexatious delay in making affidavit, 484 
 Production to agent, 484 
 Sealing up parts of pedigree, 484 
 Documents subject to claims of third parties, 
 
 484. 
 Cross-examination of secretary of company in 
 
 winding-up, 484 
 Voluminous documents : hire of room, 484 
 
 PROHIBITION. 
 
 Discretion of Court as to Granting Pro- 
 hibition, 485 
 
 Prohibition to Court or Admiralty, 486 
 Prohibition to Lord Mayor's Court, 485 
 Practice: Costs, 485 
 PROOF. [See Administration; Bankruptcy; 
 
 Company.] 16, 55, 167 
 PROSPECTUS. [See Company.] 132 
 PUBLIC BODY, 485 
 PUBLIC ENTERTAINMENTS, 486 
 PUBLIC HEALTH AND LOCAL GOVERN- 
 MENT ACTS. 
 Adoption of the Act : Place hating a 
 
 known and defined boundary, 486 
 Election of Local Board. 
 Notice of qualification, 486 
 Fabrication of voting paper, 487 
 Powers op Local Boards. • 
 
 Fouling stream, 487 
 Filling up ditches at roadside, 487 
 
 New buildings, 487 
 Line of buildings, 487 
 Party malls, 488 
 Dangerous buildings, 488 
 Borrowing money upon security of rates, 488 
 Paving Streets. 
 
 Highway within section 69 of the Public 
 
 Health Act, 1848, 488 
 Apportionment of paving expenses, 489 
 Surveyor's certificate, 489 
 Wh> liable as " owner " of premises, 489 
 Time to recover expenses, 490 
 Service of notice preliminary to information, 
 490 
 Sewers, 490 
 
 Limitation op Sanitary Rates, 490 
 Notice of Action, 490 
 PUBLIC POLICY. [See Contract.] 185 
 PUBLIC SCHOOLS, 490 
 PUBLIC "WORKS LOANS, 490 
 QUAEE IMPEDIT, 490 
 QUARTER SESSIONS, 491 
 QUO WARRANTO, 491 
 RAILWAY. 
 
 Construction of Special Act. 
 
 Charges for conveyance of goods, 491 
 Stopping up streets, 492 
 " Ordinary train," 492 
 Deposited plans, 493 
 Power to lease superfluous lands, 493 
 Solicitor's costs of obtaining Act of Parliament, 
 493 
 Contracts by. 
 
 Contractor: engineer's certificate, 493 
 Contract to build railway station, 493 
 Covenant to stop trains, 493 
 Eunning powers, 494 
 Branch railway : what is, 494 
 Powers. 
 
 Compulsory powers to take land, 494 
 Svmmiajry petition for delivery of arbitrator's 
 certificate, 494 
 Rights of Unpaid Vendors, 496 
 Rights of Creditors. 
 Jvdgmmt creditor, 495 
 
TABLE OF TITLES. 
 
 Creditor leaving claim tmaseeriaimed, 495 
 Dissolution of company, 495 
 Level Crossings. 
 
 Grant of right of wm/, 495 
 Liability/ for unsafe condition, 493 
 Fences, 496 
 
 Repaie of Briuqes, 496 
 Eight to run ENGiiras over Bailwat, 497 
 Communication between Passengers and 
 
 Guard, 497 
 Deposit under Eailways Construction Fa- 
 cilities Act, 497 
 Deposit under Railways Abandonment 
 
 Act, 497 
 Opening of Eailwat, 497 
 Arrangement. 
 
 Under Bailway Companies Act, 1867, '497 
 Under special Act, 498 
 Liability for Acts of Servants, 498 
 Liability fob Negligence, 498 
 Liability as Caeeiees, 498 
 Eailway and Canal Traffic Act ; undue 
 
 Preference, 498 
 Eates and Assessments, 498 
 Duty on Passenger Fares, 498 
 Offences. 
 
 Obstructing signals, 499 
 
 EAPE, 499 
 
 EATES. 
 
 Who ABE Eateaele to the Pooe. 
 Workmen occupying cottages, 499 
 De facto occupiers, 500 
 Exclusive occupation, 500 
 Beneficial occupation, 500 
 Eateability of Particular Property. 
 
 Common lamd : area butts and stare shed oj 
 
 rifle corps, 500 
 Coprolites : shifting occupation, 500 
 Moorings, 501 
 Iron mines, 501 
 Stable within premises of railway company, 
 
 501 
 Cemetery, 502 
 Hospital, 502 
 Bocksheds appropriated to use of shipowner, 
 
 502 
 Metropolitan Board of WorJcs, 503 
 Lands taken for public purposes: liability to 
 
 make good deficiency in poor rate, 503 
 Local statute : Isle of Man, 504 
 General and special legislature : Serjeants' 
 
 Inn, 504 
 Tramways, 505 
 Schools, 505 
 
 BaUways under Local Acts, 605 
 EATEABLte Value and Principle of Assess- 
 ment. 
 Branch line of railway, 505 
 , Land lying near canal, 505 
 
 Sets of room : blocks of buildings, 605 
 
 Annual value, 506 
 
 Deductions, 506 
 
 Parochial and acreage principle, 506 
 
 Exceptional principle : hospital, 506 
 
 Valuation List: Alterations, 607 
 Appeals Against, 507 
 EATIFICATION. [See Contract.] 188 
 EECEIPT. [See Evidence.] 247 
 EECEIVEE. 
 
 IN CHANCERY. 
 When appointed. 
 
 In suit by judgment creditor, 608 
 
 In suit to set aside purchase on grornid of 
 
 framd, 508 
 Pendente lite, 508 
 Security by Eeceivee, 608 
 General Geant of Administration to, 508 
 Peoof by Eeceivee in Bankruptcy, 608 
 IN BANKRUPTCY. [See Bankruptcy.] 81 
 EEOEIVING STOLEN GOODS, 608 " 
 EEFOEMATOEY, 509 
 EEGIMENTAL EXCHANGES, 509 
 EEGISTEATION. 
 
 Of births and deaths, 809 
 Of deeds, wills, and incumbrances, 509 
 EELEASE, 509 
 EEMOTENESS, 509 
 
 EEMOVAL OF POOE. [See Poor Law.] 433 
 RENEWABLE LEASEHOLDS. [See Lease, 
 
 Tenant for Life, Trust.] 322, 562, 676 
 EENT, 304, 318 
 EENT-CHAEGE, 610 
 EEPLEVIN, 510 
 EEPUBLICATION OF WILL. [See Will, 
 
 Formalities.] 631 
 EEPUTED OWNEESHIP. [See Bankruptcy.] 
 
 62 
 EESEEVATION, 510 
 EESTITUTION OF CONJUGAL EIGHTS. 
 
 [See Divorce, 63, 78.] 234, 235 
 EESTEAINT OF MAEEIAGE, 610 
 EESTEAINT OF TEADE, 510 
 EESTEAINT ON ALIENATION, 510 
 EESTEAINT ON ANTICIPATION, 510 
 EETAINEE BY EXECUTOE. [See Executor.] 
 
 250 
 EEVENDE. 
 
 Customs and Excise, 610 
 Inhabited House Duty, 511 
 Income-Tax, 611 
 Duty on Railway Fares, 511 
 REVERSION, 611 
 
 REVIEW OF JUSTICES' . DECISIONS ACT, 
 
 1874, 512 
 EEVIVOE AND SUPPLEMENT. [See Peac- 
 
 TICE IN EaUITY.] 466 
 
 EEVOOATION OF WILL. [See Will, Foem- 
 
 ALITIES.] 629 
 
 EISK. [See Maeine Insurance, F.] 353 
 EIVE^, 512 
 
 ROMAN DUTCH LAW. [See Colonial Law, 
 
 20, 21.] 126 
 SALE. 
 Op Goods. 
 
TABLE OF TITLES. 
 
 Contract in writing: alterations qfter signa- 
 ture, 512 
 Construotion of contract. 
 Mercantile usage, 512 
 Potatoes " growing on land of seller :" im- 
 plied condition, 512 
 Cargo " expected to arrive," 513 
 Time of delivery, 513 
 Sale of specific goods: injunction in equity, 
 
 513 
 Sale by sample, 513 
 Sale by instalments, 514 
 Rescission of contract. 
 Breach of warranty, 515 
 Fraud, 515. 
 In other cases, 516 
 Transfer and vesting of property, 516 
 Vendor's lien, 517 
 Bight to follow money in hands of consignee, 
 
 517 ' 
 Sub-contract : recognition oj rights of sub- 
 vendee, 617 
 Of Land, 517 
 SALMON. 
 Saimon Fisheet Acts, 518 
 Right to Saimon Fishinb, 518 
 SALVAGE, 518 
 SANITAUY acts, 518 
 SATISFACTION, 518 
 SATISFIED TERMS ACT, 518 
 SCANDAL, 619 
 SCHEME. [See Charity.] 114 
 SCHEME OF ARRANGEMENT. [See Com- 
 pany ; Railway.] 146, 497 
 SCHOOL, 619 
 SCIRE FACIAS, 519 
 SCOTCH LAW. 
 
 Husband and Wife. 
 
 Consensual marriage, 519 
 Legitim, 619 
 Divorce, 619, 
 Alehouse, 619 
 Bill of Exchanbb, 619 
 Salb by Sample, 619 
 
 Statutoet Impeovement Commissiokees, 519 
 Aebitbation : Society op Inspectoes of Pooe, 
 
 520 
 Chuech Bells, 620 
 Debtoe and Ceeditoe, 520 
 Law of Real Peopebty. 
 Conveyance: "dispone" 620 
 Setting aside deed, 620 
 Presumption against change of destination: 
 
 extrinsic evidence, 520 
 Entails, 620 
 
 Settlement : charge for yovnger children, 520 
 Power of appointment, 520 
 Minerals, 521 
 Lease of shop, 621 
 Agricultaral lease, 521 
 Teimds, 521 
 Fishery, 521 
 Inventory duty, 621 
 Practice and Jueisdiction, 
 DioEST, 1870-75. 
 
 Costs, 621 
 
 Contmnpt of Court, 621 
 SCRIP CERTIFICATES, 621 
 SEA FISHERIES, 521 
 SEAWORTHINESS. [See Mabine Ijjsubance.] 
 
 356 
 SECURITY FOR COSTS, 621 
 SEDUCTION, 621 
 SEPARATION DEED, 522 
 SEPARATE ESTATE. [See Babon and Feme.] 
 
 85 
 SEQUESTRATION, 522 
 
 SESSIONS. [See Justice of the Peace.] 301 
 SET-OFF. 
 At Law. 
 
 By shareholder of company wound up under 
 
 swpervisiov , 522 
 Plea of equitable set-off, 522 
 Equitable defence to plea of set-off, 523 
 In Equity. 
 
 Misrepresentation, 523 
 Demand in different rights, 523 
 In Bankectptcy, 523 
 SETTLED ESTATES ACTS. 
 Powee of Leasino: EauiTABLE Tenant foe 
 
 Life, 523 
 Practice undee Settled Estates Acts. 
 Advertisement of petition, 524 
 T^me between advertisements and hearing, 624 
 Concurrence of cestuis que trust, 524 
 Persons of unsound mind, 624 
 Married women, bli 
 Sale of , copyholds, 524 
 Interim investment, 524 
 Application of moneys. 
 Permanent improvements, 525 
 Payment to tenant in tail, 625 
 Payment to trustees, 525 
 
 SETTLEMENT. [See Maeeiage Settlement 
 
 Voluntary Settlement.] 362, 694 
 SEWERS. 
 Rate. 
 Exemption, 625 
 Sewage Utilisation Act, 625 
 Ohdee of Seceetaey of State, 526 
 SEXTON. [S'ee BuEiAL.] 100 
 SHAREHOLDERS. [See Company.] 152 
 SHELLEY'S CASE, 626 
 SHERIFF, 526 
 SHIFTING CLAUSE, 626 
 SHIPPING LAW. 
 
 Assignment of Ship, 627 
 Bill of Lading. 
 Construction. 
 Excepted perils, 627 
 Carriage by steamship, 528 
 " Value, §[C., unknown," 528 
 Delivery of goods : custom of port, 528 
 Title to goods. 
 Notice, 529 
 
 Short delivery : constructive notice, 529 
 Appropriation, 529 
 d 
 
TABLE OF TITLES. 
 
 BOTTOMHY. 
 
 Necessity, 630 
 Future freight^ 530 
 
 Notice to owner : authority of master, 830 
 Masters wages, 630 
 Cakso, 530 
 Chabtee-pabtt. 
 Loading of ca/rgo. 
 
 What circwrmtances justify neglect to load, 
 
 530 
 Eight to damages, 531 
 Refusal to load : condition precedent, 531 
 Belay in loading, 531 
 Excepted perils. 
 
 Dangers of seas, 531 
 Restraint of princes : delay, 532 
 Deviation, 532 
 
 Warranty: words of expectancy, 532 
 " FuU and complete cargo," 532 
 Difference between quantity signed for and 
 
 quantity shipped, 533 
 Commission : " inwards and outwards," 533 
 Illegal voyage, 633 
 Collision and Damage. 
 
 International law : Khedive of Egypt, 533 
 
 Steam vessels, 534 
 
 Tug and tow : governing power, 534 
 
 Crossing vessels, 634 
 
 Vessel overtaking another, 534 
 
 Ironclad ship : with ram, 634 
 
 Foul berth, 534 
 
 Moorage, 635 
 
 LoAi/nch, 535 
 
 Lights, 536 
 
 Limitation of liability, 535 
 
 Infringement of regulations tmder Merchant 
 
 Shipping Act, 1873, 835 
 Inevitable accident, 536 
 Gontrilmtory negligence, 536 
 Loss of life, 536 
 Consequential loss, 636 
 Ballast lighter : Thames Conservancy, 537 
 Damage without collision, 537 
 Arrest of freight, 637 
 Delivery, 537 
 Demtjeragb. 
 
 Detention at port of lading, 537 
 Delay in loading, 538 
 Loading in usual manner, 638 
 Fraction of a day, 839 
 Fbeioht. 
 
 Payment in advance, 530 
 Bight to freight. 
 
 Shipowner reserving freight of his own 
 
 goods, 539 
 Mutual mistake, 540 
 
 Performance unlawful by reason of war, 540 
 Dangerous cargo, 540 
 Lump freight, 540 
 Dead freight, 541 
 Lien for freight, 541 
 Eights of mortgagee, 542 
 Derelict : cargo sold by order of Court, 543 
 Insurance, 643 
 Foeeign Ship, 543 
 Genekal AvniiAGE, 644 
 
 Mastee. 
 
 Authority, 544 
 
 Duty of, to check damage caused to goods by 
 excepted perils, 544 
 545 
 
 Meastjeement of Tonnage, 646 
 Mortgage and Lien. 
 
 Lien for freight, 645 
 
 Priority : solicitor's lien, S[c., 645 
 
 Ship " carried into any port" 546 
 
 Mortgagee: possession, bib 
 
 Eights of mortgagee to freight, 545 
 Necessaries, 645 
 Offences, 646 
 Pilotage. 
 
 When comjmlso^y, 546 
 
 Liability of pilot, 646 
 Policy of Insurance, 646 
 Salvage. 
 
 Salvage agreement, 646 
 
 Towage, 547 
 
 Who may be salvors, 647 
 
 Bight to salvage reward, 547 
 
 Distribution of reward, 547 
 
 Life salvage, 547 
 
 Wreck : what is, 548 
 
 Liability of salving vessel for damage, 548 
 Seamen's Sekvicb, 548 
 Wages, 648 
 
 SHOEE, 848 
 
 SIMONY. [See Chuech and Cleegy.] 116 
 
 SLANDEE, 548 
 
 SLATJGHTEE HOUSES. [See Towns Police 
 
 Act, 3.] 666 
 SMOKE. [See Nuisance, 3-5.] 399 
 SOLIGITOE. [See Attoeney.] 35 
 SPECIAL CASE. [See Peactice in Equity, 
 
 132-136.] 467 
 SPECIAL CONSTABLE, 549 
 SPECIAL DAMAGE, 649 
 SPECIFIC APPEOPEIATION, 549 
 SPECIFIC BEQUEST OE DEVISE. [See Le- 
 gacy ; Will, Consteuotion.] 324, 608 
 SPECIFIC PEEFOEMANCE. 
 
 What Agreements will and will kut be 
 enfoeced. 
 Uncertainty . 
 Eeservation of " necessary land for making 
 
 a railway," 549 
 Agreement to build railway station, 849 
 AgrecTnent to make railway siding, 850 
 Agreement to alter ship : whole contract not 
 
 enforceable, 560 
 Motley demand : incomplete contract, 680 
 Public-]u>use : license in name of dead man, 
 
 680 
 Agreement to execute mortgage, 880 
 Agreement varied by parol stimulation, 550 
 Agreement for lease: part perfonname, 660 
 Agreement for compromise, 651 
 Death of arbitrator, 651 
 Agreement to transfer shares, 581 
 Foreign contract, 661 
 
TABLE OF TITLES. 
 
 Sights of sitb-coniractor under one of two con- 
 current contracts, 551 
 In general, 551 
 Grounds for Eefitsino Specific Peefobm- 
 
 ANCE. 
 
 Misrepresentation and concealment, 551 
 
 Misdescription, 562 
 
 Doubtful titU, 552 
 
 Voluntary settlement by vendor, 652 
 
 No title as to moiety, 553 
 Right to Specific Peefoemance with Abate- 
 ment, 553 
 Peactice. 
 
 Reference as to title, 553 
 
 Sale of fixtures : mandatory order, 553 
 
 Declaration as to voluntary settlement, 663 
 
 Absconding defendant. 
 
 Sescission of contract after decree, 653 
 Vesting order, 584 
 
 Costs, 554 
 
 SPECIPICATION. [See Patent.] 419 
 SPORTING. [See Game.] 269 
 STAMPS. 
 
 Conveyance on mortgage, 554 
 
 Conveyance by local board, 554 
 
 Transfer of shares, 555 
 
 Order to pay money, 555 
 
 Drafts by members of benefit building society, 
 
 655 
 Voting paper at municipal election, 665 
 
 STATUTE. 
 
 CoNSTETJCTION of PARTICtTLAB STATUTES. 
 
 Private Act vesting lands in trustees of settle- 
 ment, 655 
 Construction as to period of accounting, 555 
 Statute infiicting penalty for not doing an 
 act, 555 
 Effect of General on Special. Lesislation, 
 
 856 
 Incorporation of Statutes, 656 
 STATUTE OF FRAUDS. [See Featos.] 263 
 STATUTE OF DISTRIBUTIONS. [See Dis- 
 tributions.] 226 
 STATUTORY DUTY, 567 
 STAY OF PROCEEDINGS, 657 
 STOCK EXCHANGE. 
 
 Liability of principal of defaulting broker, 557 
 
 Eight of broker to close accownt, 667 
 
 Contract between vendor and ultimate vendee, 
 
 658 
 
 STOP ORDER. [See Costs in Equity, 30.] 203 
 
 STOPPAGE IN TRANSITU. [See Sale, 18.] 
 
 515 
 STREETS. [See Metropolis.] 372 
 SUBROGATION. [See Insurance, 10.] 292 
 SUCCESSION DUTY. [See Legacy Duty.] 327 
 SUITORS' DEPOSITS, 669 
 SUNDAY, 659 
 
 SUNDAY AND RAGGED SCHOOLS, 659 
 SUPREME COURT OF JUDICATURE, 699 
 SURETY. [See Principal and Surety.] 464 
 SURRENDER. [See Lease, F 1.] 322 
 
 SURVEYOR OF HIGHWAYS. [See Hirh- 
 
 -WAY.] 277 
 SURVIVORSHIP. [See Will, Construction, 
 
 N.] 621 
 SUSPENSION. [See Chuboh and Clergy.] 121 
 TACKING, 559 
 
 TAXATION. [See Costs,] 200, 205 
 TEINDS, 659 
 TELEGRAM, 669 
 TELEGRAPH ACTS, 559 
 TENANT FOR LIFE AND REMAINDERMAN. 
 Right op Tenant foe Life to Custody op 
 
 Deeds, 560 
 Adjustment of Relatite Rights as between 
 Corpus and Income. 
 
 Paynwnt of debts, legates, ^'c, 560 
 
 Legacy where estate insufficient, 560 
 
 Calls on making shares, 560 
 
 Bonus on shares or stock, 560 
 
 Costs incurred under Lands Clauses Act, 561 
 
 Compromise of breach of trust by testator, 661 
 
 Farming stock, 361 
 
 Profits of partnership, 661 
 
 Income of investments unconverted, 561 
 
 Eenewable leaseholds, 562 
 
 Direction to accumulate rents till debts paid, 
 862 
 TENANTS IN COMMON. 
 What Words create Tenancy in Common, 
 
 563 
 Rights op Tenanps in Common, 563 
 THAMES CONSERVANCY ACT, 563 
 THEATRE, 563 
 THELLUSSON ACT, 564 
 THIEVES. [See Habitual Criminals Act.] 
 
 272 
 THREATS. [See Master and Servant.] 366 
 TITHES, 664 
 TOLL, 665 
 
 TONNAGE. [See Shipping Law.] 545 
 TOTAL LOSS, 565 
 TOWNS POLICE ACT, 565 
 TRADE FIXTURES. [See Fixtures.] 256 
 TRADE MARK. 
 
 What may constitute a Trade Mark. 
 
 User of name of a place, 666 
 
 Adjective denoting guality, 666 
 
 Arbitrary name given to new article, 666 
 
 T^ade-mark in gross, 566 
 Infringement. 
 
 User of single word not publioi juris, 566 
 
 User of name with variation, 667 
 
 Claim to be oiiginal inventor, 567 
 
 User of name of former firm, 667 
 
 Evidence of deception of public, 667 
 
 Effect of misrepresentation by plaintiff, 5b7 
 Practice in Suits for Infringement. 
 
 Deception of public, 567 
 Defendant innocent of fraud, 568 
 Discovery and prod'uction, 668 
 TRADES UNIONS, 568 
 
TABLE OF TITLKS. 
 
 TEAMWAYS, 668 
 
 TEANSFEE. 
 
 Of mortgage. [See Mobtoagb, Q.] 385 
 Of shares. [See Company, G e.] 159 
 
 TREASURY, 568 
 
 TRESPASS. 
 
 Right of Action. 
 
 Lessee and sub-lessee, 569 
 
 Tenant of inortgagor and 'mortgagee, 569 
 
 Tenants m common, 569 
 
 Obstruction of highway in navigable lake, 669 
 
 Alteration of drain granted " as at present 
 enjoyed," 569 
 
 Escape of water, 669 
 Eight to Injunction, 569 
 
 TRIAL AT BAR. [See Jxjbisdiction at Law, 
 
 3.] 297 
 TROVER. 
 
 When Action Maintainable. 
 
 Purchaser of goods subject to vendor's lien, 
 
 570 
 Action on estoppel in pais, 570 
 Sale of horse in market overt, 570 
 Waiver of tort by plaintiff, 570 
 Tenant in common, 570 
 What amounts to Conversion, 570 
 Special Damage by Loss of Baeqain, 571 
 Evidence on Tbial tending to peove 
 Felony, 571 
 
 TRUST AND TRUSTEE. 
 Trust. 
 
 Creation of trust. 
 
 Words of present gift, 572 
 
 Transfer to trustees, 572 
 
 Incomplete voluntary gift, 573 
 
 Secret trust, 573 
 Executory trusts : shifting clauses, 573 
 Implied trusts. 
 
 Charge of debts, 574 
 
 Precatory trust, 574 
 Resulting trusts. 
 
 Equitable interest undisposed of, 574 
 
 Purchase or investment in name of wife or 
 child, 574 
 Constructive trusts, 875 
 Trustee. 
 
 What estate passes to trustee, 675 
 Payment to trustees, 675 
 Investments by trustees. 
 
 " Seal or personal" security, 575 
 
 Debenture stocks, 575 
 
 On mortgage of hotel, 575 
 
 Discretion as to time of conversion, 575 
 
 Where no power given, 576 
 
 Control of discretion by Court, 576 
 Renewable leaseholds : charges, 576 
 Contingent remainders, 576 
 Trustees to raise portions, 576 
 Trust for sale, 676 
 Trust to invest in land, 576 
 Powers of trustees. 
 
 Usual, 577 
 
 Power to compromise, 577 
 Allowances, 577 
 
 Liabilities of trustees. 
 
 Breach of trust, 577 
 
 Negligence, 577 
 
 PreinatUre payment to executor, 5t7 
 
 Responsibility for solicitor, 677 
 
 Release by married woman cestui que trust, 
 577 
 Annuity to trustee, 578 
 Right to indemnity from cestui que trust, 578 
 New trustees. 
 
 Appointment of, 578 
 
 What enquiries they should make, 5?8 
 Cestui que Trust. 
 
 Dealings between trustee and cestui que trust. 
 
 Sales and purchases, 579 
 
 Sd-off, 579 
 Breach of trust. 
 
 Misapplication of trust funds, 579 
 
 Sale with depreciatory condition, 580 
 
 Liability of share of defaulting trustee, 580 
 
 Liability of separate estate and feme covert, 
 680 
 
 Liability as constructive trustee, 680 
 
 Acquiescence, 680 
 Conversion, 580 
 Trustee Relief Act. 
 Payment in. 
 
 When justifiable, 581 
 
 Effect of, on powers of trustee, 581 
 Service out ofjiirisdiction, 681 
 Payment out. 
 
 French lunacy, 681 
 
 Mistake in settlement, 581 
 Costs. 
 
 Improper payment in, 581 
 
 TJ'^ounded claims, 682 
 
 Whether pdyable out of corpus or income, 
 582 
 TutsTEE Act. 
 
 Application whether in Chancery or Lunacy, 
 
 582 
 Service on new trustee, 682 
 Appoimtmmits pf new trustees. 
 
 Appointment of feme sole, 582 
 
 Appointment in place of bankrupt trustee, 
 582 
 
 Residence abroad, 582 
 
 Constructive trustee, 682 
 
 Discharge of one trustee, 682 
 
 Trustees predeceasing testator, 683 
 
 Infant devisee, 682 
 
 Vesting order. 
 Copyholds, 683 
 Leaseholds, 683 
 
 TRUSTEE IN BANKRUPTCY. [See Bank- 
 ruptcy.] 62 
 
 TRUSTEE ACT, 682 
 
 TRUSTEE RELIEF ACT, 581 
 
 TURNPIKE. 
 Tolls. 
 
 " Taxed cart," 683 
 Exemptions, 583 
 Locomotive steam-plough, 583 
 Dissenting minister, 583 
 
TABLE OF TITLES. 
 
 Evasion of Toml, 583 
 Application op Tolls, 584 
 PowEBs OF TcHNPikE Tbustees, 584 
 
 UNDUE INFLUENCE. 
 Acts inthb Vivos. 
 
 Solicitor and client, 584 
 
 Parent and child, 584 
 
 Trustee and cestui que trust, 685 
 
 Persons in confidential relations, 685 
 Will, 686 
 
 UNDUE PREEEEENCE, 586 
 
 UNION ASSESSMENT COMMITTEE ACT. 
 [See IUtm, 32-37.] 607 
 
 UNIVERSITY, 586 
 
 USAGE OF TRADE. [See Custom.] 218 
 
 USURY, 586 
 
 VACCINATION, 586 
 
 VAGRANT, 587 
 
 VALUATION LIST. [See Rates.] 507 
 
 VENDOR AND PURCHASER. 
 
 FobmatiIties Requisite foe Gontbact of 
 
 Sale, 587 
 Pabtictjlaes and Conditions op Sale. 
 Misdescription in particulars, 687 
 Misleading condition, 688 
 Objections to and requisitions on title, 588 
 Valuation of timber, 589 
 Depredator?/ conditions, 589 
 Penal conditions, 589 
 AuTHOEiTT OF HousB Agent, 589 
 Constbuotion and Effect op Contbact of 
 Sale. 
 Description of subject-matter, 689 
 Sale of business : implied covenant, 689 
 notice to vendor of charge on contract, 589 
 lAabUity of vendor remmnmg in possession, 
 690 
 Time of the Essence op the Contbact, 590 
 Appobtionment of Pubchase-money, 690 
 Completion: Peesence of Vendoe, 690 
 Pabtxes to Conveyance, 690 
 Vendoe's Lien, 591 
 
 Effect op Conveyance on Eights of Ven- 
 doe AND PUBCHASEE. 
 
 Mistake as to property, 891 
 
 Mistake as to title, 891 
 Adverse Rights of Third Pabties. 
 
 Purchaser without notice having legal estate, 
 691 
 
 Notice of tenancies and incmrfhranoes, 591 
 Deposit. 
 
 Forfeiture of, 592 
 
 Eecovery of, 692 
 Rescission of Contbact, 593 
 Sale by Couet, 893 
 
 Remedies at Law fob Breach of Contract, 
 693 
 
 VENUE, 593 
 
 VESTING ORDER. [See Tedstee.] 683 
 
 VOLUNTARY ASSOCIATION, 594 
 
 VOLUNTARY SETTLEMENT. 
 Considekation. 
 
 Consideration not expressed on face of deed, 
 594 
 
 What amownts to payment or benefit, 594 
 
 Immoral consideration, 594 
 Validity as against Cbeditoes, 594 
 Effect of, on Title op Settloe, 695 
 Enfoeoement of. 
 
 Incomplete trust, 695 
 
 Liability in respect of false recital, 695 
 
 Trusts for maintenance of children, 596 
 Setting aside. 
 
 Absence of power of revocation, 595 
 
 Innocent misrepresentation, 596 
 
 By creditor in action subsequent to settlement 
 for tort committed before it, 596 
 
 WAGES, 696 
 WAR OFFICE, 696 
 WARD OF COUET, 596 
 WARRANTY, 596 
 WARREN, 696 
 WASTE. 
 
 What amounts to Waste. 
 
 New building, 697 
 Injunction, 597 
 Account, 697 
 Damages, 697 
 WATERCOURSE, 597 
 WATER RATE, 598 
 WATERWORKS, 599 
 WAY. 
 
 Construction of Geant. 
 
 Right appurtenant or in gross, 599 
 Nature of right granted, 699 
 Mode of enjoyment of right, 699 
 Lewd crossings over railway. 
 
 Imposing additional burden on servient 
 
 tenement, 599 
 Restriction of user, 599 
 Obstbuction: Right to go Extsa Viam, 600 
 
 WEIGHTS AND MEASURES, 600 
 
 WEST INDIES (INCUMBERED ESTATES), 
 
 600 
 WILL. 
 
 CONSTRUCTION OF WILLS. 
 Paeol Evidence op Intention, 602 
 Contingent Will, 602 
 Will in Execution of Powee, 602 
 Descbiptions of Property. 
 To what period referable, 602 
 La9ids, 602 
 
 Lands in particular parish, 602 
 Freehold houses : mortgage debt, 602 
 Free occupancy of house, 603 
 Leasehold villas with ornamental park, 603 
 Property " specifically " devised, 603 
 Interim rents, 603 
 Intermediate income, 603 
 Annuity, 603 
 
 Articles in or about house and premises, 603 
 Furniture, ^c, 603 
 " Money " or •' moneys," 604 
 Sams due and owing, 604 
 
TABLE OF TITLES. 
 
 Money in fuuds : small balance, 604 
 
 Funds ptirc?iased oat of savings of married 
 
 woman, 604 
 Personal estate and effects, 604 
 Testamentary expenses, 604 
 Ebsibuaey and GrENEaAi Devises and Bb- 
 
 aUBSTS. 
 
 What they comjyrise. 
 Proceeds of real estate passing under gift of 
 
 'personalty, 605 
 Trust and mortgage estates, 605 
 What words carry residue. 
 Gift of particular residue. 
 Of lands, 605 
 
 Fund to provide for annuities, 605 
 " All the rest " carrying real estate not other- 
 
 ■wise mentioned, 605 
 Gift without naming donee, 605 
 Residuary devise whether specific, 605 
 Lapse of share of residue, 605 
 Deduction of advances, 606 
 Specific Devises and Bequests, 605 
 Ambiguity and Unceetaintt, 606 
 Effect of blank in will, 606 
 Misdescription of legatee, 606 
 Misdescription of property, 606 
 Parol evidence : when admissible, 607 
 Who take. 
 
 Charitable bequests, 607 
 Cfift to a class. 
 Lapse, 608 
 
 Period of ascertaining members, 608 
 Children living at decease of tenant for life, 
 
 608 
 Children or their families, 608 
 Children or legal issue, 609 
 Illegitimate children. 
 
 Whether they can take under gift to children, 
 
 609 
 Provision for after-born illegitimate child- 
 ren, 610 
 Brothers and sisters : brother en ventre, 610 
 " Nephews and nieces," 610 
 " Legal personal representatives," 610 
 "Heirs," 610 
 
 " Belatives " or relations, 610 
 Child en ventre, 611 
 "Eldest son," 611 
 
 "Every other son during his life," 611 
 Gift to a woman and her children, 611 
 Gift to a woman for life with remainder to 
 
 her husband, 611 
 Per capita or per stirpes, 611 
 Whether executors and trustees tahe beneficially, 
 611 
 "What Estate or Interest passes. 
 Joint tenants or tenants in common, 612 
 Joint tenancy or successive interests, 612 
 Estate of trustees. 
 
 Whether legal estate passes to trustees, 612 
 Duration of legal estate, 613 
 Annuity to trustee, 613 
 Devise before Wills Act without words of limi- 
 tation, 613 
 Devise of income passing fee, 613 
 
 Bepugnant devise or beguest, 613 
 
 De vise of copyholds, 614 
 
 lienewahle leaseholds: incidence of charges, 
 614 
 
 Bute in Shelley's case, 614 
 
 Estate tail or life interest, 615 
 
 Life estate or absolute interest, 615 
 
 Absolute gift cut down, 615 
 
 Absolute gift or trtist, 615 
 
 Trust or charge, 616 
 
 Grift by implication, 616 
 
 Advowson : tenancy for life, 616 
 
 Accumulations of income, 616 
 Peecatory Teusts, 616 
 Vestins: Gift ovee. 
 
 Gift to sons for their lives and " at their death" 
 to their children, 616 
 
 Gift to children " when and as they should 
 attain twenty-one," 616 
 
 Gift to class at a particular' period with de- 
 claration as to vesting of shares, 616 
 
 Gift over on death mthout issue, 617 
 To what period referable, 617 
 Whether importing indefi/iiite failure of 
 issue, 617 
 
 Gift over on death " leaving " no issue, 617 
 
 Gift over in default of " such" issue : ambi- 
 guity, 617 
 
 Implication of cross-remainders, 618 
 
 " And " for " or " and " or " for " and," 619 
 
 Gift over on death under twenty-one, 619 
 
 Grift of income for maintenance, 619 
 
 Direction for payment at twenty-four, 619 
 
 Absolute gift at twenty-five : gift over on death, 
 620 
 
 Gift over before interest vested, 620 
 
 Gift over by implication, 620 
 
 Gift over on insolvency, 620 
 
 Crlft over on failure of trust being ascertained, 
 620 
 
 Shifting clause, 621 
 Hotchpot Clause, 621 
 Substitution and Suevivoeship. 
 
 Substitution in lifetime of testator, 621 
 
 Period of substitution of issue, 622 
 
 Period of survivorship, 622 
 
 " Survivor " read "other," 622 
 
 " Living " held to mean " having iism 
 622 
 Conditional and Contingent Gifts. 
 
 Conditional gift founded on mistake, 623 
 
 Impossible condition, 623 
 
 Devise contingent on non-sale of property, 623 
 
 Gift for particular purpose, 623 
 
 Condition as to residence, 623 
 
 Condition in restraint of alienation, 623 
 
 Condition in restraint of marriage, 624 
 
 Condition not apportionable, 624 
 
 Gift cum onere, 624 
 ExECUTOKY Gifts, 624 
 Trusts by Refekence to other Trusts. 
 
 Multiplication of powers, 624 
 
 Vesting of leaseholds in tenant in tail, 626 
 Remoteness, 625 
 Paeticulae Words, 625 
 
TABLE OF TITLES. 
 
 VALIDITY OF WILLS AND SEQUISITE 
 
 FOEMALITIES. 
 Competency of Testatok. 
 
 Mmtal capacity, 626 
 
 Unckie influence, 626 
 
 Onus of proof : suspicious circumstances, 626 
 What Papers are Testamentary, 626 
 What Documents form Part op Wnx, 626 
 Execution. 
 
 Place of signature, 627 
 
 Acknowledgment of signature, 627 
 
 Exeotition of v/rong will by mistake, 628 
 
 Addition of clause after signature, 628 
 Attestation. 
 
 Form of subscription, 628 
 
 Incomplete signature by witness, 628 
 
 Signature as executor, 628 
 
 Attestation by beneficiary, 628 
 Will of Eeme Covert inoperative m Events 
 
 ^thich happened, 628 
 Eevocation of Will. 
 
 Alterations and obliterations, 629 
 
 Tearing : animus revocandi, 629 
 
 Will burnt, but codicil preserved, 629 
 Eevocation by subsequent instrument, 630 
 Dependent relative revocation, 630 
 Conditional revocation, 631 
 
 Admissibility of declaration by testator, 631 
 Burden of proof as to tiine of cancellation, 
 631 
 Bepublication and Revival of Will. 
 Will of married woman, 631 
 Bevival by codicil, 631 
 
 WINDING-UP. [See Company, I.] 172 
 
 WINE AND BEERHOUSE ACT. [See Ale- 
 house.] 21 
 
 WITNESS, 632 
 
 WORK AND LABOUR, 632 
 
 WORKSHOP REGULATION ACT, 632 
 
 WOUNDING, 632 
 
 WRIT OF ERROR, 633 
 
 YORKSHIRE REGISTRY ACT. [See Mort- 
 gage, 26, 27.] 383 
 
AN 
 
 ANALYTICAL DIGEST 
 
 OP THE 
 
 CASES REPORTED AND PUBLISHED 
 
 From Michaelmas Term 1870 to Trinity Term 1875, 
 
 AND CONTAINED IN 
 
 THE LAW JOUKNAL REPORTS, 
 an& otj&ec Contemporncp Hepoct^; 
 
 ■\^'ITH 
 
 references to statutes passed within the same period. 
 
 ABANDONMENT. 
 
 Abandonment of Child. 
 [See Parent and Child, 7.] 
 
 Abandonment of Eailvrays. 
 [See Bailtvat, M.] 
 
 ABDUCTION. 
 
 By 24 &25 Vict. c. 100, s. 55, "Whosoever 
 sliall unlawfully take or cause to be taken any un- 
 married girl under tbe age of sixteen years out of 
 the possession and against the mil of her father 
 or mother, or of any other person having the law- 
 ful care or charge of her shall be guilty of a misde- 
 meanour." A man took out of the possession and 
 against the ■wiU of her father, a girl of the age of 
 fourteen, who, however, looked much older than 
 sixteen ; and the jury found as a fact that before 
 the man took her away she had told him she was 
 eighteen, and that he bond fide believed such 
 statement, and that such belief was reasonable : 
 — Held, that he was guilty of a misdemeanour, 
 though he did not know the girl was under the 
 ago of sixteen, and believed he knew she was not — 
 Brett, J., dissenting. The Queen v. Prince, 44 Law 
 J. Eep. (n.s.) M.C. 122 ; Law Eep. 2 0. C, E. 154, 
 " DioEST, 1870—1875. 
 
 ABOLITION OF TESTS. 
 
 [Amendment of the law respecting religious 
 tests in the Universities of Oxford, Cambridge, and 
 Durham. 34 & 35 Viot. o. 26.] 
 
 ACCOUNT. 
 
 (A) When an Acooitnt witi. be decbbed in 
 Equity. 
 
 (B) Settled Account. 
 
 (A) When an Account will be decreed in 
 ' Equity. 
 
 1. — The S. Dock Company were liable under 
 Act of Parliament to pay the S. Harbour and Pier 
 Board deficiencies of their income which might 
 occur after the opening of the Docks. Such de- 
 "ficioncies were not claimed for several years; — 
 Held, that the Dock Company had a right to have 
 the accounts taken in equity. The Southampton 
 Dock Co. v. The Southampton Harbour and Pier 
 'Board, 40 Law J. Eep. (n.s.) Chanc. 82 ; Law Eep. 
 11 Eq. 264. 
 
 2. — Land was held under a lease by a person 
 
 as trustee for a number 8f partners, who were npt 
 
 incorporated, but constituted an association fqi 
 
 mining purposes : — Held, that the Court of Chw- 
 
 B 
 
ACCOUNT— ACTION, 
 
 CGry had jurisdiction to decree an account against 
 the association as equitable lessees, of the land. 
 Wright V. Pitt, 40 Law J. Eep. (n.s.) Ohanc, 558 ; 
 Law Hep. 12 Eq. 408. 
 
 Accounts on dissolution of partnership. 
 [See Pabtnebship, 16.] 
 
 Account against vendor remaining in pos- 
 session. [See Venboe and Pubchaseb, 
 13.] 
 
 Account by donee of annuity on trust, at his 
 discretion, for maintenance of an infant. 
 [See Infant, 6.] 
 
 Account against mining association, [See 
 Mine, 19.] 
 
 Accounts as between mortgagor and mort- 
 gagee. [See MoBTGAGE, 34-36.] 
 
 Accounts as between principal and agent, 
 [See Pbincipal and Agent, 16-24.] 
 
 Account of proceeds of timber wrongfully 
 severed. [See Waste, 4.] 
 
 Compulsory reference to arbitration. [See 
 Abbiteation, 13.] 
 
 (B) Sbttked Accodnt. 
 
 Pleading settled account. [See Pleading 
 in Equity, U.] 
 
 AOICNOWLBDGMENT OF DEED. 
 Affidavit. 
 
 1. — Where the jurat of the affidavit of veri- 
 fication of an acknowledgment taken in Pennsyl- 
 vania did not state the place of acknowledgment 
 or describe the deponent, but there was a notarial 
 certificate supplying the defects, the certificate of 
 acknowledgment was allowed to be filed. In re 
 Ann Coldwell, Law Rep. 10 C.P. 667. 
 
 2.r— The affidavit verifying the certificate of 
 acknowledgment of a deed executed by a married 
 woman may be sworn in Guernsey before the chief 
 bailiff and two jurats. In re Eleanor Mary Mann, 
 Law Eep. 10 C.P. 473. 
 
 3. — The omission of the description of a special 
 commissioner to take the acknowledgment of a 
 •married woman is an irregularity when it oocnrs 
 in the aflidavit of verification ; but it may be cured 
 by a statement of identity. In re Howard ; and In 
 re Ashcrnft, 43 Law J. Hep. (n.s.) C.P. 245 ; Law 
 Eep. 9 C.P. 347. 
 
 An unsigned affidavit of verification sworn in- u 
 foreign possession of the British Crown may be 
 sufficient, if the jurat contains a statement that 
 the oath was administered before a Court, Judge, 
 magistrate, commissioner, or notary public, pur- 
 suant to the General Rule of this Court, Hilary 
 Term, 1863. Ibid. 
 
 Acknowledgment ahroad. 
 
 4. — Where a deed had been executed by a 
 ■ married woman and her acknowledgment taken at 
 Melbourne, in Australia, before two commissioners 
 under a special commjssion, and afterwards the 
 deed so executed with the affidavit and certificate 
 of acknowledgment had been returned to this 
 country, but without the commission, the Court 
 
 allowed the certificate and affidavit verifying the 
 same to be filed, there being an affidavit by one of 
 the commissioners, before whom the acknowledg- 
 ment had been taken, that he was one of the per- 
 sons to whom the commission was directed, and 
 that the certificate had been signed by him and A. B., 
 " the other commissioner." In re Edsall, 44 Law 
 J. Eep. (n.s.) C.P. 228 ; Law Eep. 10 C.P. 472. 
 
 5. — Where a commission for taking the acknow- 
 ledgment of a married woman in a remote part of 
 Victoria was returned with a defective affidavit of 
 verification, and the documents were sent out 
 again by post and lost ; the Court allowed a dupli- 
 cate commission to go. Ex parte. White, Law Eep. 
 8 O.P. 106. 
 
 Evidence of sealing. 
 
 6, — A deed acknowledged by married women 
 under the Fines and Eecoveries Act, 3 & 4 Will. 
 4. c. 74, was duly signed by them, but no seal was 
 affixed to it, though pieces of ribbon were inserted 
 in the parcliment opposite to the signatures on 
 which seals were to have been put. The attesta- 
 tion clause stated the deed to have been " signed, 
 sealed, and delivered " in the presence of the at- 
 testing witnesses, and the certificate of the com- 
 missioners before whom the acknowledgment had 
 been taken certified that the married women had 
 acknowledged the instrument as their respective 
 acts and deeds: — Held, ynwa /acje evidence, that 
 the deed was sealed, and there being no evidence 
 to the contrary the certificate of acknowledgment 
 was allowed to be filed. In re Mayer, 40 law J- 
 Eep. (n.s.) C.P. 201 ; Law Eep. 6 C.P. 411, mm. 
 In re Sandilands... 
 
 ACQUIESCENCE. 
 In breach of trust. [See Trust, C 10, 11.] 
 Effect of, in suit for injunction. [See In- 
 junction, 21, 22.] 
 
 ACTION. 
 
 (A) When maintainable. 
 
 (a) By executor for injury to personal 
 estate of testator by breach of contract, 
 
 (i) Breach of statutory duty. 
 
 (e) Expulsion of member of insurance so- 
 ciety mthout hearing defence. 
 
 {d) Money paid: misrepresentation, 
 
 (c) Foreign judgment: mistake as to 
 English law. 
 
 (/) For costs. 
 
 Ig) Effect of proceedings in previous actions. 
 
 (1) Confession of plea : release, with 
 condition subsequent. 
 
 (2) Cross-action : settlement of previous 
 action. 
 
 (h) In other cases. 
 
 (B) Notice op Action: Statutoet Acts> 
 (a) Under Public Health Act. 
 
 (i) Apprehension without warrant under 
 
 Larceny Act. 
 (c) Action against surveyor of highwat/s.' 
 
ACTIOK (A). 
 
 3 
 
 (A) When MAiOTAmABiB. 
 
 (a) By executor for injury to personal estate of 
 testator by breach of contract. 
 \. — C, ■whilst ti-avelling as a passenger upon 
 the defendants' railway, met with an accident 
 through their default, which . occasioned him 
 bodily harm; he -was in consequence imable to 
 attend to his business of a bootmaker, which 
 became less profitable to him, and he incurred 
 medical expenses in endeavouring to cure his 
 bodily injuries. C. died of a disease unconnected 
 with the accident. The female plaintiff, as his 
 executrix, sued to recover compensation for the 
 sums expended in medical attendance, and for 
 the loss of profit arising from C.'s inability to 
 attend to his business. The declaration was 
 framed upon a contract between C. and the de- 
 fondants, and alleged that by breach of it his 
 personal estate was lessened in value. At the 
 trial the jury found a verdict for the plaintiff 
 for 2002., of which 1602. was given for the loss 
 sustained in C.'s business, and iOl. for the medi- 
 cal expenses : — Held, that the action was main- 
 tainable ; for the right to sue in respect of the 
 breach of contract survived to the executrix, the 
 maxim, " actio personalis moritur cum persona," 
 did not apply, and none of the provisions in 9 & 
 10 Vict. c. 98, took away the cause of action ; 
 and held, further, that the damages given in re- 
 spect of the loss of profit in C.'s business were not 
 too remote. Bradshaw v. The Lancashire and 
 Yorkshire Railway Company, 44 Law J. Eep, 
 (n.3.) C. p. 148; Law Eep. 10 C.P. 189. 
 
 (A) Breach of statutory dvty. 
 
 2. — Where a plaintiff's premises were burnt 
 down owing to the neglect of a water company to 
 keep their pipes charged with water at the sta- 
 tutory pressure : — ^Held, following Couch v. Steel 
 (3 E. & B. 402), that an action for damages would 
 lie. Atkinson v. The Newcastle and Gateshead 
 Waterworks Company, Law Eep. 6 Kxch. 404. 
 
 3. — ^A declaration alleged that the defendant 
 contracted with the plaintiff to carry on board 
 his vessel the plaintiff's sheep from Hamburg to 
 Newcastle, and omitted to provide any pens, bat- 
 tens or footholds for the sheep on board the ves- 
 sel, as required by an Order of the Privy Council ; 
 and that by reason of this omission the sheep 
 were washed overboard by the sea and lost. The 
 Order was made under the powers conferred by 
 section 75 of the Contagious Diseases (Animals) 
 Act, 1869, which imposes penalties for disobe- 
 dience : — ^Held, that the declaration was bad, be- 
 cause the object of the Act and the Order of the 
 Privy Council was not to protect owners of ani- 
 mals from such injuries, but to prevent the intro- 
 duction and spread of contagious diseases in Great 
 Britain. Gorris v. Scott, 43 Law J. Eep. (n.s.) 
 Exch. 92 ; Law Eep. 9 Exch. 125. 
 
 (c) Expulsion of mamber of insurance society with- 
 out hearing defence. 
 
 4. — Declaration that the plaintiff was a mem- 
 ber of a marine insurance association, and that 
 
 the defendants were the committee of the society, 
 and one of the rules was that they should have 
 entire control of its affairs, and "That if the com- 
 mittee shall at any time deem the conduct of any 
 member suspicious, or that such member as for 
 any other reason unworthy of remaining in this 
 society, they shall have full power to exclude such 
 member by directing the secretary to give such 
 member notice in writing that the committee 
 have excluded such member .... and after 
 the giving of such notice such member shall be 
 excluded, and have no claim or bo responsible for 
 or in respect of any loss or damage happening 
 after such notice ; " that the plaintiff was entitled 
 to receive, and, but for the grievances thereinafter 
 mentioned, would have received, from the funds of 
 the society an indemnity for any loss or damage 
 to his ship by the perils of the sea during his 
 membership. Breach, that the defendants, well 
 knowing the premises, but wrongfully, coUusively, 
 and improperly contriving to deprive the plaintiif 
 of the benefit of such indemnity .... did wrong- 
 fully, coUusively, and improperly expel the plain- 
 tiff from the society, on the alleged ground that 
 his conduct was (in the terms of the rule) suspi- 
 cious, without any just, reasonable or probable cause 
 whatsoever for such expulsion, and without giving 
 him any opportunity of being heard, and without 
 in fact hearing the plaintiff or any person on his 
 behalf in defence and vindication of his conduct. 
 And that a few days after the expiUsion his ship 
 sustained damage, and, but for the expulsion, he 
 would have been entitled to receive, and would 
 have received a certain sum as indemnity for the 
 damage, and that by reason of his expulsion ho 
 had lost the said sum: — Held, on demurrer, that 
 the declaration was bad ; per Kelly, C. B., and 
 Amphlett, B., because as the committee had not 
 heard the plaintiff, nor given him an opportu- 
 nity of being heard before them in his own de- 
 fence, their act of expulsion was void, and he 
 remained stiU a member of the society, and enti- 
 tled to all his rights of membership, and, there- 
 fore, had not suffered the damage alleged. Per 
 Cleasby, B., because, even if a fraudulent expul- 
 sion would . have been actionable, there was no 
 allegation that the act of the defendants had been 
 fraudulently done. Per Pollock, B., because the 
 declaration omitting any distinct allegation of 
 fraud did not shew such a wrongful act as would 
 be actionable without damage, and the expulsion 
 being invalid, the damage laid had not occurred. 
 Wood V. Wood, 43 Law J. Eep. (n.s.) Exch. 153 ; 
 Law Eep. 9 Exch. 190. 
 
 {d) Money paid: misrepresentation. 
 
 5. — H., who was interested in a certain pro- 
 cess for converting sewage into manure, trans- 
 ferred his interest to L., who transferred the 
 same, with certain patents which had been 
 taken out for the process, to the defendants, a 
 joint-stock company. H. was a shareholder in 
 and a director of the company. The people of 
 Berlin, wishing to utilise their sewage, applied to 
 L., who arranged with H. that the plaintiff, act- 
 ing as the agent of H., should purchase from the 
 
ACTION (A). 
 
 defendants, as for himself, the exclusive right of 
 using their process in Berlin for 16,000^., after 
 which he should eonrey the same to L. for 30,000?., 
 and then L. was to convey the same to M., a clerk 
 of H., in trust for a company to he formed at 
 Berlin. M. was not to incur any liability. A 
 company, called the Berlin Company, was then 
 formed, and a prospectus issued, stating that the 
 company had secured the exclusive right for 
 Berlin of iisiog the process. The shares in the 
 company were taken up, and the 30,000Z. paid. 
 Of this sum H. paid 15,000?. to the defendants, 
 and kept the rest. The 15,000i!. paid to the de- 
 fendants was divided by them by way of divi- 
 dends. No patent ha'l been taken out for 
 Prussia, nor were the defendants able to transfer 
 the exclusive right of using the process at Berlin. 
 This was not known to the defendants, though it 
 was to the plaintiff and to H. and to the directors 
 of the Berlin Company, but not to the share- 
 holders : — Held, in an action brought by the 
 plaintiff to recover back the 15,000?. paid to the 
 defendants, that he was not entitled to recover it, 
 on the ground of a total failure of consideration. 
 Held also, that, inasmuch as he was aware that 
 the exclusive right to use the process could not be 
 granted, and as therefore the assurance of such 
 exclusive right amounted to a false representation 
 and to a fraud upon the parties, he was precluded 
 from maintaining the action, upon the principle 
 that money paid in pursuance of a fraud or other 
 unlawful purpose cannot he recovered back. 
 Segbie v. The Phosphate Sewage Company, 4iLaw 
 J. Eep. (n.s.) Q. B. 233 ; Law Kep. 10 Q. B. 491. 
 
 (c) Foreign judgment : mistake as to English 
 law. 
 
 6. — In an action on the judgment of a foreign 
 tribunal having jurisdiction over the defendant 
 ,ind the cause, the fact that the judgment pro- 
 ceeded on a mistake as to the English law is no more 
 ii defence to the action than a mistake as to the 
 law of some third country incidentally involved, 
 or as to any other question of fact; and it can 
 make no difference as to the binding effect of the 
 judgment whether the mistake appears on the 
 face of the proceedings or not. Godard v. Gray, 
 40 Law J. Eep. (n.s.) Q. B. 62 ; Law Rep. 6 Q. B. 
 139. 
 
 Declaration upon the judgment of a French 
 Coxirt. Plea : setting out the whole of the pro- 
 ceedings in the French Court ; by which it ap- 
 peared that the plaintiffs, "who were Frenchmen, 
 sued the defendants, who were Englishmen, on a 
 charter-party made in England, which contained 
 the following clause: — " Penalty for non-perform- 
 ance of this agreement, estimated amount of 
 freight." The French Court gave judgment against 
 the defendants for the amount of freight of one 
 voyage, giving as their reason that the charter- 
 party itself fixed the amount of the indemnity to 
 which either of the parties was entitled on the 
 non-performance of the agreement by the other : — 
 S*ld, on demurrer to the plea, that the mistake 
 a's to the English law, in treating the penal clause 
 a9 fixing the limit of the damages, was no bar to 
 
 the action, by Blackburn, J., and Mellor, J., on 
 the ground that the defendants could no more 
 set up as an excuse relieving them from the duty 
 of paying the amount awarded by a foreign 
 tribunal having jurisdiction over them and the 
 cause, that the judgment proceeded on a mistake as 
 to the English law, than they could set up as an 
 excuse that there had been a mistake as to the 
 law of some third country incidentally involved, 
 or as to any other question of fact. By Hannen, J., 
 on the ground that the mistake was as to a matter 
 of which the foreign Court could only be in- 
 formed by evidence ; and that the party who 
 failed to produce such evidence coald not after- 
 wards impeach the judgment, on account of an 
 error into which the Court must be presumed to 
 have fallen in consequence of his default. Ibid. 
 
 Novelli V. Rossi (2 B. & Ad. 757) explained. 
 Ibid. 
 
 (/) For costs. 
 7. — An action lies to recover the costs on an 
 indictment for libel given by 6 & 7 Vict. c. 96. 
 s. 8. Richardson v. Willis (No. 2), 42 Law J. 
 Kep. (n.s.) Exch. 68. 
 
 To recover costs of defending an action, [See 
 Shippino Law, I 12.] 
 
 (jr) Effect of proceedings in previous actions. 
 
 (1) Confession of plea : release with condition 
 
 8. — To an action for debt the defendant pleaded 
 to the further maintenance a composition deed 
 under the Bankruptcy Act, 1861, which had been 
 made after action, and by which the defendant's 
 creditors expressly released him from their debts, 
 and the defendant covenanted to pay a certain 
 composition on a day which had not arrived when 
 the plea was pleaded, and it was declared that the 
 deed should be void if default should be made in 
 payment of such composition. After such default 
 had been made, and the plaintiff had had an 
 opportunity of replying the non-payment of the 
 composition, he confessed the plea, and taxed and 
 received his costs of the cause under Rules 22 and 
 23 of Trinity Term, 1853. He then brought a 
 second action for the same debt, to which the 
 defendant pleaded, by way of estoppel, a plea 
 setting out the proceedings in the first action. 
 The plaintiff replied to this the non-payment of 
 the composition when due, and the defendant 
 demurred to such replication : — Held, afBrming 
 the judgment of the Court of Common Pleas (39 
 Law J. Rep. (n.s.) C. P. 384; Law Eep. 5 C. P. 
 607), that the release pleaded in the first action 
 was liable to be defeated by a condition subse- 
 quent, though a good answer to the action at the 
 time it was pleaded, but that the plaintiff' having 
 confessed such plea, and taken his costs of action 
 at a time when he might have replied an avoid- 
 ance of such release by the non-payment of the 
 composition, was estopped from afterwards bring- 
 ing a fresh action for his same debt. Newington 
 V. Levy (Ex. Ch.), 40 Law J. Eep. (n.s.) C. P. 
 29; Law Eep. 6 C. P. 180. 
 Semble — that the plaintiff might have main- 
 
ACTION— ADMlNISfBATIOlt. 
 
 tained such second action if the confession of the 
 plea in the first action had been before the compo- 
 sition was payable. Ibid. 
 
 Qu(sre — if it ■would hare been a good equitable 
 defence to have rejoined that the omission to pay 
 the composition when due, was from a mistake as 
 to the day on which it was payable, and that 
 the defendant afterwards tendered it to the plain- 
 tiff. Ibid. 
 
 (2) Cross-action : setUement of previous action. 
 
 9. — A having been employed by B. to do work 
 according to a specification, brought an action to 
 recover the price agreed to be paid upon the com- 
 pletion of the work. The action was settled by 
 paymant of the whole amount, after which B. 
 brought an action against A. to recover damages 
 for an alleged non-performance of the contract, and 
 for an alleged improper performance of the same : 
 — Held, that he was not precluded from main- 
 taining the action by reason of the settlement of 
 the action brought against him by A. Davis v. 
 Sedges, 40 Law J. Eep. (n.s.) Q.B. 276 ; Law Eep. 
 6 Q.B. 687. 
 
 {h) In other cases. 
 
 By married woman for breach of contract. 
 [See Baron and Feme, 25.] 
 
 By married women for libel. [See Baron 
 AND Feme, 26.] 
 
 On bill of exchange. [See Bill or Ex- 
 change, 32-35.] 
 
 For breach of promise of marriage. [See 
 Breach of Promise.] 
 
 To recover sums wid^r compromise, [See 
 Compromise, 3.] 
 
 On implied promise of indemnity. [See 
 Contract, 30.] 
 
 Measure of damages. [See Damages.] 
 
 By relatives, for negligence under Lord 
 Caitipbell's Act. [See Campbell's Act.] 
 
 Against arbitrator and valuer for neglect. 
 [See Arbitration, 16.] 
 
 By executors carrying on testators busi- 
 ness. [See Executor, 15.] 
 
 Bight of executor to sue in testamentary 
 capacity. [See Executor, 16.] 
 
 For false representation. [See False Ee- 
 
 PEESENTATION.] 
 
 On foreign Judgment. , [See Foreign 
 
 Judgment.] 
 Against company for fraud of agent. [See 
 
 Fraud, 2.] 
 Action for rent barred by distress. [See 
 . Landlord and Tenant, 9.] 
 For excessive seizure under distress. [See 
 
 Landlord and Tenant, 10.] 
 For damages by negligence cauHng death of 
 
 servant. [See Master and Servant, 
 
 6.] 
 Between master and servant, for breach of 
 
 contract of service. [See Master 
 
 AND Servant, 16-18.] 
 For nuisance. [See Nuisance, 2.] 
 For malicious prosecution. [See Mahcious 
 
 Pbosecutjoit, 2.] 
 
 (B) Notice of Action: Statutoey Acts. 
 
 (a) Under Public Health Act. 
 
 10. — "Where injury was sustained by tlie insuf- 
 ficient buoying of a sunken anchor, which was 
 part of certain works authorised by a local Act, and 
 which were to be executed .subject to the provi- 
 sions of the Public Health Act, 1848, it was hold 
 that notice of action under that Act was necessary 
 before bringing an action for such injury. Jol- 
 liffe V. Wallasey Local Board, 43 Law J. Eep. 
 (n.s.) C.P. 41 ; Law Eep. 9 C.P. 62. 
 
 (6) Apprehension without warrant urfder 
 Larceny Act, 1861. 
 
 11.— By section 103 of the Larceny Act, 1861 
 (24 & 25 Vict. c. 96), any person found committing, 
 inter alia, a theft, may be immediately apprehended 
 without a warrant, and by section 113 notice of 
 action must be given before any one can be sued 
 for anything done in pursuance of the Act : — 
 Held, that to entitle a person to such notice of 
 action, it is sufficient if he honestly believed that 
 the person he apprehended was found by him com- 
 mitting a theft, and that if he might have so be- 
 lieved, it is no reason for disentitling him to such 
 notice that a jury might think there was no rea- 
 sonable ground for his so believing. King v. 
 Chamberlain, 40 Law J. Eep. (n.s.) C.P. 273 ; Law 
 Eep. 6 C.P. 474, nom. Chamberlain v. King. 
 
 (c) Action against surveyors of highways. 
 
 12. — The defendants, surveyors of highways of 
 a parish, made a rate which was entered in the 
 rate book as a composition of Is. in the pound 
 agreed to be taken by the defendants, surveyors, 
 &c., in lieu of statute work to be performed and 
 done by several inhabitants and occupiers of land, 
 hereditaments, &c. The rate was not signed by 
 the defendants, as surveyors, nor allowed by Jus- 
 tices of the peace, nor published as required 
 by 6 & 6 Will. 4. c. 50. The plaintiff paid the 
 amount at which he was assessed, and afterwards, 
 discovering that the rate was bad, commenced an 
 action to recover the money paid : — Held, that 
 although the rate was bad, the defendants were en- 
 titled to the protection afforded by s. 109 of 6 & 6 
 Will. 4. c. 50, and that the action "was not main- 
 tainable, inasmuch as the plaintiff had not given 
 to them any notice of action. Judge v. Selmes, 40 
 Law J. Eep. (n.s.) Q.B. 287 ; Law Eep. 6 Q.B. 
 724. 
 
 ADEMPTION. 
 [See Advancement; Legacy.] 
 
 ADMINISTEATION 
 (1) OF ESTATE IN CHANCEBY. 
 
 (A) Eight to sue. 
 
 {a) Suit by creditor. 
 
 (J) Suit for mesne profits. 
 
 (B) Proof of Debts, etc. 
 (a) Judgment creditor. 
 (j) Continuing guarantie. 
 (e) By bankers of executor . 
 
ADMIlflSTEATION j(A), (B). 
 
 {d) By trustees of separate estate of partner, 
 
 (c) By annuitant under award. 
 
 (/') Bight to interest on debt. 
 
 Iff) Priority: specialty and simple con- 
 tract debts. 
 (C) Legal aistd Eqtiitable Assets. 
 (I)) Makshalling Assets. 
 
 (a) As between devisee of mortgaged estate 
 and descended estate. 
 
 (S) As between devisee of mortgaged estate 
 and personalty. 
 
 (c) As between residuary and specific de- 
 
 visees, 
 
 (d) As between devised and descended estates, 
 {e) As between residuary legatee and de- 
 scended share of residue. 
 
 (/) As between pecuniary legatee and resi- 
 duary devisee. 
 
 (g) As between pure and impure personalty. 
 
 (/j) As between corpus and income, 
 
 (i) As against charities. 
 
 {k) Charge of debts ; as from when realty 
 is charged, 
 
 (E) CONTBAOT BY INTESTATE TO BUY LanD. 
 
 (l') Legatees. 
 
 (a) Charge on realty. 
 
 (b) Payment where no residuary estate. 
 
 (c) Payment out of real aiid personal estate 
 
 rateably. 
 {d) Payment out of testator's estate and ap- 
 pointed fund rateably. 
 (c) Interest on legacies. 
 (/) Set-off of debt barred by statute. 
 (Gr) Practice and Jurisdiction. 
 (a) Parties. 
 (i) Supplemental bill. 
 (c) Administration summons, 
 {d) Effect of registration as lis pendens. 
 («) Carrying on business of testator. 
 (/) Discovery, 
 {g) Costs. 
 
 (2) m COURT OF PROBATE. 
 
 [Eiiles in force in Bankruptcy to Lo applicable 
 to the administration of assets of insolvent estates 
 as from Nov. 2, 187'i. 36 & 37 Vict. c. 66, s. 25.] 
 
 (1) OF ESTATE IN CHANCERY. 
 
 (A) Eight to sue. 
 
 (a) Suit by creditor. 
 
 1, — If a testator give Hs execntors power to 
 trade with a portion of his capital, a creditor for 
 debts incurred by the executors has no right to a. 
 decree to administer the assets employed in trade. 
 Owen V. Delamere, 42 Law J. Eep. (n.s.) Chanc. 
 232; Law Eep. 15 Eq. 134. 
 
 (b) Suit for inesne profits, 
 
 2. — 'Where an executor, who succeeded his tes- 
 tator in possession of an estate, by agreement 
 allowed judgment to be given against him in an 
 action of ejectment brought against his testator in 
 respect to the estate, and admitted that the testa- 
 
 tor's estate was liable for mesne profits : — Held, 
 on a claim by the plaintiff in a creditor's suit to 
 administer the testator's estate, that the judgment 
 in the action was not evidence of wrongful posses- 
 sion by the testator which could serve as a founda- 
 tion for the claim. Talbot v. The Earl of Shrews- 
 bury, Law Eep. 14 Eq. 503. 
 
 Suit for administration against executor de 
 son tort, [See Exeoutok, 29, 30.] 
 
 (B) Pkoof of Debts, etc. 
 (a) Judgment creditor, 
 
 3 . — Where the foreign administrator of a creditor 
 had obtained judgment against an English debtor 
 in a foreign Court, and the debtor having died, his 
 estate wiis being administered in England : — Held, 
 that it was not necessary' for the foreign adminis- 
 trator to take out administration in this country 
 in order to prove for the amount due on the judg- 
 ment. In re Macnichol; Macnichol v. Macnichol, 
 Law Eep. 19 Eq. 81. 
 
 4. — A judgment recovered against executors: 
 — Held, in a creditor's suit to be prima facie evi- 
 dence of a debt as against the persons interested 
 in the testator's real estate. Harvey v. Wilde, 
 Law Eep. 14 Eq. 438. 
 
 (6) Continuing guarantie. 
 
 Proof under continuing guarantie, 
 Peincipal and Surety, 4.] 
 
 [See 
 
 (c) By bankers of executor. 
 
 5. — A testator died indebted on his general ac- 
 count to his bankers, with whom he had deposited 
 as a security title deeds of his estate. His widow 
 and executrix was by his will empowered to charge 
 his real estate in aid of his personal estate. She 
 drew large sums from the bank on account of the 
 testator's executors, the account being so entitled, 
 and deposited other title deeds of the testator's 
 estate, to secure such advances. "Without the 
 knowledge of the bank, she misapplied the ad- 
 vances. In a suit to administer the testator's 
 estate, upon the securities deposited turning out 
 insufficient :-^Held, that the bank was entitled to 
 prove for the insufficiency against the testator's 
 general estate. Farhall v. Farhall, 40 Law J. 
 Eep. (n.s.) Chanc. 728; Law Eep. 12 Eq. 98. 
 
 ((Z) By trustees of separate estate of partner. 
 
 6. — A., a partner in a bank, becoming'treasurer 
 of a board of guardians, gave a bond as security, 
 in which E., one of his two partners, and C. joined 
 as sureties. The account was kept at the bank in 
 the name of the board. The bank stopped. A, 
 died, and shortly afterwards B. and the surviving 
 partner in the bank were adjudicated bankrupts. 
 A.'s separate estate was insolvent, B.'s solvent. C, 
 as surety under the bond, paid to the board the 
 whole amount due to them from the bank on their 
 account, and then recovered half of it as contribu- 
 tion from B., his co-surety. The trustee of B.'s 
 separate estate now claimed, in the suit for admi- 
 nistering the estate of A., the amount so recovered 
 from B.'s estate by C. : — Held, that the law laid 
 
ADMINISTBjVTION (B), (D). 
 
 down in Ex parte Toppiiig (34 Law J. Eep. (n.s.) 
 Bankr. 13 ; 4 D. J. & S. 551) was not applicable, 
 and that as tlie claim, if admitted, would increase 
 tlie surplus of B.'s esbite that would go to the cre- 
 ditors of the hank, diminishing the separate estate 
 of A., it -was, in effect, a claim by the joint credi- 
 tors to the prejudice of the separate creditor, and 
 therefore could not be allowed. Lacmj v. Hill, 
 42 Law J. Eep. (n.s.) Chanc. 86 ; Law Eep. 8 
 Chanc. 441. 
 
 («) By annuitant under award. 
 
 7. — An arbitrator awarded an annuity of 1,200Z. 
 to be paid by A. to B., and to be secured by the 
 purchase of a government annuity ; and in case it 
 shoiddnotbe secured within two months, a further 
 sxim of lOOi. to be paid monthly tiU it was secured 
 as a penalty. A. paid the annuity and penalty for 
 two years until his death. He died insolvent, and 
 a creditors' suit had been instituted for the ad- 
 ministration of his estate : — ^Held, that the annui- 
 tant could prove for the annuity and the penalty 
 until the annuity should be soourod. Parfit v. 
 Chambre ; Ex parte the Assignee of the Countess D,, 
 42 Law J. Eep. (n.s.) Cha,ne. 6. 
 
 The testator had procured some evidence as to 
 the annuitant's age, but it was not perfect. The 
 annuitant was formally required to perfect the 
 evidence, but would not incur the expense unless 
 it was shewn that the annuity would thereupon be 
 purchased : — Held, that this was no default such 
 as to prevent the penalty from running. Ibid. 
 
 (/) Interest on debt.' 
 
 8. — To entitle a creditor in an administration 
 suit to interest on his debt, the decree must have 
 been obtained, as well as the debt proved, since 
 the Gen. Ord. 46 of the 26th of August, 1841 
 (Cons. Ord. xlii. r. 10). Wheeler v. GUI, 44 
 Law J. Eep. (n.s.) Chanc. 181 ; Law Eep. 19 
 Eq. 316. 
 
 A creditor's suit was instituted, and the usual 
 decree made in 1830, but no enquiries or other 
 further proceedings were prosecuted until 1873, 
 when an order was made on petition in the suit 
 directing enquiries as to debts, under which the 
 Chief Clerk ultimately certified the plaintiffs 
 debt: — Held, that the plaintiff had not " come in 
 and established " his debt within the meaning of 
 the Gen. Ord. 46 of the 26th of August, 1841 
 (Cons. Ord. xlii. r. 10), so as to entitle him to in- 
 terest thereon. Ibid. 
 
 {g ) Friority : specialty and simple contract debts. 
 
 9. — A simple contract creditor of a deceased 
 intestate, who obtains, but does not register, a 
 judgment for his debt against the legal personal 
 • representative, is entitled to priority over the in- 
 testate's specialty and simple contract creditors. 
 In re Williams ; Williams v. Williams, 42 Law J. 
 Eep. (n.s.) Chanc. 158; Law Eep. 15 Eq. 270. 
 
 ip, — E. B., the tenant of business premises, co- 
 venanted by a deed of arrangement made between 
 himself and the administrator of his deceased part- 
 ner, in whom the premises were vested, to accept 
 a lease of the premises for a certain term at a rent 
 
 named in the deed, and it was stipulated that the 
 lease should contain a covenant by E. B. to keep 
 the promises in repair, and other covenants usual 
 in leases of a like nature. E. B. retained posses- 
 sion of the premises till his death, but was never 
 called upon to execute a lease : — Held, that the 
 administrator was entitled to rank as a specialty 
 creditor in respect of his claim for rent and dilapi- 
 dations in the same manner as if a lease had been 
 executed in pursuance of the deed on the day of 
 the date thereof. Kidd v. Boone ; Evans's Claim, 
 40 Law J. Eep. (n.s.) Chanc. 531 ; Law Eep. 12 
 Eq. 89. 
 
 As part of the same arrangement E. B. gave 
 to the administrator a bond to secure part of a 
 certain sum due from him to the partnership, and 
 thereby bound himself, in case he should not pime- 
 tually pay the instalments therein mentioned, to 
 pay the remainder of the said sum due. The instal- 
 ments were not paid regularly : — Hold, that the 
 administrator was entitled to claim as a specialty 
 creditor for the whole sum. Ibid. 
 
 11. — On the assignment by way of settlement 
 of a reversionary interest in certain trust funds, 
 the settlor covenanted that he and all persons 
 claiming through him woidd, upon the request of 
 the trustees of the settlement, do all acts necessary 
 ' for further assuring the premises to the trustees. 
 The settlor afterwards obtained possession of the 
 settled premises, and died, after applying the same 
 to his own use : — Held, that in the administration 
 of his estate the trustees were entitled to prove 
 for the amount of the settled funds, as for a spe- 
 cialty debt. In re Diclcson ; Blackb%i,m v. Dic/cson, 
 40 Law J. Eep. (n.s.) Chanc. 707; Law Eep. 12 
 Eq. 154. 
 
 12. — A lessor agreed in writing to demise 
 minerals to a lessee at a certain rent. Disputes 
 having arisen, and no rent having been paid, an 
 action was brought for the rent, and a biU was 
 filed to cancel the agreement. The matter was then 
 referred to arbitration by submission under seal, 
 and by award under seal the arbitrator decided 
 that the lease should be cancelled, and awarded a 
 lump sum to the lessor as damages. The lessee 
 then died, and a bill having been filed to admi- 
 nister his estate, the lessor claimed to rank as a 
 specialty creditor in respect of the sum awarded : 
 — Held, that the sum awarded was not a specialty 
 debt. Talbot v. Earl of Shrewsbury, 42 Law J. 
 Eep. (n.s.) Chanc. 877 ; Law Eep. 16 Eq. 26. 
 
 (C) Legai, and Equitable Assets. 
 
 13. — Notwithstanding Lovegrove v. Cooper (2 
 Sm. & G. 271), — Held, that proceeds of real estate 
 ordered to be sold and for payment of debts, and 
 paid into Court are equitable, not legal, assets. 
 Bain v. Sadler, 40 Law S. Eep. (n.s.) Chanc. 791 ; 
 Law Eep. 12 Eq. 670. 
 
 (D) Maeshalling Assets. 
 (a) As between devisee of mortgaged estate and 
 
 14. — Testator devised part of a freehold estate 
 (the whole of which was subject to a mortgage), 
 
8 
 
 ADMINISTKATION (D), 
 
 upon trust, to pay his -widow n,n annuity, and out 
 of tho surplus income to apply so much as the 
 trustees thought fit for the benefit of his children, 
 and to apply the surplus in paying oiF the princi- 
 pal and interest of the mortgage debt, and after 
 the death of the 'wife, and when the whole of the 
 mortgage should be paid off, upon trust for his 
 children. The rest of the property, subject to the 
 mortgage, descended to the heir : — Held, in a suit 
 by the mortgagee in which a sale had been decreed, 
 that, against a purchaser from the heir, the de- 
 scended estate must bear the burden of the mort- 
 gage in exoneration of the devised estates. Water- 
 house T. Clout, 41 Law J. Eop. (n.s.) Chanc. 223. 
 
 (b) As between devisee of mortganeol estate and 
 personalty. 
 
 15.— The 30 & 31 Vict. c. 69 amounts to a 
 legislative declaration that the Court of Chancery 
 had put a wrong interpretation on the 17 Viet, 
 e. 113-(Locke King's Act), and though it only ex- 
 pressly enacts that a direction for payment of debts 
 out of personalty shall not be held to indicate a 
 contrary intention to the rule that a mortgage is 
 to be paid primarily out of the estate subject to 
 it, it really overthrows the whole reasoning on 
 which the former cases had proceeded. Gall v. 
 Fenmoh, 43 Law J. Eep. (n.s.) Chanc. 178. 
 
 A testator seised of an estate partly leasehold 
 and partly freehold subject to a mortgage devised 
 it specifically, and also created a mixed fund con- 
 sisting of personalty the proceeds of a sale of some 
 realty and annuities to be raised out of the mort- 
 gaged estate and other estates, and directed his 
 debts to be paid out of this mixed fund : — Held, 
 that he did not manifest a contrary intention to 
 the rule laid down by Locke King's Act, but as 
 leaseholds were not within that Act the mortgage 
 ought to be apportioned between the freeholds and 
 leaseholds according to their values at the testa- 
 tor's death, and the part apportioned in respect of 
 the leaseholds paid out of the mixed fund. Ibid. 
 
 16. — ^B., entitled under a deed of 1831 to a 
 share in real estate directed to be sold, mortgaged 
 it, having by his will specifically given it to C. 
 By the same will he gave all his residuary estate 
 and effects to trustees upon trust, " for payment 
 thereout of all my just debts subject thereto for 
 L.": — Held, that Locke King's Act and the 
 ■ Amendment Act only apply to an interest in land 
 taken as land, and that this property, having been 
 converted in equity, did not come within those 
 Acts, and that C. was entitled to have it exone- 
 rated from the mortgage debt out of the residuary 
 personal estate. Lewis v. Lewis, 41 Law J. Eep. 
 (N.e.) Chano. 195 ; Law Eep.-13 Eq. 218. 
 
 Semble— the Amendment Act, 30 & 31 Vict. c. 
 69, applies where there is. a general direction for 
 payment of debts, out of real and personal estate. 
 Quaere — whether Locke King's Act applies to lease- 
 holds. Ibid. 
 
 17. — Testator devised his mansion-house and 
 other real estate (which were subject to a mort- 
 gage to trustees, upon trust as to the mansion- 
 house to permit his widow to reside in it for her 
 life, and as to tho residue upon trust for certain 
 
 persons in tail. He gave the trustees power to 
 sell all except the mansion-house, and out of tho 
 proceeds discharge "incumbrances," he gave his 
 residuary personal estate to trustees upon trust to 
 pay " debts " and legacies, and to pay the surplus, 
 if any, to his brother, and declared that if the 
 residuary personalty was not sufficient for pay- 
 ment of debts and legacies, the same should bo 
 charged on the real estate other than tho mansion 
 house : — Held, that the mansion-house was not to 
 be exonerated from the mortgage out of the per- 
 sonal estate. Brownson v. Lawrance (37 Law J. 
 Eep. (n.s.) Chanc. 351 ; Law Eep. 6 Eq^ 1) ques- 
 tioned. Sackville v. Smyth, 43 Law J. Eep. (n.s.) 
 Chanc. 494; Law Eep. 17 Eq. 153. _ 
 
 18. — A residuary devise of land is specific as 
 well since as before tho Wills Act (1 Vict. e. 26). 
 Consequently devised estates specifically men- 
 tioned in the will are subject, equally with resi- 
 duary devised estates, to the payment of debts 
 which the personal estate is insufficient to satisfy. 
 Decision of Bacon, V.C., 43 Law J. E«p. (n,s.) 
 Chanc. 570 ; Law Eep. 17 Eq. 556, reversed. 
 Hmsman v. Fryer (37 Law J. Eep. (n.s.) Chanc. 
 97 ; Law Eep. 3 Chanc. 420) followed. Lancefield 
 V. Iggulden, 44 Law J. Eep. (n.s.) Chano. 203 ; 
 Law Eep. 10 Chanc. 136. 
 
 {d) As between (levised and descended estates. 
 
 19. — Where there is a charge of debts, a share 
 of realty which lapses to the heir will bear only 
 its proportion of the charge. Byves v. Eyves, -40 
 Law J. Eep. (n.s.) Chanc. 252 ; Law Eep. 11 Eq. 
 639. 
 
 20. — A testator gave to his trustees all his real 
 and personal property to be disposed of by them 
 according to the directions contained in his will : 
 and he directed that as soon as possible after his 
 death his trustees should pay all his debts, funeral 
 and testamentary expenses. The testator then 
 made several specific devises of real estate. The 
 beneficial interest in part of the real estate was 
 undisposed of and descended to the heir-at-law. 
 The testator's personal estate having proved in- 
 sufficient for the paymefit of his debts, — Held, 
 that the debts and also the costs of a suit for the 
 administration of the testator's estate must "be 
 borne rateably by the devised estates and the 
 descended estate. Stead v. Hardalcer, 42 Law J. 
 Eep. (n.s.) Chanc. 317; Law Eep. 15 Eq. 175. 
 
 21. — The rule that a descended estate must 
 exonerate a devised estate from the payment of 
 testator's debts and costs of an administration suit 
 equally applies, whether the descended estate has 
 been left undisposed of at the time of making the 
 will, or whether it has become undisposed of 
 through lapse. Maddison v. Pye (32 Beav. 658) 
 disapproved of. Scott v. Cumberland, 44 Law J. 
 Eep. (n.s.) Chanc. 226; Law Eep. 18 Eq. 578. 
 
 (e) As between residuary legatee and descended, 
 share ofresidtie. 
 
 22. — A testatrix, by will dated the 24th of 
 December, 1855, bequeathed to her niece, subject 
 to legacies and bequests, "the residue of my estate 
 (which consisted of personalty) up to the end of 
 
ADMINISTRATION (E), (F). 
 
 9 
 
 this year 1 853," and boquoatLed all accumulations 
 from that date to hor great-uophews. The lioquost 
 to the niece of the testatrix lapsed by her death 
 in the lifetime of the testatrix : — Held, that the 
 bequest to the great-nephews of the testatrix was 
 a pecuniary and not a residuary gift ; that the only 
 residviary gift was that to her niece, and that such 
 residuary gift, having lapsed, must bear all the 
 debts, expenses, and costs of suit. Gowan v. 
 Broughton, 44 Law J. Eep. (n.s.) Chano. 275 ; 
 LawEep. 19 Eq. 77. 
 
 Semble — the rule that a descended share of resi- 
 due exonerates a share of residue well given, from 
 debts, legacies and costs, applies equally to per- 
 sonal as to real estate. Ibid, 
 
 (/) Ai between pecunidiy legatee mid residuary 
 
 23. — Testator made a general and absolute 
 bequest of his personalty, followed by a specific 
 devise of realty for payment of his debts. The 
 realty so specifically devised being insuflScient for 
 the payment of debts, — Held, that the residuary 
 real estate must contribute with the personalty. 
 Powell V. RUey, 40 Law J. Eep. (n.s.) Chanc. 533 ; 
 Law Eep. 12 Eq. 175. 
 
 24. — A pecuniary legatee has no right to call 
 upon a residuary devisee to contribute to the pay- 
 ment of debts. Hensman v. Fryer (37 Law J. 
 Eep. (n.s.) Chanc. 97) not followed. Dugdale v. 
 Dugdale, 41 Law J. Eep. (n.s.) Chanc. 565 ; Law 
 Eep. 13 Eq. 234. 
 
 25. — ^Eeal estate in Scotland of a testator 
 domiciled in England must be administered ac- 
 cording to Scotch law; and the personal estate 
 being by the law of Scotland primarily liable for 
 the personal debts, it follows that in respect of 
 those debts pecimiary legatees are not entitled to 
 a marshalling of assets against the heir-at-law. 
 Harrison v. Harrison, 42 Law J. Eep. (n.s.) Chano. 
 495; Law Eep. 8 Chanc. 342. 
 
 {g) As between pure and impure personalty. 
 
 26. — Testator devised real estate upon trust for 
 sale and conversion, payment of debts and lega- 
 cies ; he also gave his personal estate, consisting 
 of pure and impure personalty, upon trust for pay- 
 ment of so much of his debts and legacies as the 
 proceeds of sale of his real estate should be insuf- 
 ficient to pay, and directed his trusteesto hold the 
 residue upon trust for certain charities, and he 
 declared that only such part of his estate should 
 be comprised in the residue as might by law be 
 given to charitable purposes. The proceeds of 
 the real estate being insufficient to pay the debts 
 and legacies, — Held, that the debts and legacies 
 must be paid out of the impure personalty. WiXls 
 V. Bourne, 43 Law J. Eep. (n.s.) Chanc. 89 ; Law 
 Eep. 16 Eq. 487. 
 
 (A) As between corpus and income. 
 [See Tenant fob Life.] 
 
 27.— In administering an estate a proportion- 
 ate amount of capital and the income actually 
 made in the first year are to be applied in pay- 
 ment of debts, legacies, funeral and testamentary 
 DiaBST, 1870—1875. 
 
 expenses and costs, and the profits made in a 
 business are t> be treated as income. Lambert 
 V. Lambert, 43 Law J. Eep. (n.s.) Chanc. 106 ; 
 Law Eep. 16 Eq. 320. 
 
 (i) As against charities. 
 
 [See Chaeity, 25, 26.] 
 
 (^) Charge of debts : when real estate charged. 
 
 28. — Where a legacy is given to an infant, 
 vesting at once, but payable on the infant's 
 attaining twenty-one, and real estate is charged 
 with so much of the debts and legacies as the 
 personal estate shall be insufficient to discharge, 
 the time for determining whether and to what 
 extent the real estate is charged is the deatli of 
 the testator, and not the time at which the infant 
 attains twenty-one ; and if the personalty is then 
 sufficient, the real estate will not be affected by 
 a deficiency subsequently arising from a default 
 of the executor. Howard v. Chaffer (32 Law J. 
 Eep. (n.s.) Chane. 686 ; 2 Dr. & S. 236) dis- 
 tinguished. Eichardson v. Morton, 41 Law J. 
 Eep. (n.s.) Chanc. 8; Law Eep. 13 Eq. 123. 
 
 (E) CONTEACT BY INTESTATE TO BUY LanD. 
 
 29. — A contracted to purchase real estate, sub- 
 ject to a condition that, if he made any requi- 
 sition which the vendor was unable or unwilling 
 to comply with, the vendor should be at liberty 
 to rescind the contract. He made several requi- 
 sitions, and died intestate, without completing 
 the contract, and after his death the vendor re- 
 scinded it on account of his alleged inability to 
 comply with one of the requisitions, which, if not 
 complied with, might have given the purchaser a 
 right to compensation, but would not have en- 
 titled him to annul the contract : — Held, that the 
 heir-at-law of the purchaser was entitled to have 
 the amount of the purchase -money paid to him 
 out of the intestate's personal estate. Hiidson v. 
 Cooke, 41 Law J. Eep. (n.s.) Chano. 306 ; Law 
 Eep. 13 Eq. 417. 
 
 (F) Legatees. 
 
 (ffl) Charge on realty. 
 
 30. — Gift of legacies followed- by devise- of 
 testator's farm at N., and all the residue of his 
 estate and effects, for the benefit of his wife and 
 children : — Held, that the legacies were not 
 charged on the farm or on the residuary real 
 estate. Castle v. Gillett, Law Eep. 16 Eq. 690. 
 
 [And see supra No. 28.] 
 (b) Payment where no residuary'estate. 
 
 31. — A testator gave certain legacies to his 
 trustees and to his wife, and then gave to his 
 trustees copyhold and leasehold property, and all 
 the stocks, funds and securities and all sums of 
 money in his house or at his bankers or else- 
 where at the time of his death, and also all debts 
 or sums of money and securities for money owing 
 to him, upon trust to pay to his wife, in addition 
 to the legacies and bequests therein given, an 
 annuity, and, subject to the annuity, gave this 
 property to two children equally. He theji. gave. 
 C 
 
10 
 
 ADMINISTRATION (F), (G). 
 
 several other specific bequests, and gave the 
 residue of his property to trustees upon trust for 
 his wife, but subject to the payment of debts, 
 legacies and other charges : — Held, that the gift 
 of copyhold and leasehold properties, and of 
 stocks, funds, securities and debts was specific, 
 and that, as there was no residuary estate out of 
 which to pay the legacies, they must fail. Sojf'ey 
 V. Earli/, 42 Law J. Bep. (n.s.) Chauc. 472. 
 
 (e) Payment out of realty and personalty 
 pro raid. 
 
 32. — It is not necessary that there should be 
 an absolute direction for conversion of real estate, 
 in order that the real and personal estate may 
 constitute a mixed fund for payment of legacies. 
 Allan V. Gott, 41 Law J. Eep. (n.s.) Chanc. 571 ; 
 Law Eep. 7 Chanc. 439. 
 
 A testator gave his real and personal estate to 
 trustees, and empowered them to sell the real 
 estate, and he directed that an annuity should be 
 paid out of the annual income of the estate ; and 
 he also directed certain legacies to be paid out of 
 his trust estates, moneys and premises. He was 
 intestate as to the residuary estate by reason of 
 the death, in his lifetime, of the residuary devisee 
 and legatee : — Held, that the legacies were pay- 
 able out of the real and personal estate rateably. 
 
 (d) Payment out of testator's estate and appointed 
 fund rateably. 
 
 33. — A testatrix, being entitled to exercise a 
 non-exclusive testamentary power of appointment 
 amongst her brother and four sisters, made a will 
 giving her brother and two sisters 51. a-pieee, and 
 giving to her other two sisters all the residue of 
 her property of whatever kind and wheresoever 
 situate, and over which she had any power of ap- 
 pointment :— Held, that the effect of giving the 
 residue of the appointable fund with the testatrix's 
 own property, was to make the legacies payable 
 out of both rateably, and so make the power well 
 exercised. Gainsford v. Dwm, 43 Law J. Eep. 
 (n.s.) Chanc. 403 ; Law Eep. 17 Eq. 405, 
 
 (e) Interest on legacies. 
 
 [And see Legacy, K.] 
 
 34. — Testator by his -will directed that certain 
 pecuniary legacies thereby given should be paid 
 out of the proceeds of sale of his real estate. 
 Testator's estate became the subject of an adminis- 
 tration suit, upon the further consideration of 
 which the question arose from what time the in- 
 terest on the said legacies was payable : — Held, 
 that the interest ran from a year after testator's 
 death. Turner v. Buck, 43 Law J". Eep, (n.s.) 
 Chanc. 583 ; Law Eep. 18 Eq. 301. 
 
 (/) Set-off of debt barred by statute. 
 35. — "Where the husband of a person entitled 
 as one of the next-of-kin to a small fund was 
 unable to support his family, the whole fund was 
 settled. White v. Cordwell, 44 Law J. Eep. (n.s.) 
 Chanc. 746 ; Law Eep. 20 Eq. 644. 
 
 A debt due to an intestate's estate from one of 
 the next-of-kin, barred by the Statute of Limita- 
 tions, was set off against his share in the estate. 
 Ibid. 
 
 (G) Pbactice and Jueisdiction. 
 (a) Parties. 
 
 36.— The 6th and 8th rules of sec. 42 of the 
 statute 15 & 16 Vict. c. 86, do not authorise the 
 making of an administration decree in a suit in 
 which one of several executors is sole pla.intiff, but 
 all the other executors are not made parties. 
 Latch V. Latch, 44 Law J. Eep. (n.s.) Chanc. 446 ; 
 Law Eep. 10 Chanc. 464. 
 
 A decree for an account cannot he made against 
 an executor who is not a, party to the suit. A 
 decree so made was discharged, but with leave to 
 amend. Ibid. 
 
 37. — Previously to the marriage of A. two 
 settlements were executed whereby certain lands 
 and moneys were conveyed and assigned on certain 
 trusts. A. after his marriage became a partner 
 in an iron business, under articles, giving the 
 executor or administrator of a deceased partner 
 the option of becoming a partner in the place of 
 his testator or intestate. A. died intestate, and 
 his widow and administratrix having elected to 
 become a partner, assigned A.'s share to two per- 
 sons on trust to pay his debts. A bill having been 
 filed for the administration of A.'s estate and 
 asking for the execution of the trusts of the two 
 settlements was demurred to by the assignees of 
 A.'s share in the partnership who had teen made 
 defendants : — Held, that they were proper parties 
 to the suit. Ooates v. Legard, 44 Law J . Eep. 
 (n.s.) Chanc. 201 ; Law Eep. 19 Eq. 56. 
 
 Campbell v. MacTcay (1 Myl. & Cr. 603 ; 6 Law 
 J. Eep. (n.s.) Chanc. 73), and Pointon v. Pointon 
 (40 Law J. Eep. (n.s.) Chanc. 609; Law Eep. 12 
 Eq. 547), followed. Ibid. 
 
 (A) Supplemental bill. 
 
 38. — A common administration decree having 
 been made, and an infant interested in the estate 
 some years afterwards having presented a petition 
 by her next friend for leave to file a supplemental 
 hill, with the object of charging a trustee of the 
 estate with a breach of trust, which she alleged 
 had been discovered since the date of the decree, 
 — the Court granted leave accordingly, without 
 requiring an affidavit by the next friend that the 
 alleged breach of trust could not with reasonable 
 diligence have been discovered at the date of the 
 decree. In re Hoghton's Estate; Hoghton v. Fiddey, 
 43 Law J. Eep. (n.s.) Chanc. 758 ; Law Eep. 13 
 Eq. 573. 
 
 Semble — ^in such a case, the object being to 
 obtain an addition to a decree already made, the 
 proper mode of applying for leave is by petition. 
 Ibid. 
 
 (o) Administration summons. 
 
 39. — A married woman, in exercise of a power 
 given to her by a will, made a will, by which she 
 appointed a fund to trustees, upon trust to pay 
 certain legacies and annuities, and subject thereto 
 
ADMINISTRATION (G)— ADMIRALTY. 
 
 11 
 
 upon trust for her son for life, with remainder to 
 his children. Under power created by various 
 deeds, she appointed other funds on various trusts. 
 She appointed the trustees executors ; only one of 
 whom proved the will. She died while her hus- 
 band was living. The son took out a summons 
 for administration against the executor, who proved 
 the will : — Held, that the Court had jurisdiction, 
 under sec. 45 of 16 & 16 Vict. c. 85, to make the 
 usual decree for administration of the estate, with 
 such variations as the circumstances of the case 
 required ; that it was sufficient to serve the sum- 
 mons on the executor alone ; but that the Court 
 had power to and would direct service of the 
 decree upon the two other trustees and the persona 
 interested in the same manner as in case of a 
 decree for administration, under sec. 42 of the Act. 
 In re Berkeley's Estate; Berkeley v. Mason, 44 Law 
 J. Rep. (n.s.) Chanc. 554 ; Law Rep. 19 Eq. 467. 
 
 Order for, when made on summons. [See 
 Pbactice in Equity, 1.] 
 
 {S) Effect of registration as lis pendens. 
 
 40. — The ordinary decree for administration 
 of a testator's estate prevents an executor from 
 dealing with any of the assets. And the registra- 
 tion of the suit as a lis pendens affects persons who 
 deal with the executor after the decree with notice. 
 Therefore, when after a decree made for the ad- 
 ministration of the testator's estate in a suit regis- 
 tered as a lis pendens, a bank took a mortgage of 
 a picture belonging to the estate from the executrix 
 they obtained no lien upon it, although they had 
 not express notice of the suit. Berry v. Gibbons, 
 42 Law J. Rep. (h.s.) Chanc. 89 ; Law Rep. 8 
 Chanc. 747. 
 
 (e) Carrying on business of testator, 
 
 41. — In a suit instituted for administration of 
 the estate of an intestate trader by beneficiaries, 
 where there are infants interested, the Court has 
 no jurisdiction to anthorise the administrator to 
 carry on the trade of the intestate. Land v. 
 Iiand, 43 Law J. Rep. (n.s.) Chanc. 311. 
 
 (/) Discovery. 
 
 42. — The Court wiU not compel a witness on 
 an inquiry in an administration suit to give infor- 
 mation which might be used in a pending action 
 by the administrator against him, there being 
 power to obtain discovery in the action at law. 
 Venables v, Schweitzer, 42 Law J. Rep. (n.s.) 
 Chanc. 389 ; Law Rep. 16 Eq. 76. 
 
 (^) Costs. 
 
 [And see Costs in Eqihtt, 16-23.] 
 
 43. — In an administration suit testator's per- 
 sonalty was exhausted and the costs still unpaid. 
 Testator was seised of an undivided share of realty, 
 which had been devised to the plaintiffs and the de- 
 fendants in undivided shares. The plaintiffs, with, 
 the consent of all parties interested in the estate 
 except one defendant, asked for a sale of the en- 
 tirety of the estate to raise the costs. The defend- 
 ant, who refused his consent, offered to pay his 
 
 share of the costs, oi' to sell enough of the land to 
 pay the costs, but objected to selling the whole : — 
 Held, that the Court could not make the order 
 asked for without the ■ consent of the dissentient 
 defendant. Lees v. Lees, 42 Law J. Rep. (n.s.) 
 Chanc. 319 ; Law Rep. 15 Eq. 151. 
 
 Costs : mortgagees suit for sale an d adminis- 
 tration : priority of costs. [See Costs 
 IN Equity, 21.] 
 
 (2) IN COURT OF PROBATE. 
 [See ExEOUTOE ; Probate.] 
 
 ADMIRALTY. 
 
 (A) Jueisdiotion. 
 (o) Generally. 
 
 (i) Admiralty Court Act, 1861, 
 (c) County Court Acts. 
 
 (1) Demurrage : freight, 
 
 (2) Collision. 
 
 (3) Broker's commission, 
 {d) Pirate ship. 
 
 (e) Necessaries. 
 
 (J) Damage and collision. 
 
 (g) Salvage. 
 
 (h) Booty of war. 
 
 (t) Foreign Enlistment Act. 
 
 (B) Pleading. 
 
 (C) Pbactice. 
 (k) Appeals. 
 
 (1) From County Court, 
 
 (2) Frmn Cinque Port Commissioners, 
 
 (3) From Registrar and merchants, 
 
 (b) Inspection of documents. 
 
 (c) Evidence. 
 
 (d) Reference to Registrar and merchants, 
 
 (e) Consolidation of suits. 
 (/) Payment out. 
 
 {g) Damage and collision, 
 
 (1) Right to begin. 
 
 (2) Arrest of ship. 
 
 (3) Claim by infant en ventre sa mere. 
 (h) Salvage. 
 
 (i) Bottomry; transfer from County Court. 
 
 (D) Costs. 
 
 (a) Security for costs. 
 
 (b) Appeal for costs. 
 
 (c) Taxation, 
 (a) In general. 
 
 (E) Pbootob: Proxy. 
 
 (A) Jurisdiction. 
 (a) Generally, 
 
 1. — The High Court of Admiralty has not 
 jurisdiction over breach of a stipulation in a 
 charter-party with regard to acts to be done be- 
 fore the goods are shipped. The Dannebrog, 44 
 Law J. Rep. (n.s.) Adm. 21 j Law Rep. 4 Adm. & 
 Ecc. 386. 
 
 2. — Where there is a remedy both in personam 
 and in rem, a person who has resorted to one of 
 c 2 
 
12 
 
 ADMIBALTY (A). 
 
 these remedies may, if lie does not get thereby 
 full satisfaction, resort to the other ; but if a 
 person has resorted to one of these remedies, and 
 has recovered full compensation and such com- 
 pensation has been paid, no further proceedings 
 can be taken. Yeo v. Tatem ; The Orient (P. C), 40 
 Law J. Bep. (n.s.) Adm. 29 ; Lair Eep. 3 P. C. 696. 
 
 3. — Foreigners injured, or the representatives 
 of foreigners killed, may sue in the High Court 
 of Admiralty in respect of injuries done by a 
 British vessel on the high seas. The Explorer, 
 40 Law J. Eep. (n.s.) Adm. 41 ; Law Eep. 3 Adm. & 
 Ecc. 289. 
 
 4. — On an application for a prohibition against 
 an order of the Court of Admiralty for the arrest 
 in a collision suit of a vessel belonging to the 
 Khedive of Egypt, but not a man-of-war nor in 
 the employ of the Egyptian Government, which 
 had come to England to be repaired : — Held, that 
 the Court of Admiralty was the proper tribunal 
 to determine whether the vessel was entitled to 
 immunity from arrest. In the matter of the Char- 
 Tdeh, 42 Law J. Eep. (n.s.) Q. B. 75 ; Law Eep. 
 8 a. B. 197. 
 
 5. — In the construction of a statute the High 
 Court of Admiralty ought to follow the decision 
 of the Court of Common Pleas. The Cargo ex 
 Argos — The Hewsons, 41 Law J. Eep. (n.s.) Adm. 
 89 ; Law Eep. 3 Adm. & Ecc. 568. 
 
 The County Court Admiralty Jurisdiction Acts 
 do not confer upon those Courts a jurisdiction 
 which the High Court of Admiralty did not ori- 
 ginally possess. Ibid. 
 
 The County Courts have no Admiralty juris- 
 diction over a breach of charter-party not involv- 
 ing damage to cargo, nor over a suit for payment 
 of freight and demurrage. Ibid, 
 
 (b) Admiralty Court Act, 1861, 
 
 6.— The Admiralty Court Act, 1861, by sec- 
 tion 6 provides " that the High Court of Admiralty 
 shall have jurisdiction over any claim by any 
 owner, &c., of any goods carried into any port in 
 England or Wales, in any ship, for damage done 
 to the goods, &c., by the negligence, &c., on the 
 part of the owner, &c." : — Held, that this Act 
 does not confer a maritime lien. Qiovanni Dapueto 
 V. Wyllie ; The Pieve Superiettre (P. C), 43 Law J. 
 Eep. (n.s.) Adm. 20 ; Law Eep. 5 P. C. 412. 
 
 A ship under charter to proceed to certain ports 
 in England, for orders to discharge at a port in 
 England or on the Continent, entered Falmouth 
 with her cargo for orders, and was ordered to dis- 
 charge at Bremen, where she did discharge her 
 cargo. She then sailed for Cardiif, where she 
 was arrested by prqcess of the Admiralty Court : — 
 Held (affirming the decision below, 43 Law J. Eep. 
 (n.s.) Adm. 1 ; Law Eep. 4 Adm. & Ecc. 170), 
 that, inasmuch as the cargo was deliverable at a 
 port in England, and as the ship with her cargo 
 had entered such a port for orders, the cargo had 
 beep " carried into a port in England" within the 
 meaning of the above section. Ibid. 
 
 [See also infra (/) Damage and collision.'} 
 
 (c) Comity Court Acts. 
 (1) Demv/rrage : freight. 
 
 7. — If, in an action in a superior Court, on a 
 charter-party, for freight or demurrage, the plain- 
 tiff claims and recovers a sum greater than 20Z. 
 and less than 300^., he is entitled to costs ; for over 
 such causes 31 & 32 Vict. c. 71, and 32 & 33 
 Vict. e. 51, s. 2, confer no jurisdiction on a County 
 Court appointed to have Admiralty jurisdiction. 
 Simpson v. Bhies (41 Law J. Eep. (n.s.) C. P. 121 ; 
 Law Eep. 7 C. P. 290) approved. Gunnested v. 
 Price, and Fulmore v. Wait, 44 Law J. Eep. (n.s.) 
 Exch. 44 ; Law Eep. 10 Exch. 65. 
 
 8. — The County Courts have jurisdiction, under 
 the County Courts Admiralty Jurisdiction 
 Amendment Act, 1869, in rem, in suits for 
 freight, demurrage and expenses, and for breach 
 pf charter-party, provided the amount claimed 
 does not exceed SOOi. Gavdet v. Brown — TTie 
 Cargo ex Argos ; The Hewsons (P. C), 42 Law J. 
 Eep. (n.s.) Adm. 1 ; Law Eep. 6 P. C. 134. 
 
 9, — The High Court of Admiralty may, by 
 transfer from a County Court, acquire jurisdic- 
 tion in a cause upon a question of demurrage, as 
 to which the High Court has no original jurisdic- 
 tion. The Swan, 40 Law J. Eep. (n.s.) Adm. 8 ; 
 Law Eep. 3 Adm. & Ecc. 314. 
 
 (2) Collision. 
 
 10. — An action against a pilot for collision 
 damage caused to a barge by a vessel iinder his 
 charge is not an " Admiralty cause " within the 
 meaning of the Acts 31 & 32 Vict. c. 71 and 
 32 & 33 Vict. c. 61, which confer Admiralty 
 jurisdiction upon certain County Courts. Flower 
 V. Bradley, 44 Law J. Eep. (n.s.) Exch. 1. 
 
 (3) Broker's commission, 
 
 U. — A charter-party stipulated for a commis- 
 sion to the brokers J. & K. : — Held, on appeal 
 from the Court of Passage, that the brokers were 
 not entitled to sue in rem, under the Comity 
 Courts Admiralty Jurisdiction Acts, for their 
 commission. And quasre, as to the right of the 
 charterers themselves to sue for the commission. 
 The Nuova Eaffaelina, 41 Law J. Eep. (n.s.) 
 Adm. 37 ; Law Eep. 3 Adm. & Ecc. 483. 
 
 [And see CorNTT Court, 12-15.] 
 
 {d) Pirate ship.] 
 
 12. — A ship which had been engaged in acts 
 of alleged piracy, and which, before any pro- 
 ceedings had been taken by the Crown, had been 
 sold by her owners at a public auction to a bond 
 fide purchaser, was afterwards arrested by the 
 Crown: — Held, that, although the ships and 
 goods of pirates are, upon conviction, forfeited 
 to the Crown, yet the ship of a pirate which has 
 not been piratically taken, and which, before 
 conviction, has been transferred to an innocent 
 purchaser, is not liable to seizure by the Crown. 
 T!te Queen v. M'Cleverty, The Telegrafo, or 
 Bestaitracion, 40 Law J. Eep. (n.s.) P. C. 18; 
 Law Eep. 3 P. C. 673. 
 
ADMIEALTY (A), (B). 
 
 13 
 
 (e) Necessaries. 
 
 13. — In order to oust the jurisdiction of the 
 Court of Admiralty over a claim for necessaries, 
 the ohjection that the owner of the ship is domi- 
 ciled in England or Wales must be taten before 
 judgment pronounced. Where it is not bo taken, 
 prohibition -will not be granted. Exparte Michael, 
 Law Eep. 7 Q. B. 658. 
 
 (/) Damage and collision. 
 
 14. — There is no Admiralty jurisdiction to 
 entertain a suit against a pilot who, in navigating 
 a ship, has caused a collision between that ship 
 and another. The Alexandria, 41 Law J. Eep. 
 (n.s.) Adm. 94 ; Law Eep. 3 Adm. & Eco. 574. 
 
 15. — A steam vessel having, through negli- 
 gence, come into collision with another ship, and 
 having been sunk and totiUy lost in consequence, 
 the owners, with a view to obtaining a decree 
 limiting their liability under the 54th section of 
 the .MOTchant Shipping Act Amendment Act, 
 1862, instituted a suit in the Court of Admiralty. 
 Cross-causes of damage had previously been in- 
 'stituted between the owners of the vessels, and 
 the defendants had, in the cause instituted against 
 them by the owners of the other ship and her 
 cargo, paid into Court 5,OO0Z. (being an amount 
 less than ISI. per ton on each ton of the vessel's 
 registered tonnage) as security, to enable them 
 to prosecute the cause in which they were the 
 plaintiffe. A passenger, who had sustained per- 
 sonal injury from the collision, sued the owners 
 of the steam Vessel for damages in the Court of 
 Exchequer, whereupon the Judge of the Court of 
 Admiralty made an order in the limitation suit, 
 under the 13th section of the Admiralty Court 
 Act, 1861, that all actions and suits pending in 
 any other Court in relation to the same subject- 
 matter should be stopped; and he afterwards 
 decreed that the owners were entitled to limited 
 liability, and were only answerable to the extent 
 of 6,376^., being the full amount of \5l. per ton, 
 which he directed them to pay into Court: — 
 Held (affirming the decision below, 41 Law J. 
 Eep. (n.s.) Exch. 82; Law Eep. 7 Exch. 187), 
 that, under these circumstances, neither the ship 
 nor the proceeds thereof were " under arrest of 
 'the Court of Admiralty," within the meaning of 
 the 13th section of the Admiralty Court Act, 
 1861, and that the Court of Admiralty had no 
 jurisdiction under the Merchant Shipping Act, 
 1854, or the amending Act of 1862, to entertain 
 the suit, and that a prohibition might accordingly 
 ■ issue to that Court from the Court of Exchequer. 
 James V. The London and Soiith-Western BaUway 
 Company (Exch. Ch.), 41 Law J. Eep. (n.s.) Exch. 
 186 ; Law Eep. 7 Exch. 287. 
 
 16. — The power to stay proceedings in the 
 principal cause until bail has been given by the 
 defendants in the cross-cause may be exercised, 
 even though the ship of the defendants in the 
 cross-cause has been lost, and the defendants 
 themselves are foreigners. The Charkieh, 42 Law 
 J. Eep. (n.s.) Adm, 70 ; Law Eep. 4 Adm. & Ecc. 
 120, 
 
 17.— Under 24 Viet. c. 10. s. 7, which enacts 
 that " the High Court of Admiralty shall have 
 jurisdiction over any claim for damage done by 
 any ship," it was held by Cockburn, C. J., and Han- 
 nen, J. ; Blackburn, J., ktesiiante, that the High 
 Court of Admiralty had not jurisdiction in a suit 
 instituted by the relatives of persons drowned by 
 the sinking of a thip run down by another ship. 
 STiiiih V. Brown, 40 Law J. Eep. (n.s.) Q,. B. 
 214 ; Law Eep. 6 Q. B. 729. 
 
 18. — In a cause of damage to cargo, the plain- 
 tiffs had arrested the ship for an amount not 
 sufficient to include all the costs : — Held, that, 
 probably under the old law, but certainly under 
 sections 15 and 22 of the Admiralty Court Act, 
 1861, the Court has power to order another arrest 
 for payment of the balance. The Freedom, 41 
 Law J. Eep. (n.s.) Adm. 1 ; Law Eep. 3 Adm. & 
 Ecc. 496. 
 
 (g) Salvage. 
 
 19. — The 9th section of the County Courts 
 Admiralty Jurisdiction Act, 1868, revives, subject 
 to certain conditions, the original jurisdiction of 
 the High Court of Admiralty, when the property 
 saved is of less value than 1,0002. The Empress, 
 41 Law J. Eep. (n.s.) Adm. 32; Law Eep. 3 
 Adm. & Ecc. 502. 
 
 20. — A salved ship was released upon bond 
 being given to the receiver of wreck for 600?., 
 and the salvors obtained an order to institute a 
 suit in the High Court of Admiralty. A motion 
 to rescind this order was refused. The John 
 Evans, 43 Law J. Eep. (n.s.) Adm. 9. 
 
 Such an order may be obtained ex parte. Ibid. 
 
 Semble — that a County Court of one district 
 has no jurisdiction over the receiver of wreck in 
 another district. Ibid. 
 
 (/j) Sooty of war. 
 
 [See Booty of Wae.] 
 
 (i) Foreign Enlistment Act. 
 
 [See Foreign Enlistment Act.] 
 
 (B) Pleading. 
 
 21. — The object of the preliminary act is to 
 commit the parties to statements of the facts 
 when they are fresh in their recollection. At the 
 hearing of a cause of damage the Court refused 
 to allow a material averment in the preliminary 
 act to be amended, but admitted before the evi- 
 dence was given a corresponding alteration in the 
 answer. The Franldand, 41 Law J. Eep. (n.s.) 
 Adm. 3 ; Law Eep. 3 Adm. & Ecc. 511. 
 
 22. — In a cause of salvage the defendants may 
 state the sums of money which they have paid 
 and are liable to pay to other salvors to complete 
 the salvage. The AntUope, 42 Law J. Eep. (n.s.) 
 Adm. 42 ; Law Eep. 4 Adm. & Ecc. 33 ; and see 
 The Due Checchi, Law Eep. 4 Adm. & Ecc. 35, n. 
 
 23. — In answer to a suit for damage to cargo, 
 it is not sufficient to allege that the damage was 
 caused by accidents and perils by the bill of 
 lading excepted. The defendant must specify the 
 particular accidents or perils. . The Hakon Add- 
 steen, 43 Law J. Eep. (n.s.) Adm. 9. 
 
u 
 
 ADMIRALTY (B), (C). 
 
 24. — In a suit by master, also part owner, for 
 wages and disbursements, the defendants (his co- 
 owners) may allege counter-claims against him 
 in respect of the co-ownership, and pray for a 
 settlement of those claims. 2he City of Mobile, 
 43 Law J. Eep. (n.s.) Adm. 41 ; Law Eep. 4 
 Adm. & Ecc. 191. 
 
 (C) Practice. 
 
 (1) From County Court. 
 
 25. — At the hearing of an appeal from the 
 County Court, the Court of Admiralty may order 
 witnesses to be examined vird voce, but will only 
 do so under special circumstances. In every Ad- 
 miralty cause, where there is any prospect of any 
 appeal, notes of the evidence in the County Court 
 should be taken by some reporter duly appointed. 
 27ie Busy Bee, Law Eep. 3 Adm. & Ecc. 527. 
 
 26.' — In a suit in rem in a County Court, the 
 ship having remained under arrest during the 
 suit, the Judge of the County Court dismissed the 
 suit, and the plaintiffs appealed : — Held, that 
 the plaintiffs were entitled to a warrant from the 
 High Court of Admiralty to re-arrest the ship. 
 The Miriam, 43 Law J. Eep. (n.s.) Adm. 35. 
 
 (2) From Cinque Port Commissioners. 
 
 27. — On an appeal from the Commissioners of 
 Cinque Ports, the Court will allow a tender, and 
 compel the other party to accept or reject it. Pro- 
 ceedings upon an appeal from the Commissioners 
 of Cinque Ports differ in many respects from ap- 
 peals from magistrates or County Courts. 7%e 
 Annette, 42 Law J. Eep. (n.s.) Adm. 13 ; Law 
 Eep. 4 Adm. & Ecc. 9. And see The Caledonia, 
 Law Eep. 4 Adm. & Ecc. 11, n. 
 
 (3) From Registrar and merchants. 
 
 28. — Upon appeal from the report of the 
 Eegistrar and merchants, the Court will not admit 
 .additional evidence unless satisfied that such evi- 
 dence could not, by proper diligence and applica- 
 tion, have been produced before the Eegistrar and 
 merchants. The Thmringia, 41 Law J. Eep. (n.s.) 
 Adm. 20. 
 
 A motion to admit such additional evidence by 
 reason of surprise should be founded upon afB- 
 davits, setting forth the names of the proposed 
 witnesses, and the character of their testimony. 
 Ibid. 
 
 (i) Inspection of documents. 
 
 29, — After a collision between one of her 
 Majesty's ships and another ship, it is the diity 
 of the commanding officer of her Majesty's ship 
 to forward a report of the collision to the Lords 
 Commissioners of the Admiralty. In a cause of 
 damage against one of her Majesty's ships, a 
 motion to inspect such report was refused, on affi- 
 davit by the Secretary to the Admiralty, that it 
 would be prejudicial to the public interests to 
 allow such reports to be inspected. Ihe Bellero- 
 phon, 44 Law J. Eep. (n.s.) Adm. 6, -^ 
 
 (c) Evidence. 
 
 30. — When judgment has been given in one 
 of two suits the Court cannot order the two suits 
 to be consolidated. The Demetrius, 41 Law J. 
 Eep. (n.s.) Adm. 69 ; Law Eep. 3 Adm. & Ecc. 523. 
 
 The Court cannot, except by consent, order that 
 evidence in one suit that has been heard shall be 
 admitted as evidence in a subsequent suit. And 
 where two suits in rem by the owners of two ships 
 which came into collision were instituted, and 
 judgment had been given, an application that the 
 evidence in those suits be admitted in a suit in 
 personam by the owners of cargo on board of one 
 of the ships was refused. Ibid. 
 
 31, — In the absence of Judge's notes of evidence 
 the Court of Admiralty, on an appeal, allowed a 
 witness to be examined who had given evidence 
 in the Court below. The C. 8. Sutler, Law Eep. 
 4 Adm. & Ecc. 238. 
 
 [And see supra Nos. 25, 28.] 
 
 (d) Beference to Eegistrar and merchants. 
 
 32. — One of several causes consolidated maybe 
 referred separately to the Eegistrar and merchants. 
 The Helen B. Cooper, 40 Law J. Eep. (n.s.) Adm. 
 46 ; Law Eep. 3 Adm. & Ecc. 339. 
 
 (e) Consolidation of suits. 
 
 [See supra No. 30, and infra No. 44.] 
 
 (/) Payment out. 
 
 33. — A decree having been made per incuriam 
 in a suit in rem for the payment out of money in 
 Court to satisfy the plaintiff's claim, the Court 
 can revoke or vary the decree before payment. 
 The MarMand, Law Eep. 3 Adm. & Ecc. 340. 
 
 {g) Damage and collision. 
 
 (1) Bight to begin. 
 
 34. — In a damage suit the plaintiff is to begin, 
 although the sole defence is inevitable accident. 
 Tlie Otter, Law Eep. 4 Adm. & Ecc. 203. 
 
 35. — The defendant's vessel, theB. I., came into 
 collision with the Y., which was riding to her nets. 
 The defendants charged the plaintiffs with not exhi- 
 biting a proper light : Held, that the plaintiffs must 
 begin. The Bottle Imp, 42 Law J. Eep. (n.s.) 
 Adm. 48. _ _ ■ 
 
 36. — When the issue in the cause is one of 
 inevitable accident, the plaintiffs must begin, even 
 though no charge of negligence is made against 
 them by the defendants. The Thomas Lea (28 
 Law J. Eep. (n.s.) Adm. 37) overruled. The Ben- 
 more, 43 Law J. Eep. '(n.s.) Adm. 5 ; Law Eep. 
 4 Adm. & Ecc. 132. 
 
 (2) Arrest of ship. 
 
 37. — In cross-causes of damage the Judge of 
 the County Court found that one ship was not to 
 blame, and ordered that it be released. An appeal 
 was instituted in the High Court of Admiralty, and 
 on motion lay the appellants, it was ordered that 
 the ship (which was foreign) should be rearrested 
 without notice to the owners. The Freir; The 
 Albert, 44 Law J. Eep. (n.s.) Adm. 49. 
 
ADMIEALTY (C), (D). 
 
 15 
 
 (3) Claim by infant en ventre sa mere. 
 
 38. — Where in a suit for limitation of liability 
 an appearance was entered on behalf of a child 
 of a man drowned in a collision en ventre sa mere, 
 the Court reserved leave to the child, if horn 
 within due time, to prefer its claim for damages 
 sustained by the death of its father. The George 
 and Sichard, Law Eep. 3 Adm. & Eco, 466. 
 
 (h) Salvage. 
 
 [And see supra Nos. 19, 20, 22.] 
 
 39. — In differing from the Court below as to 
 the quantum of reward for salvage services the 
 Privy Council intimated that they would not have 
 interfered unless the difference amounted to one- 
 third at least. Arnold v. Cowie, The Glenduror, 
 Law Eep. 3 P.O. 589. 
 
 40. — Notwithstanding the general rule not to 
 interfere with the discretion of the Judge of first 
 instance in awarding salvage remuneration, the 
 Judicial Committee reduced the amount, in a case 
 where the Judge appeared to have paid undue 
 regard to the value of the property salved, as com- 
 pared with the amount of services rendered. The 
 Amerigue, Law Eep. 6 P.C. 468. 
 
 41. — A tender which does not include costs 
 should contain the reasons for not tendering them. 
 The Thracian, 41 Law J. Eep. (n.s.) Adm. 71 ; 
 Law Eep. 3 Adm. & Ece. 504. 
 
 42. — ^In a suit for salvage of a derelict ship 
 and cargo worth 6,694Z., the service being of ex- 
 traordinary merit, the Court, after allowing the 
 salvors their expenses, awarded them also more 
 than a moiety of the residue. The Basohe, 42 Law 
 J. Eep. (h.s.) Adm. 71 ; Law Eep. 4 Adm. & 
 Ecc. 127. 
 
 43. — ^Where in a salvage suit a mistake has 
 been made relative to the value of the vessel to 
 which the salvage services were rendered, the 
 Court has power to correct the mistake and vary 
 the decree. The James Armstrong, Law Eep. 4 
 Adm. & Ecc. 380. 
 
 44. — The Court of Admiralty ordered two suits 
 of salvage to be consolidated though the applica- 
 tion was made on behalf of the plaintiffs, and op- 
 posed by the defendants. The Melpomene, 42 Law 
 J. Eep. (n.s.) Adm. 45 ; Law Eep. 4 Adm. & 
 Ecc. 129. 
 
 Semble — though the suits have been consoli- 
 datedjthe Court can deal separately vrith the costs 
 in each cause. Ibid. 
 
 (j) Bottomry: transfer from Comity Court. 
 
 45. — A cause of necessaries was instituted in a 
 County Court, and subsequently referred to the 
 High Court of Admiralty. The petition in the 
 High Court of Admiralty alleged that a bottomry 
 bond was given as security for the amount due for 
 necessaries : — Held, first, that the claim for neces- 
 saries merged in the bottomry ; secondly, that the 
 suit having been transferred as one for necessaries 
 could not be retained as a cause of bottomry. The 
 Mpis, 42 Law J. Eep. (n.s.) Adm. 43 ; Law Eep. 
 4 Adm. & Ecc. 1. 
 
 (D) Costs. 
 (a) Security for costs, 
 
 46. — Upon an appeal from a County Court to 
 the High Court of Admiralty security for the costs 
 of the appeal must be given in the County Court, 
 and not in the High Court of Admiralty. The 
 Forest Queen, 40 Law J. Eep. (n.s) Adm. 17 ; Law 
 Eep. 3 Adm. & Ecc. 299. 
 
 47. — In a suit instituted in 450^. for recovery of 
 wj.ges by German seamen against a German ship, 
 the Court ordered the plaintiffs to give security 
 for costs in the sum of 130J. The Zufall, 44 Law 
 J. Eep. (n.s.) Adm. 16. 
 
 (i) Appeal for costs. 
 
 48. — Although an appeal will not be allowed in 
 respect of costs only, yet where there has been a, 
 mistake upon some matter of law which governs 
 or affects the costs, the party prejudiced is en- 
 titled to have the benefit of correction by appeal. 
 Yeo V. Tatem; The Orient (P.C), 40 Law J. Eep. 
 (n.s.) Adm. 29. 
 
 (e) Taxation. 
 
 49. — ^The practice in salvage suits of presenting 
 two bills of costs {i.e. " plaintiff's bill " and " out- 
 port charges ") is objectionable, and must be dis- 
 continued. The City of Brussels, 42 Law J. Eep. 
 (n.s.) Adm. 72 ; Law Eep. 4 Adm. & Ecc. 194. 
 
 A person not a solicitor may be employed in a 
 salvage suit as agent for the proctor at the out- 
 port, and the agent's charges may be properly in- 
 cluded in the proctor's bill of costs. Ibid. 
 
 50. — When a ship under arrest by the High 
 Court of Admiralty is also arrested by a warrant 
 from a County Court, the possession fees of the 
 high bailiff of the County Court will not be allowed. 
 The Bio Lima, 43 Law J. Eep. (n.s.) Adm. 4 ; Law 
 Eep. 4 Adm. & Ecc. 157. 
 
 51. — Where in a collision suit (in which it was 
 decided that the defendants were alone to blame) 
 the plaintiffs had subpoenaed a receiver of wreck 
 to produce the originals of certain depositions of 
 the defendants, made before him, but did not call 
 on the defendants to admit copies ; the Court re- 
 fused to interfere with the discretion of the regis- 
 trar who had, in taxation, disallowed the costs of 
 the subpoena and the attendance of the receiver. 
 The Cromwell, Law Eep. 3 Adm. & Ecc. 316. 
 
 (d) In general. 
 Costs of consolidated suits. [See supra No. 44.] 
 
 52. — In cross-causes of damage the defendants 
 in the principal suit alleged various defences, and 
 established only the defence of compulsory pilot- 
 age. The Court refused to apportion the costs, so 
 as to allow the plaintiffs the costs of the defences 
 they had established. T%e Schuian ; The Robert 
 Morrison, 43 Law J. Eep. (n.s.) Adm. 18; Law 
 Eep. 4 Adm. & Ecc. 187. 
 
 53. — ^Although a suit for salvage might have 
 been tried in a County Court, the Judge of the 
 High Court of Admiralty -will certify for costa if 
 
16 
 
 ADMIRALTY (E)— ADULTERATION. 
 
 it be less expensive to try there than in the 
 County Court. The Beaumaris Castle, 40 Law J. 
 Rep. (n.s.) Adm. 41. 
 
 54. — When a suit lias been already commenced 
 in the High Court of Admiralty for an amount 
 within the County Court jurisdiction, the plaintiff 
 cannot obtain an order for leave to proceed, so as 
 to relieve hiia from liability for costs. The Loretta, 
 40 Law J. Rep. (^f.s.) Adm. 60. 
 
 (E) Peoctob : PEOxr. 
 
 55. — A proctor in the Admiralty Court is not 
 usually required to exhibit a proxy ; but if called 
 upon for a proxy, he satisfies the law by stating 
 the name of the party for whom he is authorised 
 to appear. Harvey v. The Owners of the Euxine 
 (P.O.), 41 Law J. Rep. (n.s.) Adm. 17 ; Law Rep. 
 4 P. C. 8. 
 
 ADMISSION. 
 [See Evidence, 11.] 
 
 ADULTERATION OF FOOD. 
 1.— The Adulteration of Food, &o., Act, 35 & 
 36 Vict. c. 74, by sect. 2, enacts that every person 
 who shall sell any article of food or drink with 
 which to the knowledge of such person any in- 
 gredient or mineral injurious to the health of 
 persons eating or drinking such article has been 
 mixed, and every person who shall sell as una- 
 dulterated any article of food or drink, or any 
 drug which is adulterated, shall be liable to (cer- 
 tain prescribed penalties). By section 3, any 
 person who shall sell any article of food or drink, 
 or any drug, knowing the same to have been 
 mixed with any other substance, with intent frau- 
 dulently to increase its weight or bulk, and who 
 shall not declare such admixture to any purchaser 
 thereof, before delivering the same, and no other, 
 shall be deemed to have sold an adulterated ari 
 tide of food or drink or drug, as the case may be, 
 under this Act. The appellant went into the shop 
 of the respondent, a provision and bntter dealer, 
 and asked for a pound of butter at sevenpence. 
 A pound of butter was handed to him, in the 
 presence of the respondent, which was afterwards 
 found to be adulterated with different fats, not 
 necessarily injurious to health : — Held, first, that 
 there was sufficient evidence under section 2 of a 
 sale of the butter as nnadulterated ; secondly, 
 that it was not made necessary by section 3 to 
 prove that the respondent knew the butter had been 
 mixed with some substance, with intent fraudu- 
 lently to increase its bulk. Fitzpatriclc v. Kelly, 
 42 Law J. Rep. (n.s.) M. C. 132 ; Law Rep. 8 Q. B. 
 
 337. 
 
 2. — By the Adulteration of Food, &c.. Act, 35 & 
 36 Vict. c. 74, s. 2, "Every person who shall sell 
 any article of food or drink with which to the 
 knowledge of such person any ingredient or ma- 
 terial injurious to the health of persons eating or 
 
 drinking such article has been mixed, and every 
 person who shall sell as unadulterated any ar- 
 ticle of food or drink, or any drug which is adul- 
 terated," shall for every such offence be liable to 
 certain prescribed penalties. The appellant was 
 charged with selling, as unadulterated, two 
 ounces of green tea which was then adul- 
 terated. The appellant kept a shop for the 
 sale of tea and coffee. M. went to the shop 
 and asked for some green tea, which was served 
 to him by one of the shopmen, and he bought two 
 ounces. It was delivered to the public analyst 
 for the county, who certified that it was adulte- 
 rated by a thick facing of mineral matter and 
 Prussian blue. The green tea in question was 
 sold by the appellant in the same state in which 
 it came from abroad, and the appellant did not 
 in any way cause the tea to be painted or feced 
 in this country. A sample of tea was produced 
 by the public analyst before the magistrates, which 
 resembled in colour and appearance what is popu- 
 larly known as green tea. This was proved by 
 the public analyst to be neither painted nor faced. 
 It was also proved that the tea which is imported 
 from China as green tea, and generally known as 
 such in the tea trade, is painted and faced in the 
 manner previously stated, and that the sample 
 proved to be neither painted nor faced was im- 
 ported from Japan, and not known generally in 
 the trade as green tea. The Justices convicted the 
 appellant : — 
 
 Held, by the majority of the Court, Cockburn, 
 0. J. ; ]31ackburn, J. ; and Archibald, J. (Quain, 
 J., dissenting), that the conviction was right, for 
 in the case of a simple commodity like tea, the 
 mode by which it was coloured was an adultera- 
 tion, and this adulteration, though known to the 
 trade, being unknown to the public, the tea must 
 be taken to be sold as unadidterated. Roberts v. 
 Egerton, 43 Law J. Rep. (n.s.) M.C. 135; Law 
 Rep. 9 Q.B. 494. 
 
 3.-rThe 2nd section of the Adulteration of 
 Food, &c., Act, 1870 (35 & 36 Vict. c. 74), imposes a 
 penalty on a person who sells as nnadulterated an 
 adulter,ated article of food ; and the 3rd section 
 enacts that anyone who shall sell any article of 
 food, " knowing the same to have been mixed with 
 any other substance, with intent fraudulently to 
 increase its weight or bulk, and who shall not 
 declare such admixture to any purchaser thereof, 
 before delivering the same, and no other, shall be 
 deemed to have sold an adulterated article of food " 
 under the Act : — Held, that a person commits no 
 offence under the 3rd section, if he does not 
 come under the 2nd section, by selling an adul- 
 terated article as an unadulterated. And Semble — 
 that the 3rd section does not require the seller of 
 an admixture to declare the ingredients of such 
 admixture to the purchaser. Pope v. Tearle, 43 
 Law J. Rep. (n.s.) M.C. 129; Law Rep. 9 C. P. 
 499. 
 
 [And see Beead, 1.] 
 
AiVANOEMENT (A), (B). 
 
 ]? 
 
 ADVANCEMENT. 
 
 (A) What constitutes an Advancement. 
 
 (B) Ademption and Satisfaction. 
 
 (C) Po-WBB of TliUSTBESi. 
 
 (A) What consiitotes an Advancement. 
 
 1. — On a transfer by a father into a son's name, 
 — Held, that the presumption -was that an ad- 
 vancement -was intended, not-withstanding the fact 
 that the son Tvas already fully advanced, and that 
 the father had by a previous -will manifested an 
 intention to provide for the son's children. Hep- 
 worth V. Hepworth, 40 Law J. Eep. (n.s.) Chanc. 
 Ill; Law Eep. 11 Eq. 10. 
 
 2. — -A father purchased copyholds in his son's 
 name, but dealt with them as owner. There was 
 an admission that the father was intended to take 
 dm?ing his life : — Held, that the presumption that 
 an advancement was intended was rebutted. 
 Stock T. M'Avoy, 42 Law J. Eep. (n.s.) Chanc. 
 230 ; Law Eep. 15 Eq. 65. 
 
 3. — A father who died intestate, allowed his 
 sons, first, varying yearly sums till marriage ; 
 second, paid a son's fee to a special pleader ; third, 
 his dues to an Inn of Court ; fourth, the outfit and 
 passage money of a son in the army and of his 
 wife to India ; fifth, his debts without payment of 
 which he must have left the army : — Held, that 
 these payments were not " advancements by por- 
 tion " within the Statute of Distributions, 22 & 23 
 Car. 2. c. 10. Taylor v. Taylor, 44 Law J. Eep. 
 (n.s.) Chanc. 718 ; Law Eep. 20 Eq. 155. 
 
 He further paid, first, a son's entrance fee to one 
 of the Inns of Court; second, the price of his com- 
 mission in the army, and contemporaneously that 
 of his outfit ; third, certain sums for establishing 
 him, late in life, in business : — Held, that these 
 payments were advancements within the statute. 
 Ibid. 
 
 To constitute "an advancement by portion " the 
 gift must be something given by the parent to esta- 
 blish the child in life, or to make what is called a 
 provision for him. Ibid. 
 
 An administrator, being one of the two next-of- 
 kin of the intestate, advanced since the intestate's 
 death out of his own moneys sums to A. B., the 
 other next-of-kin : — Held, that he might set off 
 in an administration suit the amount of such ad- 
 vances against the moneys due to the other next- 
 of-kin from him as administrator, out of the estate 
 of the intestate. Ibid. 
 
 4.— W. (a widow) transferred stock (previously 
 standing in her name and that of her deceased 
 husband) into the names of herself, her daughter 
 and daughter's husband. W. received the divi- 
 dends on the stock during her life. The daughter 
 predeceased W., who died, leaving her daughter's 
 husband surviving : — Held, that .she was entitled 
 to the stock absolutely. [Batstone v. Salter, 44 
 Law J. Eep. (n.s.) Chanc. 209 ; Law Eep. 19 Eq. 
 250. Affirmed on appeal, 44 Law J, Eep. (n.s.) 
 Chanc. 760; Law Eep. 10 Chanc. 431. 
 
 Advancement of wife by Jmsband : hanldng 
 accmmt. [See Baeon and Feme, 
 2,3.] 
 Digest, 1870—1875. 
 
 (B) Adbmption and Satisfaction. 
 
 5. — There is no presumption of law that the 
 payment of a sum of money to a child (even by a 
 father) before the date of his will, is to go against 
 a legacy, bequeathed by the will to that child. 
 Taylor v. Cartwright, 41 Law J. Eep. (n.s.) 
 Chanc. 529 ; Law Eep. 14 Eq. 167. 
 
 6 . — Bequest of legacies of 500^. each to testator's 
 three sonsT., J. and P., and to his daughter 200?., 
 with a direction that neither of his sons whom he 
 should have advanced in his lifetime should be 
 entitled to receive his said legacy without bring- 
 ing the advances into hotchpot, and bequest of 
 residue to testator's four sons C, T., J. and P., 
 and the daughter. The testator had, before the 
 date of his will, made advances exceeding 700?. to 
 C, and after the date of his will had advanced 
 500?. and" 380?. to T. : — Held, that the advances 
 to C. should not be taken into account against 
 him ; but that, as to T. the 500?. must go against 
 his legacy and the 380?. against his share of resi- 
 due. In re Feacock's Estate, Law Eep. 14 Eq. 
 236. 
 
 7. — Testator gave his wife a life interest in half 
 his residue. Subject to that life interest he 
 directed his residue to be divided among his chil- 
 dren. He made advances to some of his children, 
 which it was admitted would adeem their shares 
 pro tanto : — Held (affirming the decision of one of 
 the Vice Chancellors, 41 Law J. Eep. (n.s.) Chanc. 
 407), that the widow was entitled to a life interest 
 in only half the actual residue, without regard to 
 the amount paid by way of advancement, ademp- 
 tion operating only to equalise as between the 
 children what they took from their father. Mei- 
 nertzhagen v. Walters, 41 Law J. Eep. (n.s.) Chanc. 
 801 ; Law Eep. 7 Chanc. 670. 
 
 8. — M. on the marriage of his daughter cove- 
 nanted to settle 8,500?., and advanced 2,000?. to 
 purchase a share in a business for his son ;• by his 
 will he gave the residue of his property equally 
 between his daughter and his son : — Held, that 
 these advances were both pro tanto in satisfaction 
 of the children's shares. Stevenson v. Masson, 43 
 Law J.Eep. (n.s.) Chanc. 134 ; Law Eep. 17 Eq. 78. 
 
 9. — A testator devised real estates in strict 
 settlement, subject to a term for raising portions 
 for younger children, and directed that if the 
 tenant for life should during his life advance or 
 pay any sum or sums of money to or for the use or 
 benefit of any younger child for whom a portion 
 was thereby intended to be provided, then, unless 
 the contrary should be declared by the person 
 making such advance by deed, the sum or sums of 
 money so to be advanced should be taken to be in 
 full or part satisfaction as the case might be of 
 such child's portion. The tenant for life by will 
 gave legacies and shares of residuary estate to some 
 of the younger children : — Held, that such gifts 
 were not to be taken in satisfaction pro tanto of 
 the portions. Eickman v. Morgan (1 Bro. C.C. 
 63 ; 2 lb. 394); Twisden v. Twisden (9 Ves. 413) ; 
 Leake v. Leake (10 lb. 476) ; and Golding v. Ha- 
 verfield (M'Ole. 345; 13 Price, 593), observed 
 upon. Cooper v. Cooper, 43 Law J. Eep. (n.s.) 
 Chanc. 158; Law Eep. 8 Chanc. 813, 
 D 
 
18 
 
 ADVANCEMENT (C)— ALEHOUSE. 
 
 10. — "Where a father after giving by his will a 
 portion to a cMld advanced to such child a portion 
 ■without any deed or instrunaent, such provision 
 in the absence of circumstances negativing the 
 presumption, was held an ademption fro tanto. 
 Leighton v. Ldghton, 43 Law J. Eep. (n.s.) 
 Chanc. 594; Law Eep. 18 Eq. 458. 
 
 The occasion of a subsequent advancement 
 satisfying or adeeming a previous one need not be 
 the marriage of the child or any other occasion 
 calling specially for the advancement of the child. 
 Ibid. 
 
 Presumption that legacy is adeemed by a 
 subsequent advancement by the testator, 
 [See Teust, A 17.] 
 
 (C) Power op TKtrsTSEa. 
 
 11, — ^By a deed of settlement a sum of money 
 was settled upon trust for A. for life, and after 
 death for B. for life, or until alienation, and after- 
 wards in trust for B.'s children, and it was de- 
 clared that the trustees might in their absolute 
 discretion, but with the consent of the first tenant 
 for life, if living, advance any sum not exceeding 
 2,000^. for the promotion in the army of B. The 
 purchase of commissions in the army having been 
 abolished, — Held, that inasmuch as the power of 
 applying the fund for the promotion in the army 
 of B. could not now be exercised, the trustees 
 could not raise and pay the money to him. Palmer 
 V. Flower (41 Law J. Eep. (n.s.) Chanc. 193 ; Law 
 Eep. 13 Eq. 250) distinguished. In re Ward's 
 Trusts, 42 Law J. Eep. (n.s.) Chanc. 4 ; Law Eep, 
 7 Chanc. 727. 
 
 12. — A power in a marriage settlement to 
 advance a part of the trust funds to a son for 
 placing him in any profession or employment, or 
 otherwise for advancing him in the world : — Held, 
 to authorise payment of part of the funds to the 
 trustees of a post-nuptial settlement by the son 
 on himself, his wife and issue, neither the son nor 
 the wife having any property producing income, 
 and the son being engaged in studying for the 
 law. Eoper-Curson v. Bofer-Curson, Law Eep. 
 11 Eq. 452. 
 
 Power to advance an adult : payment of his 
 debts, wTtether within power. [See 
 POWEE, 29.] 
 
 ADVOWSON, 
 [See Chtjech, 3-6.] 
 
 A&RICULTUEAL CHILDEEN. 
 
 [Prohibition of employment of children under- 
 eight years of age in agricultural work, and re- 
 striction on their employment when over that age. 
 36 & 37 Vict. e. 67.] 
 
 ALEHOUSE, 
 
 (A) GrEANT OF LICENSE. 
 
 (a) Jurisdiction of special sessions. 
 (4) Discretion of Justices. 
 
 (c) Renewing application at fecial sessions. 
 
 (d) Bight of appeal. 
 
 (e) Conviction for felony. 
 
 If) New license : confirmation. 
 
 (B) Eenewal op License. 
 
 (a) Jurisdiction of Justices. 
 
 (j) Adjournment. 
 
 Ip) Eating qualification. 
 
 (d) Application to special sessions, 
 
 (C) House foe Public Ebfeeshment, 
 
 (D) Offences. 
 
 (a) Supplying constable on duty, 
 {b) Hours of closing. 
 
 (c) Liquors kept for unlawful sale, 
 
 (d) Sunday trading : traveller. 
 
 [Amendment and extension of Wine and Beer- 
 houses Acts. 33 & 34 Vict. c. 29.] 
 
 [Restrictions on the grant by Justices of the 
 peace of new licenses and certificates for the sale 
 of intoxicating liquors by retail. 34 & 35 Vict. 
 c. 88.] 
 
 [Amendment of the law relating to the sale of 
 intoxicating liquors. 35 & 36 Vict. c. 94.] 
 
 [Amendment of the laws relating to the sale 
 and consumption of intoxicating liquors. 37 & 38 
 Vict. c. 49.] 
 
 (A) Geant op License. 
 
 {a) Jurisdiction of special sessions, 
 
 1. — A license, dated 10th October, 1870, was 
 granted by the Commissioners of Inland Eevenue 
 to W., authorising him to sell exciseable liquors by 
 retail on the premises occupied by him. The 
 license expired by effluxion of time on the 10th of 
 October, 1871. At the General Annual Licensing 
 Meeting held on the 25th of August, 1871, he ap- 
 plied for a renewal of his license, but the justices 
 refused to renew it. He continued to occupy the 
 premises until the 13th of October, 1871. He 
 was succeeded in the occupation by S., who, after 
 giving the proper notices, applied at the Special 
 Sessions holden on the 4th of January, 1872, for a 
 license to sell exciseable liquors by retail to be 
 drunk on the same premises, which he intended to 
 keep as an inn. The justices at the Special Ses- 
 sions refused the application, considering that they 
 had no jurisdiction inasmuch as W. had remained 
 in possession until after the expiration of the 
 license: — Held, that they were right, and that 
 there was no jurisdiction at the Special Sessions 
 to 'grant the license. The Queen v. Justices of the 
 Borough of Birmingham, 41 Law J, Rep. Tn.s.') 
 M.C. 102. i- V / 
 
 ,(i) Discretion of Justices, 
 
 2. — Where an application is mado under 32 & 
 33 Vict. c. 27. ci. 5, for a certificate for a license 
 to sell beer to be consumed on the premises in 
 respect of a house not previously licensed, the 
 
ALEHOUSE (A). 
 
 justices may take into account the requirements of 
 the district, and the number of beer-houses already 
 existing -witliiu it, and refuse the application, 
 although the fitness of the applicant and of the 
 house are admitted. Tlie Qiwen v. Justices of 
 Lancashire, 40 Law J. Eep. (n.s.) M.C. 17; Law 
 Eep. 6 Q.B. 97. 
 
 3.— By the "Wine and Beerhouse Act, 1869 (32 
 & 33 Vict. c. 27), s. 19, where, on the 1st of May, 
 1862, a license is in force with respect to any 
 house for the sale of beer to be consumed on the 
 premises, it shall not be lawful to refuse an appli- 
 cation for a certificate in respect of such house, 
 except on one or more of the grounds specified in 
 section 8. By the Intoxicating Liquors (Licensing 
 Suspension Act) Act, 1871, 34 & 35 Vict. i:. 88. 
 s. 3, it was declared that, where a license had by 
 forfeiture or lapse of time ceased to be in force, 
 the justices might, in their discretion, refuse a cer- 
 tificate upon any ground on which they might 
 refuse a certificate with respect to any house as to 
 which a license was not in force on the 1st of 
 May, 1869. By the Licensing Act, 1872, 35 & 36 
 Vict. e. 94. s. 75, the Act of 1871 is repealed, and 
 section 19 of the Act of 1869 is made perpetual : 
 — Held, that, notwithstanding the repeal of 34 & 
 35 Vict. c. 88. s. 3, the justices retained their dis- 
 cretion to refose a certificate in the case of a house 
 licensed on the 1st of May, 1869, where the 
 license had lapsed before application was made for 
 renewal. J%e Queen v. Gurzon, 42 Law J^ Eep. 
 (n.s.) M.C. 165 ; Law Eep. 8 Q.B. 400. 
 
 4. — The tenant of a house who had obtained a 
 license for the sale of exciseable liquor under 9 
 Geo. 4. c. 61, was fined for an ofience against the 
 tenor of his license, and ejected by his landlord. 
 Before the expiration of the year of the license 
 another tenant was let into possession, and applied 
 to justices, under 5 & 6 Vict. c. 44, to endorse the 
 license to him, which they refused.. He then gave 
 up the house to the landlord, and at the next an- 
 nual licensing meeting it was unoccupied, and no 
 application was made for a license in respect of it. 
 In the following November a special licensing 
 meeting was held under 9 Geo. 4. c. 61, s. 4, and 
 the appellant, who had become tenant since the 
 licensing meeting, applied for a new license under 
 s. 14, but the justices after considering the appli- 
 cation on the merits rejected it. On appeal, the 
 Quarter Sessions found that the appellant was a 
 proper person to make the application, but held 
 that the grant or refusal of a license under s. 14 
 was a matter for the discretion of the justices, and 
 on this ground declined to interfere ; — Held, that 
 it was within the discretion of the justices to grant 
 or refuse the license. And quaere, by Lush, J., 
 whether in the particular case the Special Sessions 
 had any jurisdiction to grant a license. The 
 Queen v. Bowell, 41 Law J. Eep. (n.s.) M.O. 175; 
 LawEep. 7Q.B. 490. 
 
 (c) Renewing applicatimi at special sessions. 
 
 5. — ^A house in Middlesex, kept for years as an 
 inn under 9 Geo. 4. c. 61, was in February, 1872, 
 left by the licensed tenant, who gave up posses- 
 sion to T. In March following, at the annual 
 
 general licensing meeting, application was made 
 for a license on behalf of T., but this was refused, 
 and no appeal was made from the decision. The 
 license expired on April 6th, when the house was 
 shut up, and in May T. applied under s. 14 to the 
 special sessions for a license, who refused it on the 
 ground that the application had been already dis- 
 posed of at the general licensing sessions : — Held, 
 that after an unsuccessful application at the an- 
 nual general licensing meeting, T, could, not after- 
 wards renew his application at the special sessions. 
 The Queen v. Taylor, 42 Law J. Eep. (n.s.) M.C. 
 13; LawEep. 7 Q.B. 487. 
 
 {S) Siffht of appeal. 
 
 e.— By "The Wine and Beerhouse Act, 1869," 
 32 & 33 Vict. c. 27, s. 8, all the provisions of the 
 Act, 9 Geo. 4. c. 61, as to appeal from any act of 
 the justices at the general annual licensing meet- 
 ing, shall, so far as may be, have effect with regard 
 to grants of certificates imder this Act, &c. . . . 
 By the Licensing Act, 1872, 35 & 36 Vict. c. 94. 
 s. 75, and schedule 2, the provisions of the Act, 9 
 Geo. 4. c. 61, as to appeal (ss. 27, 28, 29), are re- 
 pealed, " except in so far as these sections relate 
 to the renewal of licenses or transfer of licenses : " 
 — Held, that in the absence of any express repeal 
 of s. 8 of the Wine and Beerhouse Act, 1869, the 
 appeal given by that section was not taken away 
 by the repeal of the appeal sections in the original 
 Act, 9 Geo. 4. c. 61. 27ie Queen v. Smith, 42 Law 
 J. Eep. (n.s.) M.C. 46 ; Law Eep. 8 Q.B. 146. 
 
 («) Conviction for felony. 
 
 7. — The 14th section of the Wine and Beer- 
 house Amendment Act, 1870, disqualifies any 
 person " convicted of felony " from selling spirits 
 by retail, and makes a license, taken out or had 
 by any person after being so convicted, void to all 
 intents and purposes : — Held (by Cockburn, C.J., 
 Mellor, J., and Archibald, J.; Lush, J., dissen- 
 iiente), that the expression " convicted of felony" 
 is equivalent to " convicted felon," and apjplies to 
 persons who have been convicted before the 
 passing of the Act, so as to invalidate licenses 
 held by such persons. The Queen v. Vine, 44 Law 
 J. Eep. (n.s.) M. C. 60 ; Law Eep. 10 Q, B. 195. 
 
 (/) New license ; confirmation. 
 
 8. — Up to the general annual licensing meeting 
 in March, 1874, the appellant held licenses granted 
 by the Excise for the sale of wine and beer for 
 consumption on premises in his occupation. The 
 licenses were granted to him under the authority 
 of a justice's certificate, which had been given 
 him annually since the passing of the Wine and 
 Beerhouse Act, 1869, and which was renewed at 
 the last general annual licensing meeting. At 
 such meeting, the appellant, for the first time, 
 applied for a victualler's or publican's license, 
 under 9 Geo. 4. c. 61, and the Licensing Act, 1872. 
 It was granted, but was not confirmed by the 
 confirming authority for the county appointed 
 under section 37 of the Licensing Act, 1872: — 
 Held, that this license was a " new license," whicli 
 d2 
 
20 
 
 ALEHOUSE (A), (B). 
 
 under section 37 required confirmation by the 
 licensing committee, and as it had not been so con- 
 firmed, it was invalid. Marwick v. Codlin, 43 Law 
 J. Eep. (n.s.) M. 0. 169 ; Law Eep. 9 Q. B. 509. 
 
 (B) EiENEWAL OF License. 
 (a) Jurisdiction of Justices. 
 
 9. — Sections 46 and 46 of the Licensing Act, 
 1872, do not apply to public houses licensed, at 
 the time of the passing of the Act, under 9 Geo. 4. 
 t. 61. The Queen v. Mann, Law Eep, 8 Q. B. 235. 
 
 10.— Section 14 of 9 Geo. 4. c. 61 does nOt 
 apply to the case of a man who does not remove 
 from the house .specified in the license until after 
 the license has run out, and therefore the justices 
 at Special Sessions have no jurisdiction to grant a 
 new license in respect of the premises to the suc- 
 cessor of a man so removing. Simpkin v. The 
 Justices of Birmingham, Law Eep. 7 Q. B. 482. 
 
 11. — By the "Wine and Beerhouse License Act, 
 1869 (32 & 33 Vict. c. 27), sec. 19, where on the 
 1st of May, 1869, a license under the recited Act 
 is in force with respect to any house for the sale 
 therein of beer, &c., to be consumed on the pre- 
 mises, " it shall not be lawful for the justices to 
 refuse an application for a certificate for the sale 
 of beer, &c., to be consumed on the premises, in 
 respect of such house, except upon one or more of 
 the grounds upon which an application for a cer- 
 tificate under this Act for the sale of beer, &c., 
 not to be consumed on the premises may be re- 
 fused, in accordance with this Act." By section 8 
 the provisions of 9 Geo. 4. c. 61, shall apply to 
 grants of certificates under this Act, subject to 
 tliis qualification, that no application for a certifi- 
 cate under this Act in respect of a license to sell 
 by retail beer, &c., not to be consumed on the 
 premises, shall be refused except on one of the 
 following grounds : first, " that the applicant has 
 failed to produce satisfactory evidence of good 
 character:" — Held, that after justices have re- 
 fused an application for a certificate under sec. 19, 
 on the ground that the applicant has failed to 
 produce satisfactory proof of good character, the 
 Quarter Sessions, on appeal, are not limited to 
 the evidence before the justices below, but may 
 receive fresh evidence of the applicant's character. 
 The Queen v. Filgrim, 40 Law J. Eep. (n.s.) 
 M. C. 3 ; Law Eep. 6 Q. B. 89. 
 
 12. — At a, general annual licensing meeting, 
 M., the occupier of a house licensed as a public- 
 house under 9 Geo. 4. o. 61, applied for a renewal 
 of the license. The justices renewed the license, 
 but with the following notice upon it, "This 
 license is renewed on condition that the licensed 
 premises shall, before the next general annual 
 licensing meeting, be improved and made of the 
 annual value of 30i., in default of which this 
 license will not be renewed:" — Held (Mellor, J., 
 hssitanie.), that the justices had no power to im- 
 pose such a condition upon M. ; that the provision 
 in section 46 of the Licensing Act, 1872, as to 
 improving the premises does not apply to a house 
 already licensed under 9 Geo. 4. c. 61, and that 
 
 the* condition was null and void. The Queen v. 
 
 The Justices of Exeter, 42 Law J. Eep. (M.S.) M. C. 
 36. 
 
 Semble — that part of a license cannot be quashed 
 upon certiorari without quashing the whole. Ibid. 
 
 Observations on the requisites of the affida.vit 
 under the " Eeview of Justices' Decisions Act, 
 1874." Ibid. 
 
 (J) Adjov/mment. 
 
 13. — -Where justices under the above section 
 adjourn an application for the renewal of a license, 
 to which no objection has been made, they must 
 give the applicant notice of the adjournment, and 
 require his presence at the adjourned meeting; 
 merely giving notice in open Court that the case 
 will be adjourned is not sufficient if not brought 
 home to the applicant. Semble — any licensing 
 justice may himself make an objection to the re- 
 newal of a license. The Queen v. Fanjuhar, Law 
 Eep. 9 a. B. 258. 
 
 (c) Rating gualification. 
 
 14. — By 3 & 4 Vict. c. 61. s. 1, it is enacted 
 that no license to sell beer by retail shall be 
 granted " in respect of any dwelling-house which 
 shall not, with the premises occupied therewith," 
 be rated in one sum to the rate for the relief of 
 the poor, on a rent or annual value of 15^., if 
 situate in any town corporate, the population 
 of which shall exceed 10,000. The borough of 
 Blackburn has more than 10,000 inhabitants. 
 On an application made to justices for a certificate 
 under 32 & 33 Vict. c. 27, for the renewal of a 
 license for the sale of beer, it was proved that 
 the applicant occupied a house and shop in the 
 said borough, which were together assessed to the 
 relief of the poor in the sum of Ibl., and were 
 attached to and communicated with each other, 
 and that the shop was used for the sale of gro- 
 ceries and beer. That portion of the house and 
 premises occupied for the sale of beer without the 
 shop would not have been rated in a sufficient 
 sum. The justices being of opinion that the ap- 
 plicant was not entitled to a certificate by reason 
 of his occupying part of such house and premises 
 as a shop, refused the application : — Held, that 
 as in fact the shop was occupied with the dwelling- 
 house, and they were together assessed in a suffi- 
 cient sum, the terms of the 1st section of 3 & 4 
 Vict. c. 61 were satisfied, and that therefore the 
 decision of the justices was wrong. Garatty v. 
 Fotts, 40 Law .T. Eep. (n.s.) M.C. 1 ; Law Eep. 
 6 Q. B. 86, nom. Gareity v. Potts. 
 
 {d) Application to special sessions. 
 
 15. — The holder of a certificate for a license 
 to sell beer to be consumed on the premises, 
 assigned the licensed premises, and removed from 
 and yielded up possession of them on the 14th of 
 February. The next ensuing general annual 
 licensing meeting was held on the 6th of March. 
 The old tenant applied for a renewal of the certi- 
 ficate at such meeting, and was refused. The 
 " new tenant did not apply at that meeting, but 
 gave the requisite notices, and applied for a cer- 
 tificate at the special licensing sessions, held 
 
ALEHOUSE (B), (D), 
 
 21 
 
 under 9 Geo. 4. e. 61. s. 4, on the 12th of April : 
 — Held, that he was entitled to such certificate at 
 the special sessions, under 9 Geo. 4. o. 61. s. 14, 
 and 33 & 34 Vict. c. 29. s. 4. suhs. 5. The Quern 
 V. The Jmtioes of Middlesex, 40 Law J. Eep. (n,s.) 
 M. C. 184 ; Law Eep. 6 Q. B. 781. 
 
 (C) House foe Public Ebfbeshment. 
 
 18. — ^The resident occupier of a house called 
 the Caf6, in Lower Temple Street, Birmingham, 
 in which were found, between eleven and twelve 
 o'clock at night, seventeen females and twenty 
 gentlemen, who paid for, and were supplied with, 
 cigars, coffee and ginger-beer, which they con- 
 sumed there, was convicted of keeping open such 
 house without taking out a license under 23 Vict, 
 c. 27. s. 6, to keep a refreshment house : — Held, 
 that such house was " kept open for public re- 
 freshment, resort and entertainment," and re- 
 quired such a license, and that the conviction was 
 right. Muir v. Keay, 44 Law J. Eep. (n.s.) 
 M. C. 143 ; Law Eep. 10 Q. B. 594. 
 
 (D) Offences. 
 
 (o) Supplying constable on duty. 
 
 17.— By sec. 16 of the Licensing Act, 1872, 
 "If any licensed person supplies any liquor or 
 refreshment, whether by way of gift or sale, to 
 any constable on duty, unless by authority of 
 some superior of such constable, he shall be 
 liable to a penalty, &c." A constable on duty 
 and in uniform went to the house of a licensed 
 person. He was there supplied with some brandy 
 by a servant. He did irot go there by the autho- 
 rity of a superior officer, nor was the brandy sup- 
 plied by the authority of any superior officer. 
 The licensed person was not present at the time ; 
 he did not know that the brandy was supplied, 
 nor had he given any express authority to the 
 servant to supply it: — Held, that, under the 
 above section, he was liable to be convicted. 
 Muilins V. Collins, 43 Law J. Eep. (n.s.) M. C. 
 67 ; Law Eep. 9 Q. B. 292. 
 
 (i) Hours of closing. 
 
 As to hours of closing in Scotland. 
 Scotch Law, 6.] 
 
 [See 
 
 18. — Where a town was divided into two 
 parishes, one of which contained less than 2,600 
 inhabitants : — Held, that a conviction against the 
 keeper of a beer-shop in such parish, for keeping 
 his house open after 10 p.m., could not stand, as 
 the town was " a place " in which a beershop 
 might kwfully be kept open until 1 1 p.m., under 
 3 & 4 Vict. c. 61, s. 15, Sice v. Slee, Law Eep. 
 7 C. P. 378. 
 
 (c) Liquors kepi for unlawful sale. 
 
 10, — When liquors kept for unlawful sale have 
 been seized under s. 15 of 33 & 34 Vict. c. 29, 
 the justices cannot order them to be sold without; 
 giving the person, upon whose premises they are 
 sgized, an opportunity of being beard, and of 
 
 shewing that the seizure was wrong, and that the 
 sale ought not to take place. Gill V. Bright, 41 
 Law J. Eep. (n.s.) M. C. 22. 
 
 (d) Sunday trading : traveller. 
 
 20. — The law as settled by the decision in Davis 
 V. Scrace (38 Law J. Eep. (n.s.) M. C. 71 ; Law Eep. 
 4 C. P. 172), that upon an information against a 
 beerhouse keeper for opening his house on Sunday 
 for the sale of beer within the hours prohibited by 
 1 1 & 1 2 Vict, c, 49, s. 1 , except for refreshment 
 for travellers, the burthen of proving that per- 
 sons drinking in the house are not travellers is 
 upon the informer, is unaffected by the Wine and 
 Beerhouse Act, 1869. Morgan v. Hcdger, 40 
 Law J. Eep. (n.s.) M.C. 13; Law Eep. 6 C. P. 
 485. 
 
 21.— By the Licensing Act, 1872, 36 & 36 
 Vict. c. 94, s. 24, " any person wlio sells or ex- 
 poses for sale, or opens or keeps open premises 
 for the sale of, intoxicating liquors during the 
 time that such premises are directed to be closed 
 in pursuance of this section," shall be liable to (a 
 prescribed penalty) ; and by the same section, 
 " none of the provisions contained in the section 
 shall preclude a person licensed to sell any intoxi- 
 cating liquor to be consumed on the premises from 
 selling such liquor to bond fide travellers, or to 
 persons lodging in his house." By section 61, sub- 
 section 4, "any exception, exemption, proviso, 
 excuse, or qualification, whether it does or does 
 not accompany the description of the ofience in 
 this Act, may be proved by the defendant, but 
 need not be specified or negatived in the informa- 
 tion, and if so specified or negatived, no proof 
 in relation to the matters so specified or nega- 
 tived shall be required on the part of the infor- 
 mant or complainant." 
 
 At the hearing of an information against the 
 appellant (who had the usual license to sell liquor 
 to be consumed on the premises), for keeping his 
 premises open in prohibited hours on Sunday, it 
 was proved that nineteen workmen were found 
 drinking, and some of them smoking, there at 
 the time in question, and that all except one came 
 from central parts of the town of Birmingham, at 
 distances varying from a mile and three-quarters 
 to two miles irom the premises, which were only 
 400 yards distant by road from Birmingham. 
 There was no evidence that they had travelled or 
 were about to travel. On the part of the appel- 
 lant it was proved that an attendant was placed 
 near the premises for the purpose of preventing 
 the entrance of any except bona fide travellers ; 
 that no one was admitted who did not state that 
 he had come more than three miles. The appel- 
 lant also proved that notices were posted on his 
 premises stating that none but travellers could 
 be admitted, and that during the hours in ques- 
 tion no persons were admitted who did not repre- 
 sent themselves to be bond fide travellers. 
 
 The justices found that the men found on the 
 premises were not all bond, fide tr.ivellers, and also 
 that inasmuch as upon misrepresentations made 
 by the persons who were not bond fide travellers, 
 intoxicating liquors had been obtained by them, 
 
22 
 
 ALEHOUSE— ANIMALS. 
 
 sufficient diligGiiC6 liad not been -used. That it 
 ■was for the appellant to hring himself within the 
 exception as to bon&fide travellers, and that he 
 had failed to do so. They accordingly oonTictod 
 him in a penalty of 51. : — Held, that the justices 
 ■were right in holding that under the Act the 
 burden lay upon the appellant of she"wing that 
 the sale of liquor ■was ■within the exception in 
 section 24 ; but upon the point taken that the 
 honest belief of the appellant that the men -B'cro 
 bond fide travellers brought him within the excep- 
 tion, the case must be remitted to the justices to 
 find as a fact whether the appellant bond fide 
 thought that the persons admitted by him were 
 travellers ■within the meaning of the Act, — Quain, 
 J., inclining to the opinion that such a bona fide 
 belief would bring the appellant ■within the ex- 
 ception; Blackburn, J., and Archibald, J., to the 
 opinion that the appellant must prove that the 
 persons admitted were actually bond fide travel- 
 lers. Boberts v, Humphreys, 42 Law J. Eep. (n.s.) 
 M. 0. 147 ; Law Eep. 8 Q. B. 483. 
 
 Compensation under lease for goodwill of 
 alehotise. [See Lea.se, 21.] 
 
 ALIEN. 
 
 In March, 1862, L. and S. (the ■wife of an alien 
 conveyed land of which they wore tenants) in 
 common to a trustee, upon trust to sell and 
 stand possessed of the proceeds in trust for L. 
 and S. in equal shares, the share of S. to be for 
 her separate use. In April, 1862, L. and S. en- 
 tered into an agreement to allot the lands in 
 severalty, and that the trustees should stand pos- 
 sessed of each such respective allotment on the re- 
 pectivo trusts declared by the deed of March, and 
 that nothing in the agreement should prejudice 
 or affect any of the powers or trusts of the deed. 
 No sale was ever effected, and S. died in 1866, 
 having by her ■will given to her husband, the 
 alien, her personal estate absolutely and a life 
 interest in her real estates : — Held, first, revers- 
 ing the decision of one of the 'Vice Chancellors, 
 that the land was not in equity converted into 
 money ; secondly, that the title of the alien having 
 accrued before the passing of the Naturalisation 
 Act, 1870, that Act did not remove his disability 
 to hold land; thirdly, following the decision of 
 Lord Eomilly, M.E., in Barrow v. Wadkin (24 
 Beav. 1, 327; 27 Law J. Eep. (n.s.) Ohanc. 129), 
 that the trust for the alien could be enforced for 
 the benefit of the Crown. Sharp v. Be St. Sau- 
 veur, 41 Law J. Eep. (n.s.) Chanc. 676 ; Law Eep. 
 7 Chanc. 343. 
 
 ALIMONY. 
 [See DivoECE.] 
 
 AMALGAMATION. 
 [See Company.] 
 
 ANIMALS. 
 Cruelty to animals. 
 
 1. — H., the huntsman of a pack of hounds, had 
 the care and management of the kennels, and of a 
 place which was used solely as a slaughter-house 
 for the purpose of slaughtering horses and other 
 cattle sent there as food for the hounds. B. sent 
 a horse to the said place, and delivered it to H. for 
 the purpose of the said horse being slaughtered as 
 food for the hounds, telling him of the said pur- 
 pose. Instead of slaughtering the horse, H. lent 
 him to a person for the purpose of being worked, 
 and he was worked by that person : — Held, that 
 12 & 13 Vict. c. 92. s. 9 (which imposes a penalty 
 for using horses delivered to be slaughtered at a 
 place used for slaughtering), applied to the hunts- 
 man, and was not confined to persons having or 
 managing licensed slaughter-houses under 26 Geo. 
 3. c. 71. Colam v. Hall, 40 Law J. Eep. (n.s.) 
 M. C. 100 ; Law Eep. 6 Q. B. 206. 
 
 2. — A match took place in a field of between 
 three and four acres as to which of two dogs could 
 kill the greatest number of rabbits. The field was 
 walled and paled round so that a rabbit could not 
 escape therefrom. The two dogs were held in a 
 slip. A rabbit was let loose before the dogs who 
 ran and killed it. The appellant was convicted 
 under 12 & 13 Viet. c. 92. s. 3, for using the field 
 for the purpose of baiting a rabbit : — Held, that 
 such conviction could not be supported, inasmuch 
 as a rabbit treated in the manner above described 
 could not be said to be baited within the meaning 
 of that section. Fitts v. Millar, 43 Law J. Eep. 
 (n.s.) M. C. 96 ; Law Eep. 9 Q. B. 380. 
 
 Conveyance of cattle. 
 
 3. — Cattle were put into a railway truck at K., 
 consigned to C. No request in -writing was made 
 by the consignor to supply them "with food or 
 water. They were sent off to C, where they ar- 
 rived after the expiration of more than thirty 
 hours from the time they were put into the truck, 
 and during the whole time they were ■without 
 water. An information was laid against the con- 
 signor before the borough justices at C, charging 
 him ■with not making a request in ■writing to 
 the railway company to supply water to the 
 cattle during the time they were about to be car- 
 ried on the railway : — Held, first, that proceedings 
 may be taken before justices in respect of an 
 offence committed under 32 & 33 Vict. c. 70. s. 64. 
 Secondly, that the information might have been 
 laid at K. Thirdly, that the justices in the 
 borough of C. had no jurisdiction to convict the 
 defendant, inasmuch as the period of thirty hours 
 had expired before the cattle had arrived there, 
 and the defendant did not happen to be in C. within 
 the meaning of those words in section 109. John- 
 son V. Colam, 44 Law J. Eep. (n.s.) M. 0. 185 ; 
 Law Eep. 10 Q. B. 544. 
 
 Semble — that the offence of failing to make the 
 request so that the animals remain ■without a supply 
 of water for thirty consecutive hours, may be com- 
 mitted at any place along the transit, and that the 
 information might be laid at any such place. Ibid. 
 
ANIMALS -ANNUITY. 
 
 23 
 
 Dangerous dog. 
 
 4.— Under the Dogs Act, 1871 (34 & 35 Vict. c. 
 56), s. 2, a Court of summary jurisdiction may order 
 a dangerous dog to bo destroyed, lyitliout giving 
 the owner the option of keeping it under proper 
 control. Pickering v. Marsh, 43 Law J. Eop. 
 (n.s.) M. C. 143. 
 
 Negligence in custody of animals.^ [See 
 
 Negliqenoe, 1-5.] 
 lAalility of carriers. [See Cabkibb, 34-37.] 
 
 ANNUITY. 
 
 (A) DlTEATION OP AotTOITT. 
 
 (B) Amount payable. 
 
 (C) To ■WHOM PAYABLE. 
 
 (D) GOTEBNMENT AnNTTITY : MlSEEPBESEKTA- 
 
 TION. 
 
 (E) On -what Peopeett chakqeablb. 
 (a) Corptts or income, 
 
 (i) Exoneration of personalty. 
 
 (F) Annuity chaeged on Land : Disteess. 
 
 (G) Covenant poe Payment op Annuity. 
 
 (H) FOSPEITUEE ON BaNEEUPTCY. 
 
 (A) DusATiON OF Annuity. 
 
 1. — Testator bequeathed .to his wife 501. a year, 
 which he directed his executors to pay to her out 
 of the interest, dividends, and produce arising 
 from all his personal property during her life or 
 widowhood, and after her decease or next mar- 
 riage he bequeathed the said 501. unto and amongst 
 his two daughters, S. and A., and his grand- 
 daughter M., equally between them or the sur- 
 vivors of them : — Held, reversing the decree of one 
 of the Vice Chancellors, that the gift was of a per- 
 petual annuity, and S. having died in the lifetime 
 of the testator, that A. and M., who survived the 
 widow, were each entitled to a moiety of sucli a 
 sum of money as at her death would be sufficient 
 to purchase so much 3Z. per Cent. Bank Annuities 
 as would produce the yearly sum of 501. Bent v. 
 Cullen, 40 Law J. Eep. (n.s.) Chanc. 250 ; Law 
 Eep. 6 Chanc. 235. 
 
 2. — Testator devised and bequeathed to trustees 
 all his property " for the following uses, intents, 
 and purposes." He then "left" to his wife 561. 
 per annum, payable quarterly. He bequeathed 
 another annuity expressly limited to the annuitant 
 " during her life." He left 800/. per annum out 
 of the proceeds of an East Indian estate, to be 
 appropriated to the maintenance and education of 
 the eight children of his daughter I. H., provided 
 they should change the name of H. for E., xmder 
 forfeiture of the SOOZ. per annum if they declined 
 to do so. Testator bequeathed any increased profit 
 beyond 800/. per annum to I. H., and his brother 
 C. E., as therein mentioned. If any of the children 
 should die their mother was to have the benefit of 
 the deceased child's share. Power was given to 
 the trustees to sell the East Indian estate in case 
 
 of the insufficiency of the profits thereof to pay 
 the annuities, the proceeds to be invested for the 
 benefit of the cliildren. Sliould the profits from 
 the working or sale of the estate not reach 800/. 
 annually, the trustees were to charge the residue 
 of the testator's property to make up the annual 
 sum of 800/. Any surplus proceeds were to be in- 
 vested for I. H. up to a certain amount. Testator 
 appointed his brother C. E. liis residuary legatee : — 
 Held, that the annuity to the testator's widow was 
 for her life only ; the annuity to his grandcliildren 
 was perpetual. HioTcs v. Boss, 41 Law J. Eep. 
 (n.s.) Chanc. 677 ; Law Eep. 14 Eq. 141. 
 
 3. — ^Testator, by his will, bequeathed the in- 
 come of 8,000/. to his wife during widowhood. 
 By a codicil he gave her an annuity of 100/. 
 during her life, so long as she and his son, E., 
 should live together ; but if they should cease to 
 reside together the annuity was to cease. The 
 son died in the widow's lifetime, having lived with 
 her till his death : — Held, that the annuity did not 
 cease upon his death. Sutcliffe v. Bichardson, 14 
 Law J. Eep. (n.s.) Chanc. 552; Law Eep. 13 Eq. 
 606. 
 
 Annuity to trustee : cesser on determination 
 of trust. [See Tkust, B 25.] 
 
 (B) Amount payable. , 
 
 4. — Devise to trustees in trust to pay an an- 
 nuity of 6,000/. a year, and subject thereto to 
 accumulate surplus rents for payment of debts, 
 legacies and incumbrances, with a direction that 
 as soon as the debts were paid off the annuity 
 should be increased to 8,000/., and bequest of resi- 
 duary personalty to the trustees upon trust to pay 
 off the incumbrances, debts, and legacies. 'The 
 testator's personalty was ascertained to be amply 
 sufficient to pay off the debts, legacies, and incum- 
 brances, but the trustees retained a considerable 
 part thereof, which was beneficially invested, and 
 did not pay off the incumbrances for several 
 years: — Held (reversing the M. E.), that the an- 
 nuity was payable at the rate of 8,000/. a year 
 from the testator's death. Astley v. The Earl of 
 Essex, Law Eep. 6 Chanc. 898. 
 
 5. — A., by will, gave to his widow C, an annuity 
 of 1,000/., and directed that if the income of his 
 residuary estate should not be sufficient to pay it, 
 then, upon certificate by his widow what income 
 she derived from any property she might inherit, 
 his executors were annually to sell so much of the 
 corpus as, with such income, would make up the 
 annuity. B. subsequeutly, by will, gave C. an 
 annuity of 200/., in addition to any income or 
 benefit she might derive from any other source, 
 and not to be taken into account in regard to any 
 other income : — Held that, in certifying her in- 
 come, C. was not bound to bring into account that 
 which she derived under B.'s will. In re Hedge's 
 Trust Estate, 44 Law J. Eep. (n.s.) Chanc. 116 ; 
 Law Eep. 18 Eq. 419. 
 
 (C) To whom payable.' 
 
 6.— An annuity was payable under a wiU to a 
 woman during her life, and a proportionate part. 
 
24 
 
 ANNUITY (C), (G). 
 
 computed from the last day of payment to the date 
 of her death, was payable to her executors and 
 administrators : — Hold, following Mitchell v. Moor- 
 man (1 You. & J. 21), that a payment of this pro- 
 portionate part to the husband of the annuitant, 
 ■who never took out letters of administration, was 
 not a good payment in law, and that the amount 
 could therefore be recovered by the son of the an- 
 nuitant, in administering her estate after the death 
 of the husband, whose executor he also was. 
 Mitchell T. Holmes, 42 Law J. Eep. (n.s.) Exch. 
 98; Law Eep. 8 Exch. 119. 
 
 (D) GOTEBNMENT AsNVlTY : MiSEEPRESENTATION. 
 
 7. — An insurance company purchased govern- 
 ment aunuities on the life of T. C, with a state- 
 ment and declaration that he was born at Barking 
 in 1779, he having, in fact (as was discovered after 
 his death), been born at Brighton in 1786, and T. 
 0. of Barking having died in early infancy. The 
 Act (10 Geo. 4. c. 24) under which the purchase 
 was made enabled the Commissioners (section 45) 
 to correct, rectify or amend any contract or certi- 
 ficate in cases wherein any mistake or accidental 
 error should have been made. The insurance com- 
 pany offered to pay, with interest, the difference 
 between the price they paid and the price they 
 ought to have paid, but the Commissioners desired 
 to treat the conti'act as void ab initio : —Held 
 (affirming the decision below, 43 Law J. Eep. (n.s.) 
 Chanc. 321), that they were entitled to a decree on 
 that footing, that the power of rectification in the 
 Act was merely discretionary, and that neither on 
 the general law nor under that power could the 
 company demand a rectification of the contract. 
 The Attorney- General v. Say, 43 Law J. Eep. (n.s.) 
 Chanc. 478 ; Law Eep. 9 Chanc. 397. 
 
 (E) On what Pkopebty chabgeable. 
 
 (a) Corpus or income. 
 
 8. — J. T. died in 1839, having by his will 
 devised and bequeathed the residue of his real 
 and personal estates to trustees for eleven years 
 from his death, upon trust out of the rents and 
 proceeds to pay (in the events which had hap- 
 pened) certain annuities, one of which was an 
 annuity of 5001. to the two petitioners for their 
 lives, and the life of the survivor of them. The 
 residue of the rents and proceeds was, during the 
 eleven years, to be accumulated for the benefit of 
 the person who at the end of that time should be 
 entitled to the residuary personalty. At the end of 
 the eleven years the real estate was to go, "sub- 
 ject to, and charged with, the payment of the 
 annuities, and with power of distress and entry for 
 the recovery of the same, as if they had been secured 
 by a lease for years," to testator's nephew, J. T., 
 for life, with remainder to his first and other sons 
 in tail, with remainders over. Part of testator's 
 real estates had been sold, and were now repre- 
 sented by a fund in Conrt of 13,738Z. 14s. 5d. 
 Consols. The petitioner's annuities had been paid 
 in full till 1858 ; but there was now a sum of 
 1,367?. 6s. 6d. for arrears owing to the annui- 
 tants : — Held, first, that the mode in which the 
 
 payment of the annuities was secured did not 
 necessarily make them a charge on the corpus of 
 the estate ; second, that the arrears of the annui- 
 ties were payable out of the income, and not the 
 corpus of the estate; third, that they were not 
 necessarily payable out of the income of any par- 
 ticular year ; and, fourth, that the remedy against 
 the income for arrears continued beyond the lives 
 of the annuitants. Taylor v. Taylor, 43 Law J. 
 Eep. (N.s.) Chanc. 314 ; Law Eep. 17 Eq. 324. 
 
 9, — Gift of annuity expressly charged on cor- 
 pus, with subsequent words indicative of an inten- 
 tion that the annuity should abate in the event 
 of the income being insufficient: — Held, that the 
 charge was not cut down by the subsequent words. 
 Pearson v. HelUwell, Law Eep. 18 Eq. 411. 
 
 (6) Exoneration of personalty. 
 
 10. — Where testator bequeathed annuities and 
 immediately afterwards devised an estate, "subject 
 to the payment of the annuities," and gave the 
 annuitants a power of distress, — Held, that the 
 personalty was exonerated from being the primary 
 fund for payment of the annuities. Quaere — 
 whether the personalty was altogether exone- 
 rated. Savies v. Ashford(16 Sim. 42) commented 
 on. Poole V. Heron, 42 Law J. Eep. (n.s.) Chanc. 
 348. 
 
 (F) Annuity chabged on Land: Distress. 
 
 11. — The owner of an annuity charged upon 
 land which is insufficient to answer the annuity 
 has a right to distrain for it and no other remedy. 
 Sollory V. Leaver, 40 Law J. Eep. (n.s.) Chanc. 
 398. 
 
 12. — Where an annuity charged on land had 
 been duly paid for sixteen years, when one half- 
 yearly instalment was paid by a dishonoured 
 cheque, whereupon the annuitant filed a bill for a 
 receiver : — Held, that as the estate was sufBcient, 
 and he might have recovered by distress or action 
 on the cheque, the bill must be dismissed. The 
 last case approved and explained. Kelsey v. 
 Kelsey, Law Eep. 17 Eq. 495. 
 
 (G) Covenant foe Payment of Annuity. 
 
 13. — Where a husband, who by a separation 
 deed had covenanted to pay his wife an annuity of 
 bil. a year, for her separate use on certain special 
 quarterly days, by will bequeathed property to 
 trustees in trust to pay her generally 52?. a year 
 on the same quarterly days:— Held, that the 
 second annuity was in satisfaction of the first, and 
 that she was put to her election. AtMnson v. Lit- 
 tlewood. Law Eep. 18 Eq. 595. 
 
 14. — A covenant in a deed, whereby the hus- 
 band covenants with trustees that he will, dur- 
 ing the joint lives of himself "and wife, and 
 during so long as they should live separate and 
 apart, pay unto the trustees for the separate use of 
 his wife a certain annuity, is an absolute covenant 
 for payment of the annuity during the joint lives 
 of the husband and wife, and during so long time 
 as they lived separate, and not merely while the 
 marriage tie subsists ; therefore, a plea of disso- 
 
ANNUITY— APPORTIONMENT (A). 
 
 2S 
 
 lution of the marriage is no answer to an action 
 on the covenant for arrears of the annuity. Charles- 
 worth V. Holt, 43 Law J. Eep. (n.s.) Bxch. 25 ; 
 Law Eep. 9 Exoh. 88. 
 
 (H) FOBFEITtTEB ON BaNKBTJPTOT. 
 
 [See EoEFEiTUBE, 2.] 
 
 Grail t of annuity hy corporation by resolution 
 tioi under seal. [See Oorpoeation.] 
 
 Proof in administration suit by annuitant 
 under award for annuity, and penalty 
 awarded. [See Administkation, 7.] 
 
 Proof by annuitant in bankruptcy: whether 
 debt capable of being estimated. [See 
 Bankkuptcy, E. 7.] 
 
 APOTHECAEY. 
 
 [See Medicai, Act.] 
 
 [55 Geo. 3. c. 194, amended. 37 & 38 Vict. 
 c. 31.] 
 
 APPEAL. 
 
 Admiralty appeals. [See AnjimiaTT, 26- 
 28, 48.] 
 
 Chancery. [See Practice in Equity, 
 23-35.] 
 
 Common Law. [See Pbactice at Law, 
 43, 44.] 
 
 County Court. [See County Court.] 
 
 Divorce. [See Divorce.] 
 
 Hottse of Lords. [See House of Lords.] 
 
 Privy Council. [See Privy Council; 
 - Church, 32.] 
 
 From decision of Judge as arbitrator. [See 
 Arbitration, 3.] 
 
 Under Wine and Beerhouse, and Licensing 
 Acts. [See Alehouse, 6.] 
 
 Jurisdiction of Court of Exchequer Cham- 
 ber : verdict against evidence. [See 
 Jurisdiction at Law, 2.] 
 
 From Lord Mayor's Court. [See London, 
 3-9.] 
 
 To Quarter Sessions. [See Justice of the 
 Peace, 6-11.] 
 
 Poor rate: appeal at next practicaile ses- 
 sions. [See Bate, 33-37.] 
 
 APPOINTMENT. 
 [See Power.] 
 
 APPOETIONMENT. 
 
 (A) Or Ebnts and Dividends. 
 
 (a) Under Apportionment Act, 1870. 
 (J) Under previous lain, 
 
 (B) Of other Paymknts. 
 
 [Eents, dividends, annuities, salaries, pensions, 
 and other periodical payments, to be considered as 
 accruing from day to day, and recoverable accord- 
 ingly. 33 & 34 Vict. c. 35.] 
 
 Law Digest, 1870—1875. 
 
 (A) Of Eents and Dividends. 
 
 (a) Under Apportionment Act, 1870. 
 
 1. — The above Act applies to all instruments, 
 whether coming into operation before or after tha 
 passing of the Act. In re Clines Estate, Law Eep. 
 18 Eq. 213. 
 
 2. — Testator, as to his share or interest in a 
 company, bequeathed the dividends to his uncle 
 for life, and after his death the same share or 
 interest to his two daughters: — Held, that divi- 
 dends declared after the testator's death were not 
 apportionable between the legatee and the general 
 estate of the testator. Jones v. Ogle, 41 Law J. 
 Eep. (n.s.) Chanc. 633 : Law Eep. 14 Eq. 419. 
 [Affirmed on appeal. See next case.] 
 
 3. — Profits in a private trading partnership-r 
 carried on under a deed by which it was provided 
 that such dividends should be made from time to 
 time amongst the partners, as the managing 
 partners should direct — are not dividends or other 
 periodical payments in the nature of income within 
 the meaning of the Apportionment Act, 1870 (33 
 & 34 Vict. c. 35), and are not apportionable as 
 between tenants for life and residuary legatees 
 under that Act. Jones v. Ogle, 42 Law J. Eep. 
 (n.s.) Chanc. 334 ; Law Eep. 8 Chanc. 192. 
 
 4.— The Apportionment Act, 1870, 33 & 34 
 Vict. c. 35, applies to a specific devise of real 
 estate, and generally as between the real and per- 
 sonal representatives and that in a case where a 
 will has been made before, and the testator has 
 died after the passing of the Act. Hasluek v. 
 Pedley, 44 Law J. Eep. (n.s.) Chanc. 143 ; Law 
 Eep. 19 Eq. 271. 
 
 5. — Testator, seised in fee, specifically devised 
 real estate by a will made before the Apportion- 
 ment Act, 1870. By a codicil made after the Act 
 he confirmed his will, and he subsequently died 
 between the half-yearly days on which the rents 
 of the devised estate were payable : — Held, that, 
 under the Apportionment Act, 1870, the rents of 
 the devised estate were apportionable between the 
 devisee and the personal representative of testator, 
 Capron v. Capron, 43 Law J. Eep. (n.s.) Chanc. 
 677; Law Eep. 17 Eq. 288. 
 
 Observations upon the Apportionment Act, 1870, 
 and upon Jones v. Ogle, 42 Law J. Eep. (n.s.) 
 Chanc. 334 ; Law Eep. 8 Chanc. 192. Ibid. 
 
 6. — The dividends of a specific legacy are not 
 apportionable under the Apportionment Act, 1870, 
 between the specific legatee and the testator's 
 estate. Whitehead v. Whitehead, Law Eep. 16 Eq. 
 528. [But see next case.] 
 
 7. — Testator bequeathed 5,000Z. stock in a canal 
 company to trustees, to pay the dividends to his 
 wife for life, and afterwards to sink into his resi- 
 duary estate : — Held, that the dividends were ap- 
 portionable. Whitehead v. Whitehead (Law Eep. 
 16 Eq. 528) corrected. Pollocic v. PollocJc, 44 Law 
 J. Eep. (n.s.) Chanc. 168 ; Law Eep. 18 Eq. 329. 
 
 (6) Under previous law. 
 
 8. — The second section of the Apportionment 
 Act, 4 & 5 Will. 4. c. 22, is not intended to 
 apply as between a mortgagee (of tenant for life) 
 E 
 
APPOBTIONMENT— ARBITRATION. 
 
 ■who has not entered and remaiuderman so as to 
 give the mortgagee a right to rents -which he 
 •would not have had until entry if the tenant for 
 life had lived. Paget v. Marqiiis of Anglesea — 
 WaiMii's Claim, 43 Law J. Rep. (n.s.) Ohanc. 437 ; 
 Law Rep. 17 Eq. 283. 
 
 A. (tenant for life) by deed, to secure a debt, 
 granted to W. a rent-charge with usual powers of 
 distress and entry, and by the same deed granted 
 a term of years to a trustee to secure the same. A. 
 died in the middle of a quarter. Two quarters of 
 the rent-charge were in arrear. W. had never 
 entered. A.'s estate was insolvent. The rents had 
 been paid to a separate account : — Held, that W. 
 was not entitled to a charge on these rents, either 
 for the apportioned rent-charge for the current 
 quarter, or for the arrears. Ibid. 
 
 9. — Testator bequeathed his residuary personal 
 estate to trustees upon trust for his two grand- 
 daughters in equal shares at twenty-one or mar- 
 riage, and directed that in case they or either of 
 them should marry under twenty-one, their shares 
 should be settled upon them and their children in 
 the usual form. Both grand-daughters married 
 under twenty-one, one in 1867, the other in 1870, 
 after the passing of the Apportionment Act of 
 that year : — Held, that in both cases the income 
 of the respective trust funds was apportionable 
 down to the date of the respective marriages. 
 Clive V. Clive, 41 Law J. Rep. (n.s.) Chano. 386 ; 
 Law Rep. 7 Chanc. 433. 
 
 Si. Aubyn v. St. Aubyn (1 Dr. & S. 611) fol- 
 lowed. Ibid. 
 
 10. — Funds were settled upon trust to pay 
 yearly a sum not exceeding 5,000Z., according to 
 the discretion of the trustees, to A., till he at- 
 tained the age of thirty, and to accumulate the 
 surplus income ; and after A. attained thirty, to 
 pay him the income of the whole fund for life : — 
 Held, that the dividends and interest which ac- 
 crued due after A. attained thirty, were apportion- 
 able. Donaldson v. Donaldson, 40 Law J. Rep. 
 (ir.s.) Chanc. 64. 
 
 11. — A testator directed his executors to manage 
 and carry on the share he might have in any col- 
 liery at the time of his decease, and to permit his 
 wife to receive the profits thereof during her life. 
 At the time of his death the testator was entitled 
 to a share in a colliery partnership, carried on by 
 him in partnership with four other persons under 
 a deed which contained a provision for yearly 
 settlements of accounts, and that upon such yearly 
 settlements the clear profits, or a portion thereof, 
 if the majority in value of the partners should so 
 direct, should bo added to the joint-stock of the 
 company or be divided between the partners in 
 proportion to their respective shares, or passed to 
 their respective separate accounts. For a con- 
 siderable period after the death of the testator no 
 dividend was paid to the partners, but the un- 
 divided profits, when there were any, were accu- 
 mulated. Afterwards dividends were paid which 
 did not exhaust the , profits ; no resolutions 
 were passed declaring that any portion of the 
 profits should be added to the joint-stock of the 
 company, but the undivided credit balances were 
 
 at the end of each year carried forward to the 
 profit and loss account and employed for the 
 general purposes of the concern. On the death of 
 the widow, — Held, reversing the decision of one 
 of the Vice Chancellors, that the accumulations of 
 profits made during her life and not divided be 
 longed to the testator's estate and not to her 
 representatives, but, affirming the same decision, 
 that they were entitled, under the Apportionment 
 Act, 4 & 5 Will. i. c. 22, to an apportioned share 
 of the profits made in the year which was current 
 at the time of her decease. StraJcer v. Wilson, 40 
 Law J. Rep. (n.s.) Chane. 630 ; LawKep. 6 Chanc. 
 503. 
 
 (B) Os OTHEB Payments. 
 
 As to apportionTnent of debts, legacies, 
 charges, S^c, as between tenant for life 
 and remainderman. [See Tenant pob 
 Life, 2-21.] 
 
 Of charitable bequest on subdivision of parish, 
 [See Chttrch, 13.] 
 
 Of costs. [See Costs in EQtriTr, 45, 46 ; 
 Paetition, 25, 26.] 
 
 APPRENTICE. 
 
 Misconditct of apprentice. 
 
 1. — To a declaration setting out an agreement 
 by the defendant to teach the plaintiff's son a 
 trade, and containing the following proviso — 
 " Provided always that he obeys all commands, 
 and gives his service entirely to the business 
 during oflSce hours," and alleging a wrongful dis- 
 missal, the defendant pleaded justifying the dis- 
 missal on the ground that the son had habitually 
 neglected his duties, &c., — Held, a good plea. 
 Wesiwick v. Theodore, 44 Law J. Rep. (n.s.) Q. B. 
 110; Law Rep. 10 Q. B. 224. 
 
 Becovery of premium. 
 
 2. — By an apprenticeship deed A. was to serve 
 B., and B. teach A ., for a term of years ; there was 
 no provision as to service to B.'s executors or re- 
 turn of premium ; B. died before the expiration 
 of the term : — Held, that no action for damages, 
 or for money had and received, lay against B.'s 
 executors for a return of portion of the premium. 
 Whincup V. Hughes, 40 Law J. Rep. (n.s.) C. P. 
 104 ; Law Rep. 6 C. P. 78. 
 
 Lord Cottenham's judgment in Hirst v. Toulson 
 (19 Law J. Rep. (n.s.) Ohanc. 441 ; 2 Mac. & G. 
 134) dissented from. Ibid. 
 
 Action by, for wages : evidence of usage in 
 trade. [See Custom.] 
 
 ARBITRATION. 
 
 (A) Submission to Abbitration. 
 
 (a) Validity and effect of. 
 
 (b) When revocable. 
 
 (c) Staying proceedings. 
 
 (d) Pleading agreement to refer, 
 
 (e) Making submission a rule of Court. 
 
AEBITEATION (A 
 
 27 
 
 (B) COMPUISOKY Kbferexce. 
 
 (C) Abbitbatoe. 
 
 (a) Powers. 
 
 (b) lAahlityfor negligence. 
 
 (c) Evidence of, in action on award. 
 D) Award. 
 
 (a) Validity and snfficiency. 
 (6) Setting aside aiid remitting. 
 
 (1) What grounds sufficient, 
 
 (2) Mode of procedure. 
 (c) Enlarging time. 
 
 (E) Failuke to appoint Abbitkatok. 
 
 (F) Costs. 
 
 (a) Costs to abide event. 
 (6) Discretion of arbitrator; 
 (c) Power of Sessions. 
 
 [5 Greo. i. c. 96, and 30 & 31 Vict. c. 141, 
 amended and applied to artitrations between 
 masters and -workmen. 35 & 36 Vict. c. 46.] 
 
 (A) Submission to Arbiteation. 
 (a) Validity and effect of. 
 
 1, — ^A building contract contained the usual 
 clause, appointing the architect arbitrator in re- 
 spect of extra works ; the architect had guaranteed 
 to his employer that the total cost should not ex- 
 ceed a certain sum, but that fact had not been 
 disclosed to the builder at the time he signed the 
 contract : — ^Held, that the guarantie was a material 
 fact tending to influence the architect's decision ; 
 and as it was not disclosed to the builder, he was 
 not bound by the submission to the architect's 
 arbitration, and the Court would perform the part 
 of arbitrator in the matter. Kimberley v. Dick, 
 41 Law J. Eep. (n.s.) Chanc. 38; Law Eep. 13 
 Eq. 1. 
 
 2. — The rules of a Marine Insurance Associa- 
 tion provided that disputes should be referred to 
 arbitration : — Held, that the assured was not 
 bound to submit a legal point to the decision of 
 arbitration before suing in equity. Alexander v. 
 Campbell, 41 Law J. Eep. (n.s.) Chanc. 478. 
 
 3. — Where differences arose in a winding up 
 between persons claiming a charge upon the com- 
 pany's estate and the official liquidator, and the 
 parties agreed that their rights should be deter- 
 mined in a summary way by the Judge acting 
 in the matter of the winding up, — Held, that this 
 was a submission to arbitration by the Judge 
 personally, arid there was no appeal from his de- 
 cision as an arbitrator. In re The Durham County 
 Permanent Building Society; Ex parte Wilson, 42 
 Law J. Eep. (n.s.) Chanc. 164; Law Eep. 7 Chanc. 
 45. 
 
 [And see Nos. 6-8, 10 infra.] 
 
 (i) When revocable. 
 
 4. — ^A submission to arbitration, which is not 
 made in any action, and does not contain an agree- 
 ment that it shall be made a rule of Court, is 
 revocable by either party at pleasure before an 
 award can be made, although such submission has 
 been made a rule of Court pursuant to the Com- 
 mon Law Procedure Act, 1854. So held by Willes, 
 
 J., Montague Smith, J., and Brett, J. (Bovill, C.J., 
 dissentiente). In re Bouse and Meier, 40 Law J. 
 Eep. (n.s.) C. p. 145 ; Law Eep. 6 C.P. 212, 
 
 (e) Staying proceedings. 
 
 5. — Where an order to stay proceedings in an 
 action has been made under section 11 of the 
 Common Law Procedure Act, 1 854, on the ground 
 that the parties had agreed to refer, the Court or 
 Judge has power to vary such order as to costs of 
 the action at any time, even after the award has 
 been made. So held by Bovill, C.J., Byles, J., and 
 Montague Smith, J. (Brett, J., dissentiente). Bus- 
 tros V. Lenders, 40 Law J. Eep. (n.s.) C. P. 193 ; 
 Law Eep. 6 C. P. 259. 
 
 6. — Two partners gave to a third partner a 
 notice of dissolution of partnership, which alleged 
 breaches of the partnership articles. The articles 
 provided that any dispute or difference between 
 tlio partners should be referred to arbitration. 
 The two partners filed their bill for dissolu- 
 tion, and on the same day the tliird partner 
 gave notice that he required all the matters in 
 dispute to be settled by arbitration : — Held, on 
 the motion of the tliird partner, that he was en- 
 titled to an order staying proceedings in the suit, 
 and to have the matters in dispute referred to 
 arbitration. Plews v. Baker, 43 Law J. Eep. (n.s.) 
 Chanc. 212 ; Law Eep. 16 Eq. 564. 
 
 7. — A mining lease contained a clause provid- 
 ing that if any dispute, question or difference 
 should arise between the parties, " touching these 
 presents, or any clause, matter or thing herein 
 contained, or the construction hereof, or the work- 
 ing of the said mines, or any compensation or 
 satisfaction to be had or made, or any other thing 
 to be done under the covenants by the lessees 
 herein contained, or touching the rights, duties 
 and liabilities cf either party in connection with 
 the premises," the matter in difference should be 
 referred to two arbitrators or their umpire, pursu- 
 ant to, and so as in all respects to conform to, the 
 provisions in that behalf contained in the Com- 
 mon Law Procedure Act, 1854. The lessors having 
 filed a bill to restrain the lessees from working 
 adjoining mines by means of a shaft sunk on the 
 lessor's land, some of the defendants applied to 
 stay proceedings in the suit, and to refer the mat- 
 ter in difference to arbitration under the above- 
 mentioned clause : — Held, affirming the decision 
 of Wickens, V. C. (42 Law J. Eep. (n.s.) Chanc. 90 ; 
 Law Eep. 14 Eq. 152), that the subject-matter of the 
 suit was vrithin the arbitration clause ; also that 
 it was not necessary for all the defendants to join 
 in the application to stay proceedings in the suit. 
 Willesfordr. Watson, 42 Law J. Eep. (n.s.) Chanc. 
 447 ; Law Eep. 8 Chanc, 473 ; and Witt v. Cor- 
 coran, Law Eep. 8 Chanc. 476, n. 
 
 8. — The plaintiff and the defendant entered into 
 a partnership for one year under articles in writ- 
 ing, executed on the 6th of July, 1869. The 
 articles provided for the taking of due accounts, 
 and contained an arbitration clause. The part- 
 nership was continued after the 6th of July, 1870, 
 under the articles, which were not renewed by 
 writing ; but the plaintiff's solicitor wrote to the 
 is 2 
 
28 
 
 ARBITRATION (A), (C). 
 
 defendaut's solicitor on one occasion to say that 
 the plaintiff -was ready to abide by tlie arbitration 
 clause. Serious difficulties subsequently arose be- 
 tween the parties. Tlie defendant appointed an 
 arbitrator. Tile plaintilf refused (when requested) 
 to appoint another, and filed the bill in this suit 
 to take the partnership accounts, and for an in- 
 junction and receiver. The defendant moved to 
 refer " all " matters in dispute between the par- 
 ties to an arbitrator, under the Common Law 
 Procedure Act, 1870, s. 11 : — Held, that the pro- 
 ceedings in this suit must be stayed, and the 
 matters referred accordingly. No costs. G-illett 
 V. Thornton, 44 Law J. Rep. (n.s.) Chanc. 398 ; 
 Law Rep. 19 Eq. 599. 
 
 {d) Pleading agreement to refer. 
 
 9. — Declaration, that the defendant became 
 tenant to the plaintiffs of lands upon the terms 
 that the defendant would keep such number 
 only of hares and rabbits as would do no injury 
 to the trees, &c., belonging to the plaintiffs, or to 
 the growing crops of any of their tenants, and 
 that in case the defendant should keep such num- 
 ber of hares and rabbits as should injure the trees, 
 &c,, the defendant should and would pay to the 
 plaintiffs or their tenants a fair and reasonable 
 compensation for such injury. Breach, that the 
 defendant kept such a number of hares and rab- 
 bits as did injury to such trees, &c., and had not 
 paid a fair and reasonable or any compensation. 
 Plea, that one of the terms of the said tenancy 
 was that, in case any such injury should be done 
 by the defendant, he, the defendant, woidd pay 
 a fair and reasonable compensation for the same, 
 the amount of such compensation, in ease of dif- 
 ference, to be referred to the arbitration of two 
 arbitrators, one to be chosen by the plaintiffs 
 and the other by the defendant, &c. Averment, 
 that a difference arose, no arbitrators had been 
 appointed, nor had an award ever been made de- 
 ciding the amount of such compensation, accord- 
 ing to the terms of the said tenancy. On de- 
 murrer, — Held (Bramwell, B., dubitante), that the 
 plea was good ; for that the stipulation stated 
 therein did not consist of two separate agreements, 
 viz., one to pay compensation, the other to refer 
 the amount, but was an indivisible agreement to 
 pay such compensation as should be assessed by 
 arbitration, and not otherwise. Dawson v. Fitz- 
 gerald, 43 Law J. Rep. (n.s.) Exch. 19 ; Law Rep. 
 9 Exch. 7. 
 
 [Reversed on appeal, Law Rep. 1 Exch. Div. 257.] 
 10. — An agreement, scheduled .to an Act of 
 Parliament, binding the parties to settle differences 
 by arbitration, Held, to exclude the jurisdiction of 
 the Coiirts. 2%e Caledonian BaUway Company v. 
 The Greenock and Wemyu Bay Sailway Company, 
 Law Rep. 2 Sc. App. 347. 
 
 {e) Making submission a rule of Court. 
 
 11.— Upon an application for production by the 
 defendant of an agreement between the plaintiff and 
 the defendant, in order that it might be made a rule 
 of Court under section 17 of the Common Law 
 Procedure Act, 1854, it appeared that the agree- 
 
 ment was for the erection of four houses by the 
 plaintiff, which were to be inspected by Messrs. 
 S. & C, or some other architect or valuer, to be 
 appointed by the defendant, who were to give a 
 certificate of the progress and value of the works. 
 The agreement contained a power for the defendant 
 to employ other persons to execute the contract, if 
 " the plaintiff should become bankrupt, &e. . . . 
 or if there, should be any unreasonable delay or 
 unsatisfactory conduct on the part of the plaintiff 
 with regard to the erection of such buildings, or 
 with regard to any work, matter or thing con- 
 nected therewith : the fact of such delay or un- 
 satisfactory conduct to be ascertained and decided by 
 Messrs. S. & C, or other the architect or valuer for 
 the time being , . . against whose decisions there 
 should be no appeal : "—Held, rejecting the appli- 
 cation, that the agreement was not a "submission 
 to arbitration by consent," within section 17 of the 
 Common Law Procedure Act, 1854, as the decision 
 of the architect was not in the nature of a judicial 
 proceeding, but was intended to be the sole found- 
 ation of any liability on the part of the defendant. 
 Wadsworth v. Smith, 40 Law J. Rep. (n.s.) Q. B. 
 118; Law Rep. 6 Q. B. 332. 
 
 12. — A submission to arbitration under sec. 25 
 of the Lands Clauses Act is a submission to arbi- 
 tration by consent, and may be made a rule of 
 Court. Ex parte Harper, Law Rep. 18 Eq. 639. 
 
 [And see Nos. 14, 23, infra.] 
 
 (B) CoMPinsoET Reference. 
 
 13. — Particulars of demand delivered with a 
 declaration claimed upwards of 600^. for seven 
 million cubic feet of gas consumed by the defendant 
 in a period extending orer five years before action. 
 The defendant paid 150Z. into Court, and pleaded 
 "never indebted" and "payment" to ths residue: 
 — Held, by Channell, B., Pigott, B., and Cleasby, 
 B., that although the plaintiffs intended to impute 
 fraud to the defendant by proving at the trial that 
 he had abstracted their gas clandestinely, a Judge 
 at chambers had power to refer the action to arbi- 
 tration under the 3rd section of the Common Law 
 Procedure Act, 1854, as it appeared from the 
 pleadings and particulars that the matter in dis- 
 pute consisted wholly or in part of matters of mere 
 account which could not be conveniently tried in 
 the ordinary way. But held, contra, by KeUy, C.B., 
 that when once it appeared from the plaintiffs' 
 affidavit that the plaintiffs proposed to shew that 
 the defendant had been guilty of the fraud inti- 
 mated, the matter in dispute could not be said to 
 consist of matters of mere account, and that there 
 was therefore no power to refer compulsorily. The 
 Birmingham and Staffordshire Gas Co.v. BatcUffe, 
 40 Law J. Rep. (n.s.) ExcH. 136 ; Law Rep. 6 Exch. 
 224. 
 
 (C) Akeitkatoe. 
 
 (a) Powers. 
 
 14. — An lunpire appointed to ascertain the 
 amount of compensation under the Lauds Clauses 
 Consolidation Act, 1845, has no right to state a 
 .special case for the opinion of a superior Court ; 
 and if_by consent of the parties the time for 
 
AEBITEATION (C), (D). 
 
 29 
 
 making the award bo extended and power to sit 
 with the arbitrators be conferred upon the umpire, 
 a reference under the foregoing statute will not 
 become a reference by consent within the meaning 
 of the Common Law Procedm-e Act, 1854, sec. 6. 
 Shades v. The Airedale Drainage Commissioners, 
 43 Law J. Eep. (n.s.) C. P. 323 ; Law Eep. 9 0. P. 
 508. 
 
 [And see infra No. 18,] 
 
 (i) Liability for negligenoe. 
 
 15. — ^Where parties, in order to ascertain aver- 
 age contribution in dispute, agree that an average 
 adjuster for reward shall ascertain and adjust the 
 amount and agree to abide by his decision, such 
 average adjuster, having given his decision, is not 
 liable to an action for carelessness, negligence and 
 unskilfulness, if he has acted in good faith. The 
 Tharsis Sulphur and Copper Co. (Lim.) v. Loftus, 
 42 Law J. Eep. (n.s.) C. P. 6; Law Eep. 8 C. P. 1. 
 
 16. — ^The plaintiff purchased the goodwill, stock 
 and effects of a business at a valuation, the amount 
 of which was to be fixed by valuers, one to be ap- 
 pointed on each side for that purpose, and in case 
 of difference by an umpire to be chosen by the 
 valuers. The plaintiff employed the defendant as 
 his valuer, and the defendant and the valuer ap- 
 pointed by the vendor fixed between them the 
 amount of valuation. In an action for negligence 
 in making such valuation, by which tlie value of 
 the goodwill was fixed too high, the plaintiff 
 applied to administer interrogatories to the defen- 
 dant to ascertain the basis on which he had agreed 
 with the valuer of the vendor to calculate the 
 valuation : — Held, that the defendant had not 
 acted in the matter as an arbitrator, but as a 
 valuer only, and was therefore liable to his em- 
 ployer for negligence, and the plaintiff accordingly 
 was allowed to administer the interrogatories. 
 Turner v. Goulden, 43 Law J. Eep. (n.s.) C. P. 60; 
 Law Eep. 9 C.P. 57. 
 
 (c) Evidence of, in action on award. 
 
 17. — In an action upon an award, the arbitra- 
 tor's evidence is admissible to shew in respect of 
 what matters he allowed or refused compensation, 
 but not to explain his reasons for awarding a par- 
 ticular sum in respect of any particular matter. 
 The DuJce of Succleuch and Qiieensberry v. The 
 Metropolitan Board of Works (H.L.), 41 Law J. 
 Eep. (n.s.) Exch. 137; Law Eep. 6 E. & L App. 
 418. 
 
 (D) AWAED. 
 (a) ValidUy and suffideney. 
 
 18. — ^Declaration on an award, that an action 
 in the County Court for breaches of covenant to 
 repair a mill and premises having been referr.ed to 
 an arbitrator under an order of reference giving 
 him power to " decide all matters and questions to 
 do justice between the parties," and power to order 
 and direct what should be done by either or both 
 of the parties, " either immediately or prospec- 
 tively whether relating to the action or to the other 
 .matters in difference," and declaring that the costs 
 
 of the action, reference and award should be in his 
 discretion, lie made his award, reciting, inter alia, 
 that by a lease for seven years of the mills and pre- 
 mises, the defendant covenanted to repair and keep 
 in repair the mill, weir andmillbank, and ordering 
 that the defendant should pay a certain sum for 
 damages claimed in the particulars of the action, 
 and another sum for damages from the date of 
 the summons to that of the award. Breach, non- 
 payment. On demurrer, — Held, that the terms of 
 the reference authorised the arbitrator to give da- 
 mages accruing up to the date of the award, and 
 that so much of the award was good. Lewis v. 
 Eossiter, 44 Law J. Eep. (N.s.) Exch. 136. 
 
 The declaration also alleged a further direction 
 by the arbitrator in his award that the defendant 
 should forthwith repair the weir and the eastern 
 bank of the river L., so as to divert the waters of 
 the river to the mill in the plaintiff's occupation 
 as it was diverted when the lease was granted. 
 Breach, non-repair. Plea, that the eastern bank of 
 the river L. was not the land of the defendant, nor 
 had he any right to go on the same for the pur- 
 pose of executing the works ordered. On demurrer 
 — Held, a good plea, inasmuch as the arbitrator 
 had no power to order a trespass. Ibid. 
 
 The declaration also alleged a direction that the 
 defendant should, from the date of the award until 
 the completion of the repairs, pay the plaintiff a 
 certain sum per week as compensation for the loss 
 he would sustain until the completion. Breach, non- 
 payment. On demurrer — Held, a bad direction 
 for not limiting the payment of such compensation 
 to such time astheplaintiff remained in possession 
 of the premises. Ibid. 
 
 The declaration also alleged a direction that 
 tlie costs of the action, reference and award should 
 be paid by the defendant. Breach, non-payment. 
 Plea, that they were not before action ascertained 
 or taxed. On demurrer to the declaration and 
 plea, — Held, the award was good and the plea 
 ■bad. Ibid. 
 
 On demurrer to the declaration generally and to 
 a plea of want of finality, — Held, that the good part 
 of the award was separable from the bad, which 
 therefore did not vitiate the rest, and that it was 
 sufficiently final. Ibid. 
 
 19. — Declaration upon an award by an umpire 
 under the Public Health Act, 1848, ss. 123, 144, 
 determining that there was due from the defendants 
 to the plaintiffs the sum of 1,736Z., as compensation 
 for the entryby the defendants on certain land of the 
 plaintiffs, and for surface and other damage occa- 
 sioned by reason of the construction by the defend- 
 ants of a sewer though a part of the plaintiff's land. 
 Third plea, that the umpire proceeded on the 
 assumption that the plaintiffs wouldbe prevented by 
 the defendants from building on the land over the 
 sewer. Fom-th plea, that the umpire proceeded on 
 the assumption that the plaintiffs were entitled to 
 compensation by reason of the sewer having been 
 constructed in a defective manner. Sixth plea, that 
 the umpire proceeded on the assumption that the 
 plaintiffs were entitled to compensation byreason of 
 stenches proceeding from the said sewer : — Held, on 
 demurrer, that all the foregoing pleas were bad. 
 
30 
 
 ARBITRATION (D). 
 
 Uttleyv. The Local Board of Health of Todmorden, 
 44 Law J. Rep. (n.s.) C.P. 19. 
 
 (J) Setting aside and remitting. 
 (1) What grounds suffioient. 
 
 20.— The Courts at Westminster have no power 
 to direct an award to bo reconsidered upon the 
 ground that the arbitrator has decided wrongly as 
 to a question of law arising during the reference, 
 unless he admits the award to hare been made 
 under a mistake ; it is insufficient that he gives an 
 erroneous reason for his judgment without stating 
 that his conclusion was arrived at owing to amis- 
 apprehension of the law. Binn v. Blake, 44 Law 
 J. Eep. (n.s.) C.P. 276 ; Law Eep. 10 O.P. 388. 
 
 21. — When an arbitrator has executed an instru- 
 ment as and for his award, he is functus officio and 
 cannot of his own authority remedy any mistake 
 that he may have made in executing it. Mordue 
 V. Palmer, 40 Law J. Eep. (n.s.) Chanc. 8 ; Law 
 Eep. 6 Chanc. 22. 
 
 Some words were omitted in the engrossment 
 which were in the draft of an intended award. 
 The arbitrator executed the erroneous engross- 
 ment. After service on one party, the arbitrator 
 discovered the mistake and, before the time for 
 making his award had expired, executed a fresh 
 award: — Held (reversing the decision of Bacon, 
 V.C), that the first instrument was the award of 
 the arbitrator, but that it must be referred back 
 to him, to re-consider and re-determine the matter 
 with regard to the mistake made therein. Ibid. 
 
 An arbitrator had power in a reference in a suit 
 in Chancery to award costs: — Held (affirming the 
 decision of Bacon, V.C), that he might give costs 
 as between solicitor and client. Ibid. 
 
 22. — Neither a Court of law nor of equity will 
 interfere to set aside an award, unless corruption, 
 partiality, misconduct, or irregularity be distinctly 
 proved against the arbitrator, mere suspicion is 
 not sufficient. Moseley v. Simpson, 42 Law J, 
 Eep. (n.s.) Chanc. 739 ; Law Eep. 16 Eq. 226. 
 
 The plaintiff and the defendant referred their dif- 
 ferences to A. and B. and such third " arbitrator " 
 as A. and B. should appoint. After several meet- 
 ings had been held by A. and B. alone, they 
 appointed C. as " umpire," and the reference com- 
 mencedbefore A., B. and C. denovo, the plaintiff and 
 the defendant agreeing that no proceedings should 
 be taken to impugn the award on any ground 
 whatever. B. absented himself from one of the 
 sittings. A. and C. ultimately made an award in 
 favour of the defendant, B. refusing to sign it, on 
 the ground that his co-arbitrators had not con- 
 sulted with him upon it. The Court, on motion 
 by the plaintiff, refused to set aside the award, 
 holding that all irregularities in the proceedings 
 had been waived by the agreement and by acqui- 
 escence, and that it appeared that B. had had ample 
 opportunity afforded him of considering the terms 
 of the award. Ibid. 
 
 Each day during the progress of the reference 
 A. and 0. lunched with the defendant at his expense, 
 and in the absence of the plaintiff and his advisers. 
 There was no evidence of any allusion having 
 been made at the luncheons to the subject of the 
 
 arbitration, or of any corrupt intention on the part 
 of the defendant : — Held, that the mere fact of A; 
 and 0. lunching with one of the parties only, 
 though an incautious act, did not constitute such 
 misconduct as would vitiate the award. Ibid. 
 
 Notice of motion to set aside an award ought 
 not to be served upon the arbitrators. Ibid. 
 
 23.— -Although it has been held that an arbi- 
 tration under the Lands Clauses Consolidation Act 
 is not a submis.sion by consent within the mean- 
 ing of the Common Law Procedure Act, neverthe- 
 less when an award is made a rule of Court under 
 section 36 of the Lands Clauses Consolidation Act, 
 the Coiu't has the same jurisdiction with respect 
 to setting it aside and enforcing it as in other 
 cases ; that is to say, the jurisdiction conferred by 
 9 & 10 Will. 3. e. 15 is let in. It follows, there- 
 fore, that a motion to set aside the award must be 
 made before the end of the term next afoer the 
 publication of the award. In re Harper and the 
 Great Eastern Sail. Co., 44 Law J. Eep. (n.s.) 
 Chanc. 507 ; Law Eep. 20 Eq. 39. 
 
 Where an arbitrator appointed under the Lands 
 Clauses Act, and having power to assess the 
 amount of damage, but no power to decide the 
 question of liability, made an award containing 
 an order for payment, but the recitals showed the 
 extent of the arbitrator's authority, — Held, that 
 this was an error of form only, and that the award 
 could not be set aside on account of it. Ibid. 
 
 (2) Mode of procedMre. 
 
 24. — The last day of term is too late for the 
 commencement of a proceeding to set aside an 
 award under 9 & 10 Will. 3. c. 15. s. 2. The 
 Corporation of Hnddersfield and Jacomh, 43 Law 
 J. Eep. (n.s.) Chanc. 748 ; Law Eep. 17 Eq. 476. 
 
 Service of notice of motion to set aside an award 
 which has been made a rule of the Court of 
 Chancery is "making a complaint" within the 
 meaning of the statute. Ibid. 
 
 25. — The filing of an affidavit in support of a 
 notice of motion to set aside an award is a com- 
 plaint within the meaning of 9 & 10 Will. 3. c. 
 15. s. 2, which requires complaint to be made 
 within a certain time, though notice of motion 
 alone is not sufficient. The Corporation of Hitd- 
 dersfield and Jacomh, 44 Law J. Eep. (n.s.) Chanc. 
 96; Law Eep. 10 Chanc. 02. 
 
 26. — ^Where a Court of law has referred an 
 action to arbitration, and the arbitrator makes a 
 mistake in his award, any application to remedy 
 the mistake must be made to the Court of law in 
 which the arbitration originated, and not to a 
 Court of Equity. Grafham v. TurnhvM, 44 Law 
 J. Eep. (n.s.) Chanc. 538. 
 
 Certain actions between A. and B. (a discharged 
 bankrupt) were referred by the Court of Queen's 
 Bench to one of the Masters of that Court, who in 
 his award made the mistake of crediting A., first, 
 with a debt which he claimed to be due from B., 
 but which had been barred by section 164 of the 
 Bankruptcy Act, 1861 ; and secondly, with the 
 whole of a debt for which A. had proved in B.'s 
 bankruptcy, instead of the amount of the compo- 
 sition then agreed on, The Master, however, did 
 
AEBITRATIOK (E), (P)-AEEEST. 
 
 31 
 
 not. admit his mistake, and declined to roeonsider 
 his a-ward, •whereupon B. obtained an order to 
 sign judgment on the award. 
 
 Motion by B. to tho Court of Chancery for an 
 injunction to restrain A. from signing judgment 
 and issuing execution dismissed ■with costs. 
 
 (c) Enlarging time. 
 
 27. — An agreement of reference provided that 
 the arbitrator should make his award on or before 
 a day specified, or on or before any other day " not 
 exceeding three months from the date of the agree- 
 ment, to ■which the arbitrator should, by endorse- 
 ment on the agreement, from time to time enlarge 
 the time for making the award." On a day ex- 
 ceeding three months from the date of the agree- 
 ment, a Judge's order was obtained enlarging the 
 time for making the award two months: — ^Held, 
 ■upon the true construction of the Common Law 
 ftocedure Act, 1854, s. 15, that the Judge had 
 power to enlarge the tim6» not^withstanding the 
 limit fixed by the parties. In re Denton, 43 Law J. 
 ■Rep. (n.s.) Q.B. 41 ; Law Eep, 9 Q.B. 117, nom. 
 Denton v. Strong. 
 
 (E) Faiitjee to appoint Aebiteatoe. 
 28. — A submission to reference provided for the 
 appointment of one arbitrator by each party, and 
 the appointment of a third by the first two arbi- 
 trators : — Held, that the Common Law Procedure 
 Act, 1854, s. 13, did not apply. Gumm v. Hcdlett, 
 41 Law J. Eep. (n.s.) Chanc. 514; Law Eep. 14 
 Eq. 555. 
 
 (F) Costs. 
 
 (a) Costs to abide event. 
 29. — A cause having been referred, together 
 ■with all matters in difiFerence between the parties, 
 the costs of the cause to abide the event of the 
 reference, the arbitrator awarded — first, as to the 
 cause, that there was due to the plaintiff from the 
 defendant the suin of 2591. Is. ; and secondly, as 
 to the matters in difference other than the cause 
 that there was due from the plaintiff to the 
 defendant the sum of 2i2l. 13s. 10(Z., and the arbi- 
 trator directed the latter sum to be allowed out of 
 and deducted from the damages and costs reco- 
 verable by the plaintiff in the action, and the 
 balance to be paid to the plaintiff : — Held, that the 
 event of the reference was in favour of the plaintiff, 
 and that he was not precluded from recovering his 
 costs of the action by the 5th section of the County 
 Courts Act, 1867. Stevens v. Chapman, 40 Law 
 J. Eep. (n.s.) Exch. 123 ; Law Eep. 6 Exch. 213. 
 
 (J) Discretion of arbitrator. 
 
 30. — Eeference by consent of an action both on 
 contract and tort, the costs of the reference to be 
 in the discretion of the arbitrator. The arbitrator 
 awarded the plaintiff less than 501. in respect of 
 the contract, and less than 201. in respect of the 
 tort, and directed the defendant to pay the plain- 
 tiff's costs of the reference : — Held, that there was 
 nothing in section 6 of the County Courts Act, 1867, 
 to prevent the parties agreeing that the costs of 
 reference should be in the arbitrator's discretion, 
 
 and that the plaintiff, even without the certificate 
 required by that section, was entitled to the costs. 
 Forshaw v. De Witt, 40 Law J. Eep. (n.s.) Exch. 
 153; Law Eep. 6 Exch. 200. 
 
 [And see No. 21 supra.] 
 
 (o) Power of Sessions. 
 
 31.— By Baines's Act (12 & 13 Vict. o. 45), s. 
 13, power is given to any Court of G-eneral or 
 Quarter Sessions before which any appeal . , . 
 shall be brought, to order, by consent, that the 
 matter of such appeal be referred to arbitration, 
 the order to be made a rule of the Court of 
 Queen's Bench on the application of either party, 
 and the award of the arbitrator, on motion by 
 either party, to be entered as the judgment of the 
 sessions on the appeal. Upon appeal to Quarter 
 Sessions against a poor-rate, the sessions by con- 
 sent made an order adjourning the appeal, and 
 that the matter in dispute shoidd be referred to 
 J. G. to enquire into and arbitrate thereon, the 
 several parties agreeing to abide the report of 
 such his arbitration. By his award the arbitrator 
 ordered that the appeal should be dismissed, and 
 that the appellants should pay the respondents 
 their costs of the appeal. The Court of Queen's 
 Bench directed that the award shoidd be referred 
 back to the arbitrator, as the order of sessions 
 did not confer upon him the power of awarding 
 costs. The arbitrator amended his award, and 
 the appeal having been adjourned from time to 
 time, application was made to sessions to grant 
 the respondents their costs of the appeal ; but the 
 sessions ordered the award, as amended, to be 
 enrolled as the judgment of the Court, and re- 
 fused the application for costs, on the ground that 
 their duty was ministerial only : — Held, that the 
 sessions were right, as it was clear that the refer- 
 ence was intended to be under the statute, and in 
 such a case the sessions have no control over the 
 costs of the appeal. The Queen v. The Justices of 
 Middlesex ; and The West London Extension Rail- 
 way/ Company v. The AssessTmnt Committee of 
 Fulham Union, 40 Law J. Eep. (n.s.) M. C. 109 ; 
 Law Eep. 6 Q. B. 220. 
 
 Arbitration clause in rules of benefit build- 
 ing society : disputes between members 
 and the society. [See Fbiendly So- 
 ciety, 5.] 
 
 AEMY. 
 [See EEaiMENTAL Exchanges.] 
 
 [30 & 31 Vict. c. 34. ss. 9, 10, repealed. 34 & 
 35 Vict. c. 9 (s. 104).] 
 
 Equitable assignment of commission moneys : 
 priority of assignees. [See Mobtgagb, 
 17, 18.] 
 
 AEEEST FOE DEBT. 
 [See Debtors Act.] 
 
82 
 
 ARSON— ASSAULT. 
 
 AESON. 
 1. — By 24 & 25 Vict. c. 97. s. 7, whosoever shall 
 unlawfully and maliciously set fire to any matter 
 or thing being in or under any building, under 
 such circumstances that, if the building were 
 thereby set fire to, the offence would amount to 
 felony, shall be guilty of felony. By s. 3 of the 
 same Act, whoever shall unlawfully and mali- 
 ciously set fire to any house, with intent thereby 
 to injure or defraud any person, shall be guilty of 
 ■felony. The prisoner maliciously set fire to goods 
 in a dwelling-house, with intent to injure the 
 owner of the goods, who was a lodger in the 
 house, and not to injure the house or the land- 
 lord. The house, though endangered, was not set 
 fire to. The jury found the prisoner guilty, but 
 that he was not aware that what he was doing 
 would probably set the house on fire, and so 
 necessarily injure the owner, and that he was not 
 reckless as to whether he did so or not : — Held, 
 that the prisoner was not properly convicted. 
 The Queen v. ChiU, 40 Law J. Eep. (n.s.) M. C. 
 127; Law Eep. 1 C. C. E. 307. 
 
 2, — An unfinished hovise, brick-built, of which 
 all the walls, external and internal, were built 
 and finished, the roof on and finished, the flooring 
 of a considerable part laid, and the internal walls 
 and ceilings prepared for plastering, is a " build- 
 ing" within the meaning of 24 & 2S Vict. c. 96. 
 s. 6, the setting fire to which is made a felony. 
 The Queen v. Manning, 41 Law J. Eep. (n.s.) 
 M. C. 11 J Law Eep. 1 0. 0. E. 338. 
 
 3.— By 24 & 25 Vict. c. 97. s. 17, whosoever 
 shall unlawfully and maliciously set fire to any 
 stack of corn, grain, pulse, tares, hay, straw, 
 haulm, stubble, or of any ciiltivated vegetable 
 produce, or of furze, gorze, heath, &c., or to any 
 stack of wood, shall be guilty of felony." A 
 quantity of straw, packed on a lory, in course of 
 transmission to market, and left for the night in 
 the yard of an inn, is not a stack of straw within 
 the meaning of the above section, and the setting 
 fire thereto, wilfally and maliciously, is not 
 felony. The Queen v. Satchwell, 42 Law J. Eep. 
 (n.s.) M. C. 63 ; Law Eep. 2 C. 0. E. 21. 
 
 4. — In an indictment charging arson, the first 
 count alleged that the prisoners set fire to a shop 
 of and belonging to the prisoner N., and then 
 being in the possession of the said N., with intent 
 to injure ; and the second count was the same, 
 alleging an intent to defraud. Upon the evidence 
 the jury found that the prisoner N. was tenant of 
 the premises, and had the intention of injuring 
 the landlady of the shop, and also to defraud 
 an insurance office : — Held, upon an indictment 
 framed upon 24 & 25 Vict. c. 97, s. 53, that if the 
 allegation of the property in the shop amounted 
 to an averment that N. was owner in fee, it was 
 immaterial, and might be struck out, and that, if 
 it meant merely that he was tenant, it was 
 proved ; and that, in either case, it was com- 
 petent on this indictment for the jury to find 
 that there was an intent to injure the landlady, 
 inasmuch as, by section 60 of 24 & 25 Vict. c. 97, 
 it was unnecessary to allege an intent to defraud 
 any particular person. The Queen v, Newboult, 
 
 41 Law J. Eep. (n.s.) M. C. 63; Law Eep. 1 
 C. C. E. 344. 
 
 6. — The respondent was indicted for arson ; 
 and at the trial the deposition of the respondent, 
 taken on oath, upon an inquiry into the cause of 
 the fire, was admitted as evidence in support of 
 the indictment: — Held, that the evidence was ad- 
 missible. The Queen v. Coote, 42 Law J. Eep. 
 (n.s.) p. C. 114. 
 
 ARTICLED CLEEK. 
 [See Attoenet, 1-14.] 
 
 AETISANS' DWELLINGS. 
 
 [Provisions for the improvement of the dwell- 
 ings of artisans and labourers. 38 & 39 Vict, 
 c. 36.] 
 
 ASSAULT. 
 
 Liability for another's Act, 
 
 1, — The defendant was chairman of a public meet- 
 ing at which persons in the position of stewards 
 were employed to keep order, and policemen were 
 present. In the course of the proceedings an 
 interruption occurred, and the defendant said, 
 " Bring those men to the front who are making 
 a disturbance." The plaintiff was not making a 
 disturbance, but he was seized by one of the 
 stewards and two policemen, and brought to the 
 front:— Held, in an action of assault, that the 
 defendant was not liable for the act of the 
 steward and the policemen. Jjucas v. Mason, 44 
 Law J. Eep. (n.s.) Exch. 145; Law Eep. 10 
 Exch. 251. 
 
 Indecent assault. 
 
 2. — On an indictment for indecent assault, as 
 in cases of rape, or attempt to commit rape, the 
 answer of the prosecutrix to questions put to her 
 on cross-examination as to particular acts of con- 
 nexion with persons named to her, other than the 
 prisoner, is final, and the party questioning is 
 bound thereby, and if her answer be a denial, the 
 persons named cannot be called to contradict her. 
 The Queen v. Holmes, 41 Law J. Eep. (n.s.) M. C. 
 12; Law Eep. 1 C.O.E. 334. 
 
 Semble — that the question may be put to her 
 on cross-examination, but that she is not bound 
 to answer it. Ibid. 
 
 3. — An assault must, in the absence of fear or 
 fraud to procure consent, be an act done contrary 
 to the consent of the patient ; but mere submis.- 
 siou by the patient, in ignorance of the moral 
 nature of the act, to an act of indecency done by 
 the agent, does not amount to such consent ; 
 therefore, where two boys of eight years of age 
 submitted to indecent acts on the part of a grown- 
 up man, in ignorance of the nature of the acts to 
 be done and done, the man was held to be rightly 
 convicted of an indecent assault. The Queen v. 
 
• ASSAULT— ATTACHMENT, 
 
 S3 
 
 Loch, 42 Law J. Eep. (n.s.) M. 0. 5 ; Law Rep, 2 
 C. 0. E. 10. 
 
 Carnal knowledge of girl : evidence of girl's 
 age : certified cfpy of register of births. 
 [See Evidence, 8.] 
 
 Service of summons. [See Sebticb op 
 Summons.] 
 
 ASSIGNMENT. 
 
 Assignment of debt, [See Debtoe and 
 
 Cbeditob, 1.] 
 Of leaseholds. [See Lease, 30, 31.] 
 
 ATTACHMENT. 
 (1) OF DEBTS. 
 
 (A) "What Debts may be attached. 
 
 (B) Procedtibe. 
 
 (C) Effect of Attachment. 
 
 (D) Foreign Attachment: Custom of City 
 
 op London. 
 
 (2) OF PERSON. 
 [See Dbbtoes Act.] 
 
 [Attachment of wages of any servant, latourer, 
 or workman, in satisfaction of judgment, abo- 
 lished. 33 & 34 Vict, e. SO.] 
 
 (1) OF DEBTS. 
 (A) What Debts may be attached. 
 
 1. — The surplus money due to a bankrupt out of 
 his estate after payment of 20s. in the pound to 
 the creditors under the bankruptcy, is not a 
 " debt " due to the bankrupt from the official 
 assignee (though the bankrupt's estate remains 
 rested in him) which can be attached under the 
 garnishee clauses of the Common Law Procedure 
 Act, 1854, by a judgment creditor of the bank- 
 rupt. Hunter v. Greensill; Fitzgerald v. Green- 
 sill, 42 Law J. Eep. (n.s.) 0. P. 55 ; Law Eep. 8 
 C. P. 24, nom. In re Greemill. 
 
 2. — ^An order made under the Common Law 
 Procedure Act, 1854, section 61, that a garnishee 
 should pay to a judgment creditor the debt due 
 from him to the judgment debtor which had been 
 attached by the same, or a prior order, under the 
 same section, may be made to include a debitum in 
 preesenti solvendum in future, and to extend to the 
 future instalments of a debt payable by instal- 
 ments. Tapp V. Jones, 44 Law J. Eep. (n.s.) 
 Q. B. 127 ; Law Eep. 10 ft. B. 591. 
 
 3. — An order for the payment of costs, made 
 in pursuance of 1 & 2 Will. 4. c. 68, which, by 
 section 7, maybe entered of record, and shall then 
 have the force and effect of a judgment, does not 
 become a judgment so as to enable the person in 
 whose favour it is made, to obtain the benefit of 
 the garnishee clauses of the Common Law Proce- 
 dure Act, 1854. Best v. Pembroke, 42 Law J. Eep. 
 (n.s.) Q. B. 212 ; Law Eep. 8 Q,. B. 363. 
 Digest, 1870-1875. 
 
 (B) PaCOEDTOE, 
 
 4, — After a rule has been discharged with costs, 
 the person in whose favour the rule has been dis- 
 charged cannot obtain a garnishee order under the 
 Common Law Procedure Act, 1854, sects. 60, 61 ; 
 the Act 1 & 2 Vict. c. 110. sect. 18, giving to 
 rules of the Courts of Common Law the effect of 
 judgments for the purposes of the Act, but not 
 actually making them judgments. The Sunder- 
 land Local Marine Board v. FranMand, 42 Law J. 
 Eep. (n.s.) Q. B. 13; Law Eep. 8 Q. B. 18, nom. 
 In re FranMand. 
 
 5. — Upon the hearing of a garnishee summons 
 under the Common Law Procedure Act, 1854 (17 
 & 18 Vict. c. 126), sects. 63, 64, the Judge is to 
 decide whether the circumstances make it right 
 that the judgment creditor should have execution 
 against the garnishee, and for this purpose he may 
 and ought to consider the state of accounts be- 
 tween the garnishee and the judgment debtor, but 
 having decided against the garnishee, he cannot 
 go on to settle accounts between him and the 
 judgment creditor, nor to impose as a condition to 
 the statutory remedy that the judgment creditor 
 shall pay what he may owe to the garnishee. In 
 re Sampson, 44 Law J. Eep. (n.s.) Q. B. 31 ; Law 
 Eep. 10 Q. B. 28. 
 
 (C) Epfeot op Attachment. 
 
 _8. — A garnishee order made against executors 
 will not affect money paid into Court by them in 
 an administration suit, and carried to a separate 
 account to meet a debt due to the judgment 
 debtor. Stevens v. Phelips, 44 Law J. Eep. 
 (n.s.) Chanc. 689 ; Law Eep. 10 Chanc. 417. 
 
 7. — A garnishee's order and an attaohment 
 issued under the Common Law' Procedure Act, 
 1854, unless followed by seizure and sale before 
 the presentation of a petition for liquidation, does 
 not make the creditor a " secured creditor," within 
 the meaning of the Bankruptcy Act, 1869. The 
 order of the County Court Judge, directing the 
 amount levied under such an order to be repaid 
 to the trustee in the liquidation, was confirmed. 
 Ex parte Greemoay ; In re Adams, i2La,w 3. 'Bep. 
 (n.s.) Bankr. 110 ; Law Eep. 16 Eq. 619. 
 
 8. — The plaintiff, on March 24, obtained judg- 
 ment against the defendant for 310?. On April 2, 
 he obtained a garnishee order under sect. 61 of the 
 Common Law Procedure Act, 1854, by which all 
 debts due from the garnishees were ordered to be 
 attached to answer the judgment debt. By the same 
 order, the garnishees were to shew cause on April 
 12 why they should not pay to the plaintiff the 
 debt due from them to the defendant. The rule nisi 
 was served on the garnishees on April 2. On the 
 6th the judgment debtor presented his petition for 
 liquidation by arrangement, or composition with 
 his creditors, under the Bankruptcy Act, 1869. On 
 April 10, a receiver was appointed, who, on the 
 part of the general creditors, claimed the amount 
 of the debt, which the garnishees, on the 12th, 
 appeared and admitted: — Held, that the plain- 
 tiff was a secured creditor within sect. 12 of 
 the Bankruptcy Act, 1869, and was entitled tq 
 
34 
 
 ATTACHMENT— ATTOENEY. 
 
 have the money admitted by the garnishees to be 
 due. Lowe v. Blackmore, ii Law J. Eep. (n.s.) 
 Q. B. 155 ; Law Eep. 10 Q. B. 485. 
 
 Garnishee order : secured creditor, [See 
 Bankbxjptcy E. 23.] 
 
 (D) Foreign Attachment: Custom of Ciiy 
 OF London. 
 
 9, — -Where an action -was brought in the Mayor 
 of London's Courtagainst the indorsee of abill of ex- 
 change, and neither the plaintiffs nor the defendant 
 resided within the City of London, nor did the 
 cause of action arise there ; it was held that the 
 Mayor's Court had no jurisdiction, so as to give 
 the plaintiffs a right to attach moneys of the de- 
 fendant in the hands of the garnishee, a resident 
 in the City of London. The Mat/or of London v. 
 Cox (Law Eep. 2 H. L. 439) followed. Banque de 
 CrSdit Commercial v. Le Gas ; Lazard garnishee, 
 Law Eep. 6 C. P. 142. 
 
 10. — Where a defendant in a proceeding by 
 foreign attachment surrenders himself in dissolu- 
 tion of the attachment, and the plaintiff goes on 
 and recovers judgment, the defendant is entitled 
 to be discharged under sec. 4 of the Debtors Act, 
 1869, notwithstanding that sec. 29 preserves the 
 custom of foreign attachment. Waine v. WUkins, 
 42 Law J. Eep. (n.s.) Qt. B. 75 ; Law Eep. 8 Q-.B. 
 107. 
 
 ' [And see Dbbtohs Act, 12.] 
 
 (2) OF PEBSOK 
 [See Debtoks Act.] 
 Attachment against attorney. [See Attoe- 
 
 NEY, 25, 26.] 
 Attachment for non-production of docu- 
 ments, [See Pboduciion, 12.] 
 
 ATTOENEY AND SOLICITOE. 
 
 (A) Articled Clebk. 
 
 (n) Service under articles. 
 
 (1) Time of service. 
 
 (2) Under unstamped articles. 
 
 (3) Office or employment, 
 (i) Binding clerk to a firm. 
 
 Ip) Covenant in restraint of trade, 
 \d) Cancellation of articles, 
 (e) Admission. 
 
 (1) Notices. 
 
 (2) Member of university. 
 
 (B) XJncektificated Attoeney. 
 
 (C) Powers and Priviieges, 
 (a) Discovery. 
 
 lb) Authority. 
 
 (D) Liabilities. 
 (a) For costs. 
 
 lb) For negligence. 
 
 (c) Attachment against attorney. 
 
 Id) Liability in respect of acts of partner. 
 
 (E) Summary Jurisdiction over. 
 
 (F) Dealings with Client, 
 
 (G) Bill op Costs. 
 
 fo) Mnforcement against several defendants. 
 
 (A) Agreement tvith client as to remunera- 
 tion. 
 
 ic) Fxainination on taxation. 
 
 (d) Interest on advances. 
 
 le) Suit against London agent. 
 
 (/) Claim for, when barred. 
 (H) Lien fob Costs. 
 
 (n) On documents. 
 
 (i) On property recovered or preserved. 
 
 [Agreements between client and solicitor au- 
 thorised, and provisions made in relation to attor- 
 neys' costs. 33 & 34 Vict. c. 28.] ; 
 
 [6 & 7 Vict. c. 73, and 23 & 24 Vict. c. 127, 
 amended. Power to Judges to admit articled 
 clerks as attorneys in certain cases, notwithstand- 
 ing they have held some office or employment 
 during their articles. Eegulations as to applica- 
 tions to strllie attorneys off the roll. Penalties for 
 wrongfully acting as attorney. 37 & 38 .Vict. 
 c. 68.] 
 
 [6 & 7 Vict. c. 73. sec. 73 amended so as to 
 authorise an action for costs before the expiration 
 of one month from the delivery of the biU where 
 the party chargeable is about to leave the country, 
 become bankrupt, &c. 38 & 39 Vict. c.'79.] 
 
 (A) Articled Clerk. 
 
 (a) Service under articles, 
 
 (1) Time of service. 
 
 1. — A clerk, duly articled to an attorney, served 
 a portion of his time with his master ; it was then 
 agreed that he should be assigned to another 
 attorney for the residue of his term. On this 
 understanding the clerk left his first master, and 
 went into the service of the second master. From 
 circumstances over which the clerk had no con- 
 trol, the assignment to the second master was not 
 executed for about eight weeks after his entering 
 the second master's service. The clerk served 
 under the assignment for the residue of the term : 
 ■ — Held, that the interval between entering the 
 second master's service and the execution of the 
 assignment could not be reckoned as service 
 under the articles within 6 & 7 Viet. c. 73, 
 sec. 13, and that the Court would not foUow Ex 
 parte Brutton, 23 Law J. Eep. (n.s.) Q. B. 290. 
 Ex parte Harrison, 44 Law J. Eep. (n.s.) Q. B. 
 103. 
 
 2. — An articled clerk was, at his own request, 
 assigned, during the articles, to one D., an attor- 
 ney, for fifteen months, at the expiration of which 
 time he returned to his original master, and con- 
 tinued to serve him up to the end of the term : — 
 Held, that such period of fifteen months could not 
 be reckoned as a portion of the five years required 
 by the statute. Ex parte Adams, 44 Law J. Eep. 
 (n.s.) G.B. 102 ; Law Eep. 10 a.B. 227. 
 
 3. — An articled clerk, who had served under 
 his articles for three of the term of five years, was 
 then absent from illness for eleven months, but on 
 his return served to the end of the term of h's 
 
ATTOEKEY (A), (B). 
 
 35 
 
 articles, and passed his final examination : — Held, 
 that an application for his admission as though he 
 had served the Ml term of five years could not be 
 granted, but that he might be allowed to complete 
 his term by serving for a further period of eleven 
 months. Ex parte Moses, 43 Law J. Eep. (n.s.) 
 Q.B. 13; Law Eep. 9 Q.B. 1. 
 
 (2) Under umfamped articles. 
 
 4.— Where the stamp duty on articles of clerk- 
 ship to an attorney had not been paid within six 
 months after the execution of such articles, and it 
 was not shewn to the satisfaction of the Court that 
 there had existed a state of things at the time the 
 articles were entered into, on which a man might 
 have had a fair ground to reasonably expect that 
 the duty would have been paid within the six 
 months, the Court refused to allow the service to 
 bo computed from the date of the execution of the 
 articles. Ex parte Banyard, 44 Law J. Eep. (n.s.) 
 C. P. 305 ; Law Eep. 10 O.P. 638 ; and Ex parte 
 Sayer, 44 Law J. Eep. (n.s.) 0. P, 307, ». ; Law 
 Eep. 10 C. P. 569. 
 
 5. — Before granting an application that the 
 service of a clerk to an attorney under imstamped 
 articles may be computed from the date thereof, 
 and not from the time of enrolment, the Court will 
 require that notice of the application shall be 
 given to the Licorporated Law Society, in order 
 that an opportunity may be afforded of investi- 
 gating the truth of the statements upon which the 
 application is founded. Ex parte Blades, 44 Law 
 J. Eep. (N.s.) C.P. 115. 
 
 (3) Office or employment. 
 
 6. — The appointment as clerk to a vestry is 
 both an office and an employment within 23 & 24 
 Vict. c. 127, sec. 10 ; and therefore the service of 
 a clerk under articles to an attorney is insufBcient, 
 when the clerk also holds the appointment of clerk 
 to a vestry. Ex parte Greville, 43 Law J. Eep, 
 (n.s.) C.P. 58; Law Eep. 9 C.P. 13. 
 
 (i) Binding clerk to a firm. 
 
 7. — ^A clerk may be articled to more than one 
 member of a firm of attorneys. In re Holland, 
 Law Eep. 7 Q. B. 297. 
 
 8. — A clerk entered into articles of clerkship by 
 which he bound himself to serve a firm of attor- 
 neys consisting of two partpprs :— Held, that the 
 binding was valid, and the articles must be en- 
 rolled. In re an articled Cleric, 41 Law J, Eep. 
 (n.s.) Q. B. 141 ; Law Eep, 7 Q. B. 587. 
 
 . (c) Covenant in restraint of trade. 
 
 9. — The defendant bouijd himself to a London 
 solicitor by articles for a term, and covenanted 
 that he would not at the expiration of the term, 
 or at any time thereafter, either solely, or jointly 
 with, or as agent for, any other person or persons, 
 directly or indirectly practise the business of an 
 attorney or solicitor within the City of London, or 
 the counties of Middlesex or Essex, nor directly or 
 indirectly act as such attorney or solicitor for any 
 client or clients of the plaintiff, or any partner 
 or partners of the pljiintiff, or for any person or 
 
 persons who should have been a client or clients of 
 the plaintiff, or any partner or partners of the plain- 
 tiff, at any time during the term. At the expira- 
 tion of the term the defendant having commenced 
 business on his own account in Southwark : — Held, 
 that the restriction was not unreasonable, and that 
 the defendant's acting for a petitioner in the Lon- 
 don Court of Bankruptcy was a breach of the 
 covenant. May v. O'Neill, 44 Law J. Eep. (n.s.) 
 Chano. 660. 
 
 (d) Cancellation of articles. 
 
 lO.-^Where a son, under articles to his father, 
 became out of health, and, under medical advice,- 
 his father purchased him a commission in the 
 army : — Held, that this amoimted to a virtual 
 cancellation of the articles by mutual consent 
 within the above section. Ex parte Trenchard, 
 Law Eep. 9 Q.B. 406. 
 
 (e) Admission. 
 (1) Notices. 
 
 11. — An articled clerk gave the proper notices 
 for examination and admission as an attorney in 
 Easter Term. He passed his examination in that 
 Term, but did not apply for admission, nor did he 
 renew his notices as required by Eule (Attorneys) 
 of Hilary Term, 1853, r. 6 :— Held, upon an ap- 
 plication in Trinity Term to be allowed to renew 
 the notices, so that he might be admitted during 
 that Term, that the rule was positive, and that 
 this Court would not dispense with it. Ex parte 
 Hay, 41 Law J. Eep. (n.s.) a. B. 375. 
 
 12. — If an attorney's clerk intentionally omits 
 to give the notice and cause the entries to bo made 
 as required by the Eule (Attorneys) of Hilary Term, 
 1853, r. 5, for the proper period before the Term 
 in which he proposes to be admitted, this Court 
 will not assist him by allowing such notice to be 
 given and entries made subsequently. Ex parte 
 Cumberland, 44 Law J. Eep. (n.s.) Q.B. 73 ; Law 
 Eep. 10 Q.B. 138. 
 
 13. — Under special circumstances the Court 
 allowed an articled clerk, who had passed his 
 fexamination, to give his notices at the end of the 
 Term preceding that in which he might be ad- 
 mitted an attorney, instead of giving the notices 
 three days before its commencement as required by 
 rule 6 of Eeg. Gen. H. T. 1853. Ex parte Taylor, 
 44 Law J. Eep. (n.s.) C.P. 68. 
 
 . (2) Memier of university. 
 
 14. — A member of the University of Edinburgli, 
 who has not taken the degree of M.A., but has 
 been enrolled on the General Council by virtue of 
 21 & 22 Vict. c. 83. s. 6, is not entitled to be ad- 
 mitted an attorney after three years' service under 
 articles. Ex parte Stewart, 41 Law J. Eep. (n.s.) 
 Exch. 76 ; Law Eep. 7 Exch. 202. 
 
 Qusere — whether this Court has jurisdiction to 
 compel the examiners to grant a certificate to an 
 articled clerk that he has passed his intermediate 
 examination. Ibid. 
 
 (B) Unceetifioated Attoenby, 
 
 15. — A person ordered to pay costs cannot re- 
 fuse to do so on the ground that the solicitor on 
 f2 
 
38 
 
 ATTOENEY (B), (D). 
 
 the other side is uncertificated. In re Hope, Law 
 Eep. 7 Chanc. 766. 
 
 (0) PoWEHS AND PeIVIIBGES, 
 
 {a) Discovery, 
 [And see Production, 14-17.] 
 
 16. — The Court refused to order a solicitor to 
 disclose the address of his client, a defendant to 
 the suit. Heath v. CrealocJc, 42 Law J. Eep. (n.s.) 
 Chanc. 455 ; Law Eep. 15 Eq. 257. 
 
 {b) Authority. 
 
 17. — A solicitor has authority to enter into an 
 undertaking on behalf of his client, not to issue a 
 ■writ of fiiri facias against the client's debtor, in 
 consideration of the acceleration of payment of the 
 debt. In re The Commonwealth Land, Building, 
 Estate and Auction Co. (Lim.); Ex parte HoUingion, 
 43 Law J. Eep. (n.s.) Chanc. 99. 
 
 A breach of such an undertaking, by the issue of 
 writs against the debtor, was held to be contrary 
 to good faith, and the solicitor was ordered to pay 
 the expenses of issuing such writs, and of an appli- 
 cation to recover them. Ibid. 
 
 18.— An attorney employed to sue for a debt, 
 in a County Court, has no implied authority, after 
 he has obtained judgment in such Court for the 
 debt, to enter into an agreement with the debtor 
 not to enforce such judgment for a time. Love- 
 grove V. White, 40 Law J. Eep. (n.s.) C.P. 253 ; 
 Law Eep. 6 C.P. 440. 
 
 19. — If an attorney brings an action in the 
 name of a person who has not given him any 
 authority to do so, such person is entitled to have 
 the proceedings stayed. Reynolds v. Howell, 42 
 Law J. Eep. (n.s.) Q.B. 181 ; Law Eep. 8 Q.B. 398. 
 
 Authority of proctor: proxy. [See Ad- 
 
 MIBALTT, 55.] 
 Authority to enter appearance for trustee of 
 
 hanking company, [See Bankbe, 2.] 
 Law of Canada : power of avome to suspend 
 
 action. [See Colonial Law, 6.] 
 Attorney to Poor Law Board : right of, to 
 
 compensation for deprivation of office. 
 
 [See Pook, 6.] 
 Liability of trustee for acts of solicitor, [See 
 
 Trust B. 22, 23.] 
 
 (D) Liabilities. 
 
 (a) For costs. 
 
 20.^The plaintiff having been induced by the 
 fraud and undue influence of L., her agent and. 
 trustee, to execute deeds by which, without any 
 consideration, she conveyed all her property to him 
 absolutely, filed a bill against his executor to set 
 them aside. Her former solicitor, who prepared 
 and had the custody of the deeds, was joined as a 
 defendant for purposes of discovery, and costs were 
 prayed against him, as well as the executor, on 
 the ground of neglect of duty. The bill also 
 charged him with fraud, which, however, was not 
 proved. Throughout the litigation he acted as the 
 solicitor of the defendant executor. A decree was 
 made, setting aside the deeds with costs against 
 L.'s estate, and the solicitor was ordered to pay 
 
 the whole costs of the suit, in case L.'s estate 
 proved insufficient to pay them. Ba/cer v. Loader, 
 42 Law J. Eep. (n.s.) Chano. 113 ; Law Eep. 
 16 Eq. 49. 
 
 The Court will, in a proper case, order a soli- 
 citor to pay the costs of litigation occasioned by 
 deeds improperly prepared by him. Ibid. 
 
 21, — Where an attorney brought an action, 
 knowing he had no authority from the plaintiff, 
 and on judgment for the defendant a rule was 
 granted ordering him, the attorney, to pay the de- 
 fendant's costs, and then such attorney, under 32 
 & 33 Vict. c. 71, entered into a composition with 
 his creditors, — Held, that he was discharged from 
 such payment, as the case was one of fraud within 
 32 & 33 Vict. c. 71, s. 49. Jenkins v. Feraday, 
 41 Law J. Eep. (n.s.) C.P. 162; Law Eep. 7 
 C.P. 368. 
 
 22.— The duty of a plaintiff's solicitor to see 
 that a suit is not frivolous does not attach unless 
 he has been concerned in the original institution 
 of the suit. Fielden v. The Northern Railway of 
 Buenos Ayres Co. {Limited); In re Jones, 40 Law 
 J. Eep. (n.s.) Chano. 113 ; Law Eep. 6 Chanc. 497. 
 
 A solicitor who, in order to induce a plaintiff to 
 go on with a suit, agrees to indemnify blm against 
 the costs, thereby makes the suit his own, and be- 
 comes liable to pay the costs of the defendants ; 
 and this, notwithstanding that by_tbe abatement 
 of the suit by the death of the plaintiff before the 
 hearing and the non-revivor by his executor, their 
 remedy against the plaintiff's estate may be gone. 
 Ibid. 
 
 (5) For negligence, 
 
 23. — In an action against a solicitor for negli- 
 gence, the declaration stated that the plaintiff was 
 equitably interested in four-tenth parts of the lease 
 of a colliery, that the lessee had entered into nego- 
 tiations for the sale of the lease to a company, and 
 that the plaintiff retained the defendant, as solici- 
 tor, to file a bill in Chancery against the lessee and 
 the company for the purpose of enforcing the 
 plaintiff's claim in respect of his shares, and pray- 
 ing that the lessee might convey and secure to the 
 plaintiff four- tenths of the purchase-money, and that 
 the company might be decreed to do all things 
 necessary to confirm such conveyance and security 
 and might be enjoined from paying the plaintiff's 
 proportion of the purchase-money to the lessee. 
 Breach, that the defendant did not register the bill 
 as a, lis pendens according to 2 & 3 Vict. c. 11. 
 s. 7, whereby the lessee was enabled to dispose of 
 tho lease to another company and to receive the 
 purchase-money, and the plaintiff was deprived of 
 his share in it : — Held, that the declaration was 
 good, as the bill in Chancery which prayed for an 
 equitable lien against the intended purchasers of 
 the lease was a lis pendens, which ought to havo 
 been registered under the statute, and that having 
 regard to the terms of the bill it was the duty of 
 the defendant as a solicitor to have registered it, 
 without any express request on the part of tho 
 plaintiff. Plant v. Pearman, 41 Law J. Eep. (n.s.) 
 Q.B. 169. 
 
 24. — A bill charged that a solicitor had negli- 
 
ATTORNEY (D), (G). 
 
 37 
 
 gently recommended the plaintiff company to 
 accept a freehold house as security for a loan of 
 5,0002., and had advised that the mortgagors had 
 the absolute fee-simple in the house free from in- 
 cumbrance, -whereas, in f^ct, they had only an 
 interest in one moiety, and that subject to incum- 
 brances and a contract for sale. The biU prayed 
 that the solicitor might be decreed to make good 
 the 5,000i. and costs, and to take over the security 
 from the client. A suit for the realisation of the 
 security was pending, and the mortgagors were 
 bankrupts, so that the actual loss, if any, was not 
 ascertained : — Held, that the Court had no juris- 
 diction to grant such relief, and that if such juris- 
 diction existed there was a discretion to refuse to 
 exercise it in such a case, and a demurrer was allowed. 
 The British Mutual^Investment Company {Limited) 
 V. Cobbold, H Law J. Eep. (n.s.) Chanc. 332 ; Law 
 Eep. 19 Eq. 627. 
 
 [And see supra No. 22.] 
 
 (c) Attachment against attorney, 
 
 25, — The Court will refuse to grant an attach- 
 ment against an attorney for disobeying a rule of 
 Court ordering him to pay money, unless 
 special circumstances be shewn, as the remedy for 
 such disobedience is by execution under 1 & 2 
 Vict. c. 110, s. 18. In re Ball, 42 Law J. Rep. 
 (n.s.) C.P. 104 ; Law Eep. 8 C.P. 104. 
 
 26. — ^An attorney was arrested under an attach- 
 ment issued by a Court of law for contempt of Court 
 in not obeying a previous order that he should pay 
 to a client a sum which he had received for him 
 while acting in the capacity of attorney. Before 
 the attachment issued the attorney had been adju- 
 dicated a bankrupt, but when he was arrested the 
 bankruptcy was not closed, nor had he obtained an 
 order of discharge : — Held, that the Court of 
 Bankruptcy ought not to order his release from 
 custody, but ought to leave the Court of law to 
 decide whether the attachment was merely a pro- 
 cess to compel payment of a debt, or whether it 
 was issued in the exercise of the Court's quasi 
 criminal jurisdiction over its own ofB.cer. Ex parte 
 Deere ; In re Deere, 44 Law J. Rep. (n.s.) Bankr. 
 120 ; Law Eep. 10 Chanc. 658. 
 
 [And see Debtobs Act, 8-10.] 
 
 {d) Liability in respect of acts of partner. 
 
 27. — In order to render one partner in a firm 
 of solicitors liable for the misapplication of money 
 entrusted by a client of the firm to the other 
 partner, it must be shewn that the money was re- 
 ceived by that other partner in the ordinary course 
 of business for the purpose of being invested on a 
 specific security. A mere general statement to 
 the client by the partner who receives the money 
 that the money is to be lent on security to another 
 client is not suificient to bind the other partner ; 
 the receipt of money for the purpose of laying it 
 out generally not being part of a solicitor's busi- 
 ness, or within the scope of a solicitor partnership. 
 Phimer v. Gregory (No. 2), 43 Law J. Rep. (n.s.) 
 Chanc. 803 ; Law Rep. 18 Eq. 621. 
 [And see infra No. 32.] 
 
 (E) Summary Jxtbisdiction ovek. 
 
 28. — ^Where an attorney has been suspended for 
 a limited period by order of one of the Superior 
 Courts, the Court of Common Pleas will not adopt 
 such order by suspending, in like manner, the at- 
 torney from practising in that Court, without 
 examining the facts on which the order was made, 
 and exercising its own discretion in the matter. 
 In re Brutton, 41 Law J. Rep. (n.s.) C. P. 58. 
 
 In a case in which the Master of the Rolls or- 
 dered an attorney to be suspended for a certain 
 period, and the misconduct was such that he might 
 have been struck off the roll for it, the Common 
 Pleas, after reading the affidavits used before the 
 Master of the Rolls, ordered the attorney to be 
 suspended from practising in that Conrt, not only 
 for the period ordered by the Master of the Rolls, 
 but until the further order of the Court. Ibid. 
 
 29. — When another superior Court has made 
 an order to suspend an attorney for misconduct, 
 this Court wiU grant a rule nisi for a similar sus- 
 pension, upon proof of all the materials used before 
 the other Court, of the judgment delivered, and 
 order made by such other Court, and of the iden- 
 tity of the attorney. This rule nisi will make 
 itself absolute unless cause be shewn within the 
 time prescribed therein. In re Turner, 42 Law J. 
 Rep. (n.s.) Exch. 63 ; Law Rep. 8 Exch. 62. 
 
 30. — This Court has jurisdiction to strike an 
 attorney off the roll of the Court of Common Pleas 
 at Lancaster, Ex parte Briggs, Law Rep. 8 
 C. P. 63. 
 
 (F) Dealings with Client, 
 
 31. — A solicitor is not absolutely incapacitated 
 from purchasing from his client. In investigating 
 the bom fides of sach a transaction the Court will 
 take all the facts into consideration. Pisani v. 
 Attorney -General for Gibraltar, Law Rep. 5 P. C. 
 516. 
 
 32. — The liability of a firm of solicitors, to 
 whom a client's money is entrusted for investment, 
 is joint and several. Plnmer v. Gregory, 43 Law 
 J. Rep. (n.s.) Chanc. 616. 
 
 [And see Undue Influence, 1.] 
 
 (Gr) Bill of Costs. 
 (a) Enforcement against several defendants. 
 
 33. — Though asolicitor who accidentally (or upon 
 separate retainers) represents two or more parties 
 •ought to distinguish the charges incurred for each 
 ■separate party, yet where there is a joint retainer 
 (or by trustees not severing in their defence) ho 
 can enforce the whole bill of costs incurred against 
 either of -the parties. Watson v. Sow, 43 Law J. 
 Rep. (n.s.) Chanc. 664 ; Law Rep. 18 Eq. 680. 
 
 i'wo trustees gave a joint retainer in a suit to 
 administer the trust estate. One became insol- 
 vent and was indebted to the estate : — Held, that 
 the surviving trustee should have the whole costs 
 of himself and his co-trustee allowed out of the 
 estate without any set-off in respect of the estate. 
 Ibid. 
 
ATTOENEY (G), (H). 
 
 (J) Agreement with client as to remuneration. 
 
 34. — The declaration alleged that the plaintiff 
 ■was an attorney and set out the following agree- 
 ment : — "I hereby agree to pay you a commission of 
 bl. per cent, for all money you will obtain for me to 
 purchase shares in the B. gas works in lieu of your 
 costs. Also I hereby agree to be prepaxed within 
 six months to sell the said B. gas works, and, for 
 the consideration aforesaid, I hereby agree that you 
 shall have the carrying out of the sale, and I agree 
 to pay you a commission of H. per cent, on the 
 purchase-money in lieu of your costs." Breach, 
 that the defendant did not employ the plaintiff in or 
 about carrying out the agreement of sale, nor per- 
 mit him to have the carrying out of the agreement 
 of sale, and had not paid a commission of 4 per cent, 
 or any commission on the purchase-money in lieu of 
 costs or otherwise. Plea, that the agreement was 
 in writing, and made between attorney and client 
 respecting payment for fature services, and was 
 intended by both parties to be made in pursuance 
 of the Attorneys and Solicitors Act, 1870 : — Held, 
 on demurrer, that the fact of the agreement con- 
 taining, inter alia, a stipulation as to remuneration 
 upon which, had the work been done under the con- 
 tract, no action could have been brought, and which 
 could only have been enforced on motion or peti- 
 tion in the mode prescribed by the Act, did not sub- 
 ject the whole agreement to the provisions of the 
 statute so as to bar the plaintiff maintaining the 
 action to recover unliquidated damages against the 
 defendant for not employing him. Bees v. Williams, 
 44 Law J. Eep. (n.s.) Exch. 116; Law Eep. 10 
 Exch. 200.. 
 
 35. — An agreement by an attorney with his 
 client not to charge for costs need not be in writ- 
 ing. Jennings v. Johnson, Law Eep. 8 C. P. 425. 
 
 (c) Examination on taxation. 
 
 36. — A solicitor may be cross-examined on an 
 affidavit made by him in support of a bill of costs 
 under a common order for taxation, and it is the 
 duty of the examiners to take such examination. 
 In re Flux, Argles, and Eawlins, 44 Law J. Eep. 
 (n.s.) Chanc. 375. 
 
 {d) Interest on advances, 
 
 37.— The 33 & 34 Vict. c. 28, s. 17, authorising 
 on taxation the allowance of interest on moneys 
 disbursed by a solicitor for his client, only applies 
 to costs between a Solicitor and his own client, 
 not to a case where costs are to be paid out of a 
 fund in Court not belonging wholly to the client, 
 Hartla/iid v. Murrell, 43 Law J. Eep. (n.s.) Ohanc, 
 94; Law Eep. 16 Eq, 285. 
 
 (c) Suit against London agent, 
 
 38. — A bill filed by a country solicitor against 
 a solicitor in London for a discovery of all matters 
 of business transacted by the defendant as agent 
 for the plaintiff, and for delivery and taxation of 
 his bill of costs, stated that there was a dispute 
 between them whether the defendant had trans- 
 acted the business as agent for the plaintiff or on 
 his own account imder a special agreement to 
 
 share the profits. The defendant demurred on the 
 ground that the plaintiff's remedy was by appli- 
 cation under; 6 & 7 Vict. c. 73, o. 37, and not by 
 bill. The Master of the EoUs overruled the de- 
 murrer, and on appeal the decision was affirmed. 
 Ward V. Lawson, 42 Law J. Eep. (n.s.) Chane. 
 273 ; Law Eep. 8 Chanc. 65. 
 
 (/) Claim for, when barred. 
 
 Claim against railway company for costs of 
 obtaining Act of Parliament : whm 
 barred by Statute of Limitations. [See 
 Limitations, Statute of, 23.] 
 
 (H) Lien foe Costs. 
 (a) On docuTMnts. 
 
 39. — A solicitor is entitled to a general lien 
 for costs on papers deposited with him by his 
 client for a particular purpose only, unless that 
 general lien is excluded by special agreement. 
 Colmer v. Ede, 40 Law J. Eep. (n.s.) Chanc. 185. 
 
 40. — A solicitor applied to his client for funds 
 to carry on a suit, declining to continue the con- 
 duct of the litigation unless his costs, which were 
 already considerable, were secured. The client 
 neither furnished the funds nor gave the required 
 security, but obtained an order appointing fresh 
 solicitors: — Held, that the solicitor' had dis- 
 charged himself, and was bound to hand over to 
 the new solicitors all the papers in his possession 
 relating to the suit, on their undertaking to hold 
 them without prejudice to his lien, and to return 
 them to him within twelve days after the conclu- 
 sion of the suit. Sobins r. Goldingham, 41 Law 
 J. Eep. (n.s.) Chanc. 813 ; Law Eep. 13 Eq. 440. 
 
 41.— E. & C, atH. & T.'s request, paid to H. 
 & T.'s country solicitors a sum of 350J. in part 
 discharge of costs incurred by H. & T. in certain 
 administration suits. Thereupon the country soli- 
 citors by indenture assigned to E. & C. certain 
 documents on which they had a lien, and cove- 
 nanted that they would hold any charging order 
 they might obtain from the Court of Chancery for 
 payment of their costs, in trust to indemnify 
 E. & C. By a subsequent order of the Court the 
 costs were to be taxed and paid out of funds in 
 Court to the- town agents of the country solicitors : 
 — Held, upon H. & T.'s petition, that the costs 
 must be paid to E. & C. in satisfaction of -their 
 claims under the indenture. Peatfidd v. Barlow (38 
 Law J. Eep. (n.s.) Chanc. 310; Law Eep. 8 Eq. 
 6) followed. Cockayne t. Harrison, 42 Law J, 
 Eep. (n.s.) Chanc. 660 ; Law Eep. 15 Eq. 298. 
 
 42. — ^A solicitor, who has been employed in a 
 suit for the administration of an estate, and is 
 discharged during the course of the suit, cannot, 
 on the ground of lien, retain documents belonging 
 to the estate, so as to embarrass the proceedings 
 in the suit. Belaney v. French, 43 Law J. Eep. 
 (n.s.) Chanc. 312 ; Law Eep. 8 Chanc. 918. 
 
 (b) On property recovered or preserved. 
 
 43. — In a suit by one of several tenants in 
 common of real estate, instituted to obtain from 
 the defendant, to whom the plaintiff had conveyed 
 her share in trust - by a revocable deed, accounts 
 
ATTORNEY (H). 
 
 S9 
 
 of his receipts and payments on her behalf, and a 
 Jeoonvayanee of her share, and praying for a de- 
 claratioa that the defendant was a trustee for the 
 plaintiff of a certain mortgage upon the estate, for 
 a transfer whereof she had advanced a sum of 
 money to the said defendant, a receiver of the 
 estate was appointed at the instance of the plain- 
 tiff. Subsequently the suit was compromised by 
 the plaintiff and the defendant without the inter- 
 vention of their solicitors. By the compromise 
 the estate was to be sold, and a portion of the 
 proceeds thereof paid to the plaintiff: — Held, 
 that by the appointment of the receiver, the pro- 
 perty had been preserved, and accordingly the 
 plaintiff's solicitors were entitled to have, para- 
 mount to the compromise, a charge for their costs 
 of the suit upon the shares of the plaintiff and of 
 another of the co-owners of the estate for whom 
 they had acted in the suit, and to have such 
 charge enforced by a sale of the shares, with the 
 continuEiuce meanwhile of the receiver appointed 
 in the Suit. Twynam v. Porter, 40 Law J. Eep. 
 (n.s.) Chanc. 30 ; Law Eep. 11 Eq. 181. 
 
 44. — Any branch of the Court of Chancery has 
 jurisdiction to make an order under the Attorneys 
 and Solicitors Act, 1860, declaring a solicitor en- 
 titled to a charge for his costs upon property re- 
 covered by his diligence, although the suit in 
 which the costs were incurred was in another 
 branch of the Court, and though the suit is no 
 longer pending. Heinrick v. Sutton; In re Fiddey, 
 40 Law J. Bep. (n.s.) Chanc. 518. [But see next 
 case.] 
 
 45. — An order declaring a solicitor entitled to 
 a charge under the Attorneys and Solicitors Act, 
 1860, on property recovered in a suit must be 
 made in the branch of the Court to which the suit 
 is attached. Heinrick v. Sutton ; In re Mddey, 
 Law Eep. 6 Chanc. 865. 
 
 46. — ^A solicitor was employed by a married 
 woman in the successful defence of a suit instituted 
 by her husband to set aside a settlement, whereby 
 he covenanted to pay to her an annuity for her 
 separate use without power of anticipation, and as- 
 signed certain property to trustees to secure the 
 annuity. Upon a petition by the solicitor to charge, 
 under 22 & 23 Vict. c. 127, s. 28, the annuity with 
 his costs incurred on her behalf, — Held, that the 
 married woman was competent to employ a soli- 
 citor for the purpose of defending such a suit ; 
 that the right of the solicitor under the Act to 
 a charge upon the property preserved by his exer- 
 tions was paramount to the restraint on anticipa- 
 tion; and held by Wickens, V.O., varying the 
 order of Stuart, V.C, that the charge was limited 
 to the annuity and did not extend to the trust 
 fund upon which it was secured. In re Keane and 
 In re Immley v. Deshorough, 40 Law J, Eep. (n.s.) 
 Chanc. 617 ; Law Eep. 12 Eq. 115. 
 
 47. — It is not merely where there is an adverse 
 claim to property recovered or preserved in a suit 
 through the instrumentality of a solicitor for his 
 elisnt, that the solicitor is. entitled to a charge on 
 the property for his costs, under the Attorneys and 
 Solicitors Act, but he may also obtain such a de- 
 claration, where the suit is -a friendly one and in- 
 
 stituted on behalf of an infant. Baile v. Baile, 41 
 Law J. Eep. (n.s.) Chanc. 300; Law Eep. 13 Eq. 497. 
 
 A bill was filed by the maternal grandmother 
 of an infant plaintiff tenant in tail, as his next 
 friend, praying the appointment of a guardian to 
 the plaintiff and his brothers and sisters ; direc- 
 tions for the maintenance and education of the 
 plaintiff, having regard to the circumstances of 
 the family ; accounts ; and a receiver. The soli- 
 citor employed by the next friend died pending the 
 suit, and within six years from the presentation of 
 the petition. A petition was presented by the per- 
 sonal representative of the solicitor for a declara- 
 tion as to, and a charge for, his costs under the 
 above Act, s. 28 : — Held, that the solicitor was 
 "employed" for the infant; that the property 
 was "preserved" for the infant through the in- 
 strumentality of the solicitor ; that the infant had, 
 as a matter of fact, adopted the suit after attain- 
 ing his majority ; that the Statute of Limitations 
 was not a bar to the petition ; that it was well 
 presented by the legal personal representative ; and 
 that the petitioner was entitled to the relief for 
 which she prayed. Ibid. 
 
 48.^-A declaration giving a solicitor a charge 
 for his costs upon property recovered or preserved 
 in a suit may be made upon a petition presented 
 in the suit after an order has been made dismiss- 
 ing the biU upon a compromise. Jones v. Frost ; 
 In re Fiddey, 42 Law J. Eep. (n.s.) Chanc. 47 ; 
 Law Eep. 7 Chanc. 773. 
 
 The plaintiffs in a suit to set aside a conveyance 
 of real estate sold their interest in the property, 
 
 t,nd the suit was compromised, and a conveyance of 
 he property made to the purchaser who obtained 
 an order dismissing the biU: — Held, that the 
 plaintiffs' solicitor was entitled to a charge for his 
 costs upon the property as against the purchaser. 
 Ibid. 
 
 49. — A solicitor instituted an administration 
 suit on behalf of a cestui que trust against a sole 
 trustee, obtained a common decree with a direction 
 for the appointment of a new trustee, and pro- 
 cured an account to be brouglit into chambers by 
 the defendant. The plaintiff then abandoned the 
 suit. On petition by the solicitor that his costs 
 might be made a charge on the plaintiff's interest 
 in the trust estate, under 23 & 24 Vict. c. 127, 
 s. 28, — Held, that no property had been preserved 
 .or recovered on which the costs could be made a 
 charge. PinJcerton.y . Easton ; In re Pinkerton, 42 
 Law J. Eep. (n.s.) Chanc. 878 ; Law Eep. 16 Eq. 
 490. 
 
 50.— The 28th section of 23 & 24 Vict. c. 127, 
 which empowers the Court to declare a solicitor 
 entitled to a charge for his costs upon property 
 recovered or preserved in a suit through his in- 
 strumentality, does not apply to a suit which re- 
 lates merely to an easement. Foxon v. Gascoiffne, 
 43 Law J. Eep. (n.s.) Chanc. 729 ; Law Eep. 9 
 Chanc. 654. 
 
 51. — A solicitor who claims a charge or lien 
 for his costs on property which he has "recovered 
 or preserved in any suit or proceeding" for an 
 infant, cannot enforce that claim under the Attor- 
 neys and Solicitors Act, 1 860 (23 & a4 Vict. c. 127), 
 
40 
 
 ATTOENEY— AWARD. 
 
 s. 28 ; but must establish it on a bill filed under 
 the general jurisdiction of the Court. If such 
 claim be allowed, it may include other costs auxi- 
 liary to those incurred for the preservation or 
 recovery of the infant's property. Pritchard v. 
 Boberts, 43 Law J. Eep. (k.s.) Cliano. 129 ; Law 
 Eep. 17 Eq. 222. 
 
 52. — By an award made pursuant to an order 
 of Nisi Prlus, a sum of 179?. was ordered to be 
 paid by M. to P. This amount remained unsatis- 
 fied. The plaintiffs, having obtained judgment for 
 1,200Z. against P. B., who acted asP.'s attorney in 
 the action in which the order of Kisi Prius was 
 made, took out asummons for a charging order under 
 23 & 24 Vict. c. 127, s. 28, upon the sum of 179Z. 
 Afterwards the plaintiffs obtained a garnishee 
 order under 17 & 18 Vict. c. 125, s. 61, against 
 M. :^Held, that the unpaid amount of 179?. was 
 property within 23 & 24 Vict. e. 27, s. 28, and 
 the summons for the charging order having been 
 issued by B. before the plaintiffs obtained the gar- 
 nishee order, B.'s lien as the attorney by whom 
 the 179?. had been recovered must prevail, and 
 he was entitled to receive that sum in priority to 
 the plaintiffs. Birohall v. Pugin, 44 Law J. Eep. 
 (N.S.) C.P. 278; Law Eep. 10 C.P. 397. 
 
 Lien for costs of divorce suit. [See Ditobce, 
 86, 87.] 
 
 AUCTION AND AUCTIONEEE. 
 
 1. — The plaintiff and M. carried on business in 
 premises rented by M. of 0. Being about to dis- 
 solve partnership, their respective attorneys gave 
 a joint order to the defendant, an auctioneer, to 
 take possession of the goods upon the premises, to 
 " realise the same with all convenient despatch, 
 and to hold the proceeds as stakeholder until we 
 shall join in directing you as to the disposition 
 thereof." The defendant took possession, and sold 
 the goods by auction, under conditions, one of 
 which was as follows : — " Each lot shall be paid 
 for immediately after the sale and previously to 
 its removal. Each and all lots shall be taken to 
 be delivered at the fall of the hammer, after 
 which time they shall remain and be at the ex- 
 clusive risk of the purchasers, and the auctioneer 
 shall not be called upon for compensation for any' 
 injury or loss sustained after that time." After 
 the lots were sold, but before all had been, takeii 
 away by the purchasers, the agent of C. told the 
 defendant that he could not allow the things to 
 go until he was paid rent then in arrear. The rent 
 was the private debt of M., who asked the defend- 
 ant to pay it out of the proceeds of the sale. The 
 plaintiff gave the defendant notice not to pay the 
 rent, and the attorneys gave him notice to pay the 
 net proceeds to the plaintiff, he being entitled to 
 the whole. The defendant paid the rent to C, 
 and the balance of the proceeds to the plaintiff: — 
 Held, that the defendant was not justified in pay- 
 ing the rent, and that the plaintiff was entitled 
 to maintain an action against him to recover the 
 residu6,of the proceeds. Sweeting v. Turner, 41 
 
 Law J. Eep. (n.s.) Q.B. 68 ; Law Eep. 7 Q.B. 
 
 2. — The plaintiff sent a grey mare to the de- 
 fendant for sale by auction. The defendant cir- 
 culated It, catalogue, forming one document with 
 the conditions of sale, wherein the mare was 
 described and numbered, and the sale advertised 
 for a day named. The sale took place on such 
 day, and the mare was knocked down to M. 
 Prior to the sale the defendant had prepared a 
 sales ledger, containing in several columns the 
 particulars of each horse to be offered for sale, 
 with blanks for the purchasers and prices, which 
 blanlcs were filled up by the clerk of the de- 
 fendant as soon as each horse was knocked down. 
 The number and description of the plaintiff's 
 mare, as entered in the sales ledger, corre- 
 sponded exactly with the number and descrip- 
 tion in the catalogue, and immediately after the 
 sale M. wrote to the defendant (to return the 
 mare, as not up to warranty), a letter identify- 
 ing her by number and description : — Held, that 
 the defendant was liable to the plaintiff for neg- 
 ligence in not having made a binding contract 
 with M., and that the letter of M. was not suffi- 
 cient to shew that there was a contract which 
 would be binding upon M. Peirce v. Corf, 43 
 Law J. Eep. (n.s.) Q.B. 52 ; Law Eep. 7 Q.B. 210. 
 3. — The defendant advertised in newspapers 
 that a sale by auction would take place on a 
 particular day in a country town. He also cir- 
 culated catalogues specifying the articles to be 
 sold. The plaintiff attended the sale, intending 
 to buy certain articles specified in the catalogue, 
 but on the day of sale they were withdrawn by 
 the defendant: — Held, that there was no im- 
 plied contract by the defendant to indemnify the 
 plaintiff against the expense and inconvenience 
 which he had incurred. Harris v. NicJcerson, 42 
 Law J. Eep. (n.s.) Q. B. 171 ; Law Eep. 8 Q. B. 
 286. 
 
 Covenant in lease not to permit sale by 
 
 auction. [See Lease, 19.] 
 Semble — A contract by an auctioneer for an 
 ■undisclosed 'principal is valid under the 
 Statuteof Frauds. [See Company,D.6.] 
 
 AUTEEEOIS CONVICT. 
 The appellant was convicted upon an in- 
 formation laid by the police under 5 & 6 Will. 
 4, c. 50, s. 78, for striking a horse ridden by H., 
 and causing hurt and damage to H., then being 
 and passing upon the highway. Subsequently, H. 
 laid an information under 24 & 25 Vict. e. 104, 
 s. 42, for an assault, in respect of the same 
 matter : — Held, that the appellant could not be 
 convicted under the last summons, Wemyss v. 
 Hopkins, 44 Law J. Eep. (n.s.) M. 0, 101 ; Law 
 Eep. 10 Q.B. 378. 
 
 AWAED. 
 [See AEBiTEiTioN, 18-27.] 
 
BAILMENT— BANK OF ENGLAND. 
 
 41 
 
 BAILMENT. 
 
 Cahdriver and Cahowner. 
 
 1, — ^Where the plaintiff, a cabdriver, was fur- 
 nished by the defendant, a oabowner, with a horse 
 and cab for the day, on the terms that the plain- 
 tiff was to pay a fixed sum for their use, and have 
 the earnings for himself, and the defendant per- 
 sonally furnished the plaintiff with a horse which 
 he, the defendant, had lately bought and not tried 
 in a cab, and which (though the defendant did 
 not know it) was unfit for the required purpose, 
 and ran away and injured the plaintiff: — Held, 
 by the majority (Grove, J., and Byles, J.) of the 
 Court, that the relation between the defendant 
 and the plaintiff was that of bailor and bailee, 
 with a warranty that the horse was reasonably 
 fit, and further, per Byles, J., that, even if it 
 was that of master and servant, the personal in- 
 terference of the defendant was evidence of such 
 negligence as would make him liable ; but, per 
 Willes, J., that the relation was that of master 
 and servant, and that, in the absence of know- 
 ledge, the defendant was not liable. Fowler v. 
 Lock, 41 Law J. Bep. (n.s.) G. P. 99 ; Law Eep. 
 7 0. P. 272. 
 
 Goods at sufferance ■wharf. 
 
 2. — Goods ordered by L. from the plaintiff 
 abroad were shipped and consigned to L., the bill 
 of lading and invoice being forwarded in due 
 course. The vessel with the goods on board 
 arrived on the 12th of February, at a sufferance 
 wharf kept by the defendant in London. Before 
 she arrived L. had deposited the bill of lading at 
 the wharf, with directions to take delivery, and 
 warehouse the goods on his account. This was 
 done, the goods being entered in the name of L., 
 subject to the freight. On the 19th of February 
 I/, gave notice to the plaintiff that the goods were 
 not according to contract, and that he refused to 
 take them. It was agreed on the 19th of April 
 that the plaintiff should take them back, and L. 
 promised to send the delivery order, but instead 
 of doing so, he indorsed the bill of lading to M., 
 who took it to the defendant, and obtained a 
 transfer of the goods to his own name. On the 
 3rd of June M. paid the freight, obtained warrants 
 for delivery to him or his order, and a transfer 
 was made from his name to "warrants." The 
 plaintiff tendered both to M. and also to the de- 
 fendant the amount of all " charges " due for the 
 goods. The transaction between M. and L. was 
 colourable, and with knowledge on the part of M. 
 of the intention of L. to deprive the plaintiff of 
 the goods. The defendant refused to deliver the 
 goods to the plaintiff, and delivered them to 
 another person by order of M. ; — Held, in an 
 action to recover the goods, that the defendant 
 held them in no other relation than of ordinary 
 bailee, and was liable to the plaintiff. Batut v. 
 Hartley, 41 Law J. Eep. (n.s.) Q. B. 273 ; Law 
 Bep. 7 ft. B. 694. 
 
 Bepodt for safe custody with bankers. 
 [Sea Banker, 10, 11.] 
 Digest, 1870-1875. 
 
 Breach of duty by bailee : Statute of Limita- 
 tions. [See Limitations, Statute of, 
 22.] 
 
 Negligence of bailee of bills for encashment, 
 [See NEGiLiaBNCE, 32.] 
 
 BALLOT ACT. 
 [See Municipal Coepoeation, 13-15.] 
 
 Under the Ballot Act, 1872, it is the duty 
 of the presiding officer at a polling station, or a 
 clerk deputed by him, whichever of them in fact 
 undertakes it, to deliver to the voters ballot- 
 papers bearing the official mark, and to be pre- 
 sent, so that each voter, before placing his ballot- 
 paper in the box, can shew to him the official 
 mark on its back ; but primA facie, and in the 
 absence of it appearing that a clerk has been de- 
 puted by such presiding officer to fulfil it, the 
 duty lies on such officer. — So Held by the whole 
 Court. Pickering v. James, 42 Law J. Eep. (n.s.) 
 C. P. 217 ; Law Eep. 8 0. P. 489. 
 
 But it is doubtful whether there is a similar 
 duty as to ascertaining, before the voters put their 
 ballot-papers in the box, whether they are pro- 
 perly marked with the official mark,- — Keating, J., 
 and Brett, J., holding that there is, and Bovill; 
 C.J., and Grove, J., t£at there is not. Ihid._ 
 
 Where the presiding officer or clerk commits a 
 breach of duty, he is liable to an action for 
 damages by the party aggrieved, though the 
 breach be not wilful or malicious, — So Held by 
 the whole Court. Ibid. 
 
 Where the declaration sufficiently states the 
 duty, and breach thereof by the defendant, and 
 after stating facts not sufficiently shewing the 
 plaintiff is aggrieved, alleges that "by reason of 
 such neglect of duty the plaintiff was prevented 
 from being elected," such allegation is one of fact, 
 and sufficient to shew the plaintiff is aggrieved, — 
 So Held by Keating, J., Brett, J., and Grove, J, 
 {dissentiente Bovill, C.J.). Ibid. 
 
 BANK OF ENGLAND. 
 
 The Bank of England is a body having a discre- 
 tion to exercise for the benefit of the public as well 
 as itself; and is not bound to accept as sufficient 
 evidence of the death of a stockholder on a joint 
 account in its books, such proof as would satisfy 
 the Court of Chancery. Prosser v. The Bank of 
 England, 41 Law J. Eep. (n.s.) Chanc. 327 ; Law 
 Eep. 13 Eq. 611. 
 
 C. P. died in 1871. At her death a sufli of 
 2,i60l. 15s. 9d. New Three per Cent. Annuities, 
 and no other fund, was standing in her name and 
 in the names of the plaintiffs jointly in the books 
 of the Bank. The burial of C. P. was entered in 
 the proper parish register. An extract from the 
 entry, together with a statutory declaration of 
 the identity of 0. P., was forwarded by the plain- 
 tiffs to the Bank, in order that they might affix 
 G 
 
42 
 
 BANK OF ENGLAND— BANKER (A), (B). 
 
 to her name in their books the usual memorandum 
 of death. The Bank, however, would not do so, 
 on the ground that "the declaration did not aver 
 that the extract had been oompared with the ori- 
 ginal register for the parish where C. P. was 
 buried." A motion for an injimction to restrain 
 the JJank from continuing the name of C. P. in 
 their books without the memorandum was refused 
 with costs. Ibid. 
 
 BANKER AND BANKING COMPANY. 
 
 (A) Banking Company. 
 
 (a) lAdbUity for misrepresentation hy ma- 
 
 nager. 
 
 (b) Trustee of settlement deed. 
 (e) Winding wp. 
 
 (B) Banker and Oostomee. 
 
 (a) Practice of bankers. 
 
 (b) Proof by bankers in administration suit. 
 
 (c) Accounts at separate branches, 
 {d) Consolidation of accoimts. 
 
 \e) Deposit of securities. 
 
 (1) Separate accounts. 
 
 (2) Of title-deeds to secure advances. 
 
 (3) Under 33 Geo. 2. c. 14 (/?•.), s. 2. 
 (/) Advances prohibited by charter. 
 
 \g) Deposit for safe custody. 
 
 (1) lAen of bankers. 
 
 (2) Liability of bankers. 
 
 (A) Specific appropriation of funds in hands 
 
 of bankers, 
 (i) Liability of banker dealing with com- 
 
 (k) Summonable as witness under Companies 
 Act. 
 
 (A) Banking Company. 
 
 (a) Liability for misrepresentation by manager. 
 
 1, — ^At the request of the plaintiff, a customer, 
 the manager of the S. & H. Bank, wrote to the 
 manager of theC. branch of the G. Banking Com- 
 pany, of which one of the defendants was public 
 officer, "I shall be much obliged by the favour of 
 your opinion, in confidence, of the respectability 
 and standing of R., and whether you consider him 
 responsible to the extent of 50,OOOZ." The de- 
 fendant, Goddard, who was the manager of the C. 
 branch, wrote in answer, '■ I am in receipt of your 
 favour of the 8th instant, and beg to say in reply 
 that R. is the lord of the manor of Charlton 
 Kings, near this town, with a rent-roll, I am told, 
 of over 7,0002. per annum, the receipt of which is 
 in his own hand.«i, and has large expectancies, and 
 I do not believe he would incur the liability you 
 name unless he was certain to meet the engage- 
 ment. Signed, J. B. Goddard, manager." The 
 representation contained in the last-mentioned 
 letter was false to the knowledge of Goddard, who, 
 in writing it, acted within the scope of his autho- 
 rity as manager to answer such enquiries, but 
 
 without making any communication -to the direc- 
 tors or other officers of the company : — ^Held, re- 
 versing the judgment of the Court of dueen's 
 Bench, sub nom. Swift v. Winterbotham (42 Law 
 J. Rep. (n.s.) Q. B. ill ; Law Rep. 8 Q. B. 244), 
 that the bank was not liable in respect of the mis- 
 representation, inasmuch as under 9 Geo. 4. c. 14. 
 s. 6, it is necessary that the representation as to 
 credit, &c., should " be made in writing signed by 
 the party to be charged therewith;" and inas- 
 much as there was no signature by the bank. But 
 held, affirming the judgment of the Court of 
 Queen's Bench, that Goddard was liable. Bwift 
 V. Jewsbury (Exch. Ch.), 43 Law J. Rep. (n.s) 
 Q. B. 56 ; Law Rep. 9 Q. B. 301. 
 
 (5) Trustee of settlement deed. 
 
 2. — The deed of settlement of a banking com- 
 pany, provided that where property was vested in 
 trustees, the directors should have power to direct 
 any actions or suits to be commenced or defended 
 on account of the property of the bank, and to 
 direct the necessary parties to such actions and 
 suits to carry them on or defend them, and that 
 such parties should be indemnified : — Held, that 
 the solicitors of the bank were justified in entering 
 an appearance without his knowledge for a trustee 
 who had executed the deed, and who was made a 
 co-defendant, by persons claiming adversely to the 
 bank. Heinrich v. Sutton, Law Rep. 6 Ohanc. 220. 
 
 (c) Winding up. 
 [See Company.] 
 
 (B) Banker and Customer. 
 
 (a) Practice of bankers. 
 
 Bill of exchange : payment by cheque : pay- 
 ment in error. [See Bill op Ex- 
 change, 22.] 
 
 (b) Proof by bankers in administration suit. 
 Bankers of executor : right to prove against 
 testator's estate. [See Administra- 
 tion, 5.] 
 Proof by banker in administration suit 
 wider continuing guarantie, [See Pkin- 
 crpAL AND Surety, 4.] 
 
 (c) Accounts at separate branches. 
 
 3, — In the absence of any special contract or 
 arrangement, there is no obligation on a banking 
 company to honour the cheque of a customer pre- 
 sented at one of their branch offices where he has 
 a balance standing to his credit, when he has 
 overdrawn his account at another branch office to 
 an amount greater than such balance, so that the 
 company are in fact not indebted to him. Gar- 
 net V. M'Kewan, 42 Law J. Rep. (n.s.) Exch. 1 ; 
 Law Rep. 8 Exch. 10. 
 
 {d) Consolidation of accotmts. 
 
 4. — G., a county treasurer, as such received 
 moneys for various county purposes. He kept a 
 private banking account with the N. Bank, and 
 also separate accounts headed '• Police Account " 
 
BANKER (B). 
 
 43 
 
 and " Superannuation Account," the cheques drawn 
 against these being similarly headed. He on 
 several occasions transferred special sums from 
 his private account to these accounts. The bank 
 knew that he held the office of county treasurer, 
 and that these accounts were opened with reference 
 to his duties as such. In April, 1870, he ab- 
 sconded and was soon afterwards made banlcrupt. 
 At that time his private account was largely over- 
 drawn, but the Police and Superannuation Ac- 
 counts were in credit : — Held, that the bank could 
 not consolidate the accounts as against the county 
 authorities, but that the latter, to the extent of 
 the amounts owing by G. in respect of the several 
 funds which he received in his official capacity, 
 were entitled to the money standing to the Police 
 and Superannuation Accounts as being trust 
 moneys. Ex parte Kingston ; In re Crross, 40 Law 
 J. Rep. (n.s.) Bankr. 91 ; Law Eep. 6 Chanc. 632. 
 
 (e) Deposit of seouriiies. 
 
 (1) Separate accounts. 
 
 5. — ^Wiere a customer, having three separate 
 accounts with his banker, a general, a loan, and a 
 discount account, wrote to the banker stating that 
 he had charged his loan account with 10,500i., and 
 that, as his credit would no longer afford a margin 
 to that extent, he hastened to hand the banker 
 certain bills, by way of collateral security : — Held, 
 that this did not exclude the banker's right to a 
 general lien on the bills in respect of the cus- 
 tomer's general account. Jk re The European Bank ; 
 Ex parte Agra Bank, Law Eep. 8 Chanc. 41. 
 
 (2) Of title-deeds to secure advances, 
 
 6. — Certain title-deeds which had been handed 
 by the plaintiff to his brother, F. B., to enable the 
 latter to borrow 600^. from H. for seven days, were 
 deposited by F. B. with a bank, with a memoran- 
 dum purporting to be signed by the plaintiff, and 
 stating that the deposit was maide in consideration 
 of the bank lending F. B. 1,0001. for seven days. 
 The bank made him no loan for seven days, but, 
 during the seven days next after the deposit, they 
 allowed him to draw by cheques to an amount ex- 
 ceeding 900Z. Upon a bill filed by the plaintiff 
 against the bank for the delivery up of the deeds, 
 on the grounds, first, that the memorandum of 
 deposit was a forgery; and second, that the bank 
 had not lent F. B. 1,0001. for seven days, — Held, 
 that the question of forgery was one for a jury 
 only, but that, assuming the memorandum to be 
 genuine, the bank had no right to retain the deeds, 
 inasmuch as they had not fulfilled the condition 
 on which the deposit was made. Burton v. Gray, 
 43 Law J. Eep. (n.s.) Chanc. 229 ; Law Eep. 8 
 Chanc. 932. 
 
 7. — Tte articles of association of an Assurance 
 Company provided that all securities made on 
 behalf of the company should be sealed with the 
 company's seal, signed by two of the directors and 
 countersigned by the secretary, and when so sealed, 
 signed, and countersigned, should be valid and 
 enforceable against the company. The company 
 requiring accommodation from their bankers, the 
 
 directors passed a resolution, that certain title- 
 deeds should be deposited with the bankers as 
 collateral security for bills under discount, and 
 the deeds were deposited accordingly. The bank- 
 ers then discounted bills directly for the company, 
 and also bills for third persons on which the com- 
 pany were liable, and the company being after- 
 wards wound up, the bankers sold the property 
 comprised in the title-deeds for a sum greater than 
 would cover the amount due on the bills directly 
 discounted, but less than their general debt: — 
 Held, first, that the deposit was only intended as 
 a security for bills discounted directly for the 
 company. Secondly, that the hankers not being 
 officers of the company had not imposed upon 
 them the duty of seeing that the formalities re- 
 quired by the articles of association were complied 
 with ; and that the equitable mortgage by deposit 
 was valid, although these formalities were not 
 complied with, and although it was not registered 
 under section 43 of the Companies Act, 1862. 
 Thirdly, that by analogy to Hazelfoofs Case (41 
 Law J. Eep. (n.s.) Chanc. 286 ; Law Eep. 13 Ec[. 
 327 ), the bankers had, as mortgagees, n right to 
 retain as against the liquidators of the company 
 the balance which would remain in their hands 
 after paying the amount due on the bills directly 
 discounted for the company, in satisfaction of their 
 general debt. In re The General Provident Assv/r- 
 ance Company ; Ex parte The national Bank, 41 
 Law J. Eep. (n.s.) Chanc. 823 ; Law Eep. 14 Eq. 
 807. 
 
 (3) Under 33 Geo. 2. c. U {Zr.), s. 2. 
 
 8. — A memorandum accompanying a deposit of 
 title-deeds by a banker by way of mortgage is 
 within the above section, and ought to be regis- 
 tered accordingly. The Act is not confined to 
 bankers who issue notes for circulation. The 11th 
 section of the Act, providing that in creditors' 
 deeds executed by bankers, the trustee or trustees 
 shall be approved by the majority of the creditors, 
 is merely directory, so that such approval is not a 
 condition precedent to the validity of the deeds. A 
 subsequent bankruptcy will not invalidate such a 
 deed. Copland v. Bavies, Law Eep. 5 E. & I, 
 App. 358. 
 
 (/) Advances prohibited by charter. 
 
 9. — ^A bank was incorporated by charter, which 
 provided that it should not make advances on 
 merchandise : — Held, that this provision did not 
 prevent the property in wool upon the security 
 of which the bank had advanced money, passing 
 under the conveyance thereof to the hank, and that 
 inasmuch as the person who has made an advance 
 is to be deemed in possession, an action of trover 
 might be brought by the bank. Ayres v. The South 
 Australian Banking Company, 40 Law J. Eep, 
 (N.S.) P.C. 22. «= 
 
 {g) Deposit for safe custody. 
 
 (1) Lien of bankers. 
 
 10. — Bankers have no general lien on boxes 
 containing securities deposited with them for safe 
 custody. And a customer who had deposited such 
 g2 
 
44 
 
 BANKEE (B). 
 
 boxes for safe custody, having become lunatic, and 
 his committees having been appointed, — Held, that 
 the bankers had no right to retain or open the 
 boxes as against the committees. Leese v. Martin, 
 43 Law J. Eep. (n.s.) Chanc. 193 ; Law Eep. 17 
 Bq. 224. 
 
 The bankers who claimed such a lien having 
 obtained garnishee orders against debtors of their 
 lunatic customer through information obtained 
 after opening the boxes, the Court granted an 
 injunction to prevent them from enforcing their 
 garnishee orders with respect to the securities in 
 question, but refused damages for the opening of 
 the boxes. Ibid. 
 
 (2) Liability of hankers. 
 
 11, — J. deposited for safe custody some certifi- 
 cates of railway shares with his bankers, with 
 whom he had an account, on which they charged a 
 commission. The certificates were placed in a 
 strong box, of which the manager of the bank had 
 uncontrolled care. The manager sold the shares, 
 and forged transfers. J. sued the railway com- 
 panies and the purchasers, for the purpose of 
 having his name restored, as holder of the shares. 
 He obtained a decree, but without costs, the costs 
 being refused principally upon the ground that 
 the railway companies had sent letters to J., in- 
 forming him that the transfers had been addressed 
 to him, in accordance with his instructions, to the 
 care of the manager of the bank ; to which letters 
 the manager forged answers. J. then claimed 
 against the bankers for the amount of the costs 
 which he had thus incurred : — Held, that though 
 the bankers were bailees for reward, and had com- 
 mitted gross negligence in leaving the certificates 
 in the unwatched control of their manager, still 
 the costs in question were not the natural and 
 necessary consequences of their neglect, and there- 
 fore could not be charged against them. In re The 
 United Service Compam/, Limited (Johnson's Case), 
 40 Law J, Eep. (n.s.) Ohane. 286 ; Law Eep. 6 
 Chanc. 212. 
 
 (A) Specific appropriation of funds in hands of 
 bankers. 
 
 12. — A letter by bankers, stating that a special 
 credit for a certain sum has been opened by them 
 at the instructions of their customer, in favour of 
 any particular person who supplies goods on the 
 faith of it, does not constitute a specific appropri- 
 ation or an equifable assignment of that sum in 
 their hands, for which they are liable to be sued 
 in a Court of Equity as if they were trustees for 
 the person in whose favour the credit has been 
 opened. Morgan v. Lariviire (H. L.), 44 Law J. 
 Eep. (n.s.) Chanc. 457 ; Law Eep. 7 E. & I. App. 
 423. 
 
 L. had contracted to supply the French Govern- 
 ment with a certain number of cartridges by a 
 given time, and in consequence of his request for 
 some guarantee for the payment of the price, the 
 bankers in London of the Government wrote by 
 direction of the agent of the Government a letter 
 advising L. that by such direction a special credit 
 for 40,OOOZ. had been opened with them in favour 
 
 of L., and that it would be paid rateably as the 
 goods were delivered, upon receipt of certificates 
 of reception issued by the agent of the French 
 Government : — Held, that this letter did not con- 
 stitute an assignment in equity, or a specific appro- 
 priation, so as to impress a trust upon the moneys 
 in the bankers' hands, for which they could be 
 sued in equity. Whatever responsibility they 
 incurred under that letter could be enforced at 
 law. Ibid. 
 
 The French Government did not appear to the 
 plaintiff's bill, nor in any way submit to the juris- 
 diction of the Court : — Held, that if the fund had 
 been affected by the trust, the Court would have 
 administered it in the absence of the Government 
 interested in the moneys. Ibid, 
 
 13. — On the day before certain acceptances 
 fell due, the acceptors handed to their country 
 bankers short bills and cash specifically to meet 
 the acceptances which were payable at the coimtry 
 bankers' London agents. The bankers remitted 
 the bills to the agents, with part of the cash and 
 some small cheques, accompanied by a letter of 
 advice in their usual form, debiting the remit- 
 tances, and advising the agents of the acceptances, 
 but also crediting or directing certain payments, 
 the total of which with the acceptances exceeded 
 the amount of the remittances. The agents acknow- 
 ledged the remittances and advice in the usual 
 manner, but on presentation refused payment of 
 the acceptances, which they indorsed " Awaiting 
 further advice ; " and before the acceptances could 
 be again presented, the country bankers had 
 stopped payment. On bill filed by the acceptors 
 seeking to have the short bills specifically appro- 
 priated to meet their acceptances: — Held, that 
 the agents might retain the bills to answer the 
 general balance due to them from the country 
 bankers. — Decision of Malins, V.C. (44 Law J. 
 Eep. (n.s.) Chanc. 465), affirmed. Johnson v. 
 Eobarts, 44 Law J. Eep. (n.s.) Chanc. 678; Law 
 Eep. 10 Chanc. 505. 
 
 («) Liability of bankers dealing with company. 
 
 14. — The bankers of a company formed under 
 the Companies Act, 1862, honoured cheques 
 according to a form sent to them by a person pur- 
 porting to be the secretary of the company, signed 
 by three persons purporting to be directors oi the 
 company. From the company's articles of associa- 
 tion it appeared that cheques were to be drawn 
 by three directors. It was afterwards ascertained 
 that there had, in fact, been no appointment of 
 directors, or of a secretary, but that the promoters 
 of the company had. treated themselves as such : — 
 Held, that the bankers were not liable in respect 
 of sums which they had so paid bond fide. Ma- 
 hony V. East Holy ford Mining Company, Law Eep. 
 7 E. & L App. 869. 
 
 [And see supra No. 7.] 
 
 {k) Summonahle as witness under Companies Act. 
 
 15. — ^A banker with whom a contributory has 
 formerly kept an account may be summoned under 
 section 115 of the Companies Act, 1862, and com- 
 
BANKER— BANKRUPTCY. 
 
 45 
 
 pelled to produce his books relating to the contri- 
 butory's account, and to give all information in his 
 power touchinghis affairs. In re The Ooiiiract Cor- 
 poration; Forbes' Case, 41 Law J. Rep. (n.s.) 
 Chanc. 467 ; Law Rep. 14 Eq. 6, nom. Druitt's 
 Case. 
 
 Exoneration of hankers from liability under 
 16 ^ 17 Vict. c. 69. s. 19. [See Neo- 
 
 UQENCE, 27.] 
 
 Payment of cheque in error. [See Bill of 
 Exchange, 22.] 
 
 BANKRUPTCY. 
 
 (A) JURISDICTIOK OF THE CoXTRT OF BaNK- 
 RUPTCT. 
 
 (o) As to locality. 
 
 (b) As to property, 
 
 (c) Vomer of Court to review its own orders. 
 
 (d) In composition and liquidation proceed- 
 
 ings, 
 
 (e) Cases within jurisdiction of Court of 
 
 Chancery. 
 
 (B) Act of BAintETTPTCT. 
 
 (a) Fraudulent preference. 
 
 [X) What amjovmts to, generally. 
 
 (2) Assignment of entire property to 
 
 secure past debt. 
 
 (3) Pressure by creditor. 
 
 (4) Pledge of partnership property, 
 (p) Security to take effect on bank- 
 ruptcy. 
 
 (6) Protection of payee for value. 
 (6) Absence with intent to defeat or delay 
 creditors. 
 
 (c) Declaration of inability to pay. 
 
 (d) Execution of process for 501. 
 
 (e) Failure to comply with debtor's sam- 
 
 Tnons. 
 (/) Notice of act of bankruptcy. 
 
 (C) Adjudication. 
 
 (a) Petition : petitioning creditor's debt. 
 (i) Tender after petition. 
 (o) Joint and separate estates. 
 
 (d) Annulling adfudioation. 
 
 (D) First Meetino of Creditors. 
 (a) Power to deal with assets. 
 (6) Notices. 
 
 (c) Adjourned meeting : voting, 
 {d) Fresh meeting. 
 
 (E) Proof. 
 
 (0) Damages. 
 
 {b) Contingent liability. 
 
 (c) Debt capable of being estimated, 
 
 {A) Injury occasioned by disclaimer of lease. 
 
 (e) Transferor of shares, 
 if) Official liquidator, 
 (g) F!xecutors of partner. 
 
 {h) Advances to trader : share of profits. 
 (i) Double insolvency : bill of exchange. 
 Ij) Double proof: joint and separate 
 
 estates, 
 (k) Secured creditor. 
 
 (1) Preferential debt : payment in full, 
 {m) Procedure and evidence. 
 
 (F) Mutual Credit. 
 (Q-) Trustee. 
 
 (a) Appointment of trustee. 
 
 (A) Property in reputed ownership of bank- 
 rupt. 
 
 (1) General scope of order and dispo- 
 sition clauses. 
 
 (2) Custom of trade. 
 
 (3) Consent of trus owner, 
 
 (4) Things in action. 
 
 (5) Effect of bUl of sale, 
 
 (6) Apparent possession under Bills of 
 
 Sale Act, 
 (c) Proceeds of sale and seizure of goods. 
 
 (1) Creditor holding security. 
 
 (2) Trader ; who is. 
 
 (3) "Judgment for sum exceeding 
 
 501," 
 
 (4) Proceeds of sale. 
 
 (5) Notice of act of bankruptcy. 
 
 (6) Refunding proceeds. 
 
 (7) Execution under 501. 
 
 (8) After-acquired property of bank- 
 
 rupt allowed to trade. 
 
 {d) Avoidance of voluntary settlement. 
 
 (e) Avoidance of fraudulent, preference. 
 
 If ) Disclaimer of leaseholds. 
 
 (a) Other property devolving on trustee. 
 
 (A) Joint and separate estate: property 
 devolving on trustee of joint estate. 
 
 (i) Powers and liabilities. 
 (H) Public Exaionation of Bankrupt. 
 (I) Order of Dischakoe. 
 
 (a) Effect of in general. 
 
 lb) Benevolent motives towards debtor. 
 
 (c) Liability incurred by fraud. 
 
 (d) Debtor allowed to resume business. 
 
 (K) Persons havino Pritileqe op Parlia- 
 ment. 
 (L) Liquidation by Arrangement. 
 
 (a) Proof. 
 
 (i) First meeting : statement of affairs. 
 
 (c) Resolution: registration: signature. 
 
 \d) Seizure and sale. 
 
 (e) Reservation of rights against sureties, 
 {f) Title of trustee : relation back. 
 
 (g) Prescription of bank by creditors, 
 (h) dose of liquidation, 
 (i) After-acquired property, 
 {k) Where liquidation cannot proceed with- 
 out injustice. 
 (Q Removal of trustee and committee of 
 
 inspection, 
 (m) Costs : pending proceedings. 
 (M) Composition with Creditors. 
 (a) Resolution for com/position, 
 {b) Statement and examination of debtor. 
 
 (c) Registration of resolution. 
 
 (d) Effect of composition. 
 
 (1) As regards creditors. 
 
 (2) As regards debtor, 
 
 (e) Proof, 
 
 {f) Trustee: surplus. 
 
 {g) Default inpayment of composition. 
 
 (1) Revival of original debt, 
 
 (2) Power of Court over surety. 
 
46 
 
 BANKRUPTCY (A). 
 
 (/i) Power of creditors to reduce composi- 
 tion, 
 (i) Pleading composition at law. 
 (N) Pbactioe. 
 
 (a) Absconding debtor, 
 
 (b) Accounts. 
 
 (c) Appeals and rekearings. 
 
 (d) Contempt of Cowrt. 
 
 (e) Debtor summons. 
 
 (1) By secretary of company. 
 
 (2) Affidavit in support. 
 
 (3) Secwrity. 
 
 (4) Dismissal: affidavit, 
 (/■) ikidence: Judge's notes. 
 (a) Examination of trustee, 
 (h) Hearing. 
 
 (i) Issue. 
 (/fc) New trial. 
 
 (Q Petition : when sustainable, 
 (m) Ses judicata. 
 (») Segistrar. 
 (o) Service. 
 
 (p) Stay of proceedings, 
 (g) Time. 
 
 (r) Transfer of proceedings. 
 (0) Injunction. 
 
 (a) " Execution or other legal process.'' 
 
 (b) Proceedings against debtor : fraud. 
 
 (c) Creditor objecting to composition on per- 
 
 sonal grounds. 
 
 {d) Chancery proceedings against trustee. 
 
 (e) Joint debtors. 
 
 ( /) Foreign action. 
 
 (g) As affecting rights of creditors. 
 (P) Eeobiyer. 
 (Q) Costs. 
 
 (a) Of appeal. 
 
 (6) Of trustee. 
 
 (c) of receiver, 
 
 (d) Stamp duty. 
 
 [Amendment of the Irish Law of Bankruptcy. 
 35 & 36 Vict. c. 38.] 
 
 [ProTisions of the Bankruptcy Act, 1869, for 
 the arresting of absconding debtors, extended. 33 
 & 34 Vict. c. 76.] 
 
 (a) jueisdiction of the coukt of 
 Bankbttpott. 
 
 (a) As to locality, 
 
 1. — Messrs. C. were manufacturers carrying on 
 business at Sheffield. They were also the tenants 
 of three rooms in London used as offices, where an 
 agent received orders for them : — Held, that the 
 County Court of Sheffield, and not the Bankruptcy 
 Court in London, had jurisdiction in proceedings 
 relating to Messrs. C.'s bankruptcy. Ex parte 
 Charles ; In re Charles, i 1 Law J. Eep. (n.s.) Bankr. 
 43 ; Law Eep.ilS. Eq. 638. 
 
 2. — If a foreigner comes to England and con- 
 tracts debts in England, and commits an act of bank- 
 ruptcy in England, ho thereby gives the Court of 
 Bankruptcy jurisdiction over him, and if he trades 
 in England, although his principal place of busi- 
 
 ness is elsewhere, he may be made bankrupt upon 
 an act of bankruptcy which consists in departing 
 from England with intent to defeat and delay his 
 creditors. But a foreigner not domiciled in Eng- 
 land and not carrying on trade in England, can- 
 not be made a bankrupt upon an alleged act of 
 bankruptcy committed out of England. Ex parte 
 Crispin; In re Crispin, 42 Law J. Eep.(N.s.)Bankr. 
 65 ; Law Eep. 8 Chanc. 374. 
 
 In order to constitute an act of bankruptcy by 
 remaining out of England within the meaning of 
 the 3rd sub-section of the Bankruptcy Act, 1869 
 (32 &.33 Vict. c. 71), s. 6, it is necessary that the 
 debtor should be a person who has his home or 
 place of business in England. Ibid. 
 
 3. — Where an Act of Parliament establishes a 
 Court for a particular part of the United King- 
 dom, the true construction of it is, that every- 
 thing which is to be done under the authority of 
 the Court is to be done within the jurisdiction of 
 the Court, unless the Act either in express terms 
 or by necessary implication says that it may be 
 done out of the jurisdiction. Ex parte O'Loghlen ; 
 In re OLoghlen, 40 Law J. Eep. (n.s.) Bankr. 28 ; 
 Law Eep. 6 Chanc. 406. 
 
 The personal service of a debtor's summons, 
 issued out of the Bankruptcy Court of England 
 under section 7 of the Bankruptcy Act, 1869, on a 
 debtor out of England, is a nullity, and where 
 such a service has been effected and the debtor 
 has been adjudicated a bankrupt in England 
 under the 6th section of the Act, because not 
 being a trader he has for three weeks succeeding 
 the service of the summons neglected to pay or 
 secure or compound for the debt : — Held, on ap- 
 peal (discharging the order of one of the Regis- 
 trars sitting as Chief Judge), that the adjudication ■ 
 must be annulled. Ibid. 
 
 After the expiration of the three weeks 
 from the service of the summons, the debtor 
 applied to the Eegistrar to rescind the order for 
 service ; the apjilication was refused ; no appeal 
 was brought against that order. Subsequently the 
 debtor was adjudicated bankrupt, and appealed 
 against the adjudication: — Held, that the ques- 
 tion of the validity of the service was not res judi- 
 cata, for that as the question before the Court 
 was whether an act of bankruptcy had been com- 
 mitted, and that depended on the validity of the 
 service of the summons, that point was then pro- 
 perly brought before the Court and could be decided. 
 Ibid. 
 
 The order for personal service out of the juris- 
 diction was made on an affidavit stating that the 
 debtor was keeping out of the way to avoid per- 
 sonal service. The Court was of opinion that the 
 facts did not justify any such affidavit: — Held 
 that therefore the respondent must pay all costs, 
 including the costs of the appeal. Ibid. 
 
 (J) As to property. 
 
 4.— A broker and warehouseman, who had 
 affected to pledge goods in his custody to a bank 
 to secure advantages to himself, became bankrupt. 
 The true owner applied in the County Court 
 under the bankruptcy to have the goods delivered 
 
BANKEUPTCY (A.). 
 
 47 
 
 up to him. The trustee at first made some daim 
 to the goods, but abandoned it at the hearing, in- 
 sisting only on his riglit to be paid rent and ware- 
 house charges. Thereupon the bank objected that 
 the Court had no jurisdiction ; but tliis- objection 
 ■was overruled, and a decision on the merits given 
 against them. Ex parte'.The North-Western Bank ; 
 In re Sice, 41 Law J. Eep. (n.s.) Bantr. 72. 
 
 On appeal it was held that the Court had no 
 jurisdiction, and that the original order must be 
 discharged. Ibid. 
 
 5. — The 72nd section of the Bankruptcy Act, 
 1869, does not give the Court of Bankruptcy juris- 
 diction over property or the owners of property 
 not vested in the assignee and not originally sub- 
 ject to the administration in bankruptcy. StiU 
 less does it authorise that Court when a decree for 
 sale and accounts has been made in a Chancery 
 suit against solvent partners of a bankrupt to 
 treat such a decree as giving rights to be worked 
 out in Bankruptcy and not in Chancery. Ex parte 
 Maule, in re Motion ; Motion v. Davies, 43 Law 
 J. Kep. (n.s.) Bankr. 59 ; Law Eep. 9 Chanc. 192. 
 
 Under a decree made in a suit for dissolution 
 of partnership it was, amongst other things, or- 
 dered that the business property and effects of 
 the partnership should be sold by auction as a 
 going concern. One of the partners became bank- 
 rupt, and an offer by the solvent partners to pur- 
 chase his interest being rejected as inadequate, an- 
 other order was made for the sale of the whole of 
 the partnership premises, plant and effects as a 
 going concern, the solvent partners being prohi- 
 bited from purchasing. Afterwards, no sale having 
 taken place, the solvent partners entered into an 
 agreement with the assignee for the purchase of 
 the bankrupt's share in the partnership assets at 
 a price to be ascertained, and in pursuance of this 
 agreement the value of the bankrupt's interest 
 was fixed by accountants on behalf of all parties 
 at 14,033/., which, by an order made in Chambers, 
 was directed to be paid, and an assignment exe- 
 cuted by the assignee. The purchase -money was 
 paid, and the creditors received 20s. in the pound. 
 At a subsequent meeting of the creditors the 
 assignee was removed and new assignees appointed, 
 upon whose application the Chief Judge, being of 
 opinion that the sale was collusive, ordered it to 
 be set aside, and the business to be sold by auc- 
 tion. But upon appeal it was held that the Court 
 of Bankruptcy had no jurisdiction imder the 72nd 
 section of the Bankruptcy Act, 1869, to make the 
 order, and it was discharged accordingly ; and the 
 Court being of opinion on the merits that the sale 
 was bond fide, but not being satisfied that there 
 was not material error in the mode in which the 
 value of the bankrupt's interest had been arrived 
 at, directed, with the consent of the purchaser, 
 an enquiry whether any further sum ought to be 
 paid by him to make up the proper value of the 
 bankrupt's interest. Ibid. 
 
 The 137th section of the Bankrupt Law Con- 
 solidation Act, 1861, which makes it necessary 
 that an assignee should have the sanction of the 
 Court of Bankruptcy to justify him in selling by 
 private contract all or any of the book debts due 
 
 or growing due to the bankrupt, and the books 
 relating thereto, and the goodwill of his trade or 
 business, relates to the sale of book debts, &o., 
 belonging to the bankrupt only, and not to the 
 book debts, &c., of a dissolved partnership, of 
 which only one partner is bankrupt, such book 
 debts, &o., not being assets distributable or sale- 
 able in the bankruptcy. Ibid. 
 
 (o) Povier of Court to review its owti orders. 
 
 6. — Courts having jurisdiction in Bankruptcy 
 are entitled to rehear cases which they have 
 decided, even if they should, by varying their 
 former orders, give a right of appeal, which 
 would otherwise have been lost by lapse of time. 
 In this respect the strict rules which prevailed 
 under the former Bankruptcy Acts have been 
 relaxed by section 71 of the Act of 1869. Ex 
 parte The London and County Bank ; In re Brown, 
 42 Law J. Eep. (n.s.) Bankr. 112; Law Eep. 16 
 Eq. 391. 
 
 {d) In composition and liquidation proceedings. 
 
 7. — The present Bankruptcy Court under the 
 Act of 1869, has, over deeds of arrangement and 
 composition, registered under s. 192 of the Act 
 of 1861, not only all the jurisdiction which the 
 Act of 1861 gave to the old Court over such 
 deeds, but also all the larger and more extensive 
 jurisdiction which s. 72 of the Act of 1869 has 
 given to the present Court over bankruptcies. Ex 
 parte Ewmboll ; In re Taylor, 40 Law J, Eep. 
 (n.s.) Bankr. 82 ; Law Eep. 6 Chahc. 842. 
 
 8. — The 72nd section of the Bankruptcy Act, 
 1869, gives to the Court of Bankruptcy the same 
 powers, in cases of liquidation by arrangement 
 and composition, as in cases of bankruptcy. Ex 
 parte Hdrtel ; In re Thorpe, 42 Law J, Eep. (n.s.) 
 Bankr. 34 ; Law Eep. 8 Chanc. 743. 
 
 Where creditors had resolved to accept a com- 
 position under the provisions of the 126th section 
 of the Act, and had appointed a trustee " in the 
 matter," the Court, at the trustee's instance, re- 
 strained a creditor, who disputed the validity of 
 the composition on the ground of fraud, from fur- 
 ther proceedings in an action at law commenced 
 by him before the filing of the debtor's petition. 
 Ibid. 
 
 The plaintiff in the action was allowed to add 
 to his debt his costs in the action up to the day 
 when the confirmatory resolution accepting the 
 composition was passed. Ibid. 
 
 (e) Cases within jurisdiction of Court of 
 Chancery. 
 
 9. — -To a bill filed by an equitable mortgagee 
 against the trustee under liquidation of the mort- 
 gagor, seeking a sale of the security, the defend- 
 ant demurred on the ground that the Court of 
 Bankruptcy was the proper tribunal. Demurrer 
 allowed by one of the Vice Chancellors, but over- 
 ruled on appeal with reluctance. White v. Sim- 
 mons, 40 Law J. Eep. (n.s.) Chanc. 689: Law 
 Eep. 11 Eq. 425. 
 
 10. — L. filed a" petition for liquidation by 
 arrangement or composition, B. was appointed 
 
48 
 
 BANKRUPTCY (A), (B). 
 
 receiver, and took possession of the stock-in-trade 
 of the bankrupt. By an extraordinary resolu- 
 tion, which -was duly registered under the 126th 
 section of the Bankruptcy Act, 1869, the creditors 
 accepted a composition of 7s. 6d. in the pound, 
 to be paid in three instalments. When two in- 
 stalments had been paid and the third provided 
 for by promissory [notes, B., who hsid previously 
 given up possession of the stock-in-trade, sent in 
 a bill of costs to L. for 400?. L. agreed to the 
 amount, entered into a covenant under seal to pay 
 it, and by the same instrument assigned his stock- 
 in-trade to B. by way of bill of sale. B. subse- 
 quently took possession of part of the property 
 under the assignment. Thereupon L. moved in 
 the Court of Bankruptcy for an order for B. to 
 bring in a bill of costs to be taxed, to deliver up 
 the property, and that the bill of sale might be 
 delivered up to be cancelled : — Held (afSrming a 
 decision of one of the Registrars), that the Court 
 had no jurisdiction to entertain the application. 
 Ex parte I/yon; In re Lyon, 41 Law J. Eep. (n.s.) 
 Bankr. 41 ; Law Rep. 7 Chane. 494, nom. Lyons. 
 
 Semble — If the stock-in-trade had remained in 
 B.'s possession qua receiver, and therefore subject 
 to hie lien on it for his costs, and if no covenant 
 under seal had been entered into, the Court, on 
 application by L. to have the stock-in-trade de- 
 livered up, would have had jurisdiction to order, 
 and would have ordered an account of B.'s charges 
 to be taken in bankruptcy. Ibid. 
 
 11, — ^Articles of partnership between a fether 
 and son provided that upon the father's death the 
 son's share in the business should vest in the 
 father's executors. The father died, and the son, 
 who was constituted his sole executor, continued 
 for about a year to carry on the business with 
 testator's assets. An administration suit was 
 instituted by the creditors of the father. Shortly 
 afterwards the son presented a petition for liqui- 
 dation by arrangement, and a trustee was ap- 
 pointed, who took possession of the property 
 belonging to the business, and sold a considerable 
 portion of it. The bill was then amended by 
 making the trustee a defendant to the suit, and 
 praying an injunction to restrain him from 
 meddling with the testator's assets. An application 
 by the trustee to the Court of Bankruptcy for an 
 order to restrain proceedings in the suit was re- 
 fused, and an order was made in the suit directing 
 the trustee to deposit in a bank the proceeds 
 realised by the sale of the property, to be dealt 
 with as the Court of Chancery should direct, and 
 in default of his making such deposit, awarding an 
 injunction against him as prayed by the bill : — 
 Held, on appeal, that the Court of Bankruptcy 
 was the proper tribimal to determine the questions 
 arising in this matter, and that an injunction must 
 be awarded restraining the proceedings in Chan- 
 cery as against the trustee, in respect of any pro- 
 perty coming to his hands imder the liquidation. 
 Morley v. White ; In re White, 42 Law J. Rep. 
 (n.s.) Bankr. 76; Law Rep. 8 Chanc. 214. 
 
 12. — The plaintiff was an uncertificated bank- 
 rupt. His creditors had been paid their principal 
 in full, but without interest. He filed a bill against 
 
 his former solicitor, his two partners and the assig- 
 nee of the estate in bankruptcy, to set aside a sale 
 which had been made of the plaintiff's share of his 
 business to his partners as having been nxade at 
 an under-value, fraudulently and by means of a 
 conspiracy between all the defendants. The sale 
 had been made under the direction of the Court of 
 Chancery in a partnership suit: — Held, that the 
 plaintiff had no locus standi in the Court of Chan- 
 cery. Motion V. Moojen, 41 j^Law J. Rep. (n.s.) 
 Chanc. 596 ; Law Rep. 14 Eq. 202. 
 
 13. — The 72nd section of the Bankruptcy Act, 
 1869, does not give the Court of Bankruptcy 
 jurisdiction over property or the owners of pro- 
 perty not vested in the assignee, and not originally 
 subject to the administration in bankruptcy. Still 
 less does it authorise that Court, when a decree 
 for sale and accounts has been made in a Chancery 
 suit against solvent partners of ^a bankrupt to 
 treat such a decree as giving rights to be worked 
 out in bankruptcy and not in Chancery, and the 
 Court being of opinion on the merits that the sale 
 was ho^i& fide, but not being satisfied that there 
 •was not material error in the mode in which the 
 value of the bankrupt's interest had been arrived 
 at, directed, with the consent of the purchaser, an 
 enquiry whether any farther sum ought to be paid 
 by him to make up the proper value of the bank- 
 rupt's interest. Ex parte Maule; In re Motion. 
 Maide v. Davis, 43 Law J. Rep. (n.s.) Bankr. 59 ; 
 Law Rep. 8 Chanc. 192. 
 
 Jurisdiction, of County Court in Banlc- 
 ruptcy. [See Cottnty Coukt.] 
 
 (B) Act of Bahketiptcy. 
 
 (a) Fraudulent preference. 
 
 (1 ) What amounts to, generally. 
 
 1. — Creditors having supplied a debtor with 
 money and cotton, and becoming aware that he 
 was in failing circumstances, said to him in effect, 
 "Go and borrow from others upon long credit, 
 and pay us." The debtor did so, and from time 
 to time paid sums to the creditors, being pressed 
 by them so to do: — Held, that the transaction 
 was a fraudulent preference, and as such was not 
 binding upon the trustee, and that the fact that 
 there was pressure made no difference. Ex parte 
 Header; In re Wrigley, 44 Law J. Rep. (n.s.) 
 Bankr. 139 ; Law Rep. 20 Eq. 763. 
 
 2. — Where a debtor, being indebted to N., in- 
 duced N. to procure third parties to buy oil of the 
 debtor, upon a promise that N. should be paid out 
 of the proceeds, which was done, the transaction 
 being conducted in the ordinary mode of trade, 
 and it afterwards appeared that the debtor had no 
 property, and had procured the oil which he sold 
 on credit : — Held (1), that this was not a " frau- 
 dulent conveyance, delivery, or transfer" of the 
 debtor's property ; (2) that even if it were, N., 
 as a payee for value without notice of an act of 
 bankruptcy, was protected by section 92. Ex 
 parte Norton ; In re Golden, Law Rep. 16 Eq. 392. 
 
 3. — S. was a shipbuilder. He had an account 
 with his bankers, which fluctuated largely. In 
 
BANKRUPTCY (B). 
 
 August, ISyi, the bankers asked for some state- 
 ment about his account. S. then offered to give 
 them security on a, ship he was building. The 
 bankers declined to take the security then, but 
 said that circumstances might arise which would 
 make it desirable for them to accept the security, 
 and S. promised to let them have it when re- 
 quired. In October following the bankers requested 
 S. to give the security, and he assigned the ship 
 accordingly : — Held, that, in the absence of other 
 evidence to prove that the bankers knew in August 
 that S. was insolvent, the above transaction did 
 not amount either to a fraud on the Bills of Sale 
 Act, or to a fraudulent preference under the 92nd 
 section of the Bankruptcy Act, 1869, so as to 
 render the assignment to the bankers invalid. Ex 
 parte Winter ; In re Softley, 44 Law J, Rep. (n.s.) 
 Bankr. 107; LawEep. 20 Eq. 746, nam. Ex parte 
 Eodghin. 
 
 Whether a ship not yet finished, and therefore 
 incapable of registration imder the Merchant 
 Shipping Acts, be properly called a ship or no, it 
 . is a thing capable of assignment by certificate in 
 the usual way. Ibid. 
 
 A debt assigned on the eve of filing a petition, 
 to creditors who know the debtor's position, to 
 secure a present advance, can only be held by the 
 assignees as security for the amount actually ad- 
 vanced. Ibid. 
 
 4. — The abandonment of a speculation by an 
 insolvent firm, while the result is uncertain, is not 
 necessarily fraudulent, and differs entirely from 
 the undue preference of one creditor over others 
 after a debt has been incurred. Miller v. Barlow, 
 Law Eep. 3 P. C. 733. 
 
 5, — ^At a meeting of the creditors of a bank- 
 rupt, a dividend of 2s. in the pound was proposed 
 for acceptance, but this being opposed by A., the 
 largest creditor, who held certain bills of the 
 bankrupt as a security for his debt, the meeting 
 was adjourned. Shortly befor? the second meet- 
 ing the bankrupt's brother gave A., as an induce- 
 ment to withdraw his opposition, a guarantee to 
 make good to him all losses on the bills in his 
 hands, less a sum of 2,000/. A. accordingly ab- 
 sented himself from the second meeting, at which 
 a resolution was passed by the creditors, accepting 
 the dividend of 2«. in the poimd. The securities 
 held by A. proving insufficient to satisfy the whole 
 of his debt, he claimed the balance less 2,000?. 
 from the guarantor, the amount so claimed being 
 at the rate of 10s. in the pound on the balance of 
 the debt : — Held, that the guarantee constituted 
 a fraudulent preference, and a bill filed by the 
 creditor gainst the guarantor to enforce it was 
 dismissed with costs. M'Kewan v. Sanderson, 44 
 Law J. Eep. (n.s.) Chanc. 447; Law Eep. 20 
 Eq. 65. 
 
 g, — On trial before a jury as to whether a pay- 
 ment was a fraudulent preference, the following 
 points were submitted : 1. Whether the bankrupt 
 when he made the payment was unable to pay his 
 debts as they became due ; 2. whether he made it 
 with a view to give that creditor a preference over 
 his other creditors ; and 3. whether the payment 
 was made voluntarily and without real pressure, 
 Digest, 1870-18:5. 
 
 bankruptcy being reasonably imminent : the jury 
 having found in the affirmative on the 1st and 3rd 
 points, and in the negative on the 2nd : — Held, 
 that the finding on the 2nd point disposed of the 
 case, and that the finding on the third issue was 
 immaterial, as such issue was calculated to .mis- 
 lead. Ex 'parte Bolland; In re Cherry, Law Rep. 
 7 Chanc. 24, 
 
 7. — No payment will be void on the ground of 
 fraudulent preference under the 92nd section of the 
 Bankruptcy Act, 1869, unless the motive of giving 
 the payee a preference over the other creditors is 
 proved, or is to be inferred. And even if such a 
 motive did exist on the debtor's part, the rights 
 of the payee will not be affected if he has acted 
 in good faith. In re Chcesebrough ; Ex parte Hitch- 
 cock, 40 Law J. Rep. (n.s.) Bankr. 79 ; Law Eep. 
 12 Eq. 358, nam. Ex parte Blackburn. 
 
 Where traders in a hopeless state of insolvency, 
 three days before they suspended payment, paid 
 in the ordinary course of business, and without 
 any motive for fevouring the payee, a considerable 
 sum to a creditor, who received it bond fide, the 
 payment was upheld. Ibid. 
 
 8. — ^An uncertificated bankrupt paid his land- 
 lord, who was aware of the bankruptcy, six months' 
 rent in advance : — Held (affirming the decision of 
 the Chief Judge), that the trustee in the bank- 
 ruptcy could not compel the landlord to refund 
 the money so paid to him. Ex parte Bewhurst ; 
 In re Vanlohe, 41 Law J. Rep. (n.s.) Bankr. 18 ; 
 Law Eep. 7 Chanc. 186. 
 
 9. — Where a debtor in England in insolvent 
 circumstances paid sums to his sister-in-law, a 
 Belgian lady, with whom he carried on business, 
 partly in respect of a previous debt which he was 
 under an agreement to pay, and partly in respect 
 of their business transactions, under which the 
 money was applied in the purchase of goods and 
 their remittance to England, and there was no 
 evidence to shew that the lady received the money 
 otherwise than in good faith : — Held, no fraudu- 
 lent preference. Ex parte Kevan ; In re Crawford, 
 Law Eep. 9 Chanc. 752. 
 
 (2) Assignment of entire property to secure 
 past debt, 
 
 10. — H., a creditor of B., whose debt was secured 
 by a bill of sale of B.'s property, having taken 
 possession under such bill of sale, an arrangement 
 was made between such parties and the defendant 
 also a creditor of B., by which the defendant paid H. 
 2501. in satisfaction of his debt, and took a bill of 
 sale from B. of all his property, including a power to 
 take after-acquired property, with one substantial 
 exception in favour of farming stock, as a security 
 for the repayment to the defendant of i50l., which 
 consisted of such 260/. and 161Z. the amount of 
 the prior debt due to the defendant and 39/. the ex- 
 penses attending the arrangement: — Held, that 
 this bill of sale to the defendant was not necessarily 
 an act of bankruptcy, there being such a substantial 
 advance by the defendant of which B., the debtor, 
 had the benefit as brought the case within the 
 principle of Hutton v. Cruttwell (22 Law J. Rep. 
 (n.s.) Q.B. 78 ; 1 E. & B. 15), and distinguished 
 
 n 
 
60 
 
 BANKEUPTCY (B). 
 
 it from that of Graham v. Chapman (21 Law J. 
 E9p. (N.S.) O.P. 173 ; 12 Com. B. Eep. 85). Lo- 
 max V. Btixton, 40 Law J. Eep. (n.s.) 0. P. 160 ; 
 Law Eep. 6 0. P. 107. 
 
 Qusere — if the doctrine of relation hack to an 
 act of bankruptcy is applicable to the case of 
 liquidation by arrangement under the Bankruptcy 
 Act, 1869 (32 & 33 Vict. c. 71). Ibid. 
 
 11. — S., the debtor, upon an advance of 551. 
 being made, gave to C. a bill of sale upon all his 
 property, and an arrangement was made that the 
 bill of sale should be renewed every twenty days, 
 and should not be registered in the meantime. 
 The bin of sale was renewed three times, and the 
 bill of sale given on the last renewal was regis- 
 tered. The debtor afterwards went into liquid- 
 ation; The trustee, under the liquidation, took 
 possession of the property, and C. brought an 
 action against him : — Held, that the last bill of 
 , sale was void, as constituting an act of bankruptcy, 
 and an injunction was granted restraining C. from 
 continuing his action. Ex parte Cohen; In re 
 SparJce, 41 Law J. Eep. (n.s.) Bankr. 17; Law 
 Eep. 7 Chanc. 20. 
 
 12. — An assignment of all a debtor's available 
 property to one creditor to secure a past debt, is 
 an act of bankruptcy, and that whether the 
 debtor is a trader or not. Ex parte Luckes; In re 
 Wood, 41 Law J. Eep. (n.s.) Bankr. 21 ; Law Eep. 
 7 Chanc. 302. 
 
 13. — Circumstances considered under which a 
 mortgage of all a debtor's property to secure a 
 past debt and a present advance constitutes an act 
 of bankruptcy, and what is a substantial exception. 
 Ex parte Fisher ; In re Ash, 41 Law J. Eep. (n.s.) 
 Bankr. 62 ; Law Eep. 7 Chanc. 636. 
 
 A trader applied to a creditor to whom he owed 
 '600^. to lend him a further sum in order to make 
 certain pressing payments. The creditor agreed 
 to lend 100/., upon condition that if the 100?. 
 were not repaid within a week, the debtor was to 
 give a mortgage of his mill and machinery (which 
 constituted his whole property) for securing as 
 well the 600Z. as the new advance of 100/. The 
 100/. was applied in payment of pressing debts, 
 and was not repaid within the week, and the debtor ' 
 executed a mortgage in accordance with his promise. 
 The property comprised in the mortgage was worth 
 about 700/. Shortly afterwards the debtor was 
 adjudicated bankrupt : — Held, that the mortgage 
 was invalid as against the trustee in the bank- 
 ruptcy. Ibid. 
 
 14. — A trader assigned all her stock-in-trade, 
 fixtures, chattels and effects, in or about her place 
 of business, to secure an antecedent debt of 200/. 
 The bill of sale included goods subsequently 
 acquired for the purposes of the business, and was 
 expressed to be in consideration of further future 
 advances, but contained no agreement for making 
 such advances. The lease of the shop and the book 
 debts were not included in the bill of sale. Upon 
 the trader's bankruptcy shortly afterwards the 
 excepted property realised about the same amount 
 as that included in the bill of sale : — Held, that 
 the lease and book debts formed a substantial ex- 
 ception, and that the bill of sale was aot void ag 
 
 an assignment of the debtor's whole property on 
 the eve of bankruptcy. Ex parte BoUand; In re 
 Fries, 41 Law J. Eep. (n.s.) Bankr. 60. 
 
 15. — A debtor executed a deed of assignment 
 of all his property, except a pension from the 
 East India Company, to a creditor to secure a 
 past debt :— Held (affirming a decision of Bacon, 
 C.J.), that, as this pension could not pass to his 
 trustee in bankruptcy, it formed no substantial 
 exception from the assignment, and the assign- 
 ment was therefore an act of bankruptcy. Ex 
 parte HawJcer ; In re KeeVy, 41 Law J. Eep. (n.s.) 
 Bankr. 34 ; Law Eep. 7 Chanc. 214. 
 
 16. — In August, 1870, two brothers, trading as 
 grocers, in consideration of 500/., previously ad- 
 vanced by their father and brother, as to the 
 greater part, upon a verbal agreement for the 
 security, executed an agreement to assign on de- 
 mand their business, with the lease of their pre- 
 mises (which was deposited), stock-in-trade, fix- 
 tures, utensils and book debts, with a, proviso 
 that, if the 600/., with any further advances and 
 interest, was repaid, the agreement should be 
 void, but if not, providing for the sale of the 
 property to the mortgagees at a valuation, and 
 payment of the balance (if any) to the traders. 
 In March, 1873, the brother making the advance, 
 and who was employed in the business, informed 
 his father that the traders were in difficulties, 
 and thereupon demand for payment was made. 
 On the 4th of April the property was valued at 
 683/., and on the 6th, 123/., the balance over the 
 amount due,' was paid by the father and brother 
 upon an assignment of the property, which com- 
 prised all the traders' property except furniture 
 worth 30/., which was purchased by the fatlier 
 and brother at the same time. The deed was not 
 registered as a, bill of sale, but possession was 
 forthwith taken, and a circular issued to the 
 wholesale dealers who were the principal credi- 
 tors, informing them of the sale of the business. 
 The 123/. and the 30/. were spent in paying two 
 creditors, and on the 1 6th of April the traders 
 presented |a petition in liquidation, stating their 
 assets to be nil, and their debts 1,833/. : — Held 
 (affirming the decision of the Eegistrar sitting as 
 Chief Judge), that the transaction could not be 
 impeached as an act of bankruptcy, nor (possession 
 having been taken) under the Bills of Sale Act. 
 The transaction, however, being one that required 
 investigation, the trustee's appeal was dismissed 
 without costs. Exparte Izard ; In re Cook, 43 Law 
 J. Eep. (n.s.) Bankr. 31 ; Law Eep. 9 Chanc. 271. 
 
 17. — Where the drawer of bills paid them at 
 the request of the acceptor, who thereupon as- 
 signed all his property to the drawer to secure 
 the amount of the bills, as well as certain past 
 debts : — Held, that the payment of the bills, being 
 a substantial advance, the assignment was not an 
 act of bankruptcy. Ex parte Seed and Steele ; In 
 re TweddeU, Law Eep. 14 Eq. 886. 
 
 18. — Traders verbally pledged their goods, 
 which formed, substantially, the whole of their 
 property, as security for a previously contracted 
 debt, to a creditor, who Slready had pos.^ession of 
 the goods and a lien on them for money advanced. 
 
BAKKRTJPTCY (B). 
 
 51.; 
 
 The debtors were, in fact, insolvent, but the jury 
 fiwind that the transaction was entirely bond fide : 
 — Ssld, that the pledge was not " a fraudulent 
 conveyance, gift, delivery, or transfer," within the 
 Bankruptcy Act, 1869, section 6, sub-section 2. 
 Philps V. HomMedt, 42 Law J. Eep. (n.s.) Exch. 
 12; Law Eep. 8 Exch. 26. [affirmed on appeal 
 Law Eep. 1 Exch. Dm 26.] 
 
 (3) Pressure bff <yreditor. 
 19. — Creditors having supplied a debtor with 
 money and cotton, and becoming aWare that he 
 was in failing circumstances, said to him, in effect, 
 " Go and borrow from others upon long credit, 
 and pay us." The debtor did so, and from time 
 to time paid sums to the creditors, being pressed 
 by them so to do : — Held, that the transaction 
 was a fraudulent preference, and as such was not 
 binding upon the trustee, and that the fact that 
 there was pressure made no difference. Ex parte 
 Header i In re Wrigley, 44 Law J. Eep. (n.s.) 
 Bankr. 139 ; Law Eep. 20 Eq. 763. 
 
 20. — Where a trader, before becoming bank- . 
 rupt on his own petition, under the Bankruptcy 
 Act, 1861, assigns all his property to a particular 
 creditor, under pressure, and without any fraud 
 or intention to prefer the creditor, such as would 
 have made the assignment a fraudulent preference 
 or void against creditors if bankruptcy had not 
 ensued, the assignment is not voidable by the 
 assignees in bankruptcy, although, necessarily, 
 and to the knowledge of the creditor, calculated 
 to prevent the trader from paying the rest of his. 
 creditors, and thereby to defeat the operation of 
 the bankrupt laws. Jones v. Harber, 40 Law J. 
 Eep. (n.s.) a. B. 59 ; Law Eep. 6 Q. B. 77. 
 
 21. — ^To constitute fraudiilent preference (ac- 
 cording to the law previous to the Bankruptcy 
 Act, 1869), the conveyance must be spontaneous 
 on the part of the debtor. If there are mixed 
 motives, if the debtor is partly influenced by 
 pressure, or simple demand, or by a negotiation 
 carried on between him and his creditor, then, 
 although he may, from the debtor being his 
 friend, desire to prefer him to other creditors, it 
 is not a voluntary conveyance so as to be void. 
 In re Craven and Marshall, and In re Craveji's 
 separate estate; Ex parte Tempest, 40 Law .T. Eep. 
 (n.s.) Bankr. 22 ; Law Eep. 6 Chanc. 70. 
 
 Semble (agreeing with the Chief Judge) — That 
 the Bankruptcy Act, 1869, «. 72, has made no 
 alteration in the law as to fraudulent preference. 
 Ibid. 
 
 22. — ^B. had overdrawn his account at his 
 bankers', and the bankers, four months before he 
 became a bankrupt, obtained a charge from him 
 to secure this account, on moneys coming to him 
 from third parties ; — Held, reversing the decision 
 ■ of the Court below, that the charge, was good, and 
 that no case of fraudulent preference had been 
 proved. Ex parte The London and County Bank ; 
 In re Brown, 42 Law J. Eep. (n.s.) Bankr. 112; 
 Law Eep. 16 Eq. 391. 
 
 23. — A transfer of goods made by debtors in 
 part discharge of a debt, under pressure from the 
 creditor, on the morning t)f the day on which they 
 
 filed their petition in liquidation, held hot a frau- 
 dulent preference, though the creditor knew that 
 debtors were insolvent : the transaction could ba 
 sustained, either on the supposition (which was 
 thought more probable) that the debtors had not 
 then given up all hope of getting help and going, 
 on with their business, or on the supposition that 
 the debtors knew their insolvency was hopeless, . 
 but gave way to the pressure. Ex parte Tnpham; 
 In re WalJcer, 42 Law J. Eep. (n.s.) Bankr. 57 ; Law 
 Eep. 8 Chanc. 614. 
 
 24. — Where a debtor on the eve of bankruptcy, ,, 
 and fearing that a certain creditor would attach 
 his balance at the banker's, drew out his balance 
 and sent it to another creditor, who declined to, 
 receive it unless he was allowed to pay his own 
 debt out of it, to which the debtor after some hesi-- 
 tation agreed : — Held, that drawing out the balance 
 was an act of bankruptcy, and that the subseqaient 
 pressure by the last-mentioned creditor would not 
 prevent the payment to him being a fraudulent, 
 preference. Ex parte Halliday ; In re Liebert,. 
 Law Eep. 8 Chanc. 283. 
 
 (4) Fledge of partnership property. 
 
 25. — Partners cannot eifectually pledge part- 
 nership property, so as to make it available for 
 their own private debts. To do so when the 
 partnership is insolvent is to commit an act of 
 bankruptcy. 
 
 A partnership, consisting of A. and B., were in 
 insolvent circumstances, the separata estates of 
 the partners being also insolvent. On the 14th of 
 September, B. executed a power of attorney to C, 
 authorising him in very general terms to deal with 
 his property. The power contained no reference 
 to the partnership. It contained express powers 
 as to a ship which was in reality partnership pro- 
 perty, though the fact did not appear in the power. 
 On the same day B. left England, under circum- 
 stances which constituted his departure an act" of 
 bankruptcy. In November, A. and 0. (as B.'a 
 attorney), executed a mortgage of all the partner- 
 ship property to S., a creditor of the partnership, 
 and also a separate creditor of both parties, to 
 secure all the past debts and such future advances 
 as might be made. At the same time a bill of 
 sale of the ship was executed by A. and C. (as 
 attorney) in consideration of a sum of money then 
 paid by S. on account of the partnership. In the 
 following April A. and B. were both adjudicated 
 bankrupts. 
 
 S., at the. date of the deeds, knew the circum-r 
 stances under which B. had left England, but he 
 declared in his evidence that he did not infer that 
 B. had any intent to delay or defeat his creditors, 
 and therefore did not know that he had committed 
 an act of bankruptcy :— Held, first, that the exe; 
 cution of the mortgage by C, as B.'s attorney, was 
 void, as not being within the scope of the power 
 of attorney. 
 
 Secondly, that the execution of the mortgage was 
 an act of bankruptcy, on the ground of its being 
 a mortgage of partnership assets to secure se- 
 parate debts at a time when the partnership 
 -was insolvent. 
 
 h2 
 
52 
 
 BANKRUPTCY (B). 
 
 ThirJly, tliatS. must be held affected -with notice 
 that B. had committel an act of bankruptcy by 
 leaving England. 
 
 Fourthly, as a consequence of the above holding, 
 that both mortgage and bill of sale wore void as 
 against the trustee of the joint estate. Ex parte 
 Snowball ; In re Douglas, 41 Law J. Eep. (n.s.) 
 Bankr. 49 ; Law Eep. 7 Chanc. 534. 
 
 (6) Security to take effect on banJcruptcy, 
 
 26. — A creditor may have by contract a good 
 charge for his debt on sums to become due from 
 himself to the debtor. Ex parte Mackay and Ex 
 parte John Brown ^ Co. ; In re Jcavons, 42 Law 
 J. Kep. (n.s.) Bankr. 68 ; Law Eep. 8 Chanc. 643. 
 An agreement by a creditor for an extension of 
 his security to arise in case of the debtor's bank- 
 ruptcy, is against the policy of the Bankruptcy 
 Law, and void. Ibid. 
 
 A patentee assigned his patent in consideration 
 of certain royalties, with an agreement that the 
 assignees should retain half the royalties in pay- 
 ment of a debt due from him to them ; and a pro- 
 vision that in case of his bankruptcy or liquidation, 
 they might retain the whole of the royalties. In 
 his liquidation, — Held, that the assignees had a 
 valid charge on the half of the roy<iltie3, giving 
 them the usual rights of secured creditors ; but, 
 held, that the provision giving them a right to 
 retain the whole of the royalties in case of bank- 
 ruptcy was a fraud on the Bankruptcy Laws and 
 void. Ibid. 
 
 Though an unregistered agreement may be a 
 good consideration to support a duly registered 
 bill of sale, it cannot be itself relied on as giving 
 any right to the holder against the trustee in 
 bankruptcy, though possession has been demanded 
 under it. Ibid. 
 
 (6) Protection of payee for value. 
 
 27. — The word " payee " in the clause at the 
 end of section 92 of the Bankruptcy Act, 1869 
 (as to fraudulent preferences), protecting the 
 rights of a purchaser, payee or incumbrancer 
 in good faith and for valuable consideration, is 
 to be read as meaning a person receiving pay- 
 ment as a creditor ; and the protection given by 
 that clause extends to creditors of the bank- 
 rupt, not upon some voluntary instrument, but for 
 valuable consideration, who are ignorant that any 
 fraud or fraudulent preference is intended, and not 
 merely to third parties dealing with person so 
 preferred. Lord Selborne dissented. Butcher v. 
 Stead (H.L.), 44 Law J. Eep. (n.s.) Bankr. 129 ; 
 Law Eep. 7 E. & I. App. 839. 
 
 28. — The concluding words of section 92 of the 
 Bankruptcy Act, 1869 (as to fraudulent prefer- 
 ences), which protect the right of "a purchaser, 
 payee or incumbrancer in good faith, and for valu- 
 able consideration," apply to persons preferred by 
 the bankrupt, who are ignorant that they are being 
 preferred, and not merely to third parties dealing 
 for value inth persons so preferred. Ex parte 
 Butcher; In re Meldrum, 43 Law J. Eep. (n.s.) 
 Bankr. 98 ; Law Eep. 9 Chanc. 596. 
 This construction is not to exclude from protec- 
 
 tion third parties innocently dealing for value with 
 persons who have knowingly accepted a preference. 
 Ibid. 
 
 Appeal to House of Lords not allowed in the 
 case of a small debt on the ground that it would 
 determine the right to larger sums. Ibid. 
 
 (i) Absence with intent to defeat or dday creditors. 
 29,— A debtor being pressed by his creditor 
 and unable immediately to pay, but being in^ the 
 expectation of receiving money, promised to call 
 upon his creditor the next day and pay him. This 
 promise and some other similar promises were 
 broken. The debtor did not absent himself from 
 his own place of business : — Held, that no act of 
 bankruptcy had been committed by the debtor's 
 not keeping his promise. Ex parte Meyer ; In re 
 Stephany, 41 Law J. Eep. (n.s.) Bankr. 32; Law 
 Eep. 7 Chanc. 188. 
 
 (c) Declaration of inability to pay. 
 
 30. — A declaration of a debtor's inability to 
 pay his debts is filed within the meaning of the 
 Bankruptcy Act, 1869 (32 & 33 Vict. c. 71), s. 6. 
 mibs. 4, so as to constitute an act of bankruptcy, 
 when it is delivered to the proper officer for that 
 purpose with the intention that it should be filed, 
 Hansford v. Maule, 42 Law J, Eep. (n.s.) C.P. 
 231; Law Eep. 8 C.P. 672. 
 
 (d) Execution of frocess for 501. 
 
 31. — A creditor seized six horses of a contractor 
 in execution on a judgment for 79i. The sheriff 
 did not sell, but it was arranged that the debtor 
 should himself sell the horses to the creditor for 
 the debt and sheriff's costs, the creditor letting 
 the horses to the debtor under an agreement de- 
 terminable at will on either side. The debtor was 
 in insolvent circumstances at the time of the trans- 
 action, and he filed a petition in liquidation a few 
 days afterwards, but not until after the horses had 
 been taken away by the creditor : — Held, by James, 
 L.J., dissentiente Mellish, L.J., that this was a 
 seizure and sale within the meaning of section 6, 
 sub-section 6, of the Bankruptcy Act, 1869. Held 
 also, by James, L. J., dissentiente Mellish, L.J., that 
 the transaction was void as a fraudulent preference. 
 And held by both the Lords Justices, affirming the 
 decisions of the County Court Judge and the Chief 
 Judge in Bankruptcy, that the sale was a fraudu- 
 lent transfer of a part of the debtor's property 
 within the meaning of section 6, sub-sec. 2, of the 
 Act, and therefore void as an act of bankruptcy. 
 Ex 'parte Pearson ; In re Mortimer, 42 Law J. Eep. 
 (n.s.) Bankr. 44 ; Law Eep. 8 Chanc. 667. 
 
 (e) Failure to comply with debtor's summons. 
 
 32, — ^Where a summons is served upon a debtor 
 under section 7 of the Bankruptcy Act, 1869, an 
 act of bankruptcy (under section 6, sub-see. 6) is 
 committed at the expiration of seven days, or 
 three weeks (as the case may be), from the date of 
 service, if within that time the debtor does not 
 pay or secure the debt, although time may be given 
 to the debtor to give security. Ex parte Wier ; In 
 
BANKEUPTCY (B), (C). 
 
 53 
 
 te Wier, 41 Law J. Eep. (n.s.) Bankr. 14; Law 
 Eep. 6 Chane. 875. 
 
 Such an act of bankruptcy, being available for 
 adjudication only on the petition of the summoning 
 creditor, is not one to which the title of a trustee 
 Under an acyudication obtained subsequently by 
 another creditor would relate back under section 
 11. Ibid. 
 
 33. — ^Whether more creditors than one can unite 
 in issuing a debtor's summons, quaere. But if 
 several creditors issue one debtor's summons, they 
 must continue the subsequent proceedings toge- 
 ther. There can be but one act of bankruptcy 
 upon the summons, and the summoning creditors 
 cannot present separate bankruptcy petitions 
 founded upon the faUure of the debtor to comply 
 with the summons as to each creditor separately. 
 Ex parte Kibble; In re Onslow, 44 Law J. Eep. 
 (n.s.) Bankr. 63 ; Law Eep. 10 Chanc. 373. 
 
 34. — The act of bankruptcy which results from 
 the feUure to comply with a debtor's summons is 
 completed immediately upon such failure, and is 
 not postponed until the summoning creditor pre- 
 sents a bankruptcy petition against the debtor. 
 Ex parte Heiiken ; In re Bwchan, 44 Law J. Eep. 
 (n.s.) Bankr. 74 ; Law Eep. 10 Chanc. 267. 
 
 Though only the summoning creditor can avail 
 himself of this act of bankruptcy for the purpose 
 of obtaining an adjudication against the debtor, it 
 is an act of bankruptcy available for adjudication 
 within the meaning of section 95 of the Bank- 
 ruptcy Act, 1869, and a creditor who has notice of 
 an act of bankruptcy so committed does not come 
 within the protection of that section. Ibid. 
 
 35. — "A trader" within the Bankruptcy Act, 
 1869, section, 6 sub-sec. 6, is a trader at the time 
 when the debtor's summons is sued out. The 
 owner of a phosphate mine is not a trader. Ex 
 parte Schomberff; In re Schomberg, Law Eep. 10 
 Chanc. 172. 
 
 (/) Notice of act of bankruptcy. 
 
 36. — A person having notice of facts from which 
 a Court or jury would infer that an act of bank- 
 ruptcy had been committed, must he considered as 
 having notice that an act of bankruptcy had been 
 committed, notwithstanding his oath that he did 
 not in fact draw the inference. Ex parte 8noiii- 
 baU; In re Douglas, 41 Law J. Eep. (n.s.) Bankr. 
 49 ; Law Eep. 7 Chanc. 534. 
 
 Partners cannot effectually pledge partnership 
 property, so as to make it available for their own 
 private debts. To do so when the partnership is 
 insolvent is to commit an act of bankruptcy. Ibid. 
 
 Execution of mortgage by attorney void, as not 
 being within the scope of the power of attorney. 
 Ibid. 
 
 37. — H. took a bill of sale over the goods of J, 
 after notice of an act of bankruptcy committed by 
 J. The consideration for the bill of sale consisted 
 partly of money advanced to pay off two prior bills 
 of sale which had been made and registered before 
 the act of bankruptcy, and partly for money due 
 from J. for goods sold to him by H. J. was after- 
 wards adjucUcated bankrupt in respect of the pre- 
 
 vious act of bankruptcy : —Held, that the trustee 
 in the bankruptcy was entitled to the goods sub- 
 ject to the payment to H. of the amount advanced 
 in respect of the prior bills of sale. Ex parte 
 Harris; In re James, 44 Law J. Eep. (n.s.) Bankr. 
 31; Law Eep. 19 Eq. 253. 
 
 (0) Adjudication. 
 (a) letition : petitioning creditor's debt. 
 
 1. —A creditor who holds garnishee orders to an 
 amount exceeding what is due to him, may never- 
 theless sue out a debtor's summons against the 
 debtor and have him adjudicated bankrupt. In re 
 Tupper, Law Eep. 9 Chanc. 312. 
 
 2. — The debt necessary to sustain a creditor's 
 petition for an adjudication in bankruptcy, under 
 statute 32 & 33 Vict. c. 71. s. 6. sub-sec. 6, is a 
 debt presently recoverable. Where, therefore, the 
 debt of the petitioning creditor was for goods sold 
 to the debtor on credit, and the credit had not ex- 
 pired at the date of the petition being filed, — 
 Held, that there was no debt upon which to found 
 a petition for adjudication. Ex parte Sturt ; In re 
 Fearcey, 41 Law J. Eep. (n.s.) Bankr. 12; Law 
 Eep. 13 Eq. 309. 
 
 3. — A married woman having no separate estate 
 is not liable under the 12th section of the Married 
 Women's Property Act, 1870 (33 & 34 Vict. c. 93), 
 to be made bankrupt in respect of debts contracted 
 before marriage. Whether if she had separate 
 estate she could be made bankrupt, qusere. Ex 
 parte Holland; In re Heneage, 43 Law J. Eep. 
 (n.s.) Bankr. 85 ; Law Eep. 9 Chanc. 307. 
 
 4. — A non-trader cannot be adjudicated bank- 
 rupt in respect of a debt contracted before the 
 Baiikruptcy Act, 1861, came into operation. Por 
 this purpose further advances under a mortgage 
 to secure a specific debt and further advances must 
 be deemed a debt contracted at the date of the 
 mortgage deed. Ex parte Bashleigh ; In re Dalzell, 
 Law Eep. 20 Eq. 782. 
 
 (5) Tender after petition. 
 
 5. — When an act of bankruptcy has been proved, 
 and a petition for adjudication presented, the cre- 
 ditor is not bound to accept an offer of payment of 
 the debt, but is entitled to an order for adjudica- 
 tion. Ex parte Boss ; In re Whalley, 43 Law J. Eep. 
 (n.s.) Bankr. 110 ; Law Eep. 18 Eq. 375. 
 
 Under such circumstances an adjournment of 
 the petition, in order to give the debtor time for 
 payment, was held not to be warranted by section 8 
 of the Bankruptcy Act, 1869. Ibid. 
 
 (c) Joint and separate estates. 
 
 6. — E., carrying on business in London, in part- 
 nership with M. in Dublin, committed an act of 
 bankruptcy by executing an assignment of all his 
 estate and effects to trustees for the benefit of his 
 creditors. He was afterwards adjudicated bank- 
 rupt, and property belong to the firm having been 
 sold by order of the trustees of the deed of assign- 
 ment, the pur.hase-money was by the London 
 
64 
 
 BANKEmrCY (C). 
 
 Court of Bankruptcy ordered to ho placed to a de- 
 posit account in the bank in certain names. In the 
 meantime a separate adjudication was made against 
 M. in Ireland, and was followed by a joint adjudi- 
 cation in Ireland against R. and M., the assignees 
 under M.'s separate adjudication being also assig- 
 nees under the joint adjudication. Upon the ap- 
 plication of the assignees under the Irish bank- 
 ruptcies for an order directing payment to them 
 of the money produced by the sale : — Held, that 
 the separate adjudication in England not having 
 been either superseded or impounded, the joint 
 assets were vested in the English trustee under 
 E.'s separate bankruptcy, and the Irish assignees 
 under M.'s separate bankruptcy as tenants in com- 
 mon ; that the Irish assignees had no better title 
 to the joint assets by reason of the joint adjudica- 
 tion, and it being more convenient that the assets 
 should be distributed in England, the order was 
 refused. Ex parte James; In re O'Beardon, 43 
 Law J. Eep. (n.s.) Bankr. 13; Law Eep. 9 
 Chanc. 74. 
 
 7. — Where a petition for adjudication has been 
 presented against the separate estate of a debtor, 
 and afterwards a petition is presented and an ad- 
 judication made against the joint estate of the 
 debtor and a partner, the Court will, notwithstand- 
 ing no adjudication has been made on the separate 
 petition, order the proceedings under the separate 
 petition to be consolidated with the proceedings 
 under the joint petition. Ex parte M'Kemie ; In re 
 Helliwell, 44 Law J. Eep. (n.s.) Bankr. 117 ; Law 
 Eep. 20 Eq. 88. 
 
 The trustee alone is interested in such an appli- 
 cation, and the debtor has no right to be heard in 
 opposition. Ibid. 
 
 8.— Under the Bankruptcy Act, 1861, a separate 
 adjudication was meuie against a partner. The 
 separate debts were about 8,000Z., the joint debts 
 about 90,00iW. The separate estate realised about 
 4,000/. There was no partnership estate. Two 
 joint creditors were appointed assignees :— Held, 
 on the application of the principal separate cre- 
 ditor, that an inspector might be appointed to 
 protect the interests of the separate creditors, but 
 that he must take no step in the matter without 
 the approval of the registrar. Ex parte Melhourn ; 
 In re Melbourn, 40 Law J. Eep. (n.s.) Bankr. 66 ; 
 Law Eep. 6 Chanc. 835. 
 
 0. — A document in the form of a bill of ex- 
 change, but accepted with the drawer's name in 
 blank, does not exist as a bill until the drawer's 
 name is inserted, and even then does not create a 
 debt against the parties to it until value has been 
 given for it. Ex 'parte Hayward and Batten, and 
 Ex parte Jones ; In re Hayward and Co., 40 Law J, 
 Eep. (n.s.) Bankr. 49 ; Law Eep. 6 Chanc. 546, 
 
 The acceptance of a firm was written across such 
 a document. The firm afterwards made an assign- 
 ment for the benefit of creditors. After the as- 
 signment, and when the document had become to 
 all appearance a complete bill by the insertion of 
 a drawer's name, it passed into the hands of holders 
 for value : — Held, that it did not create a debt 
 capable of supporting an adjudication of bank- 
 . ruptcy against the acceptors. Ibid. 
 
 {d) Annulling adjudication. 
 
 10. — The Court of Bankruptcy has power, 
 under its general jurisdiction, to annul an adjudi- 
 cation, independently of any express power given 
 to it by statute. Ex parts Askworth ; In re Hoare, 
 
 43 Law J. Eep. (n.s.) Bankr. 142 ; Law Eep. 18 
 Eq. 7. 
 
 After a creditor had filed a bankruptcy petition 
 against his debtor, the debtor himself filed a liqui- 
 dation petition. An adjudication was made on the 
 creditors' petition, and after this the creditors 
 resolved upon a liquidation: — Held, that, either 
 under rule 266 of 1870, or under its general juris- 
 diction, the Court had power to annul the adjudica- 
 tion. Ibid. 
 
 11. — An adjudication in bankruptcy is not in- 
 validated by the fact that the registrar sealed the 
 copies of the petitions for adjudication on produc- 
 tion of an affidavit of service of the debtor sum- 
 mons which had not then been filed. The above 
 rule is merely directory. Ex parte Hunt ; In re 
 Hunt, Law Eep. 8 Chanc. 164. 
 
 12. — After the presentation of a petition for 
 adjudication, the debtor summoned a meeting of 
 his creditors under section 125 of the Bankruptcy 
 Act, 1869, with a view to liquidation by arrange- 
 ment, but before the meeting an adjudication was 
 made, with a stay of proceedings till after the 
 meeting, the petitioning creditors consenting. At 
 the meeting the creditors resolved to accept a 
 composition ; and the resolution having been con- 
 firmed at a subsequent meeting an d duly regis- 
 tered, the adjudication was thereupon annulled by 
 the registrar on the application of the debtor : — 
 Held, upon appeal, that the adjudication was pro- 
 perly annulled. Ex parte Foster ; In re Pooley, 44 
 Law J.Eep. (N.s)Bankr.22; Law Eep. 10 Chanc. 59. 
 
 13. — S. filed a petition for liquidation. During 
 these proceedings he was adjudicated bankrupt 
 under rule 266, upon a petition of which he had 
 received no notice. The petition was , presented 
 by creditors whose debts exceeded one-fourth of 
 the whole liabilities of the debtor, and without 
 whose consent, therefore, the liquidation could not 
 proceed : — Held, that notice ought to have been 
 given, and that as it had not, the adjudication 
 must be annulled. Ex parte 8tebhing;In re StebUng, 
 
 44 Law J. Eep. (n.s.) Chanc. 76; Law Eep. 19 
 Eq. 441. 
 
 14. — Qusere — whether the practice of staying 
 proceedings on equitable grounds is applicable to 
 proceedings under the Bankruptcy Act, 1869 ; if 
 so, a special application to annul the adjudication 
 or stay proceedings must be made, and the equi- 
 ta,ble grounds cannot be used as a defence to a 
 petition for adjudication. 
 
 C. was the plaintiff and next friend of her infant 
 the co-plaintiffs in a Chancery suit. She was 
 ordered to pay some costs, and upon her failing to 
 pay these, the defendant took proceedings in bank- 
 ruptcy. She defended these upon the ground that 
 her bankruptcy would embarrass the suit, and 
 that the proceedings in bankruptcy were taken 
 with -this object : — Held, that the adjudication 
 .was ex debito justitie, and could not be refused. 
 
BANKEUPTCY (C), (E). 
 
 55 
 
 In re Claxton, 41 Law J. Eep. (n.s.) Bankr. 56 ; 
 Law Eep. 7 Chane. 532. 
 
 15. — A creditor presented a petition for adjudi- 
 cation. The debtor raised no objection, and did 
 not appear at the hearing. The petition did not 
 allege any specific act of bankruptcy, but only that 
 the debtor had made a fraudulent conveyance of 
 his property, or some part thereof. The only eyi- 
 dence was an affidavit that the statements in the 
 petition were true. The deputy registrar adju- 
 dicated the debtor bankrupt : — Held, that the 
 terms registrar and deputy registrar are con- 
 vertible terms, and that there would have been 
 no reason to annul the adjudication because it was 
 made by the deputy registrar ; but held also, 
 that the evidence of the act of bankruptcy was 
 insufficient to justify an adjudication. Ex parte 
 Lindsay ; In re Lindsay, H Law J. Eep. (n.s.) 
 Bankr. 6; Law Eep. 19 Eq. 52. 
 
 llffect of, as to hanhnipfs right of set-off. 
 [See infra F. 2.] 
 
 (D) First Meeting op Oeeditoes, 
 
 (a) Power to deal with assets. 
 
 1. — A petition for liquidation by arrangement 
 having been filed by a debtor trading in partner- 
 ship, a resolution was passed at the first meeting 
 of his creditors that his affairs should be liqui- 
 dated by arrangement, for the appointment of a 
 trustee and committee of inspection, and the dis- 
 charge of the debtor. The resolution also pur- 
 ported to authorise the trustee to sell a specific 
 part of the debtor's property for such a sum as 
 would pay the costs of the liquidation, and a com- 
 position of one shilling in the pound to, be paid to 
 his separate creditors. This resolution was re- 
 gistered : — Held, that so much of the resolution 
 as authorised the trustee to sell and make a com- 
 position was tdtra vires and void, but that the rest 
 of the resolution was valid, and the liquidation 
 must proceed thereunder. Ex parte Browning; In re 
 Marks, 43 Law J. Eep. (n.s.) Bankr. 129 ; Law 
 Eep. 9 Chauo. 583. 
 
 (i) Notices. 
 
 2. — Creditors under a liquidation petition re- 
 solved that the liquidation should close, and the 
 trustees be released as from January, 1871, but 
 no order of discharge was given to the debtor. 
 Four 'years after, the debtor filed a second peti- 
 tion, and the creditors again resolved on liquida- 
 tion : — Held, that the creditors under the second 
 petition need not give notices of their meetings 
 to the creditors under the first petition. Ex parte 
 Williams ; In re Williams, 44 Law J. Eep. (n.s.) 
 Bankr. 122 ; Law Eep. 20 Eq. 743. 
 
 3. — ^The notices summoning the first general 
 meeting of the creditors under a liquidation peti- 
 tion were signed with the name of the debtor's 
 attorney, but the signature was affixed by the 
 clerk of the attorney by his direction : — Held (re- 
 versing the decision of the Judge of the County 
 Court), that the rules had been sufficiently com-" 
 
 plied with, and that the resolutions ought to be 
 registered. Ex parte Hirst ; In re Hirst, 43 Law J. 
 Eep. (n.s.) Bankr. 130; Law Eep. 18 Eq. 704. 
 
 (c) Adjourned meeting : voting. 
 
 4. — The creditors of a debtor at their first 
 meeting resolved on an adjournment. Some of the 
 creditors who voted in favour of the adjournment 
 held bills of exchange and bonds of the debtor, 
 which they did not produce. If their votes had 
 been rejected the adjournment would not have 
 been duly carried. At the adjourned meeting 
 these creditors produced their bills of exchange 
 and bonds, and a liquidation was then resolved 
 upon : — Held, that the production of the bills and 
 bonds at the adjourned meeting was sufficient. Ex 
 parte Ashworth ; In re Hoare, 43 Law J. Eep. (n.s.) 
 Bankr. 142 ; Law Eep. 18 Eq. 705. 
 
 A secured creditor who votes without producing 
 his security by so doing gives up the benefit 
 of his security, but his vote is not invalidated. 
 Ibid. 
 
 ' The registrar can reject such of the resolu 
 tions tendered to him for registration as are vXtra 
 vires, and register the rest. Ibid. 
 
 (d) Fresh meeting. 
 
 5. — A debtor did not distinguish in the state- 
 ment made at the first meeting of his creditors his 
 joint from his separate debts. The objection was 
 taken, but it was disregarded, and resolutions for 
 liquidation were passed. Their registration hav- 
 ing been refused on account of the informality of 
 the proceedings, — Held, that a new first meeting 
 was rightly ordered, the creditors having had no 
 real opportunity of expressing their wishes. The 
 case would be different if the informality were 
 owing to the wilful default of the debtor, or if it 
 were manifest that the creditors did not desire a 
 liquidation or composition. Ex parte Gibbs ; In re 
 Webb, 44 Law J. Eep. (n.s.) Bankr. 73 ; Law Eep. 
 10 Chanc. 382. 
 
 (E) Peoof. 
 {a) Damages. 
 
 1, — A contract with a stakeholder of bills of 
 exchange to indemnify him against all damages, 
 proceedings, &e., in consequence of his delivering 
 the biUs to the party : — Held, not to contain any 
 warranty of the title of such party to the bills, 
 nor any undertaking by him to pay the amount as 
 soon as a valid claim was made against the stake- 
 holder : and such party having, down to the time 
 of the execution by him of a deed of inspectorship, 
 defended an action brought against the stakeholder 
 in respect of the bills : — Held, that down to that 
 time the -contract had not been broken, and that 
 the stakeholder had no right of proof under the 
 above section. Ex parte Wiseman ; In re Kelson, 
 Tritton ^ Co., Law Eep. 7 Chanc. 35. 
 
 2. — Where there was a breach by a vendor of 
 a contract by him to deliver iron by monthly 
 instalments, and the vendees bought iron in the 
 market to supply the deficiency, but there was no 
 evidence of forbearaaoe by the vendees at the 
 
66 
 
 BANKRUPTCY (E). 
 
 request of the vendor : — Held, distinguishing Ogle 
 y. Earl Vane (37 Law J. Eep. (n.s.) Chane. 77 ; 
 Law Eep. 3 Q.B. 272), that the vendees could 
 prove in the liquidation of the vendor only for the 
 diiferences between the contract price and the 
 prices of the days when the instalments ought to 
 have been but were not delivered. Ex parte 
 Llaiisamlet Tin Plate Co. ; In re Voss, Law Eep. 
 16 Eq. 155. 
 
 3, — The plaintiff in ari action for the wrongful 
 detention of a lease recovered judgment for lOOZ., 
 to be reduced to nothing if the lease was returned. 
 Execution was afterwards stayed for a month, to 
 give the defendant time to search for the lease, 
 which had been mislaid. Before the month had 
 expired, the defendant filed a liquidation petition. 
 The first meeting of the creditors was held after 
 the expiration of the month, but the plaintiff had 
 not then levied execution for tie lOOi. The lease 
 was subsequently found, and was tendered to the 
 plaintiff, who refiised to acceptit: — Held, that the 
 lOOZ. was not a debt proveable under the petition. 
 Ex parte Scarth; In re Scarih, 44 Law J. Eep. 
 (n.s.) Bankr. 29 ; Law Eep. 10 Chanc. 234. 
 
 (i) Contingent liability, 
 
 4. — A bond for 1,000?. — after reciting that the 
 obligor had assigned to the obligee 1,100?. consols, 
 to which the obligor's wife was entitled upon the 
 death of her mother E. P. ; and that the obligor's 
 wife might survive her husband and might refuse 
 to confirm the assignment, or the obligee might, 
 through the obligor's default or otherwise, never 
 realize the benefit of the assignment — was condi- 
 tioned for avoidance if, within six months after 
 E. P.'s death, the obligee should obtain the trans- 
 fer of the consols, or the trustees thereof should 
 transfer the consols to the obligee. E. P. died, 
 and more than six months after the obligee sued 
 the obligor on the bond. The defendant pleaded 
 his bankruptcy and discharge under the Act of 
 1861, obtained before any breach of the condition 
 and before six months after E. P.'s death : — Held, 
 that the action was not barred by the bankruptcy 
 and discharge, since the obligee could not have 
 proved under the bankruptcy, either for " a debt 
 payable on a contingency" within 12 & 13 Vict, 
 c. 106, s. 177, or for "a liability to pay money on 
 aeontingeney " within section 178. Kentv. J'homas, 
 40 Law J. Eep. (n.s.) Exch. 186 ; Law Eep. 6 
 Exch. 312. 
 
 5. — A contract with a stakeholder of bills of 
 exchange on delivery of the bills by him to the 
 party, to indemnify the stakeholder against all 
 costs, damages and proceedings in respect of 
 the bills: — Held, not a contract to pay money 
 upon a contingency, within 12 & 13 Vict. c. 106, 
 s. 178. Ex parte Wiseman ; In re Kelson, Tritton 
 ^ Co., Law Eep. 7 Chanc. 35. 
 
 (c) Debt capable of being estimated, 
 
 0. — Agreement not under seal by A. to supply 
 steam-power to any number of looms in B.'s mill, 
 during twenty-one years, at an annual rent for 
 each loom, ijayable qxiarterly in advance ; — Held, 
 
 that although the agreement might have been 
 determined by B. ceasing to have any looms to 
 work, yet, as the rent was payable in advance, 
 it was not void for want of mutuality. The agree- 
 ment having been carried out for fourteen years, 
 when mortgagees from A., who had entered into 
 possession, refused to go on with it : — Held, in 
 the subsequent bankruptcy of A., that damages for 
 the breach were capable of being fairly estimated 
 vrithin section 3,1, and could be proved for. Ex 
 parte Waters ; In re Hoyle, Law Bep. 8 Chane. 
 662. 
 
 7. — W. went through the ceremony of mar- 
 riage with S., his deceased wife's sister, In 1868 
 a deed of separation was executed, under which 
 "W. covenanted to pay to trustees for S. an annuity 
 of 40?. ; the deed described S. as the wife of W., 
 and contained a proviso that if they came together 
 again the annuity should cease. W. married 
 again, and S. married and became a widow. In 
 1871 W. became bankrupt, and in the bankruptcy 
 a proof was presented for the value of the annuity. 
 The County Court Judge refused to admit the 
 proof, because, it being impossible to say what 
 was the probability pf the parties coming together 
 again, the value of the annuity was incapable of 
 being fairly estimated : — Held (reversing the deci- 
 sion of the County Court Judge), that as the par- 
 ties could never come together lawfully, that 
 proviso ought to be disregarded, and the value of 
 the annuity estimated in the usual way. Ex parte 
 Naden ; In re Wood, 43 Law J. Eep. (n.s.) Bankr.^ 
 121 ; Law Eep. 9 Chanc. 670. 
 
 (d) Injury occasioned by disclaimer of lease. 
 
 8.— The effect of sections 23 and 31 of the 
 Bankruptcy Act, 1869, is that the bankrupt is 
 absolutely relieved from every liability by con- 
 tract, which he has ever entered into, and that 
 the person who is in that way deprived of his 
 right of action against the bankrupt and of the 
 benefit of any contract which has been made with 
 him, becomes a creditor against his estate in 
 respect of what he would have been entitled to 
 recover against the bankrupt if he had remained 
 solvent, and can prove for that amount. Ex parte 
 Llynvi Coal and Iron Co.; In re Hide, 41 Law J. 
 Eep. (n.s.) Bankr. 6; Law Eep. 7 Chanc. 28. 
 
 A bankrupt was lessee of premises for a terii 
 of ten years, at an annual rent of 500L The trus- 
 tee disclaimed the lease. The landlord was unable 
 to relet the premises at so high a rent : — Held, 
 that the landlord was entitled to prove in the 
 bankruptcy for the difference between the pre- 
 sent value of the 500?. per annum agreed to be 
 paid by the bankrupt for the residue of the term, 
 and the present value for the same period of the 
 letting value of the premises. Ibid. 
 
 (c) Transferor of shares, 
 
 9, — A claim by the transferor of shares in a 
 limited company, to be indemnified out of the 
 estate of his bankrupt transferee against calls 
 made on the transferor after the transfer, is not 
 a debt proveable under the Bankruptcy Act 
 
BANKRUPTCY (E). 
 
 57 
 
 1861, ss. 153 and 154 ; and a plea of the effect of 
 an inspeetorsMp deed under section 192 of that 
 Act is no defence to a creditors' suit in equity to 
 administer the estate of the transferee. Holmes v. 
 Symons, 41 Law J. Bep. (n.s.) Chanc, 59 ; Law 
 Eep. 13 %. 66. 
 
 (/) Official Uguidatcn: 
 
 10.: — The official liquidator under the winding- 
 up of an unregistered association, may prove 
 under section 95, suh-section 5, of the Companies 
 Act, 1862, in the liquidation of a contributory for 
 all sums due from his estate, as a separate debt, in 
 the same-way as in the case of a registered com- 
 pany. Ex parte Ball ; In re Adams, Law Eep. 10 
 Chanc. 48. 
 
 {g) Proof by exemitors of partner against 
 co-partner, 
 
 11. — A firm of five partners carried on business 
 under a deed whch provided that in case any 
 partner should die liis shares in the capital should 
 be taken by the surviving partners at their value, 
 according to the stocli-taking immediately preced- 
 ing his death, with interest thereon, and that the 
 amount found due to the deceased partner should 
 be paid by the surviving partners to the executors 
 or administrators of the deceased partner by four- 
 teen equal annual instalments with interest until 
 payment, and that the punctual payment of the 
 instalments and interest should be secured by tlie 
 joint and several bond of the surviving partners. 
 One of the partners died in April, 1866, having by 
 his wiU appointed executors, whom he authorised 
 to permit his share of the capital to remain in the 
 hands of his partners at interest. The executors 
 allowed their testator's share to remain at 
 interest; its value was duly ascertained at the 
 stock-taking preceding hi.? death, but no bond was 
 given to the executors by the surviving partners. 
 In July, 1868, another partner retired. In July, 
 1 870, two Chancery suits ■were instituted to admi- 
 nister the testator's separate estate. In July, 
 1872, the three remaining partners filed a liqui- 
 dation petition. On the 30th of July, 1872, the 
 executors of the deceased partner tendered a proof 
 in the liquidation for the amount of his share in 
 the capital, as ascertained at the stock-taking pre- 
 ceding his death. The trustee admitted the proof, 
 but afterwards applied to have it expunged on the 
 ground that some of the debts due by the firm 
 when the testator was a member of it were still 
 unpaid. The Chief Judge held (reversing the deci- 
 sion of the County Court Judge), that the value of 
 the testator's share -was a more debt due from the 
 surviving partners to his executors, and that the 
 proof ought to be retained ; but upon appeal to 
 the Lords Justices this decision was reversed and 
 the proof expunged, their Lordships being of 
 opinion that the case was governed by the rule 
 which forbids a person to prove in competition 
 ■with his own creditors. Ex parte Gordon ; In re 
 Dixon, 44 Law J. Eep. (N.s.)Bankr. 17 ; Law Rep. 
 10 Chanc. 160. 
 
 DiUBST, 1870-1875. 
 
 [Affirmed on appeal to the House of Lords, to 
 Law J. Eep. (n.s.) Bankr. 89 ; Law Eep. 1 Ajp, 
 Cas. 195, nom. Nanson v. Gordon.'] 
 
 (7i) Advances to trader : share of profits. 
 
 12. — Where a person lends money to a trader 
 under an agreement stip-ulating that the lender is 
 to receive a sliare of the profits of the business, 
 and afterwards terminates tlie agreement, the 
 lender cannot prove, in the bankruptcy of the 
 trader, for sums advanced under the agreement, 
 even in competition with creditors •whose debts 
 were incurred subsequently to the termination of 
 the agreement ; but the lender can prove for any 
 further sums advanced by him at interest without 
 stipulating as to profits, even though such farther 
 sums were so advanced during the continuance of 
 the agreement. Ex parte Mills ; In re Tew, Law 
 Eep. 8 Chanc. 669. 
 
 (i) Double insolvency : bill of exchange. 
 
 13. — L., a shipbuilder, contracted ■with M. & 
 Co. to build a ship for 7,G0Ql., payable by instal- 
 ments, and it was stipulated that the vessel and 
 the materials sho^uld from the time of giving or 
 pajring the first instalment be deemed in every 
 respect and for all purposes to be the property of 
 M. & Co. to the extent of their advances, subject, 
 nevertheless, to the builder's lien for unpaid ad- 
 vances. Payment was to be made as to 1001. in 
 cash, and the rest in bills of exchange, to be given 
 from time to time during and according to the 
 progress of the "work ; and all bills given during 
 construction to be retired by M. & Co. at comple- 
 tion and transfer. Accordingly bills were from 
 time to time during the progress of the work 
 drawn by L. upon and accepted by M. & Co. to 
 the amount of 2,700Z., " for value received in iron 
 screw steamer now building," and discounted with 
 his bankers, Messrs. M. & Co. Before the ship 
 was completed, M. & Co. compounded with their 
 creditors, and L. became bankrupt. M. & Co. 
 then gave notice of abandoning the contract for 
 the ship, which was completed by the trustee in 
 L.'s bankruptcy. The bills having been dis- 
 honoured at maturity, Messrs. L. & Co., the 
 holders of the bills, claimed a lien upon the ship, 
 on the ground that it was a security to 31. & Co. 
 for indemnifying them against the payment of the 
 bills, and the claim "was allowed in the County 
 Court. But upon appeal the decision was re- 
 versed by the Chief Judge, and the reversal was 
 upheld by the Lords Justices. Ex parte Greener, In 
 re Lindsay ; and Ex parte Lambton, In re Lindsay 
 44 Law J. Eep. (n.s.) Bankr. 81 ; Law Eep. 10 
 Chanc. 405. 
 
 {J) Double proof : joint and separate estates. 
 
 14. — Messrs. C. being indebted to P. for money 
 advanced on account of contracts for the delivery 
 of goods which they were unablo to perform, 
 accepted bills for a portion of the money due, and 
 such bills were endorsed by P. to third parties. 
 Other bills had been given by P. to Messrs. C. on 
 
68 
 
 BANKRUPTCY (E). 
 
 account of other contracts for goods never de- 
 livered, and these bills were also in the hands of 
 third parties. Messrs C. & P. having both he- 
 come bankrupt, — Held, affirming the decision of 
 the Chief Judge, that the estate of P. was not 
 entitled to prove against the estate of Messrs. C. 
 for the w^hole of the cash advances, but only for 
 the balance after deducting the amount of the 
 bills accepted by them. Ex parte Walker (4 Ves. 
 393) distinguished. Ex parte Macredie; In re 
 Charles, 42 Law J. Eep. (n.s.) Bankr. 90 ; Law 
 Eep. 8 Chanc. 535. 
 
 Per Mellish, L.J. — ^The rxile that where there 
 are cross-acceptances between two houses, both of 
 which become bankrupt, there can be no proof as 
 between the two estates in respect of the bad 
 paper, only applies where the acceptances given 
 by the one party are the consideration for the 
 acceptances given by the other. Ibid. 
 
 15.— Section 37 of the Bankruptcy Act, 1869, 
 allowing a double proof where a person is liable as 
 ti sole contractor and also as member of a firm, 
 applies in the case of a joint and several covenant, 
 though the joint covenant was not expressed to be 
 made by the covenantors as partners, the covenant 
 being, as a matter of fact, to secure an advance 
 made for partnership purposes. Ex parte Stone ; 
 In re Welch, 42 Law J. Eep. (n.s.) Bankr. 73 ; 
 Law Eep. 8 Chauc. 914. 
 
 "Where a proof is made by the trustee of a 
 settlement under which the bankrupt is himself 
 interested, his interest cannot be made available 
 to the estate by way of set-off, but proof must be 
 allowed for the whole amount. Ibid. 
 
 16. — B. carried on business in England under 
 the style of D. & Co., and in Brazil under that of 
 D., L. & Co. Bills for 1,900Z. were drawn by 
 D., L. & Co. upon and accepted by D. & Co. in 
 favour of B. & Co. D. & Co. executed and regis- 
 tered a deed of assignment under the Bankruptcy 
 Act, 1861. D., L. & Co.'s assets in Brazil were 
 administered there according to the laws of Brazil, 
 and B. i& Co. received part payment of the 1,900Z. 
 there. B. & Co., notwithstanding the part pay- 
 ment, carried in their claim to prove and receive 
 dividends for the whole 1,900Z. imder the deed of 
 assignment : — Held (reversing the decision of a 
 County Court Judge), that although they might 
 be admitted to prove for the amount, they were 
 not to receive any dividend until after the other 
 creditors had received a dividend equal to that 
 received by B. & Co. in Brazil. Ex parte Wilson ; 
 In re Douglas, 41 Law J. Eep. (n.s.) Bankr. 46 ; 
 Law Eep. 7 Chanc. 490. 
 
 The 152nd section of the Bankruptcy Act, 1861, 
 did not apply to this case, there being only one 
 estate, that of William Douglas, to be woimd up 
 in bankruptcy, and not two "distinct estates" 
 within the meaning of that section. Ibid. 
 
 17.— A liquidating debtor, at the date of filing 
 his petition, was carrying on a trade at Brighton 
 in his own name, and a completely distinct trade 
 under another name in London. Three-fourths of 
 the profits of the London business were settled 
 upon A.'s wife for her separate use free from his 
 debts. The other fourth of the profits belonged to 
 
 A. The Brighton business was hopelessly insol- 
 vent : — Held, that the assets of the two businesses 
 constituted distinct estates, the one the separate 
 estate of the debtor, the other the joint estate of 
 him and the trustee of the settlement, and lihat 
 accordingly the ordinary rule in bankruptcy for 
 the payment of the joint and separate creditors 
 out of the debtor's joint and separate estates 
 respectively would apply, and the London creditors 
 were entitled to be paid the fall amount of their 
 debts out of the assets of the Loudon business 
 before the separate creditors of the debtor re- 
 ceived anything out of that estate. Ex parte New ; 
 In re Childs, 43 Law J. Eep. (n.s.) Bankr. 89 ; Law 
 Eep. 9 Chanc. 508. 
 
 18. — H. lent money to W., a member of a firm, 
 on the security of a joint and several promissory 
 note given by W., the firm, and four other persons : 
 — Held, on the bankruptcy of the firm, that H. 
 might prove against and receive dividends from 
 the joint estate of the firm and also the separate 
 estate of W. Ex parte Honey ; In re Jeffery, 41 
 Law J. Eep. (n.s.) Bankr. 9; Law Eep. 7 Chauc, 
 178. 
 
 19. — A father and his son carried on business 
 in partnership. The whole capital belonged to the 
 father, the son having onlyan interest in the profits. 
 The father died, and thereupon under the provi- 
 sions of the partnership deed the partnership was 
 dissolved, and all the profits became the property 
 of the father. The father appointed the son his 
 executor, and the son in that character received 
 moneys belonging to the father's separate estate 
 and employed them without any authority in the 
 business. A suit was afterwards instituted to ad- 
 minister the father's estate, and the son filed a liqui- 
 dation petition : — Held, that the receiver appointed 
 in the suit could prove in the sou's liquidation for 
 the moneys thus received by the son as executor and 
 misapplied. Ex parte Westoott; In re White, 43 Law 
 J. Eep. (n.s.) Bankr. 119 ; Law Eep. 9 Chanc. 626. 
 
 20. — A firm of five partners carried on business 
 under a deed which provided that in case any 
 partner should die his shares in the capital should 
 be taken by the surviving partners, at their value, 
 according to the stocktaking immediately preced- 
 ing his death, with interest thereon, and that the 
 amount found due to the deceased partner should 
 be paid by the surviving partners to the executors 
 or administrators of the deceased partner by 
 fourteen equal annual instalments, with interest 
 until payment, and that the punctual payment of 
 the instalments and interest should be secured by ■ 
 the joint and several bonds of the surviving part- 
 ners. One of the partners died in April, 1866, 
 having by his will appointed executors, whom he 
 authorised to permit his share of the capital to 
 remain in the hands of his partners at interest. 
 The .executors allowed their testator's share to 
 remain at interest. Its value was duly ascertained 
 at the stock-taking preceding his death, but no 
 bond was given to the executors by the surviving 
 partners. In July, 1868, another partner retired. 
 In July, 1870, two Chancery suits were instituted 
 to administer the testator's separate estate. In 
 July, 1872, the three remaining partners filed a 
 
bankeuptcy (e). 
 
 59 
 
 liquidation petition. On the 30th of July, 1872, 
 the executors of the deceased partner tendered a 
 proof in the ."liquidation for the amount of his 
 share in the capital as ascertained at the stock- 
 taking preceding his death. The trustee admitted 
 the proof, but afterwards applied to have it ex- 
 punged, on the ground that some of the debts due 
 by the firm when the testator -was a member of it 
 ■were still unpaid : — Held (reversing the decision 
 of the County Court Judge), that the value of the 
 testator's share was a mere debt due from the 
 surviving partner to his executors, and that the 
 proof ought to be retained. Ex parte Nanson ; In 
 re Dixon, 43 Law J. Rep. (n.s.) Bankr. 133. 
 
 Joint and separate assets : construction of 
 partnership deed. [See Pabtiter- 
 
 SHIP, 5.] 
 
 Joint and separate assets ; death of partner : 
 continuation of business by surviving 
 partners. [See Pabtnebship, 22.] 
 
 {k) Secured creditor. 
 
 21. — T. commenced an action against K. on a 
 biU of exchange. K. obtained leave to defend 
 upon terms of paying SSOl. into Court to abide the 
 event. The matter was submitted to arbitration, 
 but before any award was made K. became bank- 
 rupt. On the application of the trustee in bank- 
 ruptcy, the County Court Judge ordered the 880?. 
 to be paid to him for distribution amongst the 
 creditors : — Held, on appeal (reversing the decision 
 of the County Court), that T. was a creditor hold- 
 ing a security. Ex parte Tate ; In re Keijxmrth, 43 
 Law J. Eep. (n.s.) Bankr. 55 ; Law Eep. 9 Chanc. 
 379, nom. Ex pa/rte Banner. 
 
 22. — A debt was claimed as due from a bank- 
 rupt to the estate of a deceased person whose 
 estate was being administered by the Court of 
 Chancery. That Court appointed a person to prove 
 the debt in the bankruptcy and to vote at the 
 meetings of the creditors : — Held, that the person 
 so appointed was a gimsi receiver, and was en- 
 titled to prove the debt and to vote. Ex parte 
 Hare ; In re England, 44 Law J. Eep. (n.s.) Bankr. 
 8 ; Law Eep. 10 Chanc. 218. 
 
 The amount of the proof was larger than that 
 of all the other proofs together, but it was dis- 
 puted : — Held, that the proof must be investigated 
 by the registrar, and that the choice of a trustee 
 by the creditors must be postponed until after the 
 investigation had been made. Ibid. 
 
 23. — A garnishee's order and an attachment 
 Bsned under the Common Law Procedure Act, 
 1854, unless followed by seizure and sale before 
 the presentation of a petition for liquidation does 
 not make the creditor- a " secm-ed creditor" within 
 the meaning of the Bankruptcy Act, 1869. The 
 order of the County Court Judge, directing the 
 amount levied under such an order to be repaid to 
 the trustee in the liquidation, was confirmed. Ex 
 parte Greenway ; In re Adams, 42 Law J. "Rep. 
 (n.s.) Bankr. 110 ; Law Eep. 16 Eq. 619. 
 • 24.— On the 20th of April, 1870, E. obtained a 
 judgment against B. for ibl. 15s. lf)d. On the 
 
 22nd of the same month he obtained a garnishee 
 order served on the 23rd, attaching a debt due 
 from E. to B. of 55Z. The order was made ab- 
 solute on the 2nd of May, and the usual order 
 was made to levy as much as was sufficient to 
 satisfy the judgment debt, and a fi. fa. was de- 
 livered to the sheriff. B. was adjudicated bank- 
 rupt on the 3rd of May. The sheriff seized cer- 
 tain goods as the goods of E. on the 4th of May, 
 but they were on the 11th claimed by the trustee 
 of B., and, upon an interpleader, the goods were 
 sold and 31?. paid into Court. On the 21st of 
 May, 1869, E. had executed a bill of sale to B. of 
 the same goods to secure the repayment of a loan 
 of 147?. The bill of sale was registered and the 
 goods remained in the house of E. By the bill 
 of sale B. had the right in case E. failed in pay- 
 ment of certain instalments to enter and seize the 
 goods a*id either hold them or sell them, repaying 
 himself and paying the balance, if any, to E. 
 On the 22nd of April, 1870, the day on which the 
 garnishee order was made, B. instructed an auc- 
 tioneer ,to seize the goods and sell them in order 
 to repay the sum then due, that is, 55?. This was 
 done. On the 26th of April, when neither the 
 auctioneer nor B. had any notice of the attach- 
 ment, the former advanced to the latter 60?., and 
 was authorised to retain it out of the proceeds of 
 the intended sale. On the 30th the goods were 
 advertised for sale on the 2nd of May, as being 
 the goods of E., sold under a bill of sale, and on 
 the same day the auctioneer received notice of the 
 attachment. The sale did not take place owing to 
 E. obtaining an interim injunction to restrain the 
 sale, and on the 4th of May the sheriff seized the 
 goods : — Held, that the garnishee order constituted 
 E. a creditor holding security on the property of 
 the bankrupt within section 12 of the Bankruptcy 
 Act, 1869, and a charge on a part of the estate of 
 B. within section 16, sub-section 5. Emamicl v. 
 Bridger, 43 Law J. Eep. (n.s.) Q.B. 96 ; Law 
 Eep. 9 a.B. 286. 
 
 Held, also, that the auctioneer was entitled to 
 9?. 4s. 2(?., and that E. was entitled to the rest. 
 Ibid. 
 
 Held, also, that the BiUs of Sale Act did not 
 apply, inasmuch as the acts of the auctioneer were 
 sufficient to take the goods out of the possession 
 of E. at the time of the seizure. Ibid. 
 
 25. — P. & H. were partners. They filed a 
 joint petition, and F. also filed a separate petition. 
 The bankers of the firm held securities on the 
 separate estate of F. for moneys due to them from 
 the firm or from F., and on the separate estate of 
 H. for moneys due from the firm. The County 
 Court Judge considered that the right of the bank 
 was to take a dividend on the amount owing to 
 them on the joint account, to apply the proceeds 
 of the security in payment of the balance due on 
 the joint account, then to apply the balance of the 
 proceeds of the security towards payment of the 
 amount due on the separate account, and to prove 
 for the balance due upon the separate account, and 
 that to enable them to exercise their right he 
 ought to exercise his discretion under section 104, 
 and order the trustee to declare a dividend on tlia 
 i2 
 
60 
 
 BANKRUPTCY (E). 
 
 joint estate before declaring the dividend on the 
 separate estate : — Held (affirming the decision of 
 the County Court Judge), that the hank had a 
 right to apportion the proceeds of their securi- 
 ties in whatever way was most to their advan- 
 tage, and that to enable them to elect they were 
 entitled to an order that the dividend on the joint 
 estate should be declared first. Ex parte JDic/cin ; 
 In re Foster, 41 Law J. Eep. (n.s.) Bankr. 113 ; 
 Law Eep. 20 Ect. 767. 
 
 26. — P., being indebted to K., gave him a 
 policy of insurance on his own life as security. 
 Six years after, P. filed his petition for liquida- 
 tion. K. estimated the value of his security at 
 200^., and proved for the balance of his debt. 
 The trustee was satisfied with the value put upon 
 the security, and he did not offer to redeem, and 
 it was admitted tliat he had no intention of doing 
 so. K. intended to retain the policy, and con- 
 tinue to pay the premiums. Before any premium 
 was paid, 1?. died. On the question whether K. 
 or the trustee was entitled to the balance pro- 
 duced by the policy, after deducting the 200i., — 
 Held (affirming the decision of the County Court 
 Jxidge), that the balance of the fund, after deduct- 
 ing the estimated value of the security, must be 
 paid to the trustee. Ex parte King ; In re Pale- 
 thorpe, 44 Law J. Eep. (n.s.) Bankr. 92; Law 
 Eep. 20 Eq. 273. 
 
 27. — H. accepted bills of exchange to meet 
 goods consigned to him. The acceptances were 
 made payable " on delivery of the bills of lading." 
 The bills of lading remained, with the bills of 
 exchange, in the possession of the bank who had 
 discounted the latter for the drawers : — Held, on 
 the bankruptcy of the acceptor, that the goods 
 were part of his estate whioh the bank held as 
 security for their debt, and therefore that the 
 bank could only prove for the amount due on the 
 bills of exchange after deducting the value of the 
 goods. Ex parte Brett ; In re Howe, 40 Law J. 
 Eep. (n.s.) Bankr. 54 ; Law Eep. 6 Chanc. 838. 
 
 (J) Preferential debt : payment in full. 
 
 28. — A music master, attending a school twice 
 a week, and paid at the rate of 2s. Qd. an hour 
 for the time during which he was occupied; and a 
 drill sergeant attending twice a week, and paid at 
 the rate of four shillings a lesson,- — Held not to 
 be clerks or servants, labourers or workmen, with- 
 in the meaning of section 32 of the Bankruptcy 
 Act, 1869, so as to be entitled to payment of their 
 salary or wages in full. Held also, that even if 
 they were, the section would not apply in the case 
 of a composition. Ex parte Walter ; In re Heath, 
 42 Law J. Eep. (n.s.) Bankr. 49 ; Law Eep. 15 Eq. 
 412. 
 _ 29. — Under the liquidation of B., five workmen 
 claimed debts of less than 50?. each. The Coimty 
 Court Judge, after several adjournments, ordered 
 the trustee to pay these debts. The trustee ap- 
 pealed on the ground that if he paid the debts, 
 he should have no funds to investigate the affairs 
 of the debtor : — Held (dismissing the appeal), that 
 I the claimants were entitled to have their debts 
 paid at once in full. Ex parte Powis ; In re Bowen, 
 
 43 Law J. Eep. (n.s.) Bankr. 24; Law Eep. 17 
 Eq. 130. 
 
 Trust and trustee : following trust-moneys 
 into hands of consignee. [See Sale 
 OF Goods, 24.] 
 
 {m) Procedwre and evidence. 
 
 [And see infra Piiactioe.] 
 
 30. — Where an order has been made by the 
 registrar for the stay of proceedings on applica- 
 tion for adjudication, upon the debtor giving secu- 
 rity for what shall be recovered in an action at 
 law, and the security is not gjiven, the registrar 
 must investigate the debt himself. The debt 
 being claimed as the balance of an accoimt, he 
 shotdd go through the account with vouchers, as 
 a Chief Clerk in Chancery would do. Ex parte 
 Harris ; In re Harris, 44 Law J. Eep. (n.s.) Bankr. 
 33 ; Law Eep. 10 Chanc. 264. 
 
 Where a negotiation for a compromise is com- 
 menced by one letter written " without prejudice," 
 the whole is protected. Ibid. 
 
 31. — P., a creditor, proved under proceed- 
 ings for the liquidation by arrangement of the 
 affairs of E., the proof being made prior to the 
 appointment of the trustee. Subsequently to 
 the proof being made, the trustee caused P. to be 
 summoned for examination under section 96. The 
 course of the examination was such as to shew 
 that the trustee was not satisfied with the proof, 
 and the registrar ordered P. to furnish further 
 accounts. These further accounts never were fur- 
 nished, although demanded in writing by the 
 trustee. After a lapse of two years, the trustee 
 having taken no further step with respect to P.'s 
 proof, declared a dividend, which he paid to all 
 the creditors except P. Upon motion by P. for 
 an order under Eule 313, a registrar ordered the 
 trustee to pay the dividend to P. On appeal 
 against this order, — Held, that the notice to P, 
 from the course of the examination was not a 
 sufficient notice under Eule 72 that the trustee 
 required further evidence in support of the proof, 
 and that, two years having elapsed without such 
 notice or notice of rejection having been given, 
 the trustee must be taken to have admitted the 
 proof. Order of registrar to be affirmed, but 
 the objection to the proof appearing to be sub- 
 stantial, order to be suspended for fourteen days, 
 to enable the trustee to apply under Eule 73 to 
 expunge the proof. Ex parte Kemp ; In re 
 Russell, 42 Law J. Eejp. (n.s.) Bankr. 26. 
 
 Semble — that an application for payment of a 
 dividend may be made by motion where it is cer- 
 tain to be opposed, instead of by Form 50 of the 
 schedule to the Bankruptcy Eules, 1870, under 
 Eide 135. Ibid. 
 
 Whether proof of a debt under section 16, sub- 
 sec. 2 of the Act, and Eule 67, for the purpose of 
 entitling the creditor to vote, is different from 
 the proof under section 26, suVsec. 1, section 41 
 and Eule 72, which entitles him to a dividend — 
 quaere. Ibid. 
 
 32. — W. tendered a proof of a debt, and voted 
 at a first meeting in favour of a composition. At 
 
BAHKRUPTCY (E), (F). 
 
 ^61 
 
 the second meeting being advised that his proof 
 might prejudice a security he held, he desired to 
 ■withdraw it. The composition fell through, and 
 therefore tlie vote at the first meeting had no 
 effect. The registrar declined to allow the proof 
 to be taken off the file : — Held, that under the 
 circumstances the proof might be taken off the 
 file. Ex parte JViUiams ; In re Williams, 43 Law 
 J. Eep. (n.s.) Bankv. 105 ; Law Rep. 18 Eq. 373. 
 33. — Where a creditor of a bankrupt tenders 
 proof of a debt due to him on biUs of exchange, 
 the bills must, unless there be some special rciison 
 to the contrary, be produced before the proof can 
 be admitted. In case of their non-production, the 
 creditor will not be entitled to vote as to the ap- 
 pointment of a trustee. Ex parte Jacobs ; In re 
 Garter, 43 Law J. Kep. (n.s.) Bankr. 46 ; Law Eep. 
 17 Eq. 675. 
 
 (F) Mutual Obedit. 
 
 1. — The mutual credit clauses in the Bank- 
 ruptcy Acts apply only to a winding up of the 
 estate as between the bankrupt and a creditor. 
 Se Matos v. Bannders, Law Eep. 7 0. P. 571. 
 
 2. — ^An adjudication in bankruptcy under the Act 
 of 1869 having been made against the defendant, 
 his trustee in bankruptcy sold part of the estate, 
 and paid the proceeds into a bank to an account 
 which he kept as such trustee. The bank knew 
 the circumstances, and also that an appeal against 
 the adjudication was pending. The bank after- 
 wards became bankrupt, and subsequently the 
 adjudication against the defendant was annulled 
 by the Court of Appeal, on the ground that no act 
 of bankruptcy had been committed. The Court 
 made no order xiuder section 8 1 as to the vesting 
 of the defendant's property. The trustee in bank- 
 ruptcy of the bank having brought an action 
 against the defendant for a debt due to the bank 
 before the defendant's bankruptcy : — Held, affirm- 
 ing the judgment of the Court below (40 Law J|. 
 Kep. (n.s.) Exch. 189 ; Law Eep. 6 Exch. 279), that 
 the defendant could set off equitably the money 
 paid by his trustee into the bank. JSailey v. John 
 son (Ex. Ch.), 41 Law J. Eep. (n.s.) Exch. 211 ; 
 Law Eep. 7 Exch. 263. 
 
 3. — The plaintiff, as trustee under the Bank- 
 ruptcy Act, 1869, of K. & Co., bankers, sued the 
 defendant for money lent, the balance due upon his 
 private account. The defendant had another ac- 
 count with the bank as executor of A., and at the 
 time of the bankruptcy the balance on this account 
 was in his favour. IJnder the will of A. the de- 
 fendant was both executor and residuary legatee, 
 and at the time of the bankruptcy he had assets 
 in his hands, exclusive of the balance in the bank, 
 more than sufficient to provide for all bequests 
 which remained unpaid, and to leave a balance 
 due to him as residuary legatee : — Held, that he 
 was entitled to set off the balance due to him on 
 the executorship account, since the bank might 
 have sued him in his own name if he had over- 
 drawn the account due to him as executor, and 
 the only effect of opening the accoimt aa executor 
 was to give notice that there might be equitable 
 rights as against the person opening the account, 
 
 though in the present case there was no sugges- 
 tion of auy equity against the defendant. Bailey 
 T. Finch, 41 Law J. Eep. (N.s.) Q. B. 83; Law 
 Eep. 7 Q. B. 34. 
 
 4. — The separate assignments by partners of 
 their separate estates to trustees for the benefit 
 of their creditors, one of which assignments is 
 registered under the Bankruptcy Act of 1861, and 
 the other not, do not operate as a bankruptcy of 
 the firm, so as to bring into operation the provision 
 of section 171 of the Bankruptcy Act of 1849 as to 
 set-off for mutual credits. The London, Bombay 
 and Mediterranean Bank v. Narraway, 42 Law J. 
 Eep. (n.s.) Chanc.,329; Law Eep. 15 Eq. 93. 
 
 Semble — where, preidously to the date of 
 winding up of a bank, it had indorsed for value 
 certain acceptances of a firm to which it was liable, 
 the bank cannot subsequently restore the right of 
 set-off by a conditional agreement under which 
 the indorsees re-indorsed the bills to the bank for 
 the purpose of establishing the right, the bank 
 and such indorsees to share in the benefit to be 
 obtained by the set-off. Ibid. 
 
 5. — Under the 39th section of the Bankruptcy 
 Act, 1869 (32 & 33 Vict. c. 71), the right of 
 set-off in cases of mutual credits, mutual debts 
 and other mutual dealings extends to unliquidated 
 damages. The word " liability," as defined by the 
 31st section of the same Act, includes rents. 
 Booth V. Hntchinson, 42 Law J. Eep. (n.s.) Chanc. 
 492; Law Eep. 15 Eq. 30. 
 
 At the date of a creditors' deed, G., the bank- 
 rupt, was under a liability for unascertained da- 
 mages to B. in respect of a breach of covenant, 
 and B. was indebted to Gr. 40/. for rent. After 
 the date of the deed, but before complete distribu- 
 tion of the estate, B. brought his action, and the 
 amount of the damages was fixed at 50/. : — Held, 
 that these were "mutual dealmgs" between Gr. 
 and B., within the meaning of the. 39th section of 
 the Bankruptcy Act, 1869, so as to entitle B. to 
 set off the damages recovered by him in the action, 
 although unliquidated at the date of the deed 
 against all rent due from him, not only at the date 
 of the deed, but down to the " close of the bank- 
 ruptcy," i.e. to the analogous period of the com- 
 plete distribution of the estate under the creditors' 
 deed. Ibid. 
 
 6.— E., on the 14th of December, 1869, held 
 a bill accepted by D., which would arrive at 
 maturity on the 22nd of January, 1870. On the 
 14th of December D. executed a deed in favour of 
 his creditors, assigning his property to be adminis- 
 tered as if he had been adjudicated bankrupt at 
 the date thereof. On the 15th of December a bill, 
 drawn on E. and held by D., was presented for 
 acceptance, and was afterwards, on the 17th of 
 January, 1870, accepted as from the 15th of De- 
 cember. E. was one of the trustees of the deed, 
 and executed it on the 22nd of December ; and 
 the deed was registered under the Bankruptcy Act, 
 1861, on the 30th of December. The two bills 
 were of the same amount : — Held, that the two 
 bills could not be set off one against the other. 
 Selby v. Greaves (37 Law J. Eep. (n.s.) C.P. 251) 
 followed, Ex parte Ryder; hv re Douglas, 40 Law 
 
62 
 
 BANKROTTCY (F), (G). 
 
 J. Eep. (n.s.) Bankr. 63; Law Hep. 6 Chane. 
 413. 
 
 7.— Section 39 of the Bankruptcy Act, 1869, 
 enacting that where there have been mutual 
 credits, &c., between the bankrupt and any other 
 person claiming to prove under the bankruptcy, 
 the sum due from one party shall be set off against 
 any sum due from the other party and the balance 
 only shall be claimed or paid, establishes an abso- 
 lute statutory rule, and the fact that one party 
 holds a lien or security for his debt will not affect 
 the operation of the rule. Ex parte Barnett ; In re 
 Seveze, 43 Law J. Eep. (n.s.) Bankr. 87 ; Law 
 Eep. 9 Chanc. 293. 
 
 8. — A sum at which a policy of insurance has 
 been valued in the winding up of an insolvent in- 
 surance company is not a debt due within sec. 39 
 of 32 & -33 Vict. u. 71, and cannot be set off 
 under the bankruptcy of the policy holder against 
 a loan to him by the insurance company on the 
 security of the policy. Ex parte Price ; In re Lan- 
 kester, Law Eep. 10 Chane. 648. 
 
 (G) Tkustee. 
 
 (a) Appointment of trustee. 
 
 1. — The adjudication of bankruptcy was ob- 
 tained upon the petition of a creditor for 3,232Z. 
 There were only two other unsecured creditors, 
 for 6^l. and i'U. respectively, and a very few 
 secured creditors. At the first meeting of creditors 
 the large creditor alone appeared, and no trustee 
 could be appointed : — Held, that it was a proper 
 case under section 84 to carry on the bankruptcy 
 with the aid of the registrar as trustee. In re 
 Finney; Ex parte English Joint Stock BanJc, 40 
 Law J. Eep. (n.s.) Bankr. 43 ; Law Eep. 6 Chanc. 
 79. 
 
 (4) Property in reputed ownership of bankrupt. 
 (1) General scope of order and disposition clauses. 
 
 2. — A railway company not authorised by its 
 statutes to invest in stock or shares of other com- 
 panies, purchased stock of another company, and 
 held it transferred to a trustee for them. The 
 trustee was registered as on-ner of the stock, and 
 notice of the trust was given to the company, 
 whose shares were purchased. The trustees be- 
 came bankrupt : — Held (reversing the decision of 
 the Master of the EoHs, 41 Law J. Eep. (n.s.) 
 Chanc. 634), that the shares did not pass to his 
 assignees. The Great Eastern Sail. Co. v. 
 Tttmer, 42 Law J. Eep. (n.s.) Chanc. 83 ; Law 
 Eep. 8 Chanc. 149. 
 
 3. — Clause 6 of section 15 of the Bankruptcy 
 Act, 1869, by which the property of a bankrupt 
 divisible among his creditors is to comprise " all 
 goods and chattels, being at the commencement 
 of the bankruptcy in the possession, &c. of the 
 bankrupt, being a trader, by the consent and per- 
 mission of the true owner," applies only where the 
 bankrupt is in the sole possession of the goods as, 
 the sole reputed owner. Therefore, where goods 
 Were held under a lease by two partners, one of 
 thorn being an infant, who both joined in com- 
 
 mitting an act of bankruptcy, but of whom the 
 adult partner only was adjudicated a bankrupt, — 
 , Held, that the clause did not apply. ^Ex parte 
 Dorman ; In re Lake, 42 Law J. Eep. (n^s.) Bankr. 
 20 ; Law Eep. 8 Chanc. 61. 
 
 Goods in the possession of a trader were taken 
 in execution by the sheriff: whilst the goods were 
 in the possession of the sheriff the true owners 
 gave him notice that they claimed the goods: — 
 Held, that such notice was not a contract or dealing 
 with the bankrupt within the meaning of section 94, 
 clause 3, of the Banlcruptcy Act, and was inopera- 
 tive to take the goods out of the possession of the 
 bankrupt. Ibid. 
 
 4.— A trader hired household furniture under 
 a written agreement, whereby he was to pay a 
 weekly rent for the use thereof, and was to insure 
 the same, and the onner was empowered to re- 
 possess himself of the same upon the hirer be- 
 coming banki'upt. The hirer became bankrupt. 
 At the time of the bankruptcy the furniture 
 remained in his house, in his apparently uncon- 
 trolled possession. Although no evidence was 
 adduced of the existence of a custom of hiring 
 furniture, — Held, that the Court must take notice 
 of such custom, and that the goods were not in 
 the order and disposition of the bankrupt. Ex 
 parte Emerson ; In re HawJcins, 40 Law J. Eep. 
 (n.s.) Bankr. 20. 
 
 5. — A trader, in July, 1869, sold all his house- 
 hold furniture for 192Z.. and at the same time 
 agreed with the pui-chaser to hire it back for 
 125. Qd. per week. Under this agreement the 
 trader remained in possession of the furniture 
 until November, 1 873, when he filed a liquidation 
 petition :— Held, that the debtor was the reputed 
 owner of the furniture, and that it belonged to 
 the trustee under the liquidation. Lingham v. 
 Biggs (1 Bos. & P. 82) and Linqard v. Messiter 
 (1 B. & C. 308 ; s. c. 1 Law J. Eep. (o.s.) K. B. 
 121) are still binding authorities. Ex parte 
 Levering; In re Jones (No. 2), 43 Law J, Eep. 
 (n.s.) Baiikr. 60 ; Law Eep. 9 Chanc. 621. 
 
 6. — Where, under the decree of the Court, one 
 of two partners purchased a business as a going 
 concern, and was let into possession, but did not 
 pay the purchase-money or interest, and ulti- 
 mately became bankrupt, — Held, that the Court 
 had parted with the control of the partnership 
 property, and that the business and property were 
 therefore in the order and disposition of the 
 bankrupt, with the consent of the true owner, 
 Graham v. McCulloch, Law Eep. 20 Eq. 397. 
 
 (2) Custom of trade. 
 7.— By the custom of the spirit tratle at Liver- 
 pool ]t was the practice of the purchaser, after 
 buynig goods, to leave them in the vendor's 
 bonded warehouse, or in a, neutral bonded ware- 
 house, subject to the vendor's order in the ven- 
 dor's name till the purchaser should require the 
 goods, he paying a rent for the use of the ware- 
 house.^ The custom being well known,— Held 
 reversing the decision of the Chief Judge in 
 Banlcruptcy, and affirming that of the Comity 
 Court Judge, that goods so left were not in the 
 
BANKRUPTCY (G). 
 
 63 
 
 possession, order, or disposition of the vendors as 
 reputed owners. Ex parte Watkins; In re CouU 
 ston, 42 Law J. Eep. (n.s.) Bankr. 50 ; Law Eep, 
 8. Chano. 520. 
 
 8. — At the commencement of the liquidation of 
 certain wine and spirit merchants, some whisky 
 which they had sold was lying in the honded 
 warehouse of a third party to the order of the 
 vendors. The delivery order was not sent to the 
 purchaser till after the liquidation petition had 
 been filed. It was shewn that it is the well- 
 known custom in the wine and spirit trade for 
 goods after sale to remain in the bonded ware- 
 house of the vendor, or of that of a third party 
 to his order, till the purchaser requires them 
 for use : — Held (reversing a decision of Bacon, 
 C.J.), that the custom excluded reputation of 
 ownership in the vendors, and that the purchaser 
 was entitled to the whisky, the giving of the 
 delivery order being immaterial. Held, also, 
 that it was immaterial that the goods were in 
 the warehoiise of a third party, instead of being 
 in the vendor's own warehouse, as in Ex parte 
 Watkins (see last case). Ex parte Vdux ; In re 
 Coiision, 43 Law J. Eop. (n.s.) Bankr. 113; Law 
 Eep. 9 Chanc. 602. 
 
 (3) Consent of true owner. 
 
 9. — A trader debtor assigned goods to his 
 creditor as security for the payment of his debt 
 on a certain day, by a bill of sale which autho- 
 rised the creditor to enter the house at any time, 
 take possession of the goods, and, if refused ad- 
 mission, break into the house. The debtor re- 
 tained possession, without interference by the 
 creditor, till the day when payment was due. On 
 that evening and the next morning the credi- 
 tor's agents kicked at the gates and tried for 
 hours to get in, intending to take possession. The 
 gates were kept closed, and they were refused ad- 
 mission till the debtor had filed a petition in 
 liquidation under the Bankruptcy Act, 1869, and 
 thereby committed an »ct of bankruptcy. A 
 trustee was afterwards appointed, who claimed 
 the goods as being, at the commencement of the 
 bankruptcy, in the possession of the debtor, as 
 reputed owner, by the consent of the true owner : 
 — Held, that, though the creditor had made no 
 actual demand of possession, yet, as he had done 
 all in his power to take possession short of a 
 forcible entry, there was no consent of the true 
 owner within the meaning of section 1 5, sub-sec- 
 tion 5, and that the creditor was entitled to his 
 security. Ex parte Cohen ; In re Sparke, 40 Law 
 J. Eep. (n.s.) Bankr. 14. 
 
 10.— -Wiere before the commencement of a 
 bankruptcy the owner of goods in the possession 
 or under the control of the bankrupt demands the 
 goods, bona fide, with the object of obtaining de- 
 livery of them, his consent to their remaining 
 in or under the bankrupt's possession or control is 
 determined by the demand. Accordingly where a 
 publican purchased of spirit merchants certain 
 hogsheads of whisky, stored in the bonded ware- 
 house of a third party, subject to the vendor's 
 control, and the purchaser paid to the vendor the 
 
 price of the goods and also the sum required to 
 clear a particular hogshead of the whisky and 
 demanded delivery thereof, although the vendor 
 filed a petition for liquidation before any steps were 
 taken for delivering the hogshead, the purchaser 
 was held to be entitled to the hogshead as against 
 the trustee in liquidation. Ex parte Ward ; In re 
 Couston, 42 Law J. Eep. (n.s.) Bankr. 17; Law 
 Eep. 8 Chano. 144. 
 
 11, — Upon the death of an intestate his ad- 
 ministratrix continued his business on her own 
 account and took possession of certain furniture 
 forming part of his estate, but which had been 
 mortgaged by him to plaintiffs under an unregis- 
 tered bill of sale, She remained in possession of 
 the furniture for fourteen months, ostensibly as 
 absolute owner, no steps having been taken by the 
 plaintiffs to enforce their bill of sale. She then 
 became bankrupt; whereupon the plaintiffs insti- 
 tuted a creditors' suit against her for the adminis- 
 tration of the intestate's estate, and claimed tho 
 furniture as part of his estate : — Held, that the 
 furnitm-e was at the time of the bankruptcy of the 
 administratrix in her order and disposition with 
 the consent of the plaintiffs as true owners, and 
 therefore passed to her creditors and not to the cre- 
 ditors of the intestate. Kitchen v. Ibbeison, 43 Law 
 J. Eep. (n.s.) Chano. 52; Law Eep. 17 Eq. 46. 
 
 12. — C. was the holder of a registered bill of 
 sale of goods. The sheriff seized these goods on 
 behalf of an execution creditor. Two days after 
 the sheriff seized, the debtor filed his petition, and 
 the trustee in the liquidation took possession of 
 the goods, before possession was either demanded 
 or taken by the holder of the bill of sale : — Held 
 (affirming the decision of the County Court Judge), 
 that the ^vrongful seizure by the sheriff did not 
 prevent the goods from being in the order and dis- 
 position of the debtor, with the consent of the true 
 owner, when he filed his petition, and that they 
 therefore passed to the trustee. Ex parte Edey ; 
 In re Cuthhertson, 44 Law J. Eep. (n.s.) Bankr, 
 55; Law Eep. 19 Eq. 264. 
 
 (4) Things in action. 
 
 13. — F. became indebted to B. in 1,690^,, and 
 
 gave him a letter in which he promised to hold 
 some shares in trust for him, subject, however, to 
 a, debt for which they were pledged to the Bank 
 of Ireland. The shares were registered in the 
 name of an officer of the bank. P. filed a liqui- 
 dation petition : — Held (reversing the decision of 
 the County Court), that the interest in the shares 
 was a thing in action, and that the order and dis- 
 position clause did not apply. B. was therefore 
 entitled to security, subject to the interest of the 
 bank. Ex parte The Union Bank of Manchester 
 (40 Law J. Eep. (n.s.) Bankr. 57 ; No. 15 infra) 
 distinguished. Ex parte Barry; In re Fox, 43 
 Law J. Eep. (n.s.) Bankr. 18; Law Eep. 17 Eq. 
 113. ^ 
 
 14.— The word "debts" in section 16, sub- 
 section 5, of the Bankruptcy Act, 1869 (the reputed 
 ownership clause), which is not to include " things 
 in action other than debts due to the bankrupt in the 
 course of his trade or business" (though it would 
 
64 
 
 BANKEUPTCy (G). 
 
 include detts payable in future), does not include 
 debts depending on a contingency. Ex parte 
 Kampe ; In re Fastnedge, 43 I/aw J. Rep. Bankr. 
 50 ; Law Eep. 9 Chanc. 383. 
 
 On discounting bills of a firm of merchants 
 drawn on their consignees, the bankers gave (ac- 
 cording to the usual custom) marginal notes to 
 represent the balance of the price of the bills which 
 was retained by them till the bills were paid, and 
 which was to be then paid over, subject to any 
 claim by the bankers. These notes were "deposited 
 by the merchants as security, and were so held 
 when the merchants went into liquidation, the bills 
 of exchange not having then been paid : — Held, 
 tliat the notes did not represent " debts " within 
 the meaning of the above clause, but that they 
 were excepted from the operation of the clause as 
 ehoses in action. Ibid. 
 
 15. — Shares in a gas company registered under 
 7 & 8 Vict. c. 110, were held not to be "things 
 in action " within the proviso of section 1 5, sub- 
 Bfiction 5, of the Bankruptcy Act, 1869, and 
 therefore where the certificates of such shares 
 had been deposited as a security for advances, 
 without notice to the gas company, the shares were 
 property distributable among the creditors of the 
 registered owner. In re Jackson; Ex parte the 
 Union Bank of Manchester, 40 Law J. Eep. (n.s.) 
 Bankr. 57 ; Law Eep. 12 Eq. 354. 
 
 16. — Assignees of policies gave no notice to the 
 insurance offices till after the bankruptcy and sub- 
 sequent death of the assignor whose life the poli- 
 cies insured. The assignee in bankruptcy had not 
 then given notice : — Held, that the policies be- 
 longed to the estate of the bankrupt. In re Currie, 
 41 Law J. Eep. (n.s.) Banlir. 55 ; Law Eep. 13 Eq. 
 188. 
 
 17. — A policy of insurance on the life of A. was 
 assigned to B. in 1845, and in 1858, before the pass- 
 ing of 30 & 31 Vict. c. 144, =. 3 (which requires 
 notice to the insurance company of assignment of a 
 policy made after that Act to be in writing), B.'s 
 attorney wrote to N., who was secretary of the in- 
 surance company liable under the policy, stating 
 that as he would have to call on him on a day then 
 named to pay the premium on this policy, the 
 number of which he gave, he would take that op- 
 portunity of conferring with him on the subject of 
 a loan from the company to a local board of health, 
 in which he was interested. He accordingly called 
 on that day, and paid the premium, when, during 
 his interview with N., he informed him of the 
 policy having been assigned to B. In 1862, A., 
 the assured, became bankrupt : — Held, upon a case 
 on which the Court was to draw inferences of fact, 
 and in which it was stated that N. had no recol- 
 lection of having been so informed, that there was 
 sufficient notice to the insurance office of the as- 
 signment of the policy to take the policy out of 
 the order and disposition of the bankrupt. AUet- 
 son V. Chichester ; Wake, claimant, 44 Law J. Eep. 
 (n.s.) C.P. 163 ; Law Eep. 10 O.P. 319. 
 
 (5) Effect of hill of sale. 
 
 18. — A registered bill of sale does not take 
 goods thereby assigned out of the reputed owner- 
 
 sliip of the assignor if the;f remain in his posses- 
 sion, though the possession may be in accordance 
 witii the terms of the instrument. Ashton v. 
 BlacJcshaw (39 Law J. Eep. (n.s.) Chanc. 20S ; Law 
 Eep. 9 Eq. 610) remarked on. Ex parte Homan ; 
 In re Broadhent (Law Eep. 12 Eq. 698) explained. 
 Ex parte Harding ; In re Fairbrother, 42 Law J. 
 Eep. (n.s.) Bankr. 30 ; Law Eep. 15 Eq. 223. 
 
 19, — P., a trader, on the 23rd of September, in 
 consideration of H. discounting some acceptances 
 which would fall due within twenty-one days, gave 
 H. a bill of sale on his furniture. It was arranged 
 that the bill of sale should not be registered before 
 the acceptances became due and were dishonoured. 
 They were so dishonoured on the 12th of October. 
 On that day P. gave H. fresh acceptances in lieu of 
 the old ones, and a second bill of sale of the furni- 
 ture. The same arrangement as before was made 
 respecting the registration of this bill of sale. On 
 the 30th of October the last-mentioned accept- 
 ances were dishonoured, and H. instructed his 
 broker to take possession of the furniture. On the 
 31st of October H. registered the bill of sale, and 
 P. committed an act of bankruptcy. On the same 
 day the broker attempted to obtain possession of 
 the goods, but was refused admission to the house 
 until next day, when he took possession : — Held, 
 that the second bill of sale having been made upon 
 a new arrangement and for a fresh consideration, 
 and having been duly registered within twenty- 
 one days, was valid, and that since the creditor 
 before the bankruptcy had done all he could to 
 obtain possession of the goods, the order and dis- 
 position clause did not apply. Ex parte Harris ; 
 In re Pulling, 42 Law J. Eep. (k.s.) Bankr. 9 ; 
 Law Eep. 8 Chanc. 48. 
 
 (6) Apparent possession under Bills of Sale Act. 
 [See Bin of Sale.] 
 
 (c) Proceeds of sale and seizure of goods. 
 [See also infra L 9, 10.] 
 
 (1) Creditor holding security. 
 
 20. — When a warrant has been issued from a 
 County Court against the goods of a debtor for 
 a sum less than 50^., or a writ from a Superior 
 Court delivered to the sheriff for a like sum pre- 
 vious to an act of bankruptcy being committed by 
 the debtor, but no seizure has been made until 
 after the act of bankruptcy, the execution creditor 
 is not a " creditor holding security upon the pro- 
 perty of the bankrupt " within the meaning of the 
 12th section of the Bankruptcy Act, 1869, and 
 therefore has no title to the goods of the debtor 
 as against the trustee under the bankrujtey. Ex 
 parte Williams; In re Davies, 41 Law J. Eep, 
 (n.s.) Bankr. 38 ; Law Eep. 7 Chanc. 314. 
 
 (2) Trader ; who is. 
 
 21. — The sheriiF seized in execution of a writ 
 of/, fa. goods of a non-trader. Before sale the 
 sheriff was served with notice of a petition for 
 liquidation, and an injunction to restrain the sale : 
 — Held, that the judgment creditor was entitled 
 
BANKEUPTOY (G). 
 
 65 
 
 to have his debts satisfied out of the proceeds of 
 the goods. Ex parte Bailey ; In re Jecks, 41 Law 
 J. Eep. (n.s.) Banfa-. 1 ; Law Hep. 13 Eq. 3U. 
 
 The debt for which the goods were seized was 
 contracted by the debtor while trading, but he 
 had ceased to carry on trade : — Held, that he was 
 not a trader within the meaning of section 87 of 
 the Bankruptcy Act, 1869. Ibid. 
 
 (3) " Judgment for sum exceeding 501." 
 
 22. — The true construction of the 87th section 
 of the Bankruptcy Act, 1869, which enacts that, 
 " Where the goods of any trader have been taken 
 in execution in respect of a judgment for a sum 
 exceeding 501." and sold, the proceeds of sale are 
 to be paid to the trustee in bankruptcy, is that 
 the proceeds of sale are to be paid " where the 
 goods, &c., have been taken in execution for a sum 
 exceeding 501. in respect of a judgment." There- 
 fore where goods of a trader were taken in respect 
 of a judgment debt of less than 501. but the debt 
 and costs of execution together exceeded 501. the 
 proceeds of the sale of the goods must be paid to 
 the trustee in bankruptcy. Ex parte Liverpool 
 Loan Co.; In re Bullen, 42 Law J, Eep. (n.s.) 
 Bankr. 14 ; Law Eep. 7 Chano. 732. 
 
 (4) Proceeds of sale. 
 
 23. — ^Money paid by a trader to a sheriff's 
 officer in part payment of the execution creditor's 
 debt and in order to prevent the levying of execu- 
 tion is not within the 87th section of the Bank- 
 ruptcy Act, 1869, relating to proceeds of sale of 
 goods taken in execution, and if accepted by the 
 creditor, may be retained by him notwithstanding 
 the bankruptcy of the debtor within fourteen days. 
 Decision below (43 Law J. Eep. (n.s.) Bankr. 35) 
 overruled. Ex parte Brooke ; In re Hassall, 43 
 Law J. Eep. (n.s.) Bankr. 49 ; Law Eep. 9 Chanc. 
 301. 
 
 24. — Goods of a trader debtor were seized under 
 a fi.fa., for an amount exceeding 501. He paid the 
 sheriff two sums on account of the judgment debt, 
 and the execution creditors assented to those pay- 
 ments. Within fourteen days of the seizure the 
 debtor filed a petition for liquidation, and the 
 sheriff was restrained. No sale was made. Trus- 
 tees were afterwards appointed. They claimed the 
 sums which had been paid to and were in the hands 
 of the sheriff: — Held (following Ex parte Brooke ; 
 In re Hassall, 43 Law J. Eep. (n.s.) Bankr. 49), 
 that the money belonged to the execution credi- 
 tors, since it could not be deemed the proceeds of 
 a sale within the terms of section 87 of the Bank- 
 ruptcy Act, 1869. Stock v. Holland, 43 Law J. 
 Kep. (n.s.) Exch. 112 ; Law Eep. 9 Exch. 147. 
 
 (5) Notice of act of bankruptcy. 
 
 25. — By section 95 of the Bankruptcy Act, 
 1869, it is provided that any execution against the 
 goods of a bankrupt executed in good faith, by 
 seizure and sale, before the date of the order of 
 adjudication, shall be valid, notwithstanding any 
 prior act of bankruptcy, if the person on whose 
 account such execution was issued had not at the 
 Digest, 1870-1875. 
 
 time of the same being executed by seizure and 
 sale, notice of any act of bankruptcy csmmitted by 
 the bankrupt and available against him for adju- 
 dication. Goods in the possession of B. were 
 seized under an execution against him on the 26th 
 of February. On the next day, his attorneys 
 wrote to the attorneys of the execution creditors, 
 that B. "made an assignment of what goods he 
 had, and it was arranged that his daughter should 
 raise the money, but ttiis we find was nerer finally 
 arrived at." This assignment was in fact to a 
 trustee for the benefit of his creditors. On the 1st 
 of March a petition for adjudication was pre- 
 sented, and on the 10th of March B. was adjudi- 
 cated a bankrupt. On the 9th the sheriff sold the 
 goods under the execution : — Held, that the exe- 
 cution was protected, as the letter of the 27th of 
 February did not amount to a notice that B. had 
 committed an act of bankruptcy. Evans v. Hallam, 
 
 40 Law jr. Eep. (n.s.) Q.B. 229 ; LawEe'p. 6 Q.B. 
 713. 
 
 26. — The goods of M. ha-\nng been seized and 
 sold under an execution, notice was duly' served 
 on the sheriff under section 87 of 32 & 33 Vict, 
 c. 71, of a petition in bankruptcy against M. 
 This petition was, under the above statute, pre- 
 ferred in the G. County Court against M., as a 
 gentleman residing within the district of that 
 Court, and not residing or carrying on business in 
 the London district, and alleged an act of bank- 
 ruptcy which would render even a non-trader 
 liable to be made bankrupt. No opposition was 
 offered, and M. was adjudged bankrupt, and a 
 trustee appointed. In an interpleader issue be- 
 tween the trustee and the execution creditor, to 
 try whether the former was entitled to the pro- 
 ceeds of the sale as trustee of a bankrupt trader, — 
 Held, by the majority (Bovill, C.J., Byles, J., and 
 Grove, J.) of the Court (dissentienie Brett, J.), 
 that the trustee might rely on the copy adjudica- 
 tion in the " Gazette " as conclusive evidence of 
 the bankruptcy, and also give evidence that M. 
 was a trader in London, in order to shew that the 
 goods were the goods of a bankrupt trader within 
 the above section of the statute. Bevell v. Blake, 
 
 41 Law J. Eep. (n.s.) 0. P. 129 ; Law Eep. 7 C. P. 
 300. [See next case.] 
 
 27. — Where a petition in bankruptcy is pre- 
 ferred under 32 & 33 Vict. c. 71 in a County 
 Court against a person as residing within its dis - 
 trict, and he is adjudicated bankrupt thereon, 
 such adjudication not being rescinded or appealed 
 against, is final and conclusive, though it turns 
 out that he traded within the London district ; 
 and the trustee in bankruptcy is entitled to the 
 proceeds of an execution on such trader's goods 
 which are retained in the sheriff's hands under 
 section 87, due notice of the petition having been 
 given under that section, as it is not necessary 
 that the adjudication should be against such per- 
 son as a trader, and it is sufficient if there be an 
 adjudication against him and he be in fact a 
 trader. Bevell v. Blake (Ex. Ch.), 42 Law J. Eep. 
 (n.s.) C.P. 165 ; Law Eep. 8 C. P. 533. 
 
 28.— In 32 & 33 Vict. c. 71, s. 15, sub-sec. 3, 
 "act of bankruptcy " means an act which has been 
 K 
 
66 
 
 BANKRUPTCY (G). 
 
 committed prior to the time of seizure. The onus 
 is on the execution creditor to prove that he had 
 no notice of any prior act of bankruptcy. Notice 
 to the sheriff's ofScer in possession is not notice 
 to the execution creditor. Ex parte Sohulte ; In 
 re MatanlU, Law Rep. 9 Chanc. 409. 
 
 29. — ^A creditor obtained two judgments against 
 a trader. Under one judgment, which was for 
 over 50Z., the goods of the debtor were seized by 
 the sheriflf on the 5th of September, and sold on 
 the 17th. Under the second judgment other 
 goods of the debtor were seized on the 23rd of 
 September, and sold on the 29th. The proceeds 
 of the goods seized under the first execution were 
 paid to the creditor on the 13th of October; 
 those seized under the second on the loth. On 
 the 21st of October a bankruptcy petition was 
 presetted against the debtor, the act of bank- 
 ruptcy alleged being the first execution. On the 
 5th of November he was adjudicated bankrupt. 
 The trustee claimed the amount paid under the 
 second execution : — Held, that when the second 
 execution was issued, the creditor must have had 
 notice of the act of bankruptcy by the seizure and 
 sale under the first execution, and that he was 
 therefore not entitled to hold the proceeds of the 
 goods seized under the second execution against 
 the other creditors, but must refund them to the 
 trustee. ExparteDawe ; In re Husband, 44 Law J. 
 Eep. (n.s.) Bankr. 62 ; Law Eep. 19 Eq. 438. 
 
 30, — The debtor was a farmer, but had at one 
 time sold a medicine invented by himself for the 
 cure of the cattle disease. The sheriff levied exe- 
 cution on his goods, and not knowing that he was 
 a trader, paid the amount levied to the execution 
 creditor. After payment, but before fourteen days 
 had elapsed, the debtor filed his petition for liqui- 
 dation, and a notice was served on the sheriff; 
 but the notice was entitled in an action, and did 
 not state that the debtor was a trader. The 
 County Court Judge ordered the sheriff to pay 
 the amount levied to the trustee in liquidation : 
 — Held (discharging the order of the County Court 
 Judge), that it would be unreasonable to cast 
 upon the sheriff the duty of ascertaining whether 
 a debtor had been engaged in any transactions 
 amounting to trading, and that it was the duty 
 of the persons prosecuting the petition to give the 
 sheriff a proper notice. Ex parte Spocmer ; In re 
 Smith, 44 Law J. Rep. (n.s.) Bankr. 24 ; Law 
 Eep. 10 Chanc. 7 : aifirming the decision of the 
 Chief Judge, 44 Law J. Eep. (n.s.) Bankr. 7. 
 
 (6) Befunding proceeds. 
 
 31. — "Where the sheriff has paid to the execu- 
 tion creditor the proceeds of an execution for a 
 sum of more than 50^. against the goods of a 
 trader, after retaining the same for fourteen days, 
 according to the provisions of section 87 of the 
 Bankruptcy Act, 1869, the creditor is entitled 
 to retain the amount, notwithstanding the bank- 
 ruptcy of the debtor within a year from the 
 seizure and sale. Ex parte VUlars ; In re Eogers, 
 43 Law J. Eep. (n.s.) Bankr. 76 ; Law Eep. 9 
 Chanc, 432. 
 
 (7) Execution under 50?. 
 
 32. — The sheriff seized under a writ for a 
 judgment debt exceeding 50/. Subsequently he 
 seized under another writ for a judgment debt 
 under 50/. No sale was made under either. 
 The debtor presented his petition for liquida- 
 tion, and the trustee applied for an injunc- 
 tion to restrain the judgment creditors from pro- 
 ceeding' to execute their writs : — Held, that no 
 injunction could be granted against the creditor 
 whose debt was under 50/. Ex parte Levering ; 
 In rePeacoeh, 43 Law J. Eep. (n.s.) Bankr. 58; 
 Law Eep. 17 Jiq. 462. 
 
 33. — Section 184 of the repealed Bankrupt Law 
 Consolidation Act, 1849, is not re-enacted directly 
 or indirectly in the Bankruptcy Act, 1869. There- 
 fore under the latter Act, when the sheriff has, 
 under an execution for less than 50'., seized a 
 debtor's goods before any act of bankruptcy, the 
 judgment creditor's claim to be paid out of the 
 goods is not defeated by the debtor's subsequent 
 bankruptcy, though the sheriff do not sell till 
 after the adjudication. Such an execution does 
 not require the protection of section 95, sub sec. 
 3, which applies only where the act of bankruptcy 
 has been committed prior to the seizure. Blater 
 V. Finder, 40 Law J. Eep. (n.s.) Exch. 146 ; Law 
 Eep. 6 Exch. 228. 
 
 Semble (per Kelly, C.B. and Martin, B.) — ^A 
 judgment creditor, under whose fi. fa. the sheriff 
 has seized, but not sold, a debtor's goods, is a 
 " creditor holding a security " within the meaning 
 of section 12, Ibid. 
 
 Aifirmed on appeal by the Exchequer Chamber, 
 41 Law J. Eep. (n.s.) Exch. 66 ; Law Eep. 7 
 Exch. 96. 
 
 (8) After-acquired property of bankrupt 
 alloiued to trade. 
 
 [And see infra Obdee op Bischabge.] 
 
 34. — On an interpleader issue a Common Law 
 Court can take notice of equitable rights, and de- 
 termine which party is to be preferred to the 
 other according to such rights. Engelbach v. 
 Nixon, 44 Law J. Eep. (n.s.) C. P. 396; Law Rep. 
 IOC. P. 645. 
 
 A bankrupt who had not obtained his discharge, 
 being allowed by his trustee in bankruptcy to 
 trade, for the purpose of enabling him to pay his 
 creditors, incurred a debt in the course of such 
 trading with a new creditor, who afterwards ob- 
 tained a judgment against the bankrupt for such 
 debt, and seized in execution goods of the bank- 
 rupt acquired since his bankruptcy, but which had 
 been taken possession of by the trustee a few days 
 before such seizure: — Held, on an interpleader 
 issue, that as in equity the right of the new cre- 
 ditor would be preferred to that of the trustee, 
 the latter was not entitled to the goods so seized 
 as against such new creditor. Ibid. 
 
 (d) Avoidant of voluntary settlement. 
 
 35. — A covenant in a trader's marriage settle- 
 ment to pay a sum of money to the trustee at a 
 future time is not a covenant for the future settle- 
 
BANKRUPTCY (G). 
 
 67 
 
 ment of money or proparty ■wherein the cove- 
 nantor "had not, at the date of the marriage, any 
 estate or interest," Trithin the meaning of section 
 9 1 of the Bankruptcy Act, 1869. Ex parte Bishop ; 
 In re Toimies, 42 Law J. Eep. (n.s.) Bankr. 107 ; 
 Law Eep. 8 Ohanc. 718. 
 
 36. — ^A voluntary settlement was executed, in 
 1868, by a trader who, in 1874, filed his petition 
 for liquidation: — ^Held, that the settlement was 
 governed by the 91st section of the Bankruptcy 
 Act, 1869, and that, as the trader was unable to 
 shew that he was solvent at the time it was exe- 
 cuted, it was void as against the trustee. Ex 
 parte Dawsoii ; In re Dawson, 44 Law J. Eep. (n.s.) 
 Bankr. 49 ; Law Eep. 19 Eq. 433. 
 
 37. — C, by a settlement made before his mar- 
 riage, assigned a policy and some furniture to trus- 
 tees for the benefit of his wife and the children of 
 the marriage, and also covenanted that all other 
 real or personal estate of which he should become 
 seized, possessed or entitled during the coverture, 
 should be tran^erred to the trustees upon trusts 
 thereby declared. No trusts of the after-acquired 
 property were declared in the settlement. After 
 the marriage, and when C. was still solvent, he 
 purchased some shares; the shares were regis- 
 tered in his name, and he held the certificates. 
 Subsequently he filed a petition for liquidation, 
 and the trustee in the liquidation claimed these 
 shares as against the trustees of the settlement : — 
 Held (reversing the decision of the County Court 
 Judge), that C. could not be allowed in this way 
 to withdraw the whole of his property from his 
 creditors, and that the shares must be handed to 
 the trustee in the liquidation. Ex parte Solland; 
 In re Clint, 43 Law J. Eep. (n.s.) Bankr. 16 ; Law 
 Eep. 17 Eq. 115. 
 
 Hardey v. Green (12 Beav. 182; 18 Law J. 
 Eep. (n.s.) Chanc. 480), and Levds v. Madocks 
 (8 Ves. 150 and 17 Ves. 48), considered. Ibid. 
 
 38. — A voluntary settlement executed by a 
 man on the eve of going into trade, and whether 
 at the time actually contemplating trade or not, is 
 void as against those who may become his cre- 
 ditors in the course of his trade. MacJcay x. 
 Douglas, 41 Law 3. Eep. (n.s.) Chano. 539 ; Law 
 Eep. 13 Eq. 106. 
 
 (c) Avoidance of fraudulent prefereiKe. [See 
 supra B (a). 
 
 (/) Disclaimer of leaseholds. 
 
 [See r. 28 of General Eules, 7th of July, 1871, 
 r. 28, 40 Law t. Eep. (n.s.) Bankr. 2.] 
 
 39. — The Court of Bankruptcy will exercise 
 its discretion in allowing a trustee in bankruptcy 
 to disclaim leasehold interests. In re Wilson, Law 
 Eep. 13 Eq. 186. 
 
 40. — ^Where an extension of the twenty-eight 
 days after request, within which a trustee must 
 (under section 24 of the Bankruptcy Act, 1869), 
 declare his option of disclaiming a lease, is re- 
 quired in order to obtain the sanction of the Court 
 under the Eules of 1871 (rule 28), the practice of 
 the Court is to grant the extension if the applica- 
 tion is made within the twenty-eight days, but not 
 
 otherwise. Ex parte Loverinff; Inre Jones, iSTjayr 
 J. Eep. (n.s.) Banki'. 94; Law Eep. 9 Chano. 686. 
 The Court can extend the time afterwards. 
 Semhle ; but it would only do so under very spe- 
 cial circumstances. Ibid. 
 
 Circumstances under which such an order was 
 refused. Ibid. 
 
 Disclaimer of lease : liability/ of lessee. [See 
 Landloei> and Tenant, 28.] 
 
 (g) Other property devolving on trustee. 
 
 41. — In an action against attorneys for bveach 
 of duty in failing to procure the best price for the 
 equity of redemption of the plaintiff's premises 
 which had been entrusted to them for sale, the 
 declaration alleged as special damage that the 
 defendants " well knew that if the plaintiff did not 
 obtain a reasonable price, the bankruptcy of the 
 plaintiff would be the necessary and inevitable 
 consequence," and further, that in consequence^ of 
 the breach of duty alleged, the plaintiff was adju- 
 dicated bankrupt.. The defendants pleaded the 
 bankruptcy of the plaintiff: — Held, on demurrer, 
 by Blackburn, J., Mellor, J., and Lush, J., on the 
 authority of Hodgson v. Sidney (35 Law J. Eep. 
 (n.s.) Exch. 182), that the plea was good,_that the 
 cause of action passed to the assignees in bank- 
 ruptcy, and that the defendant's knowledge that 
 the plaintiff's bankruptcy would follow from their 
 breach of duty made no difference ; Hannen, J., 
 doubting whether Hodgson v. Sidney was not dis- 
 tinguishable on that ground. Morgan v. Steble, 
 41 Law J. Eep. (n.s.)Q.B. 260; Law Eep. 7 Q.B. 
 611. 
 
 42. — The defendants in an action upon a bill 
 of exchange paid a sum of money into Court to 
 abide the event. The matters in dispute were 
 subsequently referred to arbitration ; and before 
 any award had been made by the arbitrator, the 
 defendants went into liquidation of their affairs by 
 arrangement. The trustee in the liquidation 
 claimed the money in Court: — Held, that the 
 plaintiff in the action was entitled to be paid 
 thereout the amount of his debt and costs, and 
 there must be an inquiry to ascertain this amount. 
 Ex parte Tate ; In re Keyworth, 43 Law J. Eep. 
 (n.s.) Bankr. 102 ; Law Eep. 9 Chanoi 379, iiom. 
 Ex parte Banner. 
 
 43. — A trader bought goods at an auction after 
 he had committed an act of bankruptcy, and he 
 obtained possession of the goods without paying 
 for them, and before the act of bankruptcy was 
 known to the, vendor. Two days after he had 
 received the goods he was adjudicated bankrupt. 
 The vendor applied to the trustee in the bank- 
 ruptcy for the return of the goods, on the ground 
 that the purchase by the bankrupt was fraudulent : 
 — Held (reversing the decision of the County 
 Court Judge), that no case of fraud had been 
 proved, and that the goods passed to the trustee. 
 Ex parte Ehodes ; lit re Shackleion, 44 Law J. Eep. 
 (n.s.) Bankr. 62 : afBrmed on appeal sub nam. Ex 
 parte WhitaJcer ; In re Shackleion, 44 Law J. Eep. 
 (n.s.) Bankr. 91 ; Law Eep. 10 Chanc. 446. 
 
 Fixtures: right of mortgagee as against 
 trustee. [See Eixtukbs, 3, 4, 6.] 
 k2 
 
68 
 
 BANKRUPTCY (G), (I). 
 
 Bankrupt's property: permamnt luilding 
 society: advaneed member: sale of 
 mortgaged property : application of 
 prsceeds: future instalments. [See 
 Feiendly Society, 3.] 
 
 (/») Joint and separate estate : property devolving 
 on trustee of joint estate. 
 
 44i — On the appointment of a trustee of the 
 joint estate of two debtors, the separate estate of 
 each also vests by law iu such trustee, and resolu-. 
 tious of the separate creditors appointing a trustee 
 and assigning the separate estate to him are 
 invalid. Ex parte Philps ; In re Moore, 44 Law 
 J. Eep. (n.s.) Bankr. 40 ; Law Eep. 19 Eq. 257. 
 
 The trustee of the joint estate has a right to be 
 heard on all matters connected with the separate 
 estate. Ibid. 
 
 The proceedings having been transferred to the 
 London Court, no further proceedings, either as to 
 the joint or separate estate, ought to have been 
 taken iu the local Court. Ibid. 
 
 (i) Powers and liabilities, 
 
 45. — Under section 15, sub-section 3, of the 
 Bankruptcy Act, 1869, the trustee of a liquida- 
 tion may sell to the bankrupt, and property so sold 
 will not revest in the trustee, but the bankrupt 
 will be entitled to sue in his own name under 
 section 111. Kitson v. Hardwick, Law Eep. 7 
 C.P. 473. 
 
 46. — A trustee in bankruptcy cannot be com- 
 pelled to allow, and ought not to allow the use of 
 his name to impeach a dealing with property as a 
 fraudulent preference, for- the benefit not of the 
 creditors generally, but of a particular creditor 
 holding a security on the property dealt -with. 
 Ex parte Cooper ; In re Zncco, 44 Law J. Eep. (k.s.) 
 Bankr. 121 ; Law Rep. 10 Chanc. 510, 
 
 47. — The trustee of an assignment for the 
 benefit of creditors under the Bankruptcy Act, 
 1861, acting on a view of the law as to the time 
 of proof which subsequent decisions shewed to be 
 erroneous, allowed a creditor to prove for -a larger 
 amount than he was entitled to prove for : — Held, 
 that the trustee was not liable to make good to the 
 estate the overpaid dividend. Such a trustee 
 occupies a gzjasi-judicial position for the purpose 
 of deciding on claims against the estate, and is not 
 responsible for an error made in the bon& fide ex- 
 ercise of his judgment. Ex parte Ogle, and ex 
 parte Smith ; In re Pilling, 42 Law J. Eep. (n.s.) 
 Bankr. 99 ; Law Eep. 8 Chanc. 711. 
 
 The debtor having in his possession certain wine 
 belonging to the estate, the trustee gave instruc- 
 tions for proceedings to recover it, but did not 
 insist on their being carried out, and consequently 
 the wine was consumed and lost to the estate : — 
 Held, that the trustee was liable to make good its 
 value, with interest at five per cent. Ibid. 
 
 The proceedings having been transferred to the 
 London Com:t, no further proceedings, either as to 
 the joint or separate estate, ought to have been 
 taken in the local Court. Ibid. 
 
 48. — On the appointment of a trustee of the 
 joint estate of two debtors, the separate estate of 
 
 each also vests by law in such trustee, and resolu- 
 tions of the separate creditors appointing a trustee 
 and assigning the separate estate to him are 
 invalid. Ex parte Philps ; In re Moore, 44 Law J. 
 Rep. (n.s.) Bankr. 40 ; Law Rep. 19 Eq. 257- 
 
 The trustee of the joint estate has a right to be 
 heard on all matters connected with the separate 
 estate. Ibid. 
 
 Pouters of assignee under Bankrupt Con- 
 solidation, Act as to sale of book debts. 
 [See supra A S.] 
 
 (H) PrBLic Examination of Bankbcpt. 
 
 The filing of an affidavit by the bankrupt as to 
 the truth of his statement of affairs in the terms of 
 form No. 45 in the Schedule of Forms to the Gene- 
 ral Rules is a condition precedent to the order 
 being made for the bankrupt to pass his public 
 examination. Accordingly, a conditional order 
 that a bankrupt, who had given an insufBcicnt 
 statement of his affairs, should pass his publie 
 examination upon amending the same was over- 
 ruled. Ex parte Smith; In re Angerstein, 41 
 Law J. Eep. (n.s.) Bankr. 44 ; Law Eep. 7 Chanc. 
 662. 
 
 (I) Ohdbe of Discharge, 
 (o) Effect of, in general. 
 
 1, — A creditor under an insolvency is not at 
 liberty to take after-acqui red property of the insol- 
 vent as security for his scheduled debt. After the 
 discharge of the insolvent the old debt cannot be 
 revived. Feakman v. Harrison, Law Eep. 14 Eq. 
 484. 
 
 2. — Sections 49 and 50 of the Bankruptcy Act, 
 1869 (32 & 33 Vict. c. 71), which relate to the 
 effect of an order of discharge, apply to dis- 
 charges under proceedings in liquidation under 
 sections 125 and 126, ^nd the rules and forma 
 relative to them ; and consequently an order of 
 discharge in all these cases releases only the 
 debtor in whose favour it is given, and not his 
 solvent co-debtor. Megrath v. Gray and Gray 
 V. Megrath, 43 Law J. Eep. (n.s.) C.P. 63 ; Law 
 Eep. 9 C.P. 216. 
 
 M. and H-, who were partners, were jointly 
 liable to G. on a bill of exchange accepted by them 
 for goods sold to them by G. They dissolved 
 partnership, and after their acceptance had been 
 dishonoured H. filed his petition for liquidation by 
 arrangement under the Bankruptcy Act, 1869, and 
 a composition was accepted by his creditors, and 
 duly paid ; B. to whom G. had endorsed the bill, 
 proving under the liquidation, and receiving the 
 composition. G. himself afterwards filed his peti- 
 tion for liquidation by arrangement under the 
 Bankruptcy Act, 1869, and a composition was 
 agreed to and paid, the trustee being authorised 
 by the creditors to transfer to G. the debts which 
 were set forth in a, schedule annexed, but which 
 did not include the liability of M. in respect of the 
 acceptances given by him and H. ; the reason for 
 such omission being that B. was at that time the 
 holder of the bill, and the debt was considered by 
 the trustee of G.'s estate of no value, and not from 
 any intention of reserving to the trustee any right 
 
BANKRUPTCY (I). 
 
 69 
 
 in respect of it. The bill was afterwards given by B. 
 to G., and in an action against G-. by M. for a debt 
 due to him separately, G. set off what was due to 
 him on the said acceptance of M. and H. in an 
 equitable plea of set-off : —Held, that the discharge 
 of H. under the liquidation by composition under 
 the Bankruptcy Act, 1869, did not release M., but 
 left him_ liable to (j., who, whether the right to 
 sue for it was legally in him or in his trustee in 
 trust for him, might maintain such equitable plea 
 of set-off. Ibid. 
 
 Held also, that in order to establish the trust for 
 G-., evidence was admissible as to the reasons why 
 M.'s liability in respect of the bill had not been 
 inserted in the schedule to the resolution of G.'s 
 creditors to accept the composition, and also that 
 such resolution had been founded on a proposal 
 by G. to pay such composition in consideration 
 that the trustee should be authorised to transfer 
 to G. any debts vested in him which had not been 
 realised. Ibid. 
 
 3. — The trustee appointed under a liquidation 
 by arrangement is bound to realise and distribute 
 pari passu among :he joint creditors the bankrupt's 
 property in his joint estate, and therefore a joint 
 adjudication against two debtors, one of whom 
 has, since the debt was contracted, obtained an 
 order of discharge imder his separate liquidation, 
 cannot as against the latter be supported. An 
 order of discharge under the Bankruptcy Act, 
 1869, has the same effect as one granted under 
 the former Bankruptcy Acts. Ex parte Ham- 
 mond, 42 Law J. Eep. (n.s.) Bankr. 97 ; Law Eep. 
 16 Eq. 614. 
 
 [And see next case.] 
 
 (b) Benevolent motives towards debtor. 
 
 4. — ^The test whether liquidation proceedings 
 are still pending or not is whether the debtor's 
 future-acquired property remains liable to the 
 creditors under the liquidation or not. Ex parte 
 Russell ; In re Russell, 44 Law J. Eep. (k.s.) Bankr. 
 42 ; Law Eep. 10 Chano. 265. 
 
 Eesolutions provided that if default should be 
 made in payment of any instalments of 5,000?., 
 the whole unpaid balance should at once become 
 due, and that the trustee, on being required by 
 any creditor, should institute and prosecute pro- 
 ceedings in Bankruptcy against the debtor in 
 respect of the unpaid balance. A committee of 
 inspection was also appointed. The debtor went 
 into business again and contracted fresh debts. He 
 paid two of the annual instalments of the 6,0002. , 
 but foiled to pay any more of it. He afterwards 
 filed a second liquidation petition. His statement 
 of affairs shewed that he was largely indebted, and 
 that his assets were practically worthless. He was, 
 however, entitled to 200?. a year, half-pay as an 
 officer in the army. The creditors resolved on a, 
 liquidation by arrangement ; that, until full pay- 
 ment of all the debts provable under the liquida- 
 tion, the debtor should pay to the trustee the sur- 
 plus of his income above 600?. a year ; that as soon 
 as the debtor should have executed a deed to give 
 effect to the resolutions, he should be discharged 
 from all debts provable under the liquidation, but 
 
 the discharge was to be void if the debtor should 
 fail to perform any of the stipulations in the deed, 
 and the trustee should certify that in his opinion 
 such failure had been wilful. The trustee under 
 the first liquidation proved in the second liquida- 
 tion for the unpaid 3,000?., and voted in favour of 
 these resolutions, which would not have been 
 carried without his vote. He had not obtained the 
 sanction of the committee of inspection under the 
 first liquidation for so voting, but no creditor had 
 required him to take proceedings in bankruptcy 
 against the debtor : — Held, that the proceedings 
 under the first liquidation, being no longer pending, 
 could not affect the validity of the resolutions 
 imder the second petition. Also that the first 
 trustee was, imder the circumstances, at liberty 
 to prove and vote without the sanction of the 
 committee of inspection. But that, under the 
 circumstances, the majority of the creditors could 
 not have passed the resolutions under the second 
 petition bond fide for the benefit of the creditors, 
 but that they must have voted as they did solely 
 by reason of motives of kindness to the debtor. 
 And that resolutions thus passed could not bind 
 the dissentient minority of the creditors, and were 
 invalid, and could not be registered. Ibid. 
 
 5. — All the creditors of H., except one, agreed 
 to accept a composition, and, having the necessary 
 majority, gave the debtor his discharge. The 
 dissentient ere liter applied to the County Court 
 to have the order of discharge rescinded, on the 
 ground that it had been granted without proper 
 care and from motives of benevolence. From the 
 evidence it appeared that the creditors did 
 not wish to see the debtor ruined, and also that 
 the main part of the debtor's property consisted of 
 an equity of redemption which might have taken 
 time to realise. No case of fraud having been 
 proved the County Court Judge refused the appli- 
 cation, and this decision was affirmed both by the 
 Chief Judge (42 Law J. Eep. (w.s.) Bankr. 109), 
 and on appeal by the full Court. Ex parte Linsley ; 
 In re Harper, 43 Law J. Eep. (n.s.) Bankr. 84 ; Law 
 Eep. 9 Chanc. 290. 
 
 (c) lAahility incurred hy fraud, 
 
 6. — Where an attorney brought an action, 
 knowing he had no a\ithority from the plaintiff, 
 and on jiidgment for the defendant a rule was 
 granted ordering him, the attorney, to pay the 
 defendant's costs, and then such attorney, under 
 32 & 33 Vict. c. 71, entered into a composition 
 with his creditors : — Held, that he was not dis- 
 charged from such payment, as the case was one of 
 fraud within 32 & 33 Vict. c. 71. s. 49. Jenkins 
 V. Feraday, 41 Law J. Eep. (n.s.) C. P. 162; Law 
 Eep. 7 0. P. 358. 
 
 {S) Debtor alloiKed to resume business. 
 
 7. — The creditors of a trader resolved on a 
 liquidation, and also that, on the debtor's entering 
 into a covenant to pay the trustee 5,000?. by ten 
 half-yearly instalments, the trustee sliould assign 
 to the debtor his household furniture, and allow 
 him to carry on his business, accounting to the 
 
70 
 
 BANKRUPTCY (I), (L). 
 
 Lruatoe for the then stock in hand, and that within 
 a month after the execution of the covenant by the 
 debtor and the registration of the resolution, the 
 discharge of the debtor should be granted to him. 
 The deed of covenant was executed and the debtor 
 was thereupon let into possession of the stock-in- 
 trade and business, which he carried on for more 
 than two years. His discharge was also granted 
 to him. Ultimately the creditors resolved that 
 the business and stock should be sold, and an oifer 
 to buy them for 3,000?. was accepted. The debtor 
 joined in the sale. The 3,000l. having been paid 
 to the trustee, and the debtor having died : — Held, 
 that a creditor whose debt was contracted after 
 the debtor had resumed his business was not 
 entitled to any lien upon the 3,000?. or any part 
 thereof. Ex parte Robinson; In re Magnus, 42 
 Law J. Eep. (n.s.) Bankr. 85 ; Law Eep. 8 Chanc. 
 962, nom. Ex parte Robertson. 
 
 8. — Creditors agreed to dispose of the whole of 
 a debtor's estate to a purchaser in consideration of 
 a sum agreed to be paid by the purchaser by in- 
 stalments, the debtor himself agreeing to pay a 
 small part of such sum out of his future earnings. 
 The debtor's business was then continued by the 
 purchaser and himself. All the instalments were 
 duly paid, but the creditors having become hostile 
 to the debtor, refused to grant him his order of 
 discharge, and attempted to possess themselves of 
 the profits he had acquired in his business since 
 the agreement : — Held (affirming the decision of 
 the County Court Judge), that it would be inequit- 
 able to allow the creditors to claim the profits of 
 the business merely because the order of discharge 
 had not been formally granted. Ex 'parte Tinher ; 
 hire France, 43 Law J. Eep. (n.s.) Bankr. n, 147 ; 
 Law Eep. 9 Chanc. 716. 
 
 Bill given for debt dischargedby hanJcruptcy : 
 action on, not mavntaiiiable. [See Bn.L 
 or Exchange, 5.] 
 
 (K) Pebsons having Peivilegk of Parliament. 
 
 1, — The provisions of the Bankruptcy Act, 1869 
 (sees. 121 and 122), relating to the vacating of his 
 seat in Parliament by a member of the House of 
 Commons who has been adjudged bankrupt do not 
 apply to the case of a member whose affairs are in 
 liquidation by arrangement. Ex parte Pooley ; In 
 re Russell, 41 Law J. Eep. (n.s.) Bankr. 67 ; Law 
 Eep. 7 Chanc. 519. 
 
 The duty cast upon the Court of Bankruptcy by 
 the 1 22nd section of certifying a member's bank- 
 ruptcy to the Speaker, is an ex officio duty as be- 
 tween the Court and the House of Commons, and 
 application for such a certificate should not be 
 made by a creditor. Ibid. 
 
 2. — A peer of Parliament, whether trader or 
 non-trader, is capable of being adjudicated a bank- 
 rupt under the Act of 1 861, and no privilege exists 
 exempting a member of Parliament from liability 
 to be made a bankrupt. The privilege which such 
 persons have at common law of freedom from ar- 
 rest is not affected by the Bankruptcy Acts. Duke 
 of Newcastle v. Morris (H.L.), 40 Law J. Eep. 
 (n.s.) Bankr. i ; Law Eep. 4 E. & L App. 661. 
 
 (L) Liquidation bt Aeeangbment. 
 (a) Proof. 
 1, — A creditor sought to prove in liquidation 
 proceedings, in order to vote against a composition, 
 by an affidavit that an amount was due to him on 
 a judgment, and also 200?. which he " estimated " 
 as the amount of his costs. His vote being ob- 
 jected to as to the 200?.:— Held, that the objection 
 was valid, and that he should have stated that so 
 much "at least" was due. Ex parte Ruffle ; In 
 re Bmnmelow, 42 Law J. Eep. (n.s.) Bankr. 82 ; 
 Law Eep. 8 Chanc. 997. 
 
 (6) First meeting : statement of affairs. 
 
 2. — In a petition for liquidation it is the duty 
 of the debtor in his statement of affairs to distin- 
 guish between his joint and separate assets and 
 liabilities. In this case the debtor had not 
 so distinguished his assets and debts, and the re- 
 gistrar in consequence reflised to register a special 
 resolution for liquidation by arrangement : — Held, 
 that the decision of the registrar was correct. Ex 
 parte Cockayne ; In re Cockayne, 42 Law J. Eep. 
 (n.s.) Bankr. 71 ; Law Eep. 16 Eq. 218. 
 
 3. — A liquidating debtor attending at the first 
 meeting of his creditors to answer enquiries, under 
 s. 125, sub-sec. 4, of the Bankruptcy Act, 1869, is 
 entitled to the advice of his solicitor as to whether 
 a question is material. Ex parte Mackenzie ; In 
 re Helliwell, 44 Law J. Eep. (n.s.) Bankr. 14 ; Law 
 Eep. 10 Chanc. 88. 
 
 A refusal to answer proper questions would be a 
 ground of objection to the registration of the reso- 
 lutions. Ibid. 
 
 Where a paper was put into the debtor's hand, 
 and he was asked the question whether it was 
 written by his authority ; but the paper was not 
 read to the meeting, nor was his solicitor allowed 
 to see it, and, by his solicitor's advice, he refused 
 to answer the question :— Held, that this was no 
 ground for refusing the registration of the resolu- 
 tions, though the question put was really material. 
 Per J'ames, L.J. — Any questions should be put so 
 that the meeting generally may see their materi- 
 ality. Ibid. 
 
 (c) Resolution: registration: signature. 
 
 4. — At a meeting of creditors, called in pursu 
 ance of a petition tar liquidation by arrangement, 
 certain resolutions were proposed. They were op- 
 posed, and on a show of hands several creditors, 
 including a principal creditor, voted against the 
 resolution. This creditor afterwards signed the 
 resolutions, and a requisite majority of assentients 
 was thus obtained, which would not have been the 
 case if this creditor had been dissentient ; — Held, 
 that the resolutions ought to be registered, the evi- 
 dence afforded by the signature being conclusive, 
 whatever might have been the conduct of the voters 
 at a show of hands. Ex parte Pooley ; In re Rus- 
 sell, 40 Law J. Eep. (n.s.) Bankr. 41 ; Law Eep. 
 5 Chanc. 722. 
 
 Eesolutious to the effect that the affairs of the 
 debtor should be liquidated by arrangement and 
 not by bankruptcy, that if the bankrupt should 
 
BANKRUPTCY (L). 
 
 71 
 
 within a month pay 4,0002., and give a bond to the 
 trustee under the liquidation for a farther sum of 
 5,0002., he should have a discharge, and that the 
 4,0002. was to be deemed a satisfaction of the cre- 
 ditors' rights to apply to the Court in reference to 
 the pay or half-pay of the debtor : — Held, proper 
 resolutions under section 125 of the Act. Ibid. 
 
 5. — S. entered into a contract to purchase cer- 
 tain premises. He was unable to complete the 
 contract, and, being threatened with a suit for 
 specific performance, filed a petition for liquidation, 
 stating his debts at 6402. and his assets at 22. 8s. 
 in cash, and 302. in ftirniture. Eesolutions for 
 liquidation were duly passed, but the registrar 
 refused to register them : — Held, that the proceed- 
 ings were a mere abuse of the machinery of the 
 Bankruptcy Court, and that the appeal must be 
 dismissed with costs. Ex parte Staff ; In re Staff, 
 44 Law J. Eep. (n.s.) Bankr. 137; Law Eep. 20 
 Eq. 775. 
 
 6. — In liquidation by arrangement a resolution 
 to adjourn a meeting is an " ordinary resolution," 
 and therefore must be decided by a majority in 
 value of the creditors present personally or by 
 proxy, at the meeting and voting on such resolu- 
 tion. All creditors present, personally or by proxy, 
 are to be considered as voting on every resolution 
 so long as their proofe are in the hands of the 
 chairman. The assent of each such creditor must 
 be evidenced by his signing the resolution when 
 reduced to writing, and, if he does not sign it, he 
 must be taken to have voted in the negative. A 
 creditor who does not wish to vote on any resolu- 
 tion must, before the resolution is put, withdraw 
 his proof. Ex parte Orde ; In re Horsley, 40 Law 
 J. Eep. (n.s.) Bankr. 60 ; Law Eep. 6 Chanc. 881. 
 
 7.— Eule 276 of the Bankruptcy Eules of 1870 
 provides that creditors may subscribe a resolution 
 for a liqaidation or composition after the meeting, 
 " but prior to the filing or registration of the reso- 
 lution": — ^Held, reversing the decision of the 
 Chief Judge, that the registrar could not allow 
 signature after the filing, but before registration. 
 Ex parte Thorne ; In re Butlm, 42 Law J. Eep. 
 (n.s.) Bankr. 60 ; Law Eep. 8 Chanc. 722. 
 
 8. An extraordinary resolution presented to 
 
 the registrar under the 126th section of the Bank- 
 ruptcy Act, 1869, must be properly stamped and 
 also verified by affidavit before the registrar can 
 receive the same for the purpose of registering or 
 filing it. Ex parte Bams; In re Dams, 41 Law J. 
 Eep. (n.s.) Bankr. 69 ; Law Eep. 7 Chanc. 626. 
 
 Under the 288th section of the General Eules 
 in Bankruptcy, 1870, the direction that the pro- 
 ceeding shall be transferred to another Court than 
 that in which they were originated, must be treated 
 as part of the special or extraordinary resolution 
 in which it is by that rule to be included, so that 
 such direction will have no effect until the resolu- 
 tion has been duly registered. Ibid. 
 
 ((2) Smwre and sale. 
 
 9, ^Where the goods of a trader have been 
 
 seized under an execution, and the sheriff is pre- 
 vented from selling by an injunction granted in 
 liquidation proceedings which afterwards prove 
 
 abortive, and the debtor is afterwards adjudicated 
 a bankrupt upon a petition presented within four- 
 teen days after the failure of the liquidation pro- 
 ceedings, the creditor has no right to enforce his 
 execution. Ex parte Harper ; In re Bremner, 44 
 Law J. Eep. (n.s.) Bankr. 67 ; Law Eep. 10 Chanc, 
 379. 
 
 10. — The sheriff seized in execution under a 
 judgment for more than 502. goods of a trader. 
 Before sale, and whilst the sheriff was in posses- 
 sion, the debtor presented a petition for liquidation 
 by arrangement, and the trustee appointed under 
 the liquidation obtained an order restraining fur- 
 ther proceedings in the execution ".—Held, that 
 the trustee was entitled to the goods as part of the 
 debtor's estate, and that the sheriff must give up 
 possession to him. Ex parte Bayner ; In re John- 
 son, 41 Law J. Eep. (n.s.) Bankr. 26 ; Law Eep. 
 7 Chanc. 325. 
 
 (e) Reservation of rights against sureties. 
 [See Principal and Sitbett, 12, 13, 18.] 
 
 (/) Title of trustee : relation bach. 
 
 11. — 'When a debtor's estate is under liquida- 
 tion by arrangement, the title of the trustee in 
 the liquidation relates back to a previous act of 
 bankruptcy. Ex parte Eyles ; In re Edwards, 42 
 Law J. Eep. (n.s.) Bankr. 55; Law Eep. 15 
 Eq. 99. 
 
 On the lOth'of January a debtor committed an 
 act of bankruptcy, by giving a bill of sale over all 
 his property, in consideration of a past debt. On 
 the 8th of February a creditor issued execution. 
 On the 10th of February the debtor filed a petition 
 for liquidation, under which a trustee was after- 
 wards appointed : — Held, that the title of the 
 trustee related back to the previous act of bank- 
 ruptcy ; and that the trustee, and not the execution 
 creditor, was entitled to the goods seized. 
 
 12. — The filing of a petition for arrangement 
 is an act of bankruptcy, and the title of the trustee 
 in the liquidation relates back to such filing. So 
 held by the full Court of Appeal, affirming the 
 order of Bacon, C.J. (40 Law J. Eep. (n.s.) Bankr. 
 33; Law Eep. 11 Eq. 604). Ex parte Buignan ; 
 In re Bissell, 40 Law J. Eep. (n.s.) Bankr. 68 ; 
 Law Eep. 6 Chanc. 605. 
 
 {g) Prescription of bank by creditors. 
 
 13. — Creditors at a first meeting resolved on 
 liquidation and appointed 0. trustee. At the same 
 meeting 0. stated to the creditors that he should 
 open an account in his own name, as trustee of the 
 debtor, at the P. Bank, of which he was manager, 
 and should pay into that account all moneys re- 
 ceived by him from the debtor's estate. The 
 creditors assented to this arrangement, but no 
 formal resolution was passed confirming it : — 
 Held (reversing the decision of the County Court 
 Judge), that the estate being under liquidation, 
 the creditors had sufficiently prescribed the bank 
 into which the money was to be paid, and that the 
 trustee could not be charged with interest for not 
 having paid it into the Bank of England. Ex parte 
 
72 
 
 BANKEUPTCY (L). 
 
 Old ; In re Bright, 4S Law J. Eep. (n.s.) Bankr. 
 47 ; Law Eep. 17 Eq. 457. 
 
 Held, also, that it is the duty of an inspeotor to 
 see that accounts are filed by the trustee every 
 three months. Ibid. 
 
 (/*) Close of liquidation. 
 
 14. — Under a liquidation by arrangement cre- 
 ditors resolved that the debtor should be discharged 
 from a certain date. The certificate of discharge 
 was not granted by the registrar till after that 
 date. Semble — The certificate related back to 
 that date. In re Bennett's Trusts, 44 Law J. Eep. 
 (n.s.) Chanc. 244 ; Law Eep. 19 Eq. 245 : reversed, 
 on appeal. Law Eep. 10 Chanc. 490. 
 
 Property which came to the debtor after his 
 discharge, but before the close of the liquidation, 
 vested in the trustee. Ibid. 
 
 15. — M. filed his petition for liquidation and a 
 receiver was appointed. At the first meeting of 
 creditors the principal debtor, T., was not allowed 
 to vote, because M. stated that T. was indebted 
 to him in a larger sum than he owed to T. The 
 registrar refased to register the resolution passed 
 at this meeting, because T. had not been allowed 
 to vote. M. then brought an action against T. 
 for the amount of his debt. T. applied to the 
 County Court to restrain the action, but the appli- 
 cation was refused because the liquidation pro- 
 ceedings were at an end. T. appealed: — Held, 
 that, as the receiver had not been discharged, the 
 proceedings were still pending. Held, also, that 
 the injunction to restrain the action would be 
 granted, but only on T.'s undertaking ,to revive 
 the proceedings. Ex parte Taylor ; InreMorrisy, 
 43 Law J. Eep. (n.s.) Bankr. 103 ; Law Eep. 18 
 Eq. 256. 
 
 16. — Execution for a debt above 601. was levied 
 on the goods of a trader on the 17th of November. 
 On the 18th of November the debtor filed a liqui- 
 dation petition. On the 22nd of November the 
 sheriff sold, and the same day notice of the petition 
 was served on him. On the 16th of December the 
 creditors met, and separated without passing any 
 resolutions. On the 17th of December the sheriff 
 paid the proceeds of the sale to the execution cre- 
 ditor. On the 19th of December a petition in 
 bankruptcy was presented against the debtor, 
 stating the filing of the liquidation petition and 
 the proceedings thereunder, and on the 10th of 
 January an adjudication was made : — Held, that 
 the proceedings under the liquidation petition came 
 to an end on the 16th of December, and that, con- 
 sequently, the execution creditor was entitled to 
 the proceeds of the sale. Ex parte James ; In re 
 Condon, 43 Law J. Eep. (n.s.) Bankr. 107; Law 
 Eep. 9 Chanc. 609. 
 
 On the 23rd of February the execution creditor, 
 upon the authority of a decision of the Court of 
 Appeal, which was afterwards reversed, paid the 
 proceeds of the sale to the trustee under the bank- 
 ruptcy : — Held that though this was a voluntary 
 payment made under a mistake of law, yet the 
 trustee, being an officer of the Court, was bound 
 to repay the money to the person properly entitled 
 to it. Ibid. 
 
 An application for an adjudication under rule 
 267 ought to be made by petition. Ibid. 
 
 17,— ^he test whether liquidation proceedings 
 are still pending' or not is this: whether the 
 debtor's future-acquired property remains liable 
 to the creditors under the liquidation or not. 
 Ex parte Sir W. 'Russell ; In re Sir W. Bussell, 
 44 Law J. Eep. (n.s.) Bankr. 42 ; Law Eep. 
 10 Chanc. 265. 
 
 The creditors of a liquidating debtor at their 
 first meeting resolved to grant him his discharge, 
 upon payment being made on his behalf to the 
 trustee of 4,000/. within n month after registra- 
 tion of the resolutions, and upon his executing 
 within the same period a covenant to pay the 
 trustee 6,000Z. in five equal annual instalments. 
 The 4,000Z. was paid, and the covenant executed 
 within the time fixed: — Held, that this arrange- 
 ment amounted to a purchase by the debtor of his 
 after-acquired property, and that the liquidation 
 proceedings, though not formally closed, were still 
 no longer pending so as to give the creditors any 
 right to the debtor's after-acquired property. Ibid. 
 
 The resolutions further provided that if de&ult 
 should be made in payment of any of the instal- 
 ments of the 6,00OZ., the whole unpaid balance 
 should at once become due, and that the trustee, 
 on being required by any creditor, should institute 
 and prosecute proceedings in Bankruptcy against 
 the debtor, in respect of the unpaid balance. A 
 committee of inspection was also appointed. The 
 debtor went into business again, and contracted 
 fresh debts. He paid two of the annual instal- 
 ments of the 6,000?., but failed to pay anymore of 
 it. He afterwards filed a second liquidation 
 petition. His statement of affairs shewed that 
 he was largely indebted, and that his assets were 
 practically worthless. He was, however, en- 
 titled to 200Z. a year, half-pay as an officer in the 
 army. The creditors resolved on a liquidation by 
 arrangement ; that, until full payment of all the 
 debts provable under the liquidation, the debtor 
 should pay to the trustee the surplus of his income 
 above 600?. a year; that, as soon as the debtor 
 should have executed a deed to give effect to the 
 resolutions, he should be discharged irono all debts 
 provable under the liquidation, but the dischfirge 
 was to be void if the debtor should fail to perform 
 any of the stipulations in the deed, and the trustee 
 should certify that in his opinion such failure had 
 been wilful. The trustee under the first liquida- 
 tion proved in the second liquidation for the un- 
 paid 3,000?., and voted in favour of these resolu- 
 tions, which would not have been carried without 
 his vote. He had not obtained the sanction of 
 the committee of inspection under the first liquid- 
 ation for so voting, but no creditor had required 
 him to take proceedings in bankruptcy against 
 the debtor. Held, that the proceedings under 
 the first liquidation, being no longer pending, 
 could not affect the validity of the resolutions 
 under the second petition. Held also, that the 
 first trustee was, under the circumstances, at 
 liberty to prove and vote without the sanction of 
 the committee of inspection ; but that, under the 
 circumstances, the majority of the creditors could 
 
BANKRUPTCY (L), (M). 
 
 73 
 
 not have passed the resolutions under the second 
 petition bon& fide for the benefit of the creditors, 
 but must have voted as they did solely by reason 
 of motives of kindness to the debtor. And that 
 resolutions thus passed could not bind the dis- 
 sentient minority of the creditors, and were in- 
 valid, and could not bs registered. Ibid. 
 
 (i) After-acquired property. 
 
 18. — The discharge of a debtor in a liquidation 
 by arrangement under the provisions of the Bank- 
 ruptcy Act, 1869, duly certified by the registrar, 
 in compliance -with Rule 303 of the Greneral Rules 
 in Bankruptcy, releases the debtor and all his 
 after-acquired property, although the liquidation 
 has not been closed by a resolution of the credi- 
 tors. In re Beimetfs Trusts (44 Law J. Rep. 
 (n.s.) Chanc. 244; Law Rep. 19 Eq. 245) over- 
 ruled. Ebbs V. Boulnois, 44 Law J. Rep. (n.s.) 
 Chanc. 691 ; Law Rep. 10 Chanc. 479. 
 
 (A) Where liquidation cannot proceed without 
 injustice, 
 
 19. — ^Where the Court is satisfied that proceed- 
 ings in liquidation cannot proceed without injus- 
 tice and undue delay of creditors, it may at once 
 adjudicate the debtor bankrupt, without the pre- 
 sentation of any petition for adjudication, or 
 notice to the creditors. Ex parte Marland ; In 
 re Ashton, 44 Law J. Rep. (n.s.) Chanc. 116 ; Law 
 Rep. 20 Eq. 777. 
 
 (I) Removal of trustee and committee of 
 )tion. 
 
 20. — ^In a liquidation by arrangement a meet- 
 ing of creditors, for the purpose of removing the 
 trustee and any member of the committee of in- 
 spection, and for appointing others, is properly 
 summoned under rules 304 or 305 of the General 
 Rules in Bankruptcy, 1870, and rule 120 is not 
 applicable to such a case, but relates to cases of 
 bankruptcy only. Ex parte Sopiins ; In re Hart, 
 43 Law J. Rep. (n.s.) Bankr. 127 ; Law Rep. 9 
 Chano. 506. 
 
 The General Rules in Bankruptcy, 1870, com- 
 prise two distinct sets of rules ; the one set re- 
 lating to cases of bankruptcy, the other to cases 
 of liquidation by arrangement. Ibid. 
 
 {m) Costs : pending proceedings. 
 
 21. — For the purposes of the 292nd Rule in 
 Bankruptcy, whereby if bankruptcy occurs " pend- 
 ing proceedings for or towards liquidation by ar- 
 rangement," the costs in relation to such proceed- 
 ings are made payable out of the debtor's estate, 
 the proceedings will be deemed to be pending so 
 long as the Court can make any order thereunder, 
 and the creditors under the subsequent bank- 
 ruptcy can derive a benefit from them. There- 
 fore, where upon a petition for liquidation, the 
 creditors refused to pass a resolution for liquida- 
 tion, and bankruptcy ensued next day, but the 
 receiver, who had taken possession under the 
 liquidation, had not been discharged before the 
 trustee in bankruptcy was appointed, it was held 
 DioEST, 1870—1875. 
 
 that the proceedings in liquidation were for the 
 purposes of the above rule pending when the 
 bankruptcy occurred. Ex parte Jeffrey ; In re 
 Hawes, iZ Law J. Rep. (n.s.) Bankr. 27; Law 
 Rep. 9 Chano. 144. 
 
 The decision below (43 Law J. Rep. (n.s.) Bankr, 
 1 ; Law Rep. 17 Eq. 61) affirmed. 
 
 (M) Composition with Cbeditobs. 
 (a) Sesolution for composition. 
 
 1. — At a first meeting of creditors a composi- 
 tion was offered, but in consequence of the debtor's 
 solicitor finding that the majority of the creditors 
 present would vote against it, no formal resolu- 
 tion on the matter wa§ proposed. Instead, a. re- 
 solution for adjoui-nment was put and carried. 
 At the adjourned meeting a resolution for the 
 same composition was again proposed and then 
 carried: — Held, that when the sense of the first 
 meeting had been taken and found adverse to the 
 acceptance of the composition, there was no power 
 to adjourn the meeting for the purpose of bring- 
 ing the question before the creditors at such 
 adjourned meeting, and that therefore the resolu- 
 tion for a composition was invalid, and ought not 
 to be registered. Ex parte TUl ; In re Batcliffe, 
 44 Law J. Rep. (n.s.) Bankr. 103 ; Law Rep. 10 
 Chanc. 631. 
 
 The 275th rule applies only to resolutions adopt- 
 ing a liquidation or a composition, and not to re- 
 solutions generally. Ibid. 
 
 2. — A composition to be binding on a majority 
 must be bond fide voted by the majority for the 
 benefit of the creditors. Where, therefore, a reso- 
 lution for a composition was passed through the 
 vote of a creditor whose debt had been bought up 
 by a friend of the debtor for more than its value, — 
 Held, that the resolution ought not to be regis- 
 tered. Ex parte Cobb ; In re Sedley, 42 Law .T. 
 Rep. (n.s.) Bankr. 63 ; Law Rep. 8 Chanc. 727. 
 
 The purchase of the debt was in this case open, 
 but semble (per James, L.J.), that if it had been 
 secret, the resolution could not have stood, even 
 if carried by an independent majority, as other 
 creditors might have been influenced by the vote. 
 Ibid. 
 
 Semble — though where no regular first meet- 
 ing of the creditors under a liquidation has been 
 held, in pursuance of rule 276 of the Bankruptcy 
 Rules of 1870, for want of due advertisement for 
 example, another may be ordered, yet the failure 
 to pass a resolution for liquidation or composition 
 is no ground for such an order. Ibid. 
 
 (i) Statement and examination of debtor. 
 
 3, — In the statement of debts produced by a 
 debtor at the meetings of creditors, at which re • 
 solutions for accepting a composition were passed, 
 the debtor had inserted the amount becoming due 
 on two bills of exchange, and the name and ad- 
 dress of the drawer as the creditor, believing the 
 drawer to be the holder of the bills. The bills 
 had, in fact, been negotiated: — Held, that the 
 actual holder, having had no notice of the meet- 
 ing of creditors, was not bound by the resolutions 
 to accept a composition, Ex parte Matthews ; In 
 L 
 
n 
 
 BANKEUPTCY (M), 
 
 re Angel, 44 Law J. Kap. (k,s.) Bankr. 128 ; Law 
 Eep. 10 Chano. 304. 
 
 A mistake made inadvertently by a debtor in the 
 statement of his debts -will not be allowed to be 
 corrected, unless he takes steps for doing so with- 
 in a reasonable time after finding out the mistake. 
 Ibid. 
 
 4. — Although a resolution for a composition has 
 been registered, the Court has power to order a 
 debtor to be examined as to his affairs, if a prim& 
 facie case of fraud be made against him. Ex parte 
 Jones; In re Jones, Law Eep. 16 Eq. 386. 
 
 (c) Registration of resolution. 
 
 5. — Where all the requirements of the Act and 
 the rules have been complied with, resolutions in 
 favour of a composition must be registered, even 
 though, as in this case, the assets were only 11., 
 and the proposed composition Zd. in the pound. 
 Ex parte Elworthy ; In re Elworthy, 44 Law J. 
 Eep. (n s.) Bankr. 123 ; Law Eep. 20 Eq. 742. 
 
 6. — when a resolution for a composition is 
 presented to the registrar for registration under 
 the Bankruptcy Act, 1869, section 126, he may 
 refuse to register it if he is not satisfied that the 
 debtor's statement of his assets and debts is true, 
 or that the other requirements of the statute have 
 been complied with ; but he has no power to exa- 
 mine the debtor or witnesses. Ex parte Levy ; 
 In re Varbetian, 40 Law J. Eep. (n.s.) Bankr. 40 ; 
 Law Eep. 11 Eq. 619. 
 
 {d) Effect of composition. 
 {I) As regards creditors. 
 
 7. — The rights of a debtor and his creditors are 
 wholly different in the two cases of liquidation by 
 arrangement imder section 125, and composition 
 under section 126 of the Bankruptcy Act, 1869, 
 though both proceedings are begun by the debtor 
 filing a petition and a declaration of his inability 
 to pay his debts. Ex parte The Birmingham Gas- 
 light and Coke Co. ; In re Adams, 40 Law J. Eep. 
 (n.s.) Bankr. 1 ; Law Eep. 11 Eq. 204. 
 
 Wlien a resolution to accept a composition has 
 been duly passed and registered, the property of 
 the debtor is not taken from him, nor vested, in a 
 trustee, nor distributed in the same manner as in 
 Bankruptcy ; and there is no power to deprive 
 secured creditors of their securities. Ibid. 
 
 Under a statutory power to levy money due by 
 distress and sale a creditor seized his debtor's 
 goods. The debtor then filed in the County Court 
 a petition for liquidation under section 125, and 
 obtained an injunction restraining the creditor 
 from gelling. A resolution to accept a composi- 
 tion under section 126, was afterwards dulypassed 
 by the requisite majority of creditors and regis- 
 tered. The County Court having made an order 
 on the creditor to deliver the goods to the respon- 
 dent, — Held, on appeal, that the order must be 
 discharged. Ibid. 
 
 8. — An execution issued after petition, but be- 
 fore resolution for a composition, is not affected by 
 the composition. Ex parte Jows ; In re Jones, i,i 
 
 Law J. Eep, (n.s.) Chane. 124 ; Law Eep. 10 
 Ohanc. 663. 
 
 9, — A bank allowed T. and J., partners, to 
 overdraw their account, having good security from 
 deposit of deeds relating to separate property of 
 T. The two partners presented their petition, and 
 the bank, voted in favour of resolutions for comr 
 position, the resolutions saying nothing about 
 their security. Afterwards, in accordance with 
 the resolutions, a deed was executed, and this 
 distinctly reserved to the bank their collateral 
 security. The composition was paid to all the 
 creditors, including the bank. On the application 
 of T. the County Court Judge declared the secu- 
 rities forfeited, and directed the bank to deliver 
 them up to T. : — Held, on appeal (reversing the 
 decision of the County Court Judge), that in a 
 composition the County Court Judge had no juris- 
 diction to make such an order, and that the bank 
 were entitled to retain their securities. Ex parte 
 The Manchester and Liverpool District Banking 
 Co. ; In re lAttler, 43 Law J. Eep. (n.s.) Bankr. 
 73; Law Eep. 18 Eq. 249. 
 
 Discharge of swrety by composition with 
 principal creditor. [See Peincipai. 
 
 AND SUBETY, 16-18.] 
 
 [And see infra Nos. 15, 16.] 
 
 ^(2) As regards debtor. 
 
 10. — Goods were seized by the sheriff under a 
 writ of ^. fa. The debtor was adjudicated bank- 
 rupt. His creditors resolved to accept a compo- 
 sition : — Held, that the resolution did not revest 
 the title to the goods in the debtor ; but that the 
 execution creditor was restored to his position. 
 The Court of Bankruptcy enjoined the debtor from 
 prosecuting an action for trespass against the 
 sheriff for not delivering up the goods that had 
 been seized. In re England; Ex parte The Sheriff 
 of Middlesex, 40 Law J. Eep. (n.s.) Bankr. 65 ; 
 Law Eep. 12 Eq. 207. 
 
 11. — In 1870 W.mortgagedaleaseof certain pre- 
 mises to H. to secure 600Z. In N ovember, 1872, W. 
 filed a petition for liquidation, and in December 
 the creditors passed a resolution for composition, 
 whichjwas duly confirmed and registered, but the 
 composition was not paid. In March, 1873, W. 
 again mortgaged the lease to H. to secure 7001., 
 which included the 6001., &c., then owing to H, 
 In May, 1873, W. was adjudicated bankrupt, the 
 act of bankruptcy alleged being the presentation 
 of the above petition. An application by H. to 
 the County Court to have the mortgage declared 
 a valid security, and for an account, was dis- 
 missed : — Held, on appeal, that the debtor having 
 been left master of his affairs by the composition, 
 the second mortgage, which was merely in substi- 
 tution of the first, was not invalidated by the 
 petition for liquidation, and the order of the 
 County Court was discharged. Ex parte Hoare ; 
 In re Walton, 43 Law J. Eep. (n.s.) Bankr. 38. 
 
 12. — A debtor cannot, pending one composition 
 arrangement, effect a fresh composition under a 
 second petition, though the first composition has 
 failed through non-compliance with its provisions. 
 
BANKRUPTCY (M). 
 
 76 
 
 Ex parte Sydney ; In re Sydney, 44 Law J. Eep. 
 (if.s.) Bankr. 21 ; Law Kep. 10 Chanc, 208. 
 
 (e) Proof. 
 
 13. — Where a compounding debtor puts in his 
 statement an amount (by estimate) for an unascer- 
 tained debt he must tender the composition on such 
 amount. The creditor is not bound to prove his 
 debt if he is content with the amount set down, 
 unless he desires to vote. Ex parte Peacock ; In 
 re Duffield, 42 Law J. Eep. (n.s.) Baukr. 78 ; Law 
 Eep. 8 Chanc. 682. 
 
 Semble — a claim for untaxed costs in an action 
 is a proveable debt under section 31 (Act 1869), 
 and is within section 126. Ibid. 
 
 14. — The trustee under a composition has no 
 right peremptorily to reject the proof of a creditor, 
 but it is his duty to ascertain what is the amount of 
 the debt actually due. Ex parte Batting ; In re 
 Sosid, 44 Law J. Eep.' (n.s.) Bankr. 47; Law Eep. 
 19 Eq. 261. 
 
 (/) Trustee: swplus. 
 
 15. — Eesolutions were passed in favour of com- 
 position ; all the estate of the debtor was to be 
 assigned to D., he becoming surety for the pay- 
 ment of the composition and being appointed 
 trustee. Afterwards a deed was executed by the 
 debtor, the creditors and D. embodying these reso- 
 lutions, but not declaring any trusts : — Held, that 
 D. was absolutely entitled to the surplus of the 
 estate after the payment of the composition and 
 costs, and that there was no resulting trust in 
 favour of the debtor. Ex parte WilcocJcs ; In 
 re Wilcoeks, 44 Law J. Eep. (n.s.) Bankr. 12. 
 
 16. — ^When the creditors of a compounding 
 debtor appoint, under rule 279 of 1 870, a trustee for 
 the receipt and distribution of the composition, 
 and a sum of money is given by the debtor to the 
 trustee for the purpose of paying the composition, 
 if, when all the creditors have been paid, there 
 remains a surplus in the hands of the trustee, the 
 Court of Bankruptcy has jurisdiction to take an 
 account between the trustee and the debtor, and to 
 order the former to pay to the latter the balance 
 that may be found due from him. And when, 
 under similar circumstances, there is a surplus in 
 the hands of the trustee, a creditor who is not 
 bound by the composition is entitled, if he pleases, 
 to claim the benefit of it as against the debtor. 
 And if the amount of that creditor's claim is the 
 subject of litigation in a suit in the Court of Chan- 
 cery, the Court of Bankruptcy will make no order 
 for the trustee to pay over any surplus to the deb- 
 tor until a decree has been made in the Chancery 
 suit. But a creditor, who is not bound by the 
 composition, by reason of his name and address 
 and debt not having been sufficiently inserted in 
 the debtor's statement, and who has not given 
 notice of his claim to the other creditors by attend- 
 ing the meetings and proving his debt, though he is 
 entitled to the benefit of the composition as against 
 the debtor, yet he cannot interfere with the rights 
 of the other creditors. Ex parte Carew ; In re Oa- 
 rew, 44 Law J. Eep. (N.s.) Bankr. 67 ; Law Eep. 
 10 Chano. 308. 
 
 (g) Default inpayment of composition. 
 
 (1) Eevival of original debt. 
 
 17. — Where by an extraordinary resolution 
 under section 126 of the Bankruptcy Act, 1869, 
 creditors resolre to accept a composition in satis- 
 faction of their debts, but the debtor fails to pay 
 the said composition, the creditors are entitled to 
 bring actions for their original debts. Edwards v. 
 Coombe, 41 Law J. Eep. (n.s.) C.P. 202 ; Law Eep. 
 7C.P. 519. 
 
 18. — "Where by an extraordinary resolution 
 under the 126th section of the Bankruptcy Act, 
 1869, creditors had resolved to accept a, composi- 
 tion payable by certain instalments in satisfaction 
 of their debts, and the debtor made default in 
 payment of an instalment, — ^Held, that the credi- 
 tors could maintain actions for the whole unpaid 
 balance of their original debts, and the Court of 
 Bankruptcy would not restrain such actions. In 
 re Hatton, 42 Law J. Eep. (n.s.) Bankr. 12 ; Law 
 Eep. 7 Chanc. 723. 
 
 19. — ^When under a composition arrangement 
 a trustee is appointed by the creditors, the debtor 
 is not liable for any default of the trustee in pay- 
 ing the composition. Ex parte Waterer ; In re 
 Taylor, 43 Law J. Eep. (n.s.) Bankr. 25. 
 
 A creditor holding a security of uncertain value, 
 was inserted in the debtor's statement for an esti- 
 mated balance. The trustee did not pay or tender 
 the composition on the amount, but (wrongly) 
 required the creditor to prove his debt. The cre- 
 ditor having commenced an action for his original 
 debt against the debtor, — Held, that it ought to be 
 restrained. Ibid. 
 
 The trustee under a composition is not bound to 
 tender the composition, semble. Ibid. 
 
 20. — In February, 1871, H. effected a compo- 
 sition with his creditors. The proof of one of the 
 creditors, K., was disputed, and was only settled 
 by the Judge on the 29th of July, 1873. Thecom- 
 position on the amount as settled was not then 
 paid at once, but the solicitors of both parties 
 waited till the order was drawn up and signed by 
 the registrar. On the 22nd of August, 1873, the 
 debtors asked to be allowed to pay the composi- 
 tion partly in cash and partly in bills at two and 
 four months. This request was refused, and K. 
 then said that the composition not having been 
 paid he should commence an action for the whole 
 debt. On the 27th of August the registrar signed 
 the order, and on the same day the debtors ten- 
 dered payment of the composition in cash. This 
 was refused, and an action for the original debt 
 commenced on the 29th of August : — Held (affirm- 
 ing the decision of the County Court Judge), that 
 it would be inequitable to allow K. to proceed with 
 the action. Ex parte King ; In re Harper, 43 Law 
 J. Eep. (n.s.) Bankr. 41 ; Law Eep. 17 Eq. 332. 
 
 (2) Power of Court over surety. 
 
 21. — On a motion by a creditor against a trus- 
 tee and a surety to compel payment from the 
 trustee, and in default from the surety of the com- 
 position on his debt, — Held, dismissing the appli- 
 cation, that the Court had no authority over the 
 l2 
 
76 
 
 SANKRUPTOY (M), (N). 
 
 surety, aud that the application ought to have 
 1)6611 against the trustee alone, whose duty it was, 
 if necessary, to enforce it against the surety. Ex 
 parte Mirabita ; In re Sale, 44 Law J. Eep. (k.s.) 
 Bankr. 119 ; Law Eep. 20 Eq. 772. 
 
 (/^) Power of creditors to reoktoe composition. 
 
 22. — Creditors have power by means of an 
 extraordinary- resolution to reduce the amount 
 payable under a composition ; and creditors who 
 had agreed to the original resolution, but dissented 
 from the resolution for the reduction, are never- 
 theless bound by the latter resolution when duly 
 passed. Ex parte The Eadelife Investment Co. ; 
 In re Glover, 43 Law J. Eep. (n.s.) Bankr. 4 ; Law 
 Eep. 17 Eq. 121. 
 
 The word " persons " in the 126th section of 
 the Bankruptcy Act, 1869, does not include credi- 
 tors. Ibid. 
 
 (J) Pleading composition at law. 
 
 23. — To an action to recover a debt of 50?., the 
 defendant pleaded, as to 27?. 16s. Wd., that it was 
 the balance remaining due on a joint aud several 
 promissory note of the defendant and H., carrying 
 on business as co-partners, to secure a partnership 
 debt due from them to the plaintifis ; that the de- 
 fendants instituted proceedings under sections 126 
 and 127 of the Bankruptcy Act, 1869, and that 
 an extraordinary resolution of the creditors was 
 passed for accepting a composition payable by 
 instalments, to be secured by joint and several 
 notes. The plea contained the usual averments 
 that all the requirements of the statute had been 
 complied with : — Held, by Brett, J., Archibald, J., 
 Pollock, B., and Amphlett, B., that assuming the 
 plaintiffs were not parties to the resolution, and 
 had not adopted it or received any instalment 
 under it, the plea afforded no answer to the 
 action; by Kelly, O.B., that the action, so far as 
 related to the sum of 27?. 16s. lOrf., was answered 
 by the plea. Simpson v. Henning (Exch. Ch.), 44 
 Law J. Eep. (n.s.) Q. B. 143 ; Law Eep. 10 Q. B. 
 406. 
 
 24. — If, after an extraordinary resolution to 
 accept a composition, payable at a future time or 
 by instalments, in satisfaction of the debts due to 
 creditors by their debtors, has been duly passed, 
 confirmed and registered under section 126 of the 
 Bankruptcy Act, 1869, a creditor who is bound by 
 the resolution sues for his original debt before 
 default in payment of the composition, or of any 
 instalment, the resolution is pleadable in bar of 
 the action. Slater v. Jones, and . Capes v. Ball, 
 42 Law J. Eep. (n.s.) Exch. 122 ; Law Eep. 8 
 Exch. 186. 
 
 25. — In accordance withthe provisions of section 
 126 of the Bankruptcy Act, 1869, an extraordinary 
 resolution was passed by the pToper majority in 
 number and value of the creditors of the defendant, 
 a debtor, that a composition should be accepted, 
 payable by three instalments, and that the second 
 and third instalments should be secured by the 
 promissory notes of the defendant and a third 
 person ; — Held, in an action by a creditor, who 
 did not attend or vote on the resolution, that such 
 
 resolution, although duly passed and registered, 
 did not constitute any defence, there being no 
 proof that the defendant had paid or tendered the- 
 two instalments which had become due before 
 action, or that he had delivered the promissory 
 notes. Goldney v. Lording, 42 Law J. Eep. (n.s.) 
 Q.B. 103; Law Eep. 8 Q.B. 182. 
 
 (N) Peacticb. 
 
 (a) Absconding debtor. 
 
 1.— Eule 65 of the Bankruptcy Eules, 1870, 
 only applies where a debtor is keeping out of the 
 way so that he cannot be proceeded against by 
 the regular process; and if he appears, he can 
 insist on the proceedings being conducted in the 
 regular way. Ex parte Lopez; In re Brelae, Law 
 Eep. 6 Chanc. 894. 
 
 (J) Accounts. 
 
 [See General Eules, 7th July, 1871, rr. 9-27. 
 40 Law J. Eep. (n.s.) Bankr. 2,] 
 
 (o) Appeals and rehearings. 
 
 2.— Ajoint adjudication in bankruptcy was made 
 against three partners. Two of them appealed. 
 The third did not appeal within the twenty-one 
 days allowed by the General Eules : — Held, that 
 he might be heard on the appeal, but on the terms 
 of presenting a separate petition of appeal, and 
 making the usual deposit to meet costs :^Held 
 also, that as the case of the three partners was 
 the same, the adjudication must be annulled 
 against all three. Ex parte Hnyward and Batten ; 
 In re Hayward ^ Co. 40 Law J. Eep. (n.s.) 
 Bankr. 40 ; Law Eep. 5 Chanc. 546. 
 
 3. — A registrar sitting as Chief Judge has a 
 discretion to rehear a case, even after an appeal 
 from his decision, if the point upon which a re- 
 hearing is desired is unaffected by the appeal. 
 But an application for a rehearing ought, in ordi- 
 nary cases, to be made within the time fixed by 
 the 143rd of the Bankruptcy Eules of 1870 for 
 entering an appeal; and where a long delay is 
 unaccounted for a rehearing will not be granted. 
 Ex parte Machay ; In re Jeavons, and Ex parte 
 Brown; In re Jeavons, 43 Law J. Eep. (n.s.) 
 Bankr. 105 ; Law Eep. 9 Chanc. 127, 304. 
 
 4. — The jurisdiction given to every Court of 
 Bankruptcy, by the 71st section of the Bank- 
 ruptcy Act, 1869, to review, rescind or vary any 
 order made by it, is almost without limit in pro- 
 per cases, and the fact that an appeal from an 
 order is pending will not prevent the reheaiSig of 
 the case by the Court below. JSx parte Keighley ; 
 In re Wike, 44 Law J. Eep. (n.s.) Bankr. 13 ; Law 
 Eep. 9 Chanc. 667. 
 
 Where additional evidence was necessary to en- 
 able the Court of Appeal to dispose of a case 
 satisfactorily, such evidence was taken vivS, voce 
 on the hearing of the appeal. Ibid. 
 
 5. — Where an issue of facts has been tried be- 
 fore a Judge, the Court of Appeal is not bound to 
 accept as conclusive the finding on such an issue. 
 Ex parte GiUebrand; In re Sidebotham, Law Eep 
 10 Chanc. 52. 
 
BANKRUPTCY (N). 
 
 77 
 
 6. — After the appeal has been lodged, and the 
 usual deposit made of 201., Uie amount prescribed 
 by the Bankruptcy Rules, 1870 (146), in the ab- 
 sence of any other direction, the Court will not 
 entertain an application for a larger deposit ; and 
 s&nble, the proper time to make such an applica- 
 tion is at the original hearing. Ex parte Lovenng ; 
 In re Thorpe, 42 Law J. Rep. (n.s.) Bankr. 39 ; 
 Law Rep. 16 Eq. 291. 
 
 7. — Upon an appeal in bankruptcy from part of 
 an order so much only of the case as is covered by 
 the appeal is open to the respondent, and unless he 
 presents a cross appeal he cannot go into the whole 
 case, as he might do upon an appeal in Chancery, 
 which is in the nature of a rehearing. Ex parte 
 Kiveton Coal Company ; In re Phillips, 42 Law J. 
 Rep. (n.s.) Bankr. 11 ; Law Rep. 7 Chanc. 730. 
 
 The Court has jurisdiction to give leave to ap- 
 peal after the expiration of the twenty-one days 
 within which, under rule 143 of the Bankruptcy 
 Rules, 1870, the notice of appeal is to be given. 
 Ibid. 
 
 8, — An appeal in bankruptcy must be brought 
 within twenty-one days from the day on which the 
 decision or order is pronounced. An appeal which 
 was brought within twenty-one days from the day 
 on which the order was drawn up, but not within 
 twenty-one days from the day on which it was 
 pronounced, was therefore held to be too late. Ex 
 parte Miiton; In re Hinton, 44 Law J. Rep. (n.s.) 
 Bankr. 36 ; Law Rep. 19 Eq. 266. 
 
 [And see infra Nos. 33-35 and supra B 28.] 
 
 (d) Contempt of Court. 
 
 9. — Debtors were employed by trustees in a 
 liquidation to realise the stock and collect the book 
 debts, and it appeared that one of them had, after 
 they had received their order of discharge, applied 
 some of the partnership assets obtained in this 
 way in payment of his private creditors : — Held, 
 on appeal, that the County Court Judge had au- 
 thority to commit him for contempt of Court. Ex 
 parte Waters ; In re Waters, 43 Law J. Rep. (n.s.) 
 Bankr. 128 ; Law Rep. 18 Eq. 701. 
 
 (e) Debtor summons. 
 [See also B 33 suprai] 
 
 (1) By secretary of company. 
 
 10. — ^A debtor summons taken out in the name 
 of the secretary of a company for a debt due to the 
 company is irregular. Ex parte Leathley ; In re 
 Ho^es, 42 Law J. Rep. (n.s.) Bankr. 66 ; Law 
 Rep. 8 Chanc. 204. 
 
 (2) Affidavit in support. 
 
 11, — B. filed an affidavit, on which a debtor's 
 summons was issued, and therein stated tliat he 
 was the public registered officer of a company, and 
 that he was duly authorised by the company to 
 make the affidavit, but he did not say that he was 
 authorised to sue out the summons ; an objection 
 was taken to this, but the Court held that rule 15 
 of the Bankruptcy Rules, 1870, had been suffi- 
 ciently complied with, and dismissed the appeal. 
 
 Ex parte Lowenthal ; In re Lowenthal, 43 Law J. 
 Rep. (n.s.) Bankr. 132 ; Law Rep. 9 Chanc. 324. 
 
 12. — An affidavit by a public officer of a com- 
 pany in support of a debtor's summons must con- 
 tain an express statement that he is such public 
 officer and autliorised to sue out the summons, it 
 is not enough that he is merely described as public 
 officer. An affidavit after it is filed cannot be ob- 
 jected to on account of the' omission of the words 
 " make oath and say." A debtor may object to a 
 debtor's summons for irregularity, although he has 
 not in his affidavit distinctly denied the debt. Ex 
 parte TorJdngton ; In re Torkington, Law Rep. 9 
 Chanc. 298. 
 
 (3) Security. 
 
 13. — Where a debtor's summons is ordered to 
 stand over for an action to be brought, the Court 
 will not require the alleged debtor to give security 
 where there is as much probability of the defend- 
 ant as of the plaintiff succeeding in the action. Ex 
 parte Turner ; In re Turner, 44 Law J. Rep. (n.s.) 
 Chanc. 112 ; Law Rep. 10 Chanc. 175. 
 
 14. — The Court of Appeal discharged an order 
 directing a debtor to give security where the pro- 
 bability of the claim against him being established 
 appeared very small, although it was admitted that 
 the debtor was in very poor circumstances. Ex 
 parte Wier ; In re Wier, Law Rep. 7 Chanc. 319, 
 
 (4) Dismissal: affidavit. 
 
 15.— When the person summoned by a debtor's 
 summons merely denies by his affidavit that he is 
 indebted to the summoning creditor in the amount 
 claimed, but it appears that he admits a debt of 
 more than 50Z., there being a bond fide dispute as 
 to the amount, the summons ought not to be dis- 
 missed, but the proceedings upon it ought to be 
 stayed pending the trial of the validity of the debt 
 claimed. Ex parte Eowan ; In re Kiddell, 43 Law 
 J. Eep. (n.s.) Bankr. 96 ; Law Rep. 9 Chanc. 617. 
 
 An affidavit in the above form, though not 
 strictly in accordance with the provisions of sec- 
 tion 7 of the Bankruptcy Act, 1869, yet, as it is in 
 accordance with No. 8 of the Bankruptcy Forms, 
 1870, is sufficient to give the person summoned a 
 locus standi upon an application to dismiss the 
 summons. Ibid. 
 
 16. — Creditors in partnership, residing abroad, 
 issued a debtor's summons against an Englishman. 
 The affidavit in support of the summons was made 
 by their agent in England. The debtor denied the 
 debt and applied to the Court to dismiss the sum- 
 mons, and he gave notice to the creditors that he' 
 required them to attend on the hearing of his ap- 
 plication, for the purpose of being examined as to 
 the alleged debt : — Held (reversing the decision of 
 one of the registrars), that the debtor had, under 
 the circumstances, no absolute right to require the 
 presence of the summoning creditors on the hear- 
 ing of his application. Ex parte Barron; In re 
 Irving', 44 Law J. Rep. (n.s.) Bankr, 66 ; Law 
 Eep. 10 Chanc. 269, 
 
 (/) Evidence : Judges notes. 
 
 Yl, — Where the Judge's notes purporting to con 
 tain a full record of what took place at the trial of 
 
78 
 
 BANKRUPTCY (N), 
 
 an issue before him are produced to the Court of 
 Appeal, they are conclusive as to the evidence ad- 
 duced before him, and, unless the parties consent, 
 the Court will not receive the notes of a shorthand 
 ■writer. Ex parte Gillebrand; In re Sidebotkam, 
 Law Eep. 10 Chanc. 62. 
 
 Additional evidence on appeal. {See supra 
 No. 4 and infra 9.] 
 
 (g) Examination of trustee. 
 
 _ 18. — The Court has power under the 96th sec- 
 tion of the Bankruptcy Act, 1869, to order the 
 examination of the trustee in bankruptcy, and 
 ■where such examination is necessary, ■will make 
 the order for it upon the application of a creditor. 
 Ex parte Crossley ; In re Taylor, 41 Law J. Eep. 
 (n.s.) Bankr. 35 ; Law Eep. 13 Eq. 409. 
 
 {h) Hearing. 
 
 19. — A petition to adjudicate P. bankrupt was 
 fixed for hearing before the registrar, on the 2nd 
 of November, at twelve o'clock. P.'s counsel sent 
 a telegram to the registrar stating that he was on 
 his way to attend the hearing, and asking that the 
 matter might stand for a few minutes. The 
 registrar waited till 12.20, and then at the request 
 of the petitioners proceeded to hear the matter, and 
 adjudicated P. bankrupt. P.'s counsel arrived at 
 12.32, but the case was then over. On application 
 that the matter might be sent back to the County 
 Court for rehearing : — Held, that the proceedings 
 had been too hasty, and that the petition must bo 
 reheard in the County Court. Ex parte Phillips ; 
 In re Phillips, 44 Law J. Eep. (n.s.) Bankr. 11. 
 
 (i) Issue. 
 
 20. — In this case the County Court Judge de- 
 cided that the fraudulent preference alleged had 
 not been proved. On the trial before him the evi- 
 dence had been taken on affidavits and depositions, 
 and neither party had asked for a trial by jury. 
 The Chief Judge on appeal, being doubtful whether 
 the decision of the County Court Judge was justi- 
 fied by the evidence, and considering that the 
 matter required further investigation, ordered an 
 issue to be tried by a jury, before himself. Ex 
 parte Brown; In re Hooker, 44 Law J. Eep. (n.s.) 
 Chanc. 56. 
 
 Finding not conclusive on Court of Appeal. 
 [See supra N 6.] 
 
 {K) New trial. 
 
 21. — Where a Judge had directed a trial by 
 jury, but being dissatisfied ■with the verdict had 
 made no order thereon, and thirty-three days after 
 the trial, a motion was made for a new trial, it was 
 held, that the application was in good time. Ex 
 parte Eeader ; In re Wrigley, 44 Law J. Eep. (n.s.) 
 Bankr. 139 ; Law Eep. 20 Eq. 763. 
 
 (l) Petition : when sustainable. 
 
 22. — L. took out a debtor's summons and filed 
 a petition to adjudicate J. bankrupt. J. promised 
 to pay L. fifteen shillings in the pound and to 
 
 satisfy his other creditors, and on this understand- 
 ing the petition was, ■with the consent of all parties, 
 dismissed. J. made no payment, and L. obtained 
 special leave from the registrar of the County 
 Court to file a second petition founded on the same 
 act of bankruptcy. This petition was heard before 
 the County Court Judge, and by him dismissed on 
 the ground that a debtor could not be adjudicated 
 a bankrupt upon an act of bankruptcy on which a 
 former petition had been foimded: — Held (dis- 
 charging the order appealed from), that the second 
 pstition was properly filed, and that the creditor 
 was entitled to have it heard upon the merits. Ex 
 parte Love ; In re Jagger, 43 Law J. Eep. (n.s.) 
 Bankr. 37 ; Law Eep. 17 Eq. 454. 
 
 23. — A petition for adjudication maybe pre- 
 sented by the assignee of a debt without joining 
 the assignor as a co-petitioner. Ex parte Cooper ; 
 In re Baillie, 44 Law J. Eep. (n.s.) Bankr. 125 ; 
 Law Eep. 20 Eq. 763. 
 
 (jn) Bes judicata. 
 
 24. — The right of an execution creditor to en- 
 force an execution against the estate of a bankrupt 
 depended on whether the bankrupt had or had not 
 been a trader. In an action at law by the creditor 
 against the sheriff for ■wrongfully ■withdra^wing from 
 possession of the goods which he had seized under 
 the execution, judgment went for the sheriff, on 
 the ground that the bankrupt was a trader, and 
 that therefore the goods belonged to the trustees 
 in bankruptcy : — Held, that the creditor was pre- 
 cluded from raising the question of the validity of 
 his execution in an application against the trustee 
 in the Court of Bankruptcy. Ex parte Harper ; In 
 re Bremner, 44 Law J. Eep. (n.s.) Bankr. 57 ; Law 
 Eep. 10 Chanc. 379. 
 
 (») Begistrar. 
 
 25. — A registrar presided at the first meeting 
 of creditors, at which only one creditor appeared, 
 and reported the fact to the Court. The same 
 registrar afterwards sat as Chief Judge to receive 
 his own report, and thereupon annulled the bank- 
 ruptcy. The Court said : It is to be regretted 
 that the personal opinion of the Chief Judge was 
 not taken, and .it is inconvenient that important 
 points of practice should be settled by the regis- 
 trars. The intention of the legislature in per- 
 mitting the delegation of the Chief Judge's duties 
 to the registrars was that they should deal ■with 
 such matters as are governed by previous decisions 
 of the Chief Judge or of this Court. In re Finney; 
 Ex parte English Joint-Stock Bank, 40 Law J. Eep. 
 (n.s.) Bankr. 43 ; Law Eep. 6 Chanc. 79. 
 
 Eehearing by registrar. [See supra 
 No. 8.] 
 
 (o) Service. 
 
 26. — A debtor who had resided and carried on 
 business in Staffordshire, went away into York- 
 shire for the purpose of avoiding service of a 
 trader-debtor summons. Thereupon substituted 
 service of a summons and a bankruptcy petition 
 was made in Staffordshire, and adjudication fol> 
 
BANKBUFTCY (N). 
 
 79 
 
 lowed: — Held, that the adjudication could not bo 
 set aside on the ground that the debtor was not 
 residing within the jurisdiction of the Court at 
 the time of service and adjudication ; and that 
 under the circumstances, the debtor could not be 
 heard to complain that the orders for substituted 
 service had been improperly obtained upon mis- 
 leading affidavits. Ex parte Williams; In re 
 Williams, 42 Law J. Rep. (n.s.) Bankr. 28 ; Law 
 Eep. 8 Chanc. 690. 
 
 27. — A. clause in the articles of association of a 
 joint-stock company providing that notices may be 
 served on members by leaving the same at their 
 registered place of abode, will not extend to legal 
 proceedings, and an order for substituted service 
 of a debtor summons at such address, that not 
 being his last known place of abode, is bad. Ex 
 parte Chatteris; la re Studer, 40 Law J. Eep. 
 (n.s.) Bankr. 90 ; Law Eep. 10 Chanc. 227. 
 
 28. — It is a matter in. the discretion of the 
 County Court Judge whether summonses under the 
 96th section of the Bankruptcy Act, 1869, shall be 
 served by the high bailiff of the Court or by the 
 solicitors to the trustee ; and, on appeal, the Chief 
 Judge declined to interfere with such discretion. 
 Ex parte Bolland ; In re Holden, 44 Law J. Bep. 
 (n.s.) Bankr. 9 ; Law Eep. 19 Eq. 131. 
 
 29. — Trustees in a liquidation alleged that E., 
 who was a domiciled Scotchman, had received a 
 payment of 120Z. by way of fijaudulent preference. 
 E. had come in under the liquidation and proved 
 for the balance of his debt, and received a divi- 
 dend. The trustees served personally on B. in 
 Scotland notice of motion for an order for repay- 
 ment of the 1201. E. appeared by his solicitor, 
 who objected to the jurisdiction, and when his 
 objection was overruled, asked, and obtained, time 
 to meet the case on the merits. The County Court 
 Judge subsequently ordered E. to repay the ] 20^. 
 to the trustees, and on appeal from that decision 
 it was held that B., by proving his debt had entered 
 into a compact that the assets of the debtors should 
 be duly distributed in the English Court, and 
 could not afterwards object to the jurisdiction ; 
 also, that the service was merely defective in 
 regularity, and that the objection had been waived 
 by E.'s appearance by his sollsitor. Ex parte 
 Robertson; In re Morton, 44 Law J. Eep. (n.s.) 
 Bankr. 99 ; Law Eep. 20 Eq. 733. 
 
 (p) Btay of proceedings. 
 
 30. — ^Where a debtor summons was obtained for 
 bnl., but on the petition for adjudication only 1 lOZ. 
 was shewn to be due, it was ordered that the ad- 
 judication should not be published for a fortnight, 
 and that if during that time the 11 OZ. was paid, 
 all proceedings should be stayed, leaving each 
 party to bear his own costs. ^ parte Harris ; In 
 re Harris, 44 Law J. Eep. (n.s.) Chanc. 77 ; Law 
 Eep. 10 Chanc. 468. 
 
 31, — "When at the hearing of a bankruptcy pe- 
 tition there is also pending a liquidation petition 
 filed by the debtor, the Court has a discretion 
 whether it will postpone proceeding with the 
 bankruptcy petition until after the meeting of the 
 creditors under the liquidation petition, or make 
 
 adjudication, an4 at the same time stay the pro- 
 ceedings under it till after the meeting, or make 
 a simple adjudication, and if the Court can see 
 that the debtor's petition is not a bonci fide one, 
 the latter course ought to be adopted. Ex parte 
 Walton ; In re Bando, 44 Law J. Eep. (n.s.) Bankr. 
 37 ; Law Eep. 10 Chanc. 215. 
 
 The circumstance that a debtor does not file his 
 liquidation petition till just before the day fixed 
 for the hearing of a bankruptcy petition presented 
 against him some time before is atvong pnrnd facie 
 evidence that his petition is only intended for the 
 purpose of delay. Ibid. 
 
 32. — Under a building contract K. had posses- 
 sion of E.'s land, and E. made advances to him 
 upon the security of the buildings. In January, 
 1870, K. brought an action against E. for breach of 
 the contract. In July E. brought ejectment against 
 K., and in January, 1861, recovered judgment with 
 costs, which were taxed at 59Z. In February he 
 took out a debtor's summons against K. in respect 
 of these costs. K. applied to dismiss the sum- 
 mons and stay proceedings pending his action, 
 upon the ground that his claim in the action greatly 
 exceeded the 6%l. : — Held, reversing the decision 
 of the registrar, that no order to stay proceedings 
 ought to be made, there being no case for such 
 stay of proceedings within section 7 of the Bank- 
 ruptcy Act, 1869. Ex parte Ellis; In re Kain, 
 40 Law J. Rep. (n.s.) Bankr, 77; Law Eep. 6 
 Chanc. 602. 
 
 (q) Time. 
 
 33. — In computing the three days' notice of a 
 motion to commit required by rule 176, Sundays 
 must not be reckoned. Ex parte Eerrige ; In re 
 Ferrige, 44 Law J. Bep. (n.s.) Bankr. 96 ; Law 
 Bep. 20 Eq. 289. 
 
 34. — In reckoning the twenty-one days within 
 which an appeal must be entered under rule 148, 
 the computation must be made exclusive of Sun- 
 days. Ex parte Hicks ; In re Ball, 44 Law J. Eep. 
 (n.s.) Bankr. 106 ; Law Eep. 20 Eq. 143. 
 
 35. — Where a Judge had directed a trial by 
 jury, but being dissatisfied with the verdict had 
 made no order thereon, and, thirty-three days after 
 the trial, a motion was made for a new trial, it 
 was held that the application was in good time. 
 Ex parte Reader ; In re Wrigley, 44 Law J. Eep. 
 (n.s.) Bankr. 139 ; Law Eep. 20 Eq. 763. 
 
 (r) 'Transfer of proceedings. 
 
 36. — Liqmdation proceedings -^ere begun by 
 mistake in a County Court, when the debtor lived 
 beyond the limits of its district. The mistake was 
 not discovered till just before the second meeting 
 of creditors, and thereupon they passed (amongst 
 others) a resolution to transfer the proceedings to 
 the proper Court. The registrar refused to regis- 
 ter the resolutions, on the ground that all the 
 proceedings were a mere nullity. On appeal he 
 was directed to register the resolutions, and the 
 proceedings were transferred. Ex parte Bttckla/nd ; 
 In re Buckland, 42 Law J. Eep. (n.s.) Bankr. 32 • 
 Law Eep. 16 Eq. 221. 
 
80 
 
 BANKRUPTCY (0). 
 
 (0) Injunction, 
 (rt) " Execution or other legal process.'' 
 
 1. — A •writ of sequestration issued to enforce an 
 order in a suit in Chancery for payment of money 
 is a legal process against the debtor within the 
 meaning of the 1 3th section of the Bankruptcy 
 Act, 1869, and seizure of property under such a 
 writ does not divest it out of the debtor. Accord- 
 ingly, where a debtor's goods have been seized but 
 not sold under such a writ, at the date of his bank- 
 ruptcy, the Court of Bankruptcy will restrain fur- 
 ther proceedings under the sequestration, In re 
 Browne, 40 Law J. Eep. (n.s.) Bankr. 46 ; Law 
 Eep. 12 Eq. 137, nrni. Ex parte Hughes. 
 
 2. — A landlord's distress for rent is not liable 
 to be restrained as "an execution or other legal 
 process " within the Bankruptcy Act, 1869, section 
 13. Ex 'parte The Birmingham and Staffordshire 
 Gaslight Co. ; In re Fanshaw and Yorston, 40 Law 
 J. Eep. (N.s.) Bankr. 52 ; Law Eep. 11 Eq. 615. 
 
 Under a local statute, as construed by the Court, 
 a gas company had the same rights with respect 
 to recovering "the rent or charge" due for the 
 supply of gas, as landlords have with respect to 
 recovering rent. The company, after notice that 
 a certain firm indebted to them for a supply of gas 
 had filed a petition under section 125 of the Bank- 
 ruptcy Act, 1869, distrained in pursuance of their 
 statutory rights upon the petitioners' goods. The 
 creditors of the petitioners afterwards resolved on 
 liquidation, and a trustee was appointed : — Held, 
 that the distress was not liable to be restrained 
 as " an execution or other legal process " within 
 section 13 ; and that, assuming the filing of the 
 petition to be equivalent to the commencement of 
 a bankruptcy, the company were entitled under 
 section 34 to distrain, after the filing, for one 
 year's supply of gas. Ibid. 
 
 (b) Proceedings against debtor : fraud. 
 
 3, — The Court of Bankruptcy has no jurisdic- 
 tion to restrain an action for false representation 
 or fraud. Therefore, when an action had been 
 commenced against a debtor for damages for 
 breach of contract and for tort by reason of a 
 false representation, both grounds of complaint 
 having arisen out of the same transaction, the 
 Court of Bankruptcy in proceedings under a com- 
 position under the provisions of the Bankruptcy 
 Act, 1869, restrained 'the plaintiff in the action 
 from proceeding therewith only so far as concerned 
 the breach of contract, but did not restrain him 
 from proceeding in respect of the tort. But held 
 that the claimant was put to his election between 
 his remedies, and if he proceeded with his action 
 upon the tort he could not also prove under the 
 composition. Ex parte Baum; In re Edwards, 44 
 Law J. Eep. (n.s.) Bankr. 25 ; Law Eep. 9 
 Chanc. 673. 
 
 4_ — ^Where before the commencement of a liqui- 
 dation by arrangement, a suit has been instituted 
 against the debtor to enforce a claim arising out 
 of an alleged fraud, so that if the allegation is 
 proved, the debtor would remain personaUy liable, 
 notwithstanding an order of discharge on the close 
 
 of the liquidation, the Court of Bankruptcy ought 
 not to restrain the proceedings in the suit. Ex 
 parte CoJcer ; In re Blaise, 44 Law J. Eep. (n.s.) 
 Bankr. 126 ; Law Eep. 10 Chanc. 652. 
 
 5. — Where a bill of sale has been given by a 
 debtor, the validity of which is disputed by the 
 trustee under a liquidation of the debtor's affairs, 
 the Court of Bankruptcy has jurisdiction to restrain 
 the holder of the bill of sale from bringing an 
 action upon it against the trustee. Ex pwrte 
 Cohen; In re' Sparhe, 41 Law J. Eep. (n.s.) 
 Bankr. 17 ; Law Eep. 7 Chanc. 20. 
 
 6. — A creditor holding a security of uncertain 
 value, was inserted in the debtor's statement for 
 an estimated balance. The trustee did not pay 
 or tender the composition on the amount, but 
 (wrongly) required the creditor to prove his debt. 
 The creditor having commenced an action fer his 
 original debt against the debtor, — Held, that it 
 ought to be restrained. Ex parte Waterer ; In re 
 Taylor, 43 Law J. Eep. (n.s.) Bankr. 25. 
 
 The trustee under a composition is not bound to 
 tender the composition, «e»!jfo. 
 
 7. — A debtor entered into a composition with 
 his creditors. One of the creditors had assented 
 to the composition merely by proving the debt and 
 receiving dividends, and then, on the ground that 
 the debtor had obtained forbearance by fraud, 
 brought an action against him for the balance 
 of the debt due. The County Court Judge 
 restrained the action : — Held, that the County 
 Court Judge had no authority to restrain the 
 action, and that the creditor had a right, under 
 the 15th section of the Debtors Act, 1869, to have 
 his case tried before a jury. Ex parte Halford; 
 In re Jacobs, 44 Law J. Eep. (n.s.) Bankir. 53 ; 
 Law Eep. 19 Eq. 436. 
 
 Default in payment of composition : creditor 
 restrained from suing for original debt. 
 [See supra M, 17-20.] 
 Injunction to restrain action by creditor who 
 disputes validity of composition. [See 
 supra A, 8.] 
 
 (c) Creditor objecting to composition on personal 
 
 8. — A creditor who objects to a resolution for 
 a composition on grounds personal to himself and 
 not common to the other creditors, will not be 
 restrained from trying the question in an action at 
 law. Ex parte Pa'per Staining Co. ; In re Bishop, 
 Law Eep. 8 Chanc. 595. 
 
 {d) Chancery proceedings against trustee. 
 
 9, — Some years after a testator's death, a suit 
 was instituted by beneficiaries under his will 
 against his partners in business and his trustee, 
 praying a winding iip of the business, and raising 
 the question whether his capital had been properly 
 left in it. Of the partners (four in number) one 
 had retired since the testator's death. The other 
 three went into liquidation shortly after the bill 
 was filed, and on their trustee being made a party 
 by revivor, he moved in the liquidation to stay the 
 
BANKEUPTCY (0), (P). 
 
 81 
 
 Chancery proceedings against him. The Chief 
 Judge (affirming the order of the County Court) 
 refused the application, on the ground that the 
 plaintiffs could obtain no relief in the liquidation 
 against the retired partner. On appeal, evidence 
 ■was tendered that the retired partner had gone 
 into liquidation since the Chief Judge's order. The 
 Lords Justices admitted this evidence, and stayed 
 the suit against the trustee ; but expressed their 
 opinion that other-wise they could not have made 
 the order. Ex parte Gordon; In re Dixon, 42 Law 
 J. Eep. (n.s). Bankr. 41 ; Law Eep. 8 Chano. 555. 
 [And see supra A, 11.] 
 
 (e) Joint debtors. 
 
 10. — It is a matter for the exelcise of judicial 
 discretion whether or not an injunction shall be 
 granted under rule 260. Ex parte Mills ; In re 
 Manning, 40 Law J. Eep. (n.s.) Bankr. 89 ; Law 
 Eep. 6 Chanc. 594. 
 
 M. & B. jointly accepted a bill ; before the bill 
 matured M. petitioned for arrangement of his 
 affairs by liquidation. The creditors resolved 
 upon liquidation, and a trustee was appointed. 
 AJFterwards, the holder of the biU, which had been 
 meanwhile dishonoured, sued M. & B. upon it. 
 They pleaded non-acceptance. Notice of trial was 
 then given ; subsequently to which an injunction 
 was granted by the registrar, restraining further 
 proceedings in the trial against M. : — Held, on 
 appeal, that the application for an injunction 
 ought to have been made at once before pleading 
 in the action ; and that the proper order now 
 was merely to restrain execution against M. 
 Ibid. 
 
 U. — Where a creditors of joint debtors is pro- 
 ceeding against them jointly, and one of them 
 takes proceedings for liquidation of his affairs, 
 the Court of Bankruptcy will not restrain the 
 proceedings of the creditor against his joint cre- 
 ditors. In re Be Veechj ; Ex par0^ Isaac, 40 
 Law J.Eep. (N.s.)Bankr. 19 ; Law Eep. 6 Chane. 58. 
 
 (/) Foreign action. 
 
 12. — There must be special circumstances to 
 induce the Court to restrain a foreign creditor of 
 a bankrupt from suing abroad. In re Chapman, 
 42 Law J. Eep. (n.s.) Bankr. 38 ; Law Eep. 15 
 Eq. 75. 
 
 Actions were commenced in New York against 
 a debtor in London known to be in difficulties, by 
 creditors on bills of exchange drawn in New York 
 but accepted and payable, and dishonoured, in Lon- 
 don. Thereupon a petition in liquidation was 
 filed by the debtor, and an application made for a 
 receiver and for an injunction to stay the actions. 
 A receiver was appointed, but it was held, that the 
 creditors not having come in under the liquidation, 
 and there being no means of rendering an injunc- 
 tion effectual, it could not be granted. Ibid. 
 
 Semble, also, that in such a case the appointment 
 of a receiver protects the foreign assets so far as 
 the Court can protect them, and that an injunction 
 is therefore unnecessary. Ibid. 
 Digest, 1870—1875. 
 
 ((/) As affecting rights of creditors. 
 
 13. — The sheriff haviag seized goods of a deb- 
 tor under an execution, the debtor filed his petition 
 for liquidation by arrangement, and an injunction 
 restraining the proceedings in the action was ob- 
 tained under the 2e0th General Eule, 1869, and 
 served upon the sheriff, who nevertheless pro- 
 ceeded to a sale and afterwards paid the balance 
 of the purchase money into Court : — Held, revers- 
 ing the decision of the Chief Judge, that the exe- 
 cution creditor and not the trustee under the 
 liqiiidation was entitled to it. Ex parte Eoc/c Cf 
 Co. ; In re Hall, 40 Law J. Eep. (n.s.) Bankr. 70 ; 
 Law Eep. 6 Chano. 795. 
 
 The 13th section of the Bankruptcy Act, 1869, 
 was not intended to alter the rights of the cre- 
 ditors inter se. Ibid. 
 
 (P) EECErVEB. 
 
 [See Greneral Eules, 7th July, 1871, rr. 1, 2, 40 
 Law J. Eep. (n.s.) Bankr. 1.] 
 
 1. — A landlord distrained for one year's arrear 
 of rent on goods of a debtor in the hands of a 
 receiver appointed by the Court of Bankruptcy. 
 On an application by the receiver to the County 
 Court Judge for an injunction, the landlord was 
 restrained from proceeding with the distress, and 
 was also committed for contempt of Court. On 
 appeal, — Held, that the landlord could distrain as 
 against the receiver without the leave of the 
 Court, and further that the position of a receiver 
 in Bankruptcy is not the same as that of a 
 receiver in Chancery. Ex parte Till; In re May- 
 hew, 42 Law J. Eep. (n.s.) Bankr. 84 ; Law Eep. 
 16Eq. 97. 
 
 2. — A petition for adjudication of bankruptcy 
 in default of compliance with a debtor's summons 
 having been presented by the summoning creditor, 
 and a receiver appointed under the 13th section 
 of the Bankruptcy Act, 1869, such receiver is an 
 officer of the Court, and has no power to autho- 
 rise the payment of any money of the debtor ex- 
 cept under the authority of the Court. Therefore, 
 where under such circumstances the debtor, with 
 the knowledge and consent of the receiver, paid 
 a sum of money to the summoning creditor and 
 the petition for adjudication was dismissed, but 
 before such dismissal the debtor had been adjudi- 
 cated bankrupt upon the petition of another cre- 
 ditor,- — ^Held, affirming the decision of the regis- 
 trar, that the payment to the siunmoning creditor 
 was a fraud upon the rights of the trustee in bank- 
 ruptcy, and he was ordered to pay to such trustee 
 the money he had received, with interest at il. per 
 cent. Ex parte Jay ; In re Poviis, 43 Law J. Eep. 
 (n.s.) Bankr. 54 ; Law Eep. 9 Chane. 133. 
 
 3. — ^Where a receiver under a liquidation, by 
 order of the Court took possession of the debtor's 
 business premises, and an injunction to restrain a 
 mortgagee from intermeddling was granted on an 
 undertaking by the receiver to be answerable for 
 damages : — Held, that the receiver was the agent 
 of. the creditors, and not of the mortgagee, and 
 could not charge the mortgagee with the expense 
 of carrying on the business, but was liable under 
 M 
 
82 
 
 BANKRUPTCY (P), (a)-BARON ANB FEME. 
 
 his undertaking for deterioration of the property, 
 and for rent for fixtures and stook-in-trade com- 
 prised in the mortgage. Ex parte Warren ; In re 
 Joyce, Law Eep. 10 Chano. 222. 
 
 4. — A farmer filed his petition for liquidation, 
 and a receiver was appointed, and took posses- 
 sion at once. Five days after, namely, on the 
 23rd of March, the holder of a registered bill of 
 sale of live and dead stock forcibly took some 
 horses of the debtor's out of the possession of the 
 receiver. An injunction was then granted restrain- 
 ing further proceedings by sale or otherwise under 
 the bill of sale until the 7th of May, " in order to 
 give an opportunity to purge the contempt which 
 had been committed." The holder of the bUl.of 
 sale appealed : — Held that, however good the title 
 of the holder of the bill of sale may have been, he 
 had no right to remove the horses from the pos- 
 session of the receiver without the leave of the 
 Court. Ex parte Till; In re Mai/hew(So. 1 supra) 
 discussed. Ex parte Cochrane; In re Mead, 44 
 Law J. Eep. (k.s.) Bankr. 87 ; Law Eep. 20 Eq. 
 282. 
 
 Semble — that the position of a receiver in Bank- 
 ruptcy does not differ from that of a receiver in 
 Chancery. Ibid. 
 
 5. — A receiver who was appointed by the Court 
 on the application of the debtors, gave orders for 
 the valuation of the debtor's assets, which were 
 over 20,000i., and the charge of such valuation 
 amounted to 300?. The County Court Judge 
 allowed the charge, and the Chief Judge refused, 
 on appeal, to interfere with the discretion of the 
 Court below. Ex parte Gordon ; In re Gomersall, 
 44 Law J. Eep. (n.s.) Bankr. 97 ; Law Eep. 20 
 Eq. 291. 
 
 The receiver also appointed the two debtors 
 managers of the estate, and allowed them as a 
 salary 161. a week between them. The County 
 Court Judge allowed the payment, and in this case 
 also the Chief Judge refused to interfere with his 
 discretion. Ibid. 
 
 (Q) Costs, 
 
 [See General Eules, 7th July, 1871, rr. 4-8, 40 
 Law J. Eep. (n.s.) Bankr. 1.] 
 
 (a) Of appeal. 
 
 1. — A successful appellant from the County 
 Court was not allowed costs of appeal. In re 
 Cherry ; Ex parte Matthews, 40 Law J. Eep. (n.s.) 
 Bankr. 90 ; Law Eep. 12 Eq. 696. 
 
 2. — Where an appeal and cross-appeal both 
 fail, the appellants pay costs of the appeal as if 
 no cross-appeal had been presented, and the re- 
 spondents only pay any extra costs which the 
 cross-appeal may have caused. Ex parte Ogle, 
 and Ex parte Smith; In re Pilling, 42 Law J. Eep. 
 (n.s.) Bankr. 99 ; Law Eep. 8 Chanc. 711. 
 
 3. — ^An appeal from the registrar to the Judge, 
 under rule 295, is not an appeal within the rule 
 of practice, that a successfol appellant is not 
 generally entitled to the costs of the appeal. It 
 is rather an application to the Judge to set right 
 an Regularity committed by the registrar. Ex 
 
 parte Thorne ; In re BatUn, 42 Law J, Eep, (n.s.) 
 Bankr. 60 ; Law Eep. 8 Chano. 722. 
 
 4. — No personal order can be made against a 
 bankrupt for payment of costs of an unsuccessful 
 Ex parte Jacobs ; In re Jacobs, 44 Law 
 
 J. Eep. (n.s.) Bankr. 34 ; Law Eep. 8 Chanc. 211. 
 Costs of appeal by trustee. [See supra 
 B, 16.] 
 
 (i) Of trustee. 
 
 5. — A trustee in bankruptcy making an unsue- 
 eessfnl application to the Court will, in the ab- 
 sence of special circumstances, be ordered to pay 
 the costs of it ; and if the assets are insulficieut, 
 he will have to pay such costs personally, unless 
 he has obtained an indemnity from the creditors. 
 Ex parte Angerstein ; In re Angerstein, 43 Law J. 
 Eep. (K.s.) Bankr. 131 ; Law Eep. 8 Chanc. 479. 
 
 6, — A trustee in bankruptcy is entitled to have 
 out of the estate all expenses properly incurred 
 by him which are not ordered to be paid by other 
 parties ; but it is not necessary or proper for any 
 order to that effect to be made by the Court. Ex 
 parte Imches; In re Wood, 41 Law J. Eep. (n.s.) 
 Bankr. 21 ; Law Eep. 7 Chanc. 304. 
 
 (c) Of receiver. 
 
 7. — Costs of receiver in a liquidation come next 
 after costs of realising assets, and have priority 
 over costs of debtor's solicitor ; and a trustee who 
 paid the solicitor first was ordered personally to 
 pay the costs of the receiver. Ex parte Boyle; 
 In re Johnson, Law Eep. 20 Eq. 780. 
 
 {d") Stamp duty. 
 
 8. — In a liquidation by arrangement, where the 
 assets of a debtor exceed the debts, the stamp 
 duty payable under Table A. of the Bankruptcy 
 Eules, 1870, on the registration of the resolution, 
 is determined according to the amount of assets 
 which the trustee in his affidavit states is to be 
 distributed among the creditors, and not accord- 
 ing to the estimate of assets made by the debtor. 
 Ex parte Murray ; In re Forrest, 42 Law J. Eep. 
 (n.s.) Bankr. 96 ; Law Eep. 16 Eq. 215. 
 
 9, — The stamp duty payable under Table A. of 
 the Order of the 10th of August, 1871, is to be 
 calculated upon the amount of assets as estimated 
 by the debtor in his statement of affairs, and not 
 upon the amount which the trustee in his aifidavit 
 states that he believes the assets will realise. Ex 
 parte Murray ; In re Forrest (last case) distin- 
 guished. In re Berger, 42 Law J. Eep. (n.s.) 
 Bankr. 97 ; Law Eep. 16 Eq. 623. 
 
 BAEON AND FEME. 
 
 [See DrvoBOE ; Maebuge Settlement ; Parent 
 AND Child.] 
 
 (A) Celebbation op Mabeiaqe. 
 
 (B) Atjthoeitt of Wife to pledge Husband's 
 
 Cebdit. 
 
 (C) Advancement by Husband. 
 
BAJION AND FEME (A), (D). 
 
 83 
 
 D) pROPBHTT OP Wife geneeallt. 
 
 (a) Joint dealings by Jmshand and wife. 
 
 eBedwction into possession by husband. 
 Survivorship. 
 , J Acknowledgment of deed by wife, 
 (e) Will of married woman, 
 if) Equity to a settlement. 
 
 (E) Separate Estate of Wife. 
 (a) Liability of. 
 
 (J) Sestraint on anticipation. 
 (o) Power to devise. 
 
 (F) Maekied Woman's Pkopeety Act. 
 
 (a) Debts contracted before marriage. 
 
 (b) Protection of wife's earnings. 
 
 (c) Transfer into name of married woman. 
 
 (G) DOWEE AND FeEEBBNCH. 
 
 (H) Separation Deeds. 
 
 [The law relating to the marriages of Quakers 
 amended, 35 Vict. c. 10.] 
 
 (A) Celebbation of Maeeiaoe. 
 [See Mabeiage.] 
 
 (B) Authority of Wife to pledge Husband's 
 Credit. 
 1. — A ■wife has only an implied authority to buy 
 Buch goods on her husband's credit as ordinarily 
 come vrithin the domestic department under her 
 control, and are suitable to the position in life 
 ■vfhich he allows her to assume, unless the goods 
 are had by her in the way of a trade which she 
 separately carries on with her husband's concur- 
 rence. PhiUipson v. Hayter, 40 Law J. Eep. (n.s.) 
 C.P. 14 ; Law Eep. 6 C.P. 38. 
 
 (0) Advancement by Husband. 
 
 2. — A husband, whose wife was the executrix 
 and residuary legatee of her father, opened an 
 account at his bakers in the name of his wife as 
 such executrix. He afterwards closed his separate 
 account, but moneys belonging to him were from 
 time to time paid into the wife's account, and the 
 wife drew against it cheques for the payment of 
 the husband's debts and of household expenses. 
 The account remained for six years, when the 
 husband died. The wife died shortly afterwards : — 
 Held, that the mere circumstance of the account 
 having been opened in the wife's name did not 
 raise any presumption that the husband intended 
 to give her the balance ; that the account was a 
 mere agency account, and the balance belonged to 
 the husband's estate. Held also, varying the order 
 of one of the Vice-Chancellors, Law Eep, 14 Eq. 
 241, that the representative of the husband and 
 the wife must have his costs of two suits for 
 administering their respective estates, in priority 
 to the costs of the other parties, for the right of 
 priority rested upon principle, and was not wirhin 
 ihe discretion of the Judge. Lloyd y.Pnghe; ■ 
 Evans V. Pughe, 42 Law J. Eep. (n.s.) Chanc. 282 ; 
 Law Eep. 8 Chanc. 88. 
 
 3, — Testator, who was in failing health, opened 
 a new banking account in the joint names of him- 
 self and wife, authorising the bat& to cash cheques 
 
 drawn by either of them, and telling the bank 
 manager that the balance of the account woujd 
 belong to the survivor of himself and his wife- 
 Cheques were thenceforward drawn by th? wife 
 only, and were applied by her in payment of 
 household and other expenses, the testator paying 
 in sums of money from time to time to the credit 
 of the accoimt. At the time of his death 
 there was o. large sum standing to the credit 
 of the account, which the wife claimed to be 
 entitled to for her own use : — Held, that the evi- 
 dence of circumstances was not sufficient to rebut 
 the presumption of a resulting trust for the testa- 
 tor. Marshal v. Cruttwell, 44 Law J. Eep. (n.s.) 
 Chanc. 504 ; Law Eep. 20 Eq. 328. 
 
 (D) Pbopeety or Wife geneeally. 
 (a) Joint dealings by husband and wife. 
 
 4. — Where a married woman entitled to a rent- 
 charge on property concurs in a mortgage of the 
 property, her equity of redemption as to such rent- 
 charge is not released in the absence of express 
 contract on her part. In re Betton's Trust Estates, 
 Law Eep. 12 Eq. 533. 
 
 '5, — A testator by a codicil made in 1861 directed 
 that after the death of his widow a legacy of 360?. 
 should be paid to one of his daughters who was 
 then a married woman. The daughter's husband 
 being indebted to the testator's estate, the daughter 
 and her husband, during the widow's life, assigned 
 the legacy to a purchaser for value by a deed 
 executed under 20 & 21 Vict. c. 57. On the death 
 of the widow, the testator's executors claimed to 
 set off the debt due from the husband against the 
 legacy to his wife : — Held, that under the Act, the 
 purchaser got a good title clear from any set-off 
 in respect of the husband's debt. Sloper v. Oliver, 
 43 Law J. Eep. (n.s.) Chanc. 101 ; Law Eep. 16 
 Eq. 481. 
 
 Spmblg — if the husband had previously assigned 
 his interest the case would have been diflFerent. 
 Ibid, 
 
 (J) Reduction into possession by husband. 
 
 6. — The receipt of a married woman who was 
 deserted by her husband and had obtained a pro- 
 tection order, held a good discharge for a legacy 
 which the husband,|iad not reduced into possession 
 prior to the protection order, so as to give a good 
 title to the purchaser of the estate whereon the 
 legacy was charged. In re Coward and Adam's 
 Purchase, 44 Law J. Eep. (n.s.) Chanc. 384 ; Law 
 Eep. 20 Eq. 179. 
 
 The Court ordered each party to bear his own 
 costs of an application under the Vendors and Pur- 
 chasers Act, 1874i s. 9, respecting a requisition on 
 title. Ibid. 
 
 7. — A married woman entitled to property for 
 her separate use was desirous of raising money 
 for the improvement of her estate, while her hus- 
 band also wished to raise money to discharge a debt. 
 They accordingly arranged through the defend- 
 ant, their solicitor, to borrow money upon mort- 
 gage of the separate estate, and upon policies upon 
 the lives of each of them respectively. The money 
 M 2 
 
84 
 
 BARON AND FEME (D). 
 
 ■was to be advanced by instalments, and when the 
 first instalment was due the husband and wife 
 signed a joint authority for the defendant to receive 
 it for them. The defendant received the money, and 
 claimed to retain part of it in respect of a separate 
 debt due to him as solicitor of the husband: — 
 Held, by the Exchequer Chamber, affirming the 
 judgment of the Court of Queen's Bench (41 Law 
 J. Eep. (n.s.) Q.B. 145 ; Law Eep. 7 Q.B. 218), that 
 in an action by the husband and wife the defendant 
 could not retain the money, or set off against it a 
 debt due to the husband, as it was received upon 
 the express understanding that it was to be held 
 for the husband and wife jointly, so that there 
 never was any reduction into possession on the 
 part of the husband. Jones v. Cvihbertson (Exch. 
 Ch.), 42 Law J. Eep. (n.s.) Q.B. 221 ; Law Eep. 
 8 a.B. 504. 
 
 8.— By a settlement in pursuance of articles, 
 fands were settled on the usual trusts for the wife 
 for life, the husband for life, and their children, 
 with a provision that if there were no children, 
 and the husband survived, the fund should belong 
 to him. The husband joined in transferring the 
 fund to the trustees of the settlement and died in 
 the wife's lifetime without leaving children : — 
 Held, that there had been no reduction into 
 possession. Cogaii v. Duffield, Law Eep. 20 Eq. 
 789 : affirmed on appeal, 45 Law J. Eep. (n.s.) 
 Ohanc. 307 ; Law Eep. 2 Chanc. Div. 29. 
 
 Chose in action, iwt reduced into possession 
 hy husband, who survived: double ad- 
 ministration required. [SeePKOBATB, 
 13.1 
 
 Husband not entitled to pr(yportionate 'part 
 of annuity mthoiit talcing out adminis- 
 tration. [See Annuity, 6.] 
 
 (o) Su/rvivorship. 
 
 9. — A fund belonging to a wife at her marriage 
 and standing at her bankers in the name of a 
 former husband, was, after her marriage, trans- 
 ferred by the bankers, who were also the second 
 husband's bankers, to an account in their books in 
 the joint names of herself and her husband, but 
 there was no evidence that any authority for that 
 purpose had been given by either husband or wife ; 
 -they however both drew cheques on the interest 
 of the fund. The husband and wife having both 
 perished at sea in the same ship, h petition was 
 presented by the wife's representatives for pay- 
 ment of the fund to them, on the ground that there 
 was no evidence that the husband survived the 
 wife, or that the husband had ever dealt with the 
 fund so as to reduce it into possession: — Held, 
 .that the fund remained the property of the wife, 
 and therefore passed to her representatives. Scnit- 
 ton V. Pattillo, 44 Law J. Eep. (n.s.) Chanc. 249 ; 
 Law Eep. 19 Eq. 369. 
 
 Survivorship ; evidence : Misband and wife 
 dying together. [See Pbobate, 11.] 
 
 {i) Acknowledgment of deed by wife. 
 
 [See AcKNOWliBDGMENT.] 
 
 (e) Will of married woman. 
 
 10. —A married woman was entitled to 3,822?. 
 Consols for her separate use, and, by settlement 
 made on her marriage, she was entitled to 14,000?., 
 if she survived her husband, absolutely, and if she 
 died in hia lifetime she had a power of appointing 
 that sum by will notwithstanding coverture. She 
 had also a fee simple estate over which she had a 
 power of appointment by will. Her husband, who 
 died in her lifetime, bequeathed to her the residue 
 of his personal estate. The married woman by 
 will, made in the lifetime of her husband, who 
 consented to her making a will, though it did not 
 appear that he knew the contents of it, after dis- 
 posing of her separate estate and appointing the 
 fee simple estate, gave to her niece all the residue 
 of her real and personal estate of which at the 
 time of her death she should have power to dispose. 
 The will was not republished after the husband's 
 death : — Held, that, though the will was valid and 
 effectual so as to pass the Consols to which she 
 was entitled for her separate use, and so as to 
 appoint the fee simple estate, it was not valid_ or 
 effectual as an exercise of the power of appointing 
 the 14,000?., nor so as to pass the property ac- 
 quired by her under her husband's will. Willock 
 V. Noble (H. L.), 44 Law J. Eep. (n.s.) Chanc. 345 ; 
 Law Eep. 7 E. & Ir. App. 580. 
 
 Held, also, that the death of the husband oper- 
 ated as a revocation of any assent he had given to 
 his wife's will. For section 8 of the "Wills Act 
 confers no new nor any enlarged testamentary 
 capacity upon a married woman. And, a husband's 
 assent to his wife's will involves only the sanction 
 which, if he survives her, he gives to it by with- 
 drawing his claim to administer her effects. Ibid. 
 
 Since the Wills Act, the doctrine of adherence 
 has no application. Only re-publication can give 
 fresh efficacy to a will of a married woman made 
 during coverture. Ibid. 
 
 Observations on the judgment in Morwan v. 
 Thompson (3 Hagg. 239). Ibid. 
 
 For the report in the Courts below, see 42 Law 
 J. Eep. (n.s.) Chanc. 321, 681 ; Law Eep. 8 Chanc. 
 778. 
 
 (/) Equity to a settlement. 
 
 11, — A married woman having an absolute inte- 
 rest in certain leasehold property, never reduced 
 into possession by the husband, joined in a letter 
 enabling her husband to charge the property: — 
 Held, that she had no equity to a settlement out of 
 arrears of income as against his particular assig- 
 nees. In re Carr's Trusts, 40 Law J. Eep. (n.s.) 
 Chanc. 353 ; Law Eep. 12 Eq. 609. 
 
 12. — The Court has a discretion as to enforcing 
 a wife's equity to a settlement. Where the wife 
 had a very competent separate maintenance se- 
 cured to her, the Court declined to enforce her 
 equity. ' Giacometti v. Prodgers, Law Eep. 8 Chanc. 
 338. 
 
 13. — In a settlement of property, out of which 
 a married woman has an equity to a settlement, 
 the ultimate limitation, in default of issue, ought 
 to, be for the husband, whether he survives the 
 
BAEON AND FEME (D), (F). 
 
 85 
 
 wifs or not. WaUh x. Wason, 42 Law J. Esp. 
 (is-.a.) Chanc. 676 ; Law Eep. 8 Chano. 482. 
 
 14. — ^When the husbajid of a person entitled as 
 one of the next-of-kin to a small fund was unable 
 to support his family, the whole fund was settled. 
 White V. Cordwdl, 44 Law J. Eep. (n.s.) Chanc. 
 746 ; Law Rep. 20 Eq. 644. 
 
 A debt due to an intestate's estate from one of 
 the next-of-kin, barred by the Statute of Limita- 
 tions, was set off against his share in the estate. 
 Ibid. 
 
 15. — A wife's equity to a settlement attaches 
 only to property which comes to her husband's 
 . hands in his marital right. If a testator bequeaths 
 his property to a married woman, and makes her 
 husband his executor, and he acts, he is primarily 
 responsible to the estate ; and if largely indebted 
 to it, his wife has no equity to a settlement out of 
 any part of it tiU her husband's liabilities to it 
 are discharged. Knight v. Knight, and Jephs v. 
 Knight, 43 Law J. Eep. (n.s.) Chanc. 611 ; Law 
 Eep. 18 Eq. 487. 
 
 Settlement ore infant ward of Court. [See 
 Infant, 10.] 
 
 (E) Sbpabate Estate of Wife. 
 (a) LiabUity of. 
 
 16. — A feme covert having property settled to 
 her separate use for life, with remainder as she 
 should, notwithstanding coverture, by deed or will 
 appoint, with remainder to her executors or ad- 
 ministrators, opened two accounts with her 
 hankers, a private and an administration account, 
 and directed the bankers by the joint letter of 
 herself and her husband, to consider any overdraft 
 on her private account secured by the administra- 
 tion account. The administration account was 
 subject to the trusts of the settlement. At her 
 death the private account was overdrawn ■.—Held, 
 that she had contracted so as to bind her separate 
 estate, and that the bankers had a lien on the ad- 
 ministration account in respect of the overdrawn 
 private account. London Chartered Hank of Aus- 
 tralia V. Lempriere, 42 Law J. Eep. (n.s.) P. G. 49 ; 
 Law Eep. 4 P. 0. 572. 
 
 17.— A married woman, previously to her mar- 
 riage, settled her property upon trust for herself 
 during the joint lives of herself and her husband 
 for her separate use without power of anticipation^ 
 and after the death of one of them upon trust for 
 the survivor for life, and after the death of the 
 survivor upon trust for the children of the mar- 
 riage, with an ultimate trust, if she survived her 
 husband, for herself absolutely, but if he sun-ived 
 her for such persons as she should by deed or will 
 appoint. There being no children of the marriage, 
 she by deed irrevocably appointed her reversionary 
 interest to her mother, and by a second deed, not 
 noticing the prior appointment, she appointed the 
 same reversionary interest to her husband abso- 
 lutely, as she alleged, under his coercion. The 
 husband then deposited the second deed of ap- 
 pointment as a security for a debt due from him. 
 A bill having been filed by the assignee of the debt 
 and security, seeking to charge the wife's separate 
 
 estate : — Held, that, even assuming the second ap • 
 pointment to have constituted a fraud on the part 
 of the wife, yet there was no right of impounding 
 the income which she was restrained from antici- 
 pating. Arnold v. Woodhams, 42 Law J. Eep. 
 (n.s.) Chanc. 578 ; Law Eep. 16 Eq. 29. 
 
 18. — A married woman's separate estate is not 
 in general liable for her torts or breaches of trust. 
 Wainford v. Heyl, Law Eep. 20 Eq. 321. 
 
 [And see Trust, C 8.] 
 
 19. — -The law presiimes that by the contract of 
 marriage all the property passes to the husband. 
 The wife is in consequence a privileged suitor in 
 the Court with regard to costs ; but where she 
 has separate property, she is liable, like any other 
 imsuccessful suitor, to be condemned in costs. 
 MUne V. Milne, 40 Law J. Eep. (n.s.) P. & M. 13 ; 
 Law Eep. 2 P. & D. 202. 
 
 liability to costs of suit as 
 to will of married woman. [See Pbo- 
 BATE, 69.] 
 
 (i) Bestraint on anticipation. 
 
 20. — A testator by will dated the 2nd of July, 
 1870, gave a legacy to a married woman for her 
 separate use without power of anticipation, and 
 directed that "for the purpose of securing to her 
 the separate enjoyment without power of anticipa- 
 tion against any husband for the time being, the 
 trustee should settle the legacy in such manner as 
 would carry out the said purpose." Previously to 
 the date of the wiU the legatee had been judicially 
 separated from her husband, and had ever since 
 lived apart from him : — Held, that she was en- 
 titled to have the legacy paid to her. -Munt v. 
 Glynes, 41 Law J. Eep. (n.s.) Chanc. 639. 
 
 21. — A restraint on anticipation may apply as 
 well to a personal fund producing income, to which 
 fund a married woman is absolutely entitled, as to 
 real estate producing rent, and will in either case 
 prevent alienation during coverture. In re Ellis's 
 Trusts, 43 Law J. Eep. (n.s.) Chanc. 44 ; Law Eep. 
 17 Eq. 409. 
 
 Testatrix by will gave 500?. Consols to A. B., a 
 married woman, absolutely. By eodicH she de- 
 clared that all gifts, whether absolute or limited, 
 made by her will to any female, should be for her 
 separate use without power of anticipation. The 
 fund was paid into Court : — Held, on petition for 
 payment out by A. B., that the restraint on antici- 
 pation applied to the Consols, and that A, B. was 
 only entitled to receive the income during cover- 
 ture. Ibid. 
 
 (c) Power to devise. 
 
 22. — A married woman may, by a deed duly 
 acknowledged, to which her husband is a party, 
 acquire a power to dispose by will of her real 
 estates. Pride v. Babb, il Law J. Eep, (n.s.) 
 Chanc. 105 ; Law Eep. 7 Chanc. 64. 
 
 (F) Mabbied Woman's Peopeety Act. 
 
 [The above Aot_ amended. Husband and wife 
 to be liable to be jointly sued for the wife's ante- 
 
8e 
 
 BARON AND FEME (F), (G). 
 
 nuptial detts, but the husband's liability to be 
 confined to the assets (as defined by the Act) re- 
 ceived by him in right of his Tvife. 37 & 38 
 Vict. c. 50.] 
 
 (fl) Debts contracted before marriage. 
 
 23. — A woman entitled to the income of a fund 
 settled to her separate use ■without power of an- 
 ticipation, having contracted a debt, married on 
 the 19th of January, 1871. On the same day 
 judgment was signed against her for the debt, 
 and subsequently a charging order was obtained 
 by the creditor. On a petition by the creditor, 
 — Held, that the judgment was binding on the 
 ■woman, and a stop order was granted. Banger v. 
 Sanger, 40 Law J. Eep. (n.s.) Chanc. 372 ; Law 
 Eep. 11 Eq. 470. 
 
 24. — A married woman having no separate es 
 tate is not liable under the 12th section of the 
 Married Women's Property Act, 1870 (33 & 34 
 Vict. c. 93), to be made bankrupt in respect of 
 debts contracted before marriage. Whether if 
 she had separate estate she could be made bank- 
 rupt, qiisere. Ex parte Holland ; In re Heneage, 
 43 Law J. Eep. (n.s.) Bankr. 85; Law Eep. 9 
 Chanc. 307. 
 
 (i) Protection of uiife's earnings. 
 
 25. — In an action for breach of contract by 
 a married woman against her bankers, the first 
 count of the declaration was for not presenting 
 for payment a bill of exchange deposited with 
 them for that purpose : the second count was for 
 not gi'ving her notice of the dishonour of a bill of 
 exchange entrusted to them for collection, and the 
 third coiint was for dishonouring a cheque drawn by 
 the plaintiff upon the defendants, they having at the 
 time funds of the plaintiff to meet it. Plea, that the 
 plaintiff was a married woman. Eeplication, that 
 the causes of action arose exclusively from earn- 
 ings, money, chattels, and property 'within the 
 meaning of the Married Woman's Property Act, 
 1870 (33 & 34 Vict. c. 93), and that the defend- 
 ants knew when they accepted the plaintiff's 
 ' banking account that she was a married woman 
 carrying on her business separately from her hus- 
 band: — Held, on demurrer, that the replication 
 was good, as shewing that the plaintiff was seek- 
 ing a remedy for the protection of her earnings 
 and property within the meaning of the 11th sec- 
 tion of the Married Woman's Property Act, 1870. 
 Suminers v. The City Banh, 43 Law J. Eep. (n.s.) 
 C.P. 261 ; Law Eep. 9 C. P. 580. 
 
 26. — A woman who has been deserted by her 
 husband, and has obtained an order under 20 &; 
 21 Vict. c. 8.5. H. 21, for the protection of her 
 money and property from her husband and his 
 creditors, may maintain an action for a libel ■with- 
 out joining her husband. Bamsden v. Brearley, 
 44 Law J. Eep. (n.s.) Q. B. 46 ; Law Eep. io 
 as. 147. 
 
 27. — On payment out to a married woman, who 
 had obtained a protection order, and was suing 
 as a feme sole under the Married Woman's Pro- 
 perty Act, — Held, that the aflidavit of the mar- 
 ried woman as to the continuance of the separation 
 
 and as to no settlement might be accepted as satis- 
 factory. Ewart V. Chubb, Law Eep. 20 Eq. 454. 
 
 (c) Transfer into name of married woman. 
 
 28. — The Married Woman's Property Act, 
 1870, must be construed strictly ■with reference 
 to its provisions for the recovery of things de- 
 clared thereby to be a married woman's separate 
 property, and there is nothing in that Act to say 
 that a married woman is entitled to enjoy and 
 recover such property in all respects as if she had 
 been a feme sole. Therefore, where a legacy 
 given to a woman contingently on attaining 
 twenty-one, had been invested in stock by the 
 executors and trustees of the ■will in her name and 
 theirs jointly, and the woman married after the 
 passing of the Married Woman's Property Act, 
 1870, and subsequently attained twenty-one, and 
 a bill was filed by the trustees and the married 
 woman asking leave to transfer the stock into the 
 name of the married woman only : — Held, that 
 the Court wotdd not make a decree directing the 
 transfer. Howard v. The Bank of ISngland, 44 
 Law J. Eep. (n.s.) Chanc. 329 ; Law Eep. 19 
 Eq. 295. 
 
 29. — Upon the application of a married woman 
 under the Married Woman's Property Act, 1870, 
 a. 4, that shares in a joint-stock company may be 
 registered in her name as a married woman en- 
 titled to her separate use, it is the duty of the 
 company to investigate and recognise her title, 
 and a mandamus to enforce the performance of 
 this duty will be granted by the Court. The Queen, 
 on the prosecution of Fraser, v. The Carnatic Sail- 
 way Company {Lim.), 42 Law J. Eep. (n.s.) Q. B. 
 169; Law Eep. 8Q.B. 299. 
 
 (Gr) Do^WEB AND FitEEBENCH. 
 
 30. — A testator by his will appointed his 
 ■widow one of the guardians of his children, be- 
 queathed her an immediate legacy of 200?.; the 
 consumable stores at his mansion-house; an an- 
 nuity of 7002. a year, charged on a specifically- 
 devised portion of his real estate, in exoneration 
 of all his other property ; directed that his ■widow 
 should (on certain terms) occupy his mansion ; 
 gave several powers to his trustees, and among 
 others, powers of leasing and management of his 
 estates ; and added to his ■will four schedules, 
 comprising freeholds, leaseholds, copyholds, and 
 customary lands. The evidence shewed that the 
 widow was entitled, though not in each case to 
 the same extent, to freebench in the customary 
 lands : — Held, that the widow was bound to elect. 
 Thompson v. Burra, 42 Law J. Eep. (n.s.) Chanc. 
 827 ; Law Eep. 16 Eq. 692. 
 
 31. — A., being the o^wner of leaseholds for a 
 term of ninety-nine years, mortgaged the pro- 
 perty to B. for the term, less five days, and also 
 to G. and E. for the term, less three days. Ho 
 also demised to M. for the term, less ten days, 
 in trust for G. and E. He then acquired the 
 fee subject to the mortgages. B.'s mortgage was 
 paid off to his executors, who assigned the term 
 upon which it was secured to a trustee for G. 
 and E. Then A. became bankrupt, and he and 
 
BABON AND FEME (G), {H)-BASTAEDY. 
 
 87 
 
 his assigns, in consideration of a release by G. and 
 E. of their mortgage debt, by a, deed to -which 
 A.'s wife was named a party, but which she re- 
 fused to execute, granted the fee of the premises 
 to them. They sold the estate, and A. died. A.'s 
 widow then filed her bill against the purchaser 
 to enforce her right to dower out of the premises. 
 The defendants demurred, but the demurrer was 
 overruled by one of the Vice Chancellors, on the 
 gTound that upon the release by G-. and R. of the 
 mortgage debt, the mortgage terms became satis- 
 fied, and were extinguished by the Satisfied Terms 
 Act (8 & 9 Vict. e. 112), and thereby the inchoate 
 right of A.'s widow to dower was let in. But 
 on appeal this decision was reversed, and it was 
 held that the term was not satisfied within the 
 meaning of the Act. Anderson v. Pignet, 42 Law 
 J. Rep. (n.s.) Chanc. 310 ; Law Eep. 8 Chanc. 180. 
 [And see Dowee,] 
 
 (H) Sepabation Deeds. 
 
 32. — ^Declaration upon a covenant in a deed, 
 whereby the defendant covenanted with the plain- 
 tifife, as trustees, that he would, during the joint 
 lives of himself and Lucy Holt, his wife, and 
 during so long as they should live separate and 
 apart, pay unto the plaintiffi, for the separate use 
 of the. said Lucy Holt, a certain annuity. Aver- 
 ment of the performance of conditions precedent. 
 Breach, non-payment. Plea setting out the deed 
 of the 13th of December, 1858, made between 
 Eichard Holt, the defendant, of the first part, 
 " Lucy Holt, his wife " of the second part, and the 
 plaintiffs of the third part. After a recital that 
 differences had arisen between the husband and 
 wife, and that they had agreed to live separate, 
 and other recitals in which Lucy Holt -was also 
 described as the wife of the defendant, came the 
 following covenant, viz., "that the defendant 
 shall and will henceforth, during the joint lives of 
 the said Eichard Holt and Lucy Holt, and during 
 so long time as they shall live separate and apart, 
 well and truly pay or cause to be paid unto the 
 said trustees," &c., the annuity aforesaid. Aver- 
 ment, that after the execution of the deed Lucy 
 Holt committed adultery with one S. 0., and 
 thereupon the defendant instituted proceedings in 
 the Divorce Court, and obtained a decree abso- 
 lute dissolving the marriage. On demurrer, — 
 Held, a bad plea, because the covenant was an 
 absolute covenant for the payment of the annuity 
 djiring the joint lives of the defendant and Lucy 
 Holt, and during so long time as they lived sepa- 
 rate, and not merely while the marriage tie sub- 
 sisted. Charlesworth v. Holt, 43 Law J. Eep. 
 (n.s.) Eich. 26 ; Law Eep. 9 Exch. 38. 
 
 33. — A legal and proper covenant in a separa- 
 tion deed may be emforced, although other cove- 
 nants in the same deed are illegal. A covenant in 
 a separation deed whereby the father divested 
 himself of the custody of his elder children, and 
 gave to the wife the custody of the younger chil- 
 dren, who were under the age of seven years, 
 enforced, there being evidence of the father's mis- 
 conduct. A covenant by the husband to deliver 
 up to the wife all her diaries, private correspon- 
 
 dence, &c„ was held to preclude the husband from 
 making or keeping copies of such diaries, &c. 
 Hamilton v. Hector, Law Eep. 13 Eq. 511. 
 
 34. — By a deed executed on the separation of a 
 husband and wife, after containing the usual pro 
 vision for separation, a debt due to the wife before 
 marriage on a promissory note was declared to be 
 held by the debtor (who joined in executing the 
 . deed) upon trust for the wife and husband suc- 
 cessively 'for life, and after the death of the sur- 
 vivor, for the then only child of the marriage 
 absolutely. Subsequently the husband and wife 
 resumed cohabitation, and the husband became a 
 bankrupt. The wife then filed a bill praying the 
 execution of the trusts of the deed, or, in the al- 
 ternative, for her equity to a settlement out of 
 the debt. A demurrer, for want of equity, by the 
 husband's trustee in bankruptcy on the ground, 
 first, that the deed was not a settlement but a 
 mere separation deed annulled by the resumption 
 of cohabitation ; and secondly, that the debt, 
 being a legal chose in action of the wife's before 
 marriage, belonged to the husband, was overruled. 
 Ruffles V. Alston, 44 Law J. Eep. (n.s.) Chanc. 
 308; Law Eep. 19 Eq. 539. 
 
 Sepafation deed : clause that no misconduct 
 frior to the deed should he admissible 
 in evidence in future proceedings. [See 
 DrvoECE, 31.] 
 
 Effect of suit on proceedings in divorce, 
 [See Divorce, 15, 36, 37.] 
 
 Order on feme covert to pay debt by instal- 
 ments under the Debtors Act, 1869. 
 [See Debtoe's Act, 14.] 
 
 Contract by married woman: copyright: 
 license to publish. [See CopteiSht, 3.] 
 
 Grant of probate and administration to 
 husband or wife. [See Peobate, 10- 
 13.] 
 
 BAEEATEY. 
 See SHTPPiNct Law, B 1.] 
 
 BAEEISTEE. 
 
 [See CoTiNSEi,.] 
 
 Order of suspension from practice, pronounced 
 by the High Court of the North-Western Pro- 
 vinces of India against a barrister and advocate, 
 reversed on appeal, the facts proved being consi- 
 dered not to amotmt to that mala praxis on which 
 penal proceedings could be fairly founded. No 
 order as to costs. Newton v. The Judges of the 
 High Court of the North-Western Provinces^ Law 
 Eep. 4 P.O. 18. 
 
 BASTAEDY. 
 
 [Amendment of the laws relating to bastardy 
 35 & 36 Vict. c. 65.] 
 [35 & 36 Vict. c. 65, ss, 6, 8, sched. 2 repealed 
 
BASTARDY— Biq-AMY. 
 
 Revival of rights under repealed enactments of 
 7 & 8 Vict. c. 101, 36 & 37 Vict, c, 9,] 
 
 1. — A bastard child was bom of an English 
 mother on board of a steamship belonging to the 
 Cunard line of steamers, sailing on the high seas. 
 The mother came to reside in England, and ap- 
 plied to justices for an order of affiliation against 
 the father : — Held, that the birth took place in 
 England within the meaning of 7 & 8 Vict. e. 
 101, which, by section 5, extends only to England 
 and Wales, and that the justices had jurisdiction 
 to make the order upon the putative father. Mar- 
 shall V. Murgatroyd, iOJjaw J. Eep. (n.s.) M.O. 7. 
 2. — A summons was issued by a justice to the 
 putative father of a bastard child upon an appli- 
 cation made by the mother before the birth of 
 the child, under 7 & 8 Vict. c. 101, s. 2. No 
 written deposition was made at the time of the 
 application. The parties appeared at the petty 
 sessions according to the exigency of the sum- 
 mons, .fand the case was heard without objec- 
 tion, when the father swore wilftilly and falsely 
 as to a material fact : — Held, that the appearance 
 at the petty sessions and the hearing without ob- 
 jection raised, cured the defect in the application 
 for the summons, if there was any, and the jus- 
 tices in petty sessions had jurisdiction to hear 
 the parties before them, and that the father was 
 rightly convicted of perjury. Begma v. Berry 
 (Bell C. C. 46) followed. Begina v. Fletcher, 40 
 Law J. Eep. (n.s.) M. C. 123 ; Law Eep. 1 C. C. E. 
 320. 
 
 Semble — the deposition on oath required by 
 7 & 8 Vict. c. 101, s. 2, to be made on application 
 by a mother before the birth of the child should 
 be in writing — Bovill, C.J., contra, Ibid. 
 
 3. — Upon the hearing of an appeal to the quar- 
 ter sessions against an order made by justices in 
 petty sessions adjudicating the appellant to be 
 the putative father of a bastard child, the respon- 
 dent, the mother of the child, and witnesses on 
 her behalf, were examined, after which the Court 
 decided that the evidence of the respondent was 
 not corroborated with regard to the main issue in 
 any material point, and quashed the order: — Held, 
 that this was a decision upon the merits and was 
 final, so that a fresh order could not be obtained 
 by the respondent against the appellant. Begina 
 V. Glyrme, 41 Law J. Eep. (n.s.) M. C. 58 ; Law 
 Eep. 7Q.B. 16. 
 
 4. — The evidence of the mother of a bastard 
 child, who is an applicant for an affiliation order 
 against the putative father, is necessary at the 
 hearing of the summons before justices sitting in 
 petty sessions under 8 & 9 A'ict. c. 101, s. 3. 
 Therefore, if the mother die after making her ap- 
 plication for a summons, and before the hearing 
 of the summons at petty sessions, the justices 
 have no jurisdiction to make an order thereon. 
 Begina v. Armitage, 42 Law J. Eep. (n.s.) M. C. 15. 
 Semble — it may be otherwise on the hearing of 
 an appeal against an affiliation order under 8 
 Vict. c. 10, fl. 6; if the mother die after the hear- 
 ing of a summons at petty sessions, and if she 
 has been examined in the presence of the defend- 
 
 ant and might have been cross-examined by him 
 at the petty sessions. Ibid. 
 
 6. — The appellant, having been duly summoned 
 before justices, was adjudged to be the putative 
 father of the bastard child of the respondent, and 
 ordered to provide for its maintenance, according 
 to the Bastardy Law Amendment Act, 1872 (35 
 & 36 Viet. c. 65), s. 3. The child was born in 
 Cornwall. The appellant was an Irishman, and 
 the respondent an Englishwoman, and the con- 
 nection which resulted in the birth of the child 
 took place in Ireland : — Held, that, the child 
 having become chargeable in England, the jus- 
 tices had jurisdiction, and the order was good. 
 Hampton v. Bickard, 43 Law J. Eep. (n.s.) M. C. 
 133. 
 
 6. — A bastardy order on a putative father for 
 payment of 3s. a week made after the passing of 
 35 & 36 Vict. c. 65, on a summons applied for 
 before the passing of that Act: — Held, invalid, as 
 the 7 & 8 Vict. c. 101 only authorised an order 
 for 2s. 6d. ; and Held, that the defect was not 
 cured by 36 Vict. c. 9, s. 8. Begina v. Kay, 
 Law Eep. 8 Q. B. 324. 
 
 BENEFIT BUILDING- SOCIETY. 
 [See Peiendlt Society.] 
 
 BETTING. 
 [See Gaming.] 
 
 BIGAMY. 
 
 1. — To make a marriage invalid within 6 & 7 
 Vill. 4, c. 85, s. 42, which enacts "that if any 
 persons shall knowingly and wilfully intermarry 
 under the provisions of this Act {ijiter alia) with- 
 out due notice to the superintendent registrar, 
 the marriage of such persons shall be null and 
 void," it must be contracted with a knowledge 
 by both parties that no due notice had been given ; 
 and therefore, where one of the parties under sec- 
 tion 4 of the Act, which requires that the notice 
 shall state (inter alia) the name and surname of each 
 of the parties intending marriage, gave a notice 
 stating therein a false Christian name for such 
 party, but the other party did not know that feet 
 at the time of the marriage, the marriage was 
 held valid ; and whether or not it be necessary 
 to constitute bigamy that the second marriage 
 by the married person should be a valid one, a 
 man who, being married, married a woman after 
 stating a false name in his notice to the registrar, 
 without it appearing that she knew of that fact at 
 the time, was held guilty of bigamy. Begina v. 
 Bea, 41 Law J. Eep. (n.s.) M. C. 92 ; Law Eep. 
 1 C.C.E. 365. 
 
 2.— By 24 & 25 Vict. c. 100, s. 57, whosoever 
 being married shall marry any other person 
 during the life of the former husband or wife, 
 
BIGAMY— BILL OF EXCHANGE (A), (0). 
 
 89 
 
 shall be guilty of felony. A widower married 
 again, and during the life of his second wife mar- 
 ried his deceased wife's niece. By 5 & 6 Will. 4. 
 c. 54, s. 2, all marriages between persons witliin 
 the prohibited degrees of affinity are to be null 
 and void to all intents and purposes whatsoever : 
 — Held, that the second marriage was void within 
 5 & 6 Will. 4. c. 54, s. 2 ; but that nevertheless 
 the man marrying was guilty of the felony under 
 the first-mentioned statute. Segina v. Fanning 
 (17 Ir. C. L. R. 289) not followed. Beginay. Allen, 
 41 Law J. Eep. (n.s.) M.C. 97; Law Eep. 1 
 C. C. E. 367. 
 
 BILL OF EXCHANGE AND PROMISSORY 
 NOTE. 
 
 (A) FOEM AND OpEEATION OF. 
 
 (o) When cmnplete document. 
 
 (J) Cheque not an equitable assignment. 
 
 (B) Stamp. 
 
 (C) Consideration. 
 
 (D) Acceptance. 
 (a) By partners. 
 (6) By directors. 
 
 (e) Acceptance against bill of lading. 
 
 (E) Transfer foe Value. 
 
 (F) Presentment and Notice of Dishonour. 
 
 (a) Time for presentment. 
 
 (6) Outg of agent. 
 
 (c) Notice of dishnrunix: 
 
 (G) Eenewai. 
 (H) Payment. 
 
 (a) Crossed cheque. 
 
 (V) Cheque to order : forged endorsement. 
 
 Ip) Payment in error. 
 (I) Specific Appropriation of Remittances 
 TO cover Bills. 
 
 fa) Generally. 
 
 (i) Double insolvency ; Ex parte Tearing. 
 (K) Actions and Suits. 
 
 [Days of grace abolished in the case of bills of 
 exchange and promissory notes, payable at sight 
 or on presentation. 34 & 35 Vict. c. 74.] 
 
 (A) Form and Operation of. 
 (a) When complete document. 
 
 1. — A document in the form of a bill of ex- 
 change, but accepted with the drawer's name in 
 blank, does not exist as a bill until the drawer's 
 name is inserted, and even then does not create a 
 debt against the parties to it until value has been 
 given for it. Ex parte Hayward S[ Batten, and 
 Ex parte Jones ; In re Hayward ^ Co., 40 Law J. 
 Eep. (n.s.) Bankr. 69 ; Law Eep. 6 Chanc. 546. 
 
 The acceptance of a firm was written across 
 such a document. The firm afterwards made an 
 assignment for the benefit of creditors. After the 
 assignment, and when the document had become 
 to all appearance a complete bill by the insertion 
 of a drawer's name, it passed into the hands of 
 Digest, 1870—1875. 
 
 holders for value : — Held, that it did not create 
 a debt capable of supporting an adjudication of 
 bankruptcy against the acceptors. Ibid. 
 
 (J) Cheque not an equitable assignment. 
 
 2. — ^A cheque does not operate as an equitable 
 assignment by the drawer of part of his balance 
 at his banker's. Dicta in Keene v. Beard (8 0. B, 
 N.s. 372) commented on. Hopkinson v. Forster, 
 Law Rep. 19 Eq. 74. 
 
 (B) Stamp. 
 
 3. — A cheque payable to M. or order, and in- 
 dorsed by M. to plaintiff, who received it on the 
 4th of November, is admissible as evidence in an 
 action by plaintiff against the drawer, although it 
 be dated the 5th of November, and although it 
 bear a Id. stamp only. Bull v. Sullivan, 40 Law 
 J. Rep. (N.s.) Q. B. 141 ; Law Eep. 6 Q. B. 209. 
 
 (C) Consideration. 
 
 4. — S., a cotton broker of New Orleans, was in 
 the habit of sending cotton over to England, and 
 the plaintiff was in the habit of accepting his bills 
 in consideration of the assignment to him of bills 
 of lading of the cotton. In 1870, in the course of 
 this business, a bank, to whom two bills of S. on 
 the plaintiff were endorsed, sent them for the 
 plaintiff's acceptance, and with the bills they sent 
 a memorandum, " The bank holds bills of lading 
 for 504 bales of cotton." The plaintiff thereupon 
 accepted the bills, and, retiring them before they 
 became due, received the bills of lading, and went 
 to the captain of the ship on his arrival and pre- 
 sented the bills of lading, which turned out to be 
 forgeries : — Held, that, notwithstanding the repre- 
 sentation contained in the memorandum sent by 
 the bank, the plaintiff could not call on the bank 
 to repay him the value of the bills. Leather v. 
 Simpson, 40 Law J. Eep. (n.s.) Chanc. 177 ; Law 
 Rep. llEq. 398. 
 
 5. — No action can be maintained on a bill ac- 
 cepted in consideration only of a debt discharged 
 by a bankruptcy or arrangement under the Bank- 
 ruptcy Act, 1861, although such bill was 'given 
 after the repeal of that Act by the Bankruptcy 
 Repeal Act, 1869 (32 & 33 Vict. c. 83). Bimini v. 
 B. Fan Praagh, 42 Law J. Rep. (n.s.) Q. B. 1 ; 
 LawRep.8a.B. 1. 
 
 6. — A creditor who receives a cheque, or other 
 negotiable security, on account of a pre-existing 
 debt, bond fide and without notice of any infirmity 
 of title, holds it by an indefeasible title, whether 
 the security be payable at a future time or on de- 
 mand, and can sue the drawer upon it, although the 
 consideration for which the cheque was drawn 
 wholly fails. Currie v. Misa, 44 Law J. Eep. 
 (n.s.) Exch. 94 ; Law Eep. 10 Exch. 153. 
 
 The defendant bought of L. foreign bills, drawn 
 by L., which according to the usual course of 
 business were to be paid for on the 14th of 
 February. On the 13th of February, L. being 
 pressed by the plaintiffs, his bankers, to whom he 
 N 
 
90 
 
 BILL OF EXCHANGE (C), (E). 
 
 was largely indebted, gave them, in partial reduc- 
 tion of the debt, a document signed hy himself 
 and directing the defendant to pay to the plaintiffs 
 or bearer a sum equal to the price of the bills. 
 On the 14th of February, the defendant received 
 from the plaintiffs this document, and gave them 
 in exchange his own cheque on his bankers for 
 the same amount payable to L. or bearer. The 
 plaintiffs received it bond fide and without notice 
 of any infirmity of title on the part of L., and 
 entered it in their books to L.'s credit, and pre- 
 sented it at the clearing house the same day to 
 the defendant's bankers. The latter refused pay- 
 ment under instructions from the defendant who 
 had, since drawing the cheque, discovered that L. 
 had stopped payment. The plaintiffs, on the 16th 
 of February, entered the cheque to L.'s debit. 
 The bills bought by the defendant were afterwards 
 dishonoured. The plaintiffs having sued the 
 defendant upon the cheque : — Held, by the Court 
 of Exchequer Chamber (dissentiente Lord Cole- 
 ridge, C.J.), affirming the judgment of the Court 
 of Exchequer, that the plaintiffs were holders of 
 the cheque for valuable consideration, and were 
 entitled to recover. Ibid. 
 
 (D) Acceptance. 
 (a) By partners. 
 
 1, — ^The acceptance of a bill of exchange pay- 
 able to order of a firm, drawn in the name of a 
 firm by one of its members, without the authority 
 of the other, does not estop the acceptor from 
 disputing the endorsement on the ground of want 
 of authority from such other member. Garland 
 V. Jacomb, Law Rep. 8 Exch. 221. 
 
 8. — Four mercantile firms, each, of whom 
 carried on a separate trading business of its own, 
 agreed to carry on jointly a particular trade which 
 had been theretofore carried on by F., one of the 
 four firms, alone. The agreement between the 
 four firms provided that the business shoiJd be 
 carried on under the style of F., who were to 
 -keep separate books for the purpose, and that each 
 party to the agreement should be liable in respect 
 of the business in proportion to his share in the 
 undertaking, and in the event of being under cash 
 advances he should receive interest for the same ; 
 but it was " understood and agreed that the finance 
 of the business be carried on by acceptances of 
 the several parties interested as may from time to 
 time be arranged." The association was known 
 to the members as the A. company, but its name 
 and existence were kept secret. In order to raise 
 money for the purpose of the business a mimber 
 of bills of exchange were drawn by M., one of 
 the firms, upon each of the other three, were 
 accepted by them respectively, and were discounted 
 by bankers, the money thus obtained being applied 
 to the purposes of the joint business. The 
 bankers were ignorant of the existence of the 
 association. An order was afterwards made to 
 wind up the association, as an unregistered part- 
 nership consisting of more than seven members : 
 — Held (reversing a decision of Malins, A'".C.), 
 
 that only those of the firms whose names appeared 
 upon the bills of exchange were liable in respect 
 of them, and that consequently the holders of 
 the bills could not prove upon them in the winding 
 up. In re the Adansonia Fibre Company ; Miles's 
 Claim, 43 Law J. Rep. (n.s.) Chano. 732 ; Law 
 Eep. 9 Chanc. 635. 
 
 (i) Sy directors. 
 [See Company, D 21.] 
 
 (c) Acceptance against bill of lading. 
 
 9. — H. accepted bills of exchange to meet 
 goods consigned to him. The acceptances were 
 made payable " on delivery of the bills of lading." 
 The bills of lading remained, with the bills of 
 exchange, in the possession of the bank who had 
 discounted the latter for the drawers : — Held, on 
 the bankruptcy of the acceptor, that the goods 
 were part of his estate which the bank held as 
 security for their debt,, and therefore that the 
 bank could only prove for the amount due on the 
 bills of exchange after deducting the value of the • 
 goods. Ex parte Brett ; In re Howe, 40 Law J. 
 Eep. (n.s.) Bankr. 54; Law Eep. 6 Chanc. 838. 
 
 10.— Contract by F. with K. to ship wheat 
 to be paid for by K.'s acceptance against bill of 
 lading. F. shipped the wheat, and made out six 
 bills of lading with corresponding bills drawn on 
 K. indorsed, and delivered three of these to the 
 C. Bank to secure an advance. By inadvertence 
 they sent one other of the indorsed bills of lading 
 to K., who transferred it for value to the W. 
 Banlc. The bills having not been met at maturity : 
 — Held, that F. was entitled to transfer the bills 
 to the C. Bank, and that the W. Bank had no 
 priority. Gilbert v. Guignon, Law Eep. 8 Chanc. 
 16. 
 
 11,— A bill of exchange which purports to be 
 drawn against a particular cargo does not necessa- 
 rily carry a lien on that cargo into the hands of 
 every holder of the bill. Frith v. Forbes (4 D. Gr. 
 F. & J. 409) considered. Eobey'Sf Co.'s Perse- 
 verance Ironworks v. Oilier, Law Eep. 7 Chanc. 
 695. 
 
 Belease of acceptor reserving claims against 
 others. [See Scotch Law, 17.] 
 
 (E) TeANSFEB FOK VALtJE. 
 
 12, — A bill of exchange was drawn in England 
 by the defendants, English subjects, on a French 
 house, payable in Paris on the 5th of October, 
 
 1870. Before the maturity of the bill, in conse- 
 quence of foreign invasion, a, law was passed in 
 France, suspending, for a time, the presentation of 
 current bills of exchange. The time during which 
 this suspension was to last was extended, at dif- 
 ferent times, by laws promulgated by the de facto 
 governments of France. Ultimately, in accord- 
 ance with the last of such laws, the bill was pre- 
 sented by the holders on the 5th of September, 
 
 1871. It was dishonoured, and protest was made 
 according to the law of France, and notice of pre- 
 sentment and dishonour given to the successive 
 
BILL OF EXCHANGE (E), (H). 
 
 91 
 
 indorsees and the defendants. The plaintiff, who 
 carried on business in London, and to -wliom the 
 defendants indorsed the bill for value, having paid 
 a subsequent indorsee, sued the defendants for the 
 amount of the bill and expenses :— Held, that, on 
 transferring a bUl for value, the true nature of 
 the contract is that the transferror warrants that 
 the drawer shall accept the bill, and pay it when 
 due or presented ; t^hat the defendants were thus 
 in the position of sureties whose liability was to be 
 measured by that of the acceptor ; that, as the 
 obligations of the acceptor must be determined by 
 the lex loci of performance, so also must those of 
 the defendants, who were therefore liable on the 
 bill. Soqiiette v. Oiiermann, 44 Law J. Eep. 
 (n.s.) Q.B. 321 ; Law Eep. 10 Q. B. 525. 
 
 (F) PKESENTMEirr AND NoTICE OF DiSHONOtJB. 
 
 (a) Time for presentmmt. 
 
 13. — "Where a promissory note, which appeared 
 on the evidence to have been meant to be a conti- 
 nuing security, was dated in February and not pre- 
 sented till December : — Held, that the delay was 
 not unreasonable, and that the holders of the note 
 were entitled to recover. The Chartered Mercan- 
 tile Bank of India, London, and China, v. VicJcsmi, 
 Law Eep. 3 P. C. 574. 
 
 14. — The defendant on the 27th of January 
 gave to the plaintiff, in payment of a debt, a 
 cheque drawn upon a Jersey bank. On the 28th 
 the plaintiff paid it into his bankers in London, 
 who, as is customary with English bankers, sent 
 it to Jersey, where it was received by the bankers 
 on the 29th, on which day the defendant had funds 
 in their hands. No notice was taken by them of 
 a request for payment sent with the cheque. The 
 plaintiff's bankers had not any agent in Jersey. 
 They applied again for the cheque or the amount 
 thereof on the 6th of February. In answer to this 
 application the cheque was sent back to them with 
 the words " refer to drawer " written upon it. The 
 Jersey bank had stopped payment on the 1st of 
 February : — Held, that there had been a good 
 presentment of the cheque, that there had been 
 no laches on the part of the plaintiff or his 
 bankers, and that the receipt of the cheque by the 
 plaintiff did not amount to payment of the amount 
 due. Heywood v. Pickering, 43 Law J. Eep. (n.s.) 
 Q. B. 145 ; Law Eep. 9 Q. B. 428. 
 
 (A) Duty of agent. 
 
 15. — The object of the transmission of a bill of 
 exchange from principal to .agent being to obtain 
 acceptance and payment of the bill, or, if not 
 accepted, to guard the rights of the principal 
 against the drawer, the duty of the agent must be 
 measured by these considerations, and the agent 
 ought not to press unduly for acceptance, pro- 
 vided he obtains acceptance or refiisal within the 
 time which vrill preserve the rights of the princi- 
 pal against the drawer. Bank of Van Biemen's 
 Land v. Bank of Victoria, 40 Law J. Eep. (n.s.) 
 P.O. 28 : Law Eep. 3 P.C. 256. 
 
 In an action for negligence by a principal 
 
 against an agent, it appeared that the principal 
 transmitted to the agent a bill of exchange for 
 acceptance. The bill was received on a Friday at 
 1 P.M., and was left with the drawees at 2 p.m. 
 the same day. On Saturday, at 11.30 a.m., the 
 agent called for the bill, and, as business closed at 
 12 P.M. on Saturday, was directed by the drawees 
 to call on Monday. The agent called on Monday, 
 and was directed to call on Tuesday. When the 
 agent called on Tuesday, the acceptance which 
 had been made on Saturday had been cancelled. 
 The jury foimd a. verdict for the principal, but 
 with nominal damages ; and the Judicial Commit- 
 tee refused to increase the damages. Ibid. 
 
 (c) Notice of dishonour. 
 
 16. — Where there are no effects of the drawer 
 in the hands of the drawees of a cheque, and the 
 drawer has no reasonable ground to expect that 
 the cheque will be honoured, no notice of dis- 
 honour to him is necessary either by the payee or 
 his indorsee. Wirth v. Austin, Law Eep. 10 C.P. 
 689. 
 
 17. — Though a foreign bill of exchange must 
 be presented by a notary public and protested, to 
 render the drawer liable, notice to the drawer 
 that the bill has been " duly presented for pay- 
 ment and dishonoured," is ' sufficient, without 
 specific notice of protest. Ex parte Lowenthal ; 
 In re Lowenthal, 43 Law J. Eep. (n.s.) Bankr. 83 ; 
 Law Eep. 9 Chanc. 591. 
 
 (Gr) Eenewal. 
 
 18. — Where the holder for value of a bill of 
 exchange agreed with the drawer that the bill 
 should be renewed, and the holder gave his 
 cheque for the amount, which the drawer sent, 
 together with the new bill, to the acceptor (who 
 knew why they were sent), in order that he might 
 meet the original bill, and accept the renewed 
 bill : — Held, that the acceptor had no right to 
 cash the cheque and pay the original bill, and 
 then decline to accept the new bill : — Held, also, 
 that the agreement to renew did not release the 
 acceptor from his -suretyship. Torrance v. Banlc 
 of British North America, Law Eep. 6 P. C. 246. 
 
 (H) Payment. 
 
 (a) Crossed cheqite, 
 
 19. — The payee of a cheque drawn on defend- 
 ants' bankers, payable to him or his order, in- 
 dorsed his name on it, and crossed it with two 
 lines and the name of his bankers, the London 
 and County Bank. The cheque was stolen, and 
 ultimately came into the hands of a bond fide 
 holder for value, who paid it to his bankers, the 
 London and Westminster Bank. They presented 
 it to the defendants, who, notwithstanding the 
 crossing, paid the amount. In an action by the 
 payee to recover the amount from the defendants: 
 —Held, thafalthough by 21 & 22 Vict. c. 79, s. 2, 
 the defendants were bound to pay only through the 
 London and County Bank, yet as the plaintiff had 
 
92 
 
 3ILL OP EXCHANGE (H), (I). 
 
 ceased to be holder of the cheque, he could not re- 
 cover either for the breach by defendants of the 
 duty created by the statute, or an allegation that 
 they had converted the cheque. Smith v. The 
 Union Sank of London, 44 Law J. Eep. (n.s.) 
 Q,.B. 117; Law Eep. 10 Q.B. 291 : affirmed on 
 appeal, 45 Law J. Kep. (it.s.) Q. B. 149 ; Law Eep. 
 1 Q.B.Div. 31. 
 
 (6) Cheque to order : forged endorsement. 
 
 20. — Though the banker on whom a cheque is 
 drawn which is payable to order, is protected by 
 , 16 & 17 Viet. c. 59, s. 19 from proving it to be 
 indorsed by the person to whose order it is made 
 payable, if it purports to be so indorsed, yet a, 
 third person who cashes such cheque is not so 
 protected ; and if the indorsement of the name of 
 the payee to whose order it was made payable be 
 a forgery, such third person will be liable to 
 refund to the drawer the money he received on 
 the cheque when it was honoured by the banker 
 on whom it was drawn. Ogden v. Benas, 43 Law 
 J. Eep. (n.s) C. p. 259 ; Law Eep. 9 0. P. 513. 
 
 (o) Payment in error. 
 
 21. — The branch bank of the defendants at 
 N. discounted a bill of exchange drawn by the 
 plaintiffs, who were customers of the branch bank, 
 upon il. & Co., and accepted by them, payable at 
 the bank of L. & Co., also bankers at N. Ac- 
 cording to the practice prevailing among bankers 
 at N., the branch bank, on the morning when the 
 bill became due, took it to L. & Co., who marked 
 it for payment, and gave a credit note, indicating 
 that it, with other moneys, was in order for pay- 
 ment and would be paid. About 2 p.m. on the 
 same day a clerk of the branch bank, in accord- 
 ance with the practice, took all the cheques which 
 had been received, drawn on L. & Co., together 
 with the credit note, to the bank of L. & Co. The 
 credit note was admitted into the total amount, 
 and a cheque upon the branch bank was, in ac- 
 cordance with the practice, handed by L. & Co. to 
 the clerk, for the amount of the balance due to 
 the defendants. At 3 p.m. the banks at N. close 
 to the public, but it is the practice for the bankers 
 who keep accounts with the branch bank to 
 attend at such bank, before it finally closes for 
 the day at 4 p.m., for the purpose of having the 
 day's accounts investigated, and of rectifying any 
 mistakes or errors which may have arisen in the 
 course of the day, and finding and striking the 
 final balances between them. When the bank of 
 L. & Co. closed at 3 o'clock it was ascertained 
 that H. & Co. had stopped payment, and that 
 their balance was not sufficient to meet the bill. 
 Notice was at once and before 4 p.m. given to the 
 branch bank that the bill had been paid in error, 
 and they were requested to take it back. Before 
 such notice was received, the account of L. & Co. 
 had been debited with the amount in the ac- 
 counts of the branch bank : — Held, that it not 
 being shewn that the giving the cheque was pro- 
 visional only, and subject to rectification upon 
 
 going over the accounts later in the day, such 
 giving the cheque by L. & Co. amounted to pay- 
 ment of the bill to the defendants, and that the 
 plaintiffs were entitled to have credit with them 
 for the amount of the bill. Pollard v. The Bank 
 of England, 40 Law J. Eep. (n.s.) Q.B. 233; 
 Law Eep. 6 0. B. 623. 
 
 Release of holder b, 
 rights does not release 
 
 by 
 ■elec 
 Scotch Law, 17.] 
 
 I. [See 
 
 (I) Specific Appeopbution of Ebmittances to 
 COVEE Bn.Ls. 
 
 (a) Generally. 
 
 22. — Estoppel by representations applies only 
 where the representation is as to a fact in exist- 
 ence at the time, not where it is as to some- 
 thing yet to come, or as to a matter of future 
 intention. The Citizens Bank of Louisiana v. 
 The First National Bank of Hew Orleans {S-JS), 43 
 Law J. Eep. (n.s.) Chanc. 269 ; Law Eep. 6 E. 
 & I. App. 352. 
 
 A representation or assurance given by the 
 drawer of a bill, that the bill was drawn 
 "specially" or "expressly" against funds re- 
 mitted by him more than sufficient to meet the 
 bill on maturity, does not amount to a specific 
 appropriation or equitable assignment of the 
 funds so remitted, although it be given to one 
 who is induced thereby to purchase the bill, 
 unless it is also represented, or the fact is, that 
 there was a trust already constituted, by which 
 the payer of the bill would hold funds in trust 
 for the payment of the particular biU, or of bills 
 of that particular class or description. Ibid. 
 
 The plaintiff purchased from the New Orleans 
 Bank a bill drawn by them upon the Bank of 
 Liverpool, and was told by the persons repre- 
 senting the New Orleans Bank, at the time of the 
 purchase, that the Liverpool Bank had, or would 
 have, funds of the New Orleans Bank sufficient 
 and applicable to meet the bill and appropriated 
 for the purpose. Before the bill was presented 
 for acceptance the New Orleans Bank stopped 
 payment, and the Liverpool Bank declined to ac- 
 cept the bill on presentation, or to pay it at 
 maturity, on the ground that, although they had 
 sufficient funds of the New Orleans Bank to meet 
 the bill, none of such funds were specifically 
 appropriated to the payment of it. It appeared 
 that the course of business between the two 
 banks was for the New Orleans Bank to remit 
 to the Liverpool Bank bills for collection, and to 
 draw bills against the remittances, taking care to 
 keep them always in funds to meet the bills 
 drawn upon them: — Held, that there was no 
 specific appropriation of the funds of the New 
 Orleans Bank in the hands of the Bank of Liver- 
 pool to meet the plaintiff's bill, and that the 
 statement made to him did not amount to an 
 equitable assignment, and was no more than a 
 representation of the course of dealing between 
 the two banks. Ibid. 
 23. — Where G. was in the habit of drawing 
 
BILL OP EXCHATJ^GE (1). 
 
 93 
 
 bills on Y., and of sending him tills to put him 
 in funds to meet them, and a separate account of 
 these transactions was kept distinct from their 
 general account: — Held, evidence of specific ap- 
 propriation. Y. having effected with his creditors 
 a composition of 3s. id. in the pound:— Held, 
 that G. 'vriis entitled to have back remittances 
 sent hy him, and -which had not matured -when 
 Y.'s failure took place, subject only to Y.'s right 
 to be reimbursed the 3s. id. in the pound paid by 
 him under the composition. Ex parte Gome:: ; 
 In re Yglesias, Law Eep. 10 Clianc. 639. 
 
 24.— On the 14th of September P. & Co. pur- 
 chased &om H. a floating cargo of maize, and the 
 same day resold it to the defendant. On the 4th 
 of October P. & Co., according to the custom of 
 the trade, paid H. (who retained the shipping 
 documents) a deposit of 883Z. on account of the 
 cargo, and the same day drew a bill on the defend- 
 ant for that amount, which the defendant 
 accepted. P. & Co. thereupon discounted the bill 
 with the plaintiffs. On the arrival of the cargo 
 in November, P. & Co., acting on the defendant's 
 instructions, sold the cargo for him to C, who paid 
 H. the balance due from P. & Co. on the first 
 sale, and received direct from H. the shipping 
 documents. There was then remaining in C.'s 
 hands a balance of 41 5i. due to the defendant. On 
 the 2ud of December P. & Co. executed a deed of 
 inspectorship ; on the 17th the bill for 883?. was dis- 
 honoured at maturity ; andbn the 20th the defend- 
 ant filed in Dublin a petition for arrangement with 
 his creditors. Had P. & Co. not suspended pay- 
 ment, they would have been entitled, according to 
 the regular course of business, to have appro- 
 priated the balance of 416Z. to the taking up of 
 the bill; and it would also have been their duty 
 towards the defendant to have done so and to 
 have retired the biU. C. having paid the 415?. 
 into Court, — Held, that the money paid in ought 
 to be applied towards taking up the bill, and ought 
 not to be paid to the defendant or his trustees. 
 The Bank of Ireland v. Perry, 41 Law J. Eep. 
 (n.s.) Exch. 9 ; Law Eep. 7 Exch. 14. 
 
 25.— Two firms of G. & Co. and L. & Co. 
 engaged in a joint transaction, which consisted in 
 the purchase of cotton by L. & Co. in Bombay, 
 which was consigned to G. & Co. in London for 
 sale by them on the joint account. The cotton 
 was paid for by means of the proceeds of bills of 
 exchange which were drawn by L. & Co. upon G. 
 & Co., and were sold to bankers in Bombay. The 
 bills of lading of the cotton were sent to G. & Co., 
 to put them in funds to meet their acceptances 
 when due. Both firms went into liquidation. 
 Some of the cotton which had been bought on the 
 joint account came into the hands of the trustee 
 of L. & Co. : — Held, that the holders of accep- 
 tances of G. & Co., the proceeds of which had 
 been employed in paying for this cotton, were 
 entitled to have the proceeds of the cotton speci- 
 fically appropriated to meet the bills, subject, 
 however, to the right of the creditors (if any) of 
 the aggregate partnership composed of the two 
 firms to have the proceeds of the cotton applied 
 as part of the joijit estate of that partnership. 
 
 Ex parte Dewhnrst ; In re Leggett, 42 Law J. Eep. 
 (n.s.) Bankr. 87; Law Eep. 8 Chano. 965. 
 
 26. — Bills were drawn against cotton consigned 
 to England. The cotton was hypothecated, by 
 means of a letter in favour of a bank which 
 bought tliese bills ; at the same time bills of lading 
 and a policy were handed to the bank. The letter 
 contained a power to keep insured, and a power 
 to sell the cotton in case of non-payment, and to 
 apply any balance, after satisfaction of the bills, 
 towards other debts due from the consignor to the 
 bank : — Held, that money received on the policy 
 could not be applied in payment of anything 
 beyond what was due on the bills. Latham v. 
 The Chartered Bank of India, China and Australia, 
 43 Law J. Eep. (n.s.) Chanc. 612; Law Eep, 
 17 Eq. 205. 
 
 27. — The plaintiffs had had discount transac- 
 tions with S., who applied to them for an advance 
 of 5,000?. ; the plaintiffs agreed to lend him that 
 sum upon a guarantie, and in May, 1867, the 
 defendant became surety for a portion of the ^ 
 amount required. The plaintifiTs advanced 5,000?. 
 to S., and subsequently discounted bills to a large 
 extent for him. When the bills which he brought 
 were discounted, the plaintiffs credited him with 
 the amount thereof in their ledger, and then redis- 
 counted the same. This method was adopted in 
 order to keep the plaintiffs out of cash advances. 
 Sometimes when the plaintiffs discounted bills for 
 S. the transaction was not entered upon their 
 ledger. If the discounted bills were not paid at 
 maturity by the acceptors, or by S., and were 
 paid by the plaintiffs, the amount was debited to 
 S. According to the plaintiffs' ledger, between 
 the 8th of May and the 12th of June, 1867, S. 
 was credited " by bills discounted " with various 
 sums, amounting in the whole to more than 
 6,000?. It appeared from the plaintiffs' books 
 that from May, 1867, to December, 1868, the 
 accounts were made up, and sometimes shewed 
 only a small balance against S., e.g., at the end of 
 
 1867, a balance against him of 273?., and at the 
 end of June, 1868, of 1,060?. ; but in December, 
 
 1868, the account shewed a balance against him 
 of 27,704?. The foregoing balances in 1867 and 
 June, 1868, were arrived at by taking into account 
 the sums on the credit side, which represented 
 the amount of the bills, less interest and commis- 
 sion, for discount, which were current at the date 
 of the balance being struck, and of promissory 
 notes of S., some of which bills and promissory 
 notes were not paid at maturity, and were 
 included in the ultimate balance of 27,704?. 
 against S. The plaintiffs from time to time during 
 1867 and 1868 sent to S. accounts, which were 
 copies of their ledger, and thus shewed the above 
 balances. The bills discounted with the plaintiffs 
 by S. at the time of the loan of 5,000?. were 
 renewed and wete never paid, and that sum was 
 never liquidated. In December, 1868, S. became 
 bankrupt : — Held, that the plaintiffs had not 
 appropriated the bills discounted by S. after the 
 loan of 6,000?. in payment thereof, and that as 
 the loan to S. had never been paid by him, the 
 defendant was liable to the plaintiffs upon hie 
 
u 
 
 BILL OF EXCHANGE (I), (K)-BILL OF SALE. 
 
 guarantie after S. had becomo bankrupt. The 
 Citi/ Discount Co. v. M'Clean (Exch. Ch.), 43 Law 
 J. Eep. (n.s.) C. p. 344 ; Law Eep. 9 0. P. 692. 
 
 Specific appropriation with country bankers 
 of bills to answer acceptances : rights 
 of acceptors against London banking 
 agent. [rSee Bankeb, 13.] 
 
 Securities held hy hanking company against 
 their acceptances : proof in winding tip, 
 [See Company H, 2.] 
 
 (b) Double insolvency ; Ex parte Waring. 
 
 28. — L., a merchant of Bremen, on varions 
 occasions consigned goods to S., of Havana, against 
 which by the direction of S. he drew bills upon a 
 common correspondent of theirs, E,, of London, 
 who accepted' them. S. then remitted to E. Sundry- 
 bills accompanied by directions to hold them 
 against certain specified bills on account of which 
 S. was liable to E., amongst them E.'s .icceptances 
 of L.'s bills on behalf of S. Previous to the 
 maturing of the bills so remitted, S. and E. both 
 suspended payment. Upon an application by L. 
 against the trustee of E.'s estate to have the pro- 
 ceeds of the bills so remitted by S. to E. appro- 
 priated to E.'s acceptances of L.'s bills, — Held, 
 that the rule in Ex parte Waring (19 Ves. 346) was 
 applicable ; that in the course of business between 
 the parties, the remittances of S. were specifically 
 appropriated to certain items of liability, and 
 among them to E.'s acceptances, and that the ap- 
 propriation was not affected by the abatement 
 caused by the two bankruptcies. Held, also, that 
 there was sufiicient privity between the parties to 
 admit of the application of Ex parte Waring. Ex 
 parte Smart ; In re Bichardsmi, 42 Law J. Eep. 
 (n.s.) Bankr. 22 ; Law Eep. 8 Chanc. 220. 
 
 29. — The principle of Ex parte Waring (19 Ves. 
 345) only applies where there is a double insol- 
 vency and a double right of proof. Vaiylian v. 
 Halliday, Law Eep. 8 Chanc. 561. 
 
 The plaintiff purchased bills drawn by E. upon 
 A., and E. transmitted to A. other acceptances to 
 cover the bills. Before these remittances reached 
 A., E. went into liquidation. A. refused to accept 
 the bills drawn on him by E., and also went into 
 liquidation : — Held, that the plaintiff could not 
 maintain a suit against the trustees under the two 
 liquidations to have the remittances applied in 
 payment of the bills. Ibid. 
 ' Ex parte Smart (No. 28, supra) distinguished. 
 Ibid. 
 
 30. — The doctrine oi Ex parte Waring does not 
 apply where one of the parties, though practically 
 insolvent, is subject to no jurisdiction, and cannot 
 be compelled to submit his rights to the Court. 
 Ex parte General South American Company ; In re 
 Yglesias, Law Eep. 10 Chanc. 735. 
 
 [And see Compant, H 5.] 
 
 (K) Actions and Suits. 
 
 31.— Where the plaintiff sues on a bill of ex- 
 change payable after date, and the date of the bill 
 produced corresponds with the date stated in the 
 
 declaration, the defendant may, under a plea tra- 
 versing the acceptance, prove that when he 
 accepted the bill it bore a different date, and that 
 the alteration was made without his knowledge 
 and after the bill had been put into circulation. 
 Hirschmann v. Budd, 42 Law J. Eep. (n.s.) Exch. 
 113; Law Eep. 8 Exch. 171. 
 
 32. — The holder of a bill of exchange, having 
 been paid part thereof by the drawer, can only 
 sue the acceptor as regards that sum as trustee 
 for the drawer. Thornton v. Maynard, 44 Law 
 J. Eep. (n.s.) C. p. 382 ; Law Eep. 10 C. P. 695. 
 
 33. — Where a wnt is issued under " The Sum- 
 mary Procedure on Bills of Exchange Act, 1855," 
 a defence in abatement that the defendant was 
 joint acceptor of the bill of exchange with another, 
 is a legal defence entitling him to, leave to appear 
 under section 2. Casella v. Barton, 42 Law J. 
 Eep. (n.s.) C. p. 68 ; Law Eep. 8 C. P. 100. 
 
 34. — AVhere a party brings an action on a lost 
 bill of exchange against the acceptor without first 
 offering to give him an indemnity against the 
 claims of other persons on the bill, the Court or 
 Judge, in the exercise of its discretion under sec- 
 tion 87 of the Common Law Procedure Act, 1854, 
 will make the order iinder that section, that the 
 loss of the bill shall not be set up as a defence to 
 the action, only on the terms that the plaintiff 
 pay the defendant his costs of the action up to 
 that time as well as give a proper indemnity 
 against such claims. King v. Zimmerman, 40 Law 
 J. Eep. (n.s.) C.P. 278 ; Law Eep. 6 C. P. 466. 
 
 Promissory note : ei 
 son joitiing as 
 AT Law, 5.] 
 
 defence by per- 
 [See PiEADiNa 
 
 BILL OF LADING. 
 [See Shipping Law.] 
 
 BILL OF SALE. 
 
 (A) Eegisteation. 
 
 (a) When necessary. 
 
 (1) Equitable assignment in nature of 
 
 bill of sale. 
 
 (2) CJiattels abroad. 
 
 (3) Fixtures. 
 
 (b) Successive bills of which last alone 
 
 (B) Description of Assignor and of attest- 
 
 ing Witness. 
 
 (C) Condition ok DErEA,sANCE. 
 
 (D) Appaebnt Possession. 
 
 (E) CoNSIDEEATION. 
 
 (F) License to seize ATTEK-AcaviRED Pnn- 
 
 PEBTT. 
 
 (G) Pbiouity, 
 
BILL OF SALE (A). 
 
 (A) Eeqisteation. 
 (a) When necessary. 
 (1) Equitable assignment in nature of bill of sale. 
 
 1. — An agreement, in consideration of supply- 
 ing goods on credit, to hold at the disposal of the 
 \endors all the stock of raw materials, and to 
 execute all further assurances, is an equitable as- 
 signment in the nature of a bill of sale, and 
 requires registration. Ex parte Conning; In re 
 Steele, 42 Law J. Eep. (n.s.) Bankr. 74 ; Law Eep. 
 16 Eq. 414. 
 
 2. — An agreement for a bill of sale cannot be 
 relied on as an equitable assignment, unless regis- 
 tered. Ex parte Mackay. Ex parte Bromn ; In 
 re Jeauons, 42 Law J. Rep. (n.s.) Bankr. 68 ; Law 
 Rep. 8 Chanc. 643. 
 
 (2) Chattels abroad. 
 
 3. — A bill of sale of personal chattels situate 
 in Scotland, though made in England and by a 
 domiciled Englishman, need not be registered 
 under the Bills of Sale Registration Act, 17 & 18 
 Vict. c. 36. Coote v. Jeoks, 41 Law J. Rep. (n.s.) 
 Chanc. 599 ; Law Rep. 13 Eq. 597. 
 
 (3) Fixtures. 
 
 4. — A mortgage by a leaseholder of his tenant's 
 fixtures with his lease, in whatever form, requires 
 registration under the Bills of Sale Act, 1864, as 
 a bill of sale of fixtures. Such a mortgage is 
 quite different from a mortgage by a freeholder of 
 fixtures with the freehold. There the title to the 
 land and fixtures is identical, for the fixtures be- 
 long to the landlord simply as part of the land, 
 and it is for this reason that such a mortgage does 
 not require registration. Boyd v. ShorrocTe (37 
 Law J. Rep. (n.s.) Chanc. 144; Law Rep. 5 Eq. 
 72) dissented from. Ex parte Daglish; In re 
 Wilde, 42 Law J. Rep. (n.s.) Bankr. 102 : Law Rep. 
 8 Chanc. 1072 ; and see BegHe v. Fenwich, Law 
 Eep. 8 Chanc. 1075, n. 
 
 A lease contained covenants by the lessee to 
 erect certain machinery in the buildings demised, 
 and to keep the buildings and machinery in repair 
 during the term ; and a covenant to deliver up the 
 buildings at the end of the term, not mentioning 
 the machinery : — Held, nevertheless, that the ma- 
 chinery was made landlord's fixtures, as, practi- 
 cally, the tenant could never remove it. Ibid. 
 
 5. — The lessee of a public-house who under a 
 covenant in the lease was bound to deliver up to 
 the lessor all.the ilxtures on the premises, tenant's 
 fixtures put up for trade excepted, demised by 
 way of mortgage the leasehold premises (including 
 tenant's fixtures) to a mortgagee for the residue 
 of the term less three days. The mortgage deed 
 contained a power of sale by which it was pro- 
 vided that in case of default the mortgagee might 
 sell the demised premises or any part thereof 
 either for the term thereby granted, or for the 
 whole term granted by the original lease, and 
 either together or in parcels, with a proviso that 
 after any sale the mortgagor should stand pos- 
 
 sessed of the last three days of the, original term 
 in trust for the purchaser: — Held, that the mort- 
 gage deed did not empower the mortgagee to take' 
 the fixtures and sell them separately from the 
 public-house, and that consequently it was not 
 requisite that the deed should be registered under 
 the Bills of Sale Act. Ex parte Barclay ; In re 
 Joyce, 43 Law J. Rep. (n.s.) Bankr. 137; Law 
 Rep. 9 Chanc. 576. 
 
 The test whether the Act applies in such a case 
 is, whether the mortgage deed gives power to the 
 mortgagee to sever the fixtures and sell them 
 separately from the house. Ex parte Daglish ; In re 
 Wilde (No. 4 supra) considered and distinguished. ' 
 Ibid. 
 
 Trade fixtures passing by mortgage of free- 
 hold thcagh mortgage not registered as 
 bill of sale. [See Eixtuees, 1.] 
 
 (i) Successive bills of which last alone registered. 
 
 6. — ^Where a bill of sale is given for good con- 
 sideration, but not registered, and before the ex- 
 piration of the time for registration it is annulled, 
 and a similar bill of sale given which also is not 
 registered, and after this process has been re- 
 peated several times, at last a bill of sale is duly 
 registered, such last bill of sale is valid against 
 execution creditors if made bond fide with the in- 
 tention of passing the property comprised in it. 
 Smale V. Burr, i2 Law J. Eep. (n.s.) C.P. 20; 
 Law Rep. 8 C. P. 64. 
 
 7.-^E. & W. were engaged in a speculation, 
 and E. had agreed that the plaintiff should re- 
 ceive a share of the profits which shoidd accrue 
 to him. E. advanced a sum of money, and as 
 W. was unable to repay it when it became due, 
 it was agreed between E., W. and the plaintiff, 
 that a bill of sale should be given to the plain- 
 tiff of certain fiirniture in a house occupied by 
 W. It was at the same time agreed between 
 the three parties that the bill of sale was to be 
 kept renewed for twelve months, and that neither 
 it nor the renewals were to be registered during 
 that period unless "W. should get into difficulties 
 in the meantime. In pursuance of such agree- 
 ment a bill of sale, dated the 8th of March, 1872, 
 was executed by W. On the 27th of March, 
 1872, a fresh bill was executed in pursuance of 
 the agreement, but the first bill of sale remained 
 in the possession of the plaintiff. Another fresh 
 bill was registered on the 15th of April, 1872, 
 and the plaintiff having learnt that W. was in 
 difftculties, took possession under it on the 20th 
 of April: — Held (Cleasby, B., dubitante), affirm- 
 ing the judgment of the Coxirt of Queen's Bench, 
 that the plaintiff was entitled as against an exe- 
 cution creditor who seized on the 24th. Samsdenv. 
 Lupton (Ex. Ch.), 43 Law J. Rep. (n.s.) Q.B. 17 ; 
 Law Eep. 9 Q. B. 17. 
 
 8. — A bill of sale was executed in February 
 for a good consideration. It was not registered, 
 but was renewed, by a fresh bill of sale which was 
 a copy of the last, from time to time, within the 
 period allowed for registration. The last bill of 
 
96 
 
 BILL OF SALE (A), (D). 
 
 sale was executed on the 26th of May, and was 
 duly registered : — Held, that the last bill of sale, 
 heing to secure an antecedent debt, was invalid 
 against creditors. Bamaden v. I/wpton (No. 7 
 supra) distinguished. Ex parte Cohen ; In re 
 Sparice (41 Law J. Eep. (n.s.) Bankr. 17) fol- 
 lowed. Ex parte Stevens ; In re Stevens, 44 Law 
 J. Eep. (n.s.) Bankr. 136 ; Law Eep. 20 Eq. 786. 
 
 (B) Descbiption op Assignoe and of 
 
 ATTESTINO WITNESS. 
 
 9. — In an affidavit filed with the copy of a bill 
 of sale, it was sworn that the said bill of sale was 
 made or given on the 5th day of December, 1870, 
 being the day of the date thereof: "That I was 
 present, and did see the said Isaac Anthony sign 
 and execute the said bill of sale, and that the 
 said Isaac Anthony resides at 'Dynevor Lodge,' 
 and is an auctioneer." It was also sworn in the 
 affidavit, that " the paper writing hereto an- 
 nexed is a true copy of a bill of sale," made or 
 given by Isaac Anthony," &c. The paper writ- 
 ing thus referred to and annexed commenced 
 " This indenture, made the 5th day of December, 
 1870, between Isaac Anthony, of Dynevor Lodge, 
 in the Parish of Llanarthuey, in the county of 
 Carmarthen, auctioneer, of the one part, and 
 David Jones, of Wern, in the said parish of Lla- 
 narthuey, in the county of Carmarthen, gentle- 
 man, of the other part : " — Held, that although, 
 if the affidavit was taken alone, the description 
 of the residence of the grantor would be insuffi- 
 cient, the defect might be cured by reference to 
 the bill of sale. Jones v. Harris, 41 Law J. Eep. 
 (n.s.) a. B. 6 ; Law Eep. 7 Q. B. 167. 
 
 10. — The grantor of a bill of sale was therein 
 correctly described as of " No. 37, Malpas Eoad, 
 Deptford, in the county of Kent," and the attest- 
 ing witness to such bill of sale was therein also 
 correctly stated to be of " 2, South Terrace, 
 Hatcham Park Eoad, New Cross." In the affi- 
 davit, however, which was filed with a copy of 
 the bill of sale, the residence of the grantor was 
 described as " No. 73, Malpas Eoad, Deptford, 
 in the county, of Kent," and the residence of the 
 attesting witness was described as " 3, South 
 Terrace, Hatcham Park Eoad, New Cross : " — 
 Held, that there was not a true description of 
 residence of the grantor and attesting witness 
 thereto filed as required by the Bills of Sale Act, 
 17 & 18 Vict. c. 36. Murray^. Mackenzie, 44 
 Law J. Eep. (n.s.) O.P. 313 ; Law Eep. 10 C.P. 
 625. 
 
 11. — The affidavit filed with a bill of sale under 
 the Bills of Sale Act, 17 & 18 Vict. c. 36, must 
 give, either directly or by reference to the bill of 
 sale, a description of the residence and occupa- 
 tion of the attesting witness at the time of his 
 attesting the bill of sale. Therefore, where the 
 witness was described in the attestation to the 
 bill of sale as " clerk to a solicitor," but in the 
 affidavit he was described as being then a " gen- 
 tleman," without any statement that the descrip- 
 tion of him in the attestation to the bill of sale 
 was true, it was held that the statute 17& 18 
 Vict. c. 36, had not been complied with. Brodrick 
 
 V. Scale, 40 Law ,1. Eep. (n.s.) 0. P. 130 ; Law 
 Eep. 6 0. P. 98. 
 
 12.— S., who was a clerk in the Admiralty, was 
 described in a bill of sale given by himself and in 
 the affidavit filed pursuant to 1 7& 18 Vict. e. 36. s. 1, 
 as a "government clerk," and the attesting wit- 
 ness, of whose occupation there was no direct evi- 
 dence, was described as an "insurance clerk:" — 
 Held, that the descriptions were sufficient. Grant 
 V. Shaw, 41 Law J. Eep. (n.s.) Q. B. 303 ; Law 
 Eep 7 Q. B. 700. 
 
 13. — The grantor of a bill of sale registered 
 under 17 & 18 Vict. c. 36, was described as "ac- 
 countant." He was clerk in the aciountant's de- 
 partment of a railway company's office, and occa- 
 sionally worked at book-keeping and matters of 
 account for other people after office hours : — Held, 
 affirming the decision of the Court below (42 Law 
 J. Eep. (n.s.) Exch. 134 ; Law Eep. 8 Exch. 80), 
 that the description of his occupation was insuffi- 
 cient to satisfy the statute. Briggs v. Boss (37 
 Law J. Eep. (n.s.) Q.B. 101; Law Eep. 3 Q.B. 
 268) commented on. Larchin v. North Western 
 Deposit Bank {Lim.) (Exch. Ch.), 44 Law J. Eep. 
 (n.s.) Exch. 71 ; Law Eep. 10 Exch. 64. 
 
 14. — An insufficient description of the attesting 
 witness to a bill of sale contained in his affidavit 
 registered therewith may be cured by reference to 
 a sufficient description of him in the attestation 
 clause of the bill of sale. Ex parte Mackenzie; 
 In re Bent, 42 Law J. Eep. (n.s.) Bankr. 25. 
 
 (C) Condition oe Defeasance. 
 
 15. — A parol arrangement to repay by instal- 
 ments a loan secured by a bill of sale is a con- 
 dition within the meaning of the 2nd section of 
 the Bills of Sale Act, and as such must be reduced 
 into writing and appear on the registered copy of 
 the bill of sale, otherwise"the latter will be void 
 against a trustee in bankruptcy. Ex parte 
 Southam; In, re Southam, 43 Law J. Eep. (n.s.) 
 Bankr. 39 ; Law Eep. 17 Eq. 578. 
 
 16. — A memorandum, signed by the giver of a 
 bill of sale, stating that a sum of money to be 
 paid by way of bonus was to be paid in full, not- 
 withstanding that the principal money secured by 
 the bill of sale might be repaid, or the rights of 
 the assignee enforced before the expiration of the 
 time for payment mentioned in the bill of sale, — 
 Held, not to be such a defeasance, condition or 
 declaration of trust as by the 2nd section of the 
 Bills of Sale Act, 1854, is required to be written 
 on the same paper or parchment as the bill of sale. 
 Ex parte Collins; In re Lees, 44 Law J. Eep. (n.s.) 
 Bankr. 78; Law Eep. 10 Chanc. 367. 
 
 (D) Apparent Possession. 
 
 17. — The occupation spoken of in the 7th sec- 
 tion of the Bills of Sale Act, 1854, means a de 
 facto occupation ; and therefore, where goods 
 comprised in an unregistered bill of sale had been 
 deposited in rooms rented by the grantor, and the 
 keys of the premises had been demanded and 
 given up to the grantee in consequence of non- 
 compliance by the grantor with the conditions of 
 the bill of sale, and the grantor uerer returned to 
 
BILL OF SALE (D), (E), 
 
 97 
 
 th» premises, but the grantee entered, marked the 
 goods, and kept the keys, the jury found rightly, 
 that the premises -were not " occupied " by the 
 grantor ; and the goods were therefore not in his 
 "apparent possession" within the meaning of the 
 1st and 7th sections of the Bills of Sale Act. 
 Sobinson v. Briggs, 40 Law J. Eep. (n.s.) Exch. 
 17 ; Law Eep. 6 Exch. 1. 
 
 is. — Goods formally seized by the sheriff under 
 an execution remain in the apparent possession of 
 the debtor within the meaning of the Bills of Sale 
 Act. Ex parte Mutton; In re Cole, 41 Law J. 
 Eep. (n.s.) Bankr. 67 ; Law Rep. 13 Eq. 178. 
 
 The goods of a debtor having been seized in 
 execution, and a man left in possession, the holder 
 of an unregistered biU of sale over them paid the 
 debt and costs and took possession himself. On 
 the same day, and before he did so, the debtor 
 was adjudicated bankrupt : — Held, that the bill 
 of sale was void against the trustee in bankruptcy. 
 Also, that the holder of the bill of sale was en- 
 titled to be paid, out of the proceeds of the goods, 
 the amount of the executions, which were good 
 against the trustee. Ibid. 
 
 19. — A debtor gave promissory notes for the 
 amount of his debt, which notes contained the 
 words " security to be given by bill of sale when 
 required." One year afterwards the creditor 
 required security, and six weeks after the request 
 the debtor gave him a bill of sale over a portion 
 only of his property, which was registered: he 
 having afterwards petitioned for liquidation the 
 creditor took possession under his bill of sale : — 
 Held, that the bill of sale was not bad as a fraud 
 on the Bills of Sale Act, nor as a fraudulent pre- 
 ference under the Bankruptcy Act, 1869, s. 92 : — • 
 Held, also, that the interval of six weeks between 
 the request for security and the execution of the 
 biU of sale was not in itself sufficient so to dis- 
 connect the two as to make the bill of sale volun- 
 tary. Ex parte Mackenzie ; In re Bent, 42 Law J. 
 Eep. (n.s.) Bankr. 25. 
 
 20. — ^To defeat the title of the holder of an 
 unregistered bill of sale of chattels as against the 
 trustee under the liquidation of the mortgagor, it 
 is sufficient that the chattels are, at the com- 
 mencement of the liquidation, in the visible pos- 
 session of the mortgagor, even though the mort- 
 gagee has taken possession, so as to prevent the 
 goods being removed by anyone else, and with the 
 bcm&fide intentionof himself removing them forth- 
 with. Ex parte Jay ; In re Blenkhorn, 43 Law J. 
 Eep. (n.s.) Bankr. 122 ; Law Eep. 9 Chanc. 697. 
 
 In order to defeat the title of the trustee in 
 bankruptcy of the mortgagor, the Bills of Sale Act 
 requires that much more should be done by the 
 mortgagee than would be necessary with reference 
 to the doctrine of reputed ownership. Ibid. 
 
 Two ladies executed, on the 16th of June, 1873, 
 a bin of sale of all their furniture and other effects, 
 including some cows and a pony, to secure the re- 
 payment of a loan of 144Z. The bill of sale was 
 never registered. On the 10th of February, 1874, 
 the mortgagee put two men into possession. These 
 men slept in the house, but the mortgagors con- 
 tinued to use the furniture and other articles just 
 Law Digest, 1870-1875. 
 
 as before. They retained the keys of the pre- 
 mises and used the pony when they pleased, and 
 the cows were milked by their servant. On the 
 morning of the 14th of February the men in pos- 
 session commenced removing the furniture and 
 packing it into vans which had been brought there, 
 the vans, while they were being loaded, standing 
 on a drive inside the premises occupied by the 
 mortgagors. In the afternoon the vans with the 
 furniture and also the cows and the pony were 
 taken away. But before this had been done, 
 about noon the same day, the mortgagors filed a 
 liquidation petition: — Held, that the mortgagee 
 had done enough before the petition was filed to 
 take the goods out of the possession or apparent 
 possession of the mortgagors. That up to the 
 morning of the 14th of February, the mortgagee's 
 possession was only a formal one ; and inasmuch as 
 the mortgagors had, on the 1 1th of February, com- 
 mitted an act of bankruptcy, by executing a second 
 mortgage of their furniture and other effects 
 (which formed substantially their whole property) 
 to secure an antecedent debt, that the trustee 
 under the liquidation was entitled to the goods. 
 Ibid. 
 
 21. — Where the holder of an unregistered bill 
 of sale of furniture took possession by sending in 
 a broker's man, and did not remove the furniture, 
 but merely posted up placards announcing a sale 
 of the furniture, such placards not shewing that 
 the sale was to be made under a bill of sale, and 
 the owner of the furniture was adjudged bankrupt 
 before the sale : — Held, that the goods remained 
 in the possession or apparent possession of the 
 owner within the above Act, the possession of the 
 broker's man being merely " formal," and that the 
 trustee under the bankruptcy was entitled to them. 
 Ex parte Levois; In re Henderson, Law Eep. 6 
 Chanc. 626. 
 
 22. — An agreement to give a bill of sale need 
 not be registered. Where a debtor executed a bill 
 of sale, in pursuance of previous agreement, and 
 afterwards on the same day filed a petition for 
 liquidation : — Held, that the bill of sale,, being 
 registered within twenty-one days, was valid 
 against the trustee. The order and disposition 
 clauses of the Bankruptcy Act do not apply in such 
 a case. Ex parte Soman; In re Broadbmt, Law 
 Eep. 12 Eq. 508. 
 
 [And see Bankeuptct B 16 ; G 19, 20.] 
 
 (E) CONSIDKEATION. 
 
 23. — A sum of money advanced upon the faith 
 of a promise that a bill of sale should be given, 
 will be treated as an advance made on the execu- 
 tion of the bill of sale. But the promise must be 
 a bond fide binding one, and the postponement of 
 the execution of the bill of sale must also be bond 
 fide, and not with any view to protect the credit 
 of the borrower or other collateral object. Ex 
 parte Fisher; In re Ash, 41 Law J. Eep. (n.s.) 
 Bankr. 62; Law Eep. 7 Chanc. 636. 
 
 New bill (^ sale to secure former debt and 
 
 adva/noes : notice of act of bankruptcy, 
 
 [See Bankruptcy B 37.] 
 
 
 
98 
 
 BILL OF SALE (F)— BOOTY OF WAR. 
 
 (F) LlCDKSE TO SEIZE AFIEB-ACaUIEED PsOPEKTY. 
 
 24. — Where a bill of sale given to secure a debt 
 contains, together with an assignment of existing 
 property, words which amount to a license to seize 
 after-acquired property, but -which do not amount 
 to an equitable assignment of the latter, such 
 license is co-extensive with the debt, and cannot 
 be exercised after the debt has been barred by 
 the bankruptcy of the debtor. Cole v. Kernot ; 
 Thompson v. Cohen, 41 Law J. Eep. (n.s.) Q. B. 
 221 ; Law Eep. 7 Q. B. 627. 
 
 (Gr) Peioeity. 
 
 25. — A non-trader gave, on the 10th of Febru- 
 ary, 1870, a bill of sale of goods to A. as security 
 for advances, and on the 28th of February, a se- 
 cond bill of the same goods to P. as security for 
 advances, P. having no notice of A.'s bill. On the 
 2nd of March A. registered his bill ; and on the 
 1 8th of March P. registered his. Neither having 
 been repaid, on the 21st of March P. took posses- 
 sion under his bill, and in spite of a notice of A.'s 
 claim sold the goods. Between the seizure and 
 the sale, the debtor committed an act of bank- 
 ruptcy, and was adjudicated bankrupt: - Held, 
 that P. had not acquired any priority over A. since 
 A.'s legal title to the goods was complete as against 
 P. without taking possession. Ex parte Allen and 
 Ex parte Fage ; In re Middleton, 40 Law J. Eep. 
 (n.s.) Bankr. 17; Law Eep. 12 Eq. 209. 
 
 Bight of holder to remove goods from pos- 
 session of receiver in hanhruptcy : con- 
 tempt of Court. [See Banketiptoy 
 P4.] 
 
 BOARD OF TEADE. 
 
 [Power given to Board of Trade to direct cer- 
 tain inquiries and to appoint the Eailway Com- 
 missioners to be arbitrators or umpire. 37 & 38 
 Vict. c. 40.] 
 
 be void. A rule to set aside the verdict upon a 
 point reserved at the trial was afterwards dis- 
 charged, and E. gave notice of appeal under sec- 
 tion 37 of the Common Law Procedure Act, 1854, 
 but, no bail having been put in under section 38, 
 and more than two years having passed without 
 any step being taken to prosecute the appeal, the 
 plaintiff brought an action on the bond:^Held, 
 that the time for putting in bail having elapsed, 
 and no bail having been put in, the action against 
 E. must be considered as determined in favoiir ot 
 the plaintiff, and that the bond might therefore 
 be enforced. Bumaby v. Earle, 43 Law J. Eep. 
 (n.s.) Q.B. 209 ; Law Eep. 9 Q,. B. 490. 
 
 Sesiraint of trade. 
 
 3. — In the year 1864 E. G., a surgeon, apothe- 
 cary and man-midwife, engaged T. B., a medical 
 student, as his assistant, at a salary. In 1870 
 T. B., at E. Gr.'s request, executed a bond by which 
 he bound himself to pay E. G. the penal sum of 
 1,000Z. The bond then recited that E. G. some 
 time since took T. B. into his employ and confi- 
 dence as an assistant in his profession or business, 
 whicb employment was to continue so long as the 
 parties to the bond should agree, and that for the 
 aforesaid consideration T. B. had agreed to enter 
 into the same bond. The condition of the bond 
 was that it should be void in case T. B. did not 
 carry on the business of a surgeon, apothecary, or 
 man-midwife within the parish of N. or within ten 
 miles thereof (excepting at L.) during so long as 
 B. G. or his successors in the business should carry 
 on the same. Later in 1870 R. G. discharged 
 T. B. from his employment, and in 1874, T. B. 
 having qualified himself to practise as a surgeon, 
 apothecary, and man-midwife, commenced business 
 about four miles from F. On the motion for an 
 injunction by E. G. : — Held, that there was suffi- 
 cient consideration to support the bond, and the 
 injunction was granted. Gravely v. Barnard, 43 
 Law J. Eep. (n.s.) Chanc. 659; Law Eep. 18 
 Eq. 518. 
 
 BOND. 
 
 Delivery up of bond. 
 
 1. — No bill will lie in equity for the delivery 
 up of a bond, after the bond debt is paid, though 
 by the tenor of the bond the money secured would 
 be payable at a future date, so that there was no 
 present right of action. Binns v. Fisher, 43 Law 
 J. Eep. (n.s.) Chanc. 188. 
 
 By the defendant in action. 
 
 2. — The plaintiff obtained a verdict in an ac- 
 tion against E., who then, in consideration of a 
 stay of proceedings until the following term, exe- 
 cuted a bond, the condition of which was, that if 
 the determination of the action should be in favour 
 of the plaintiff, and E. should pay the amount 
 for which the verdict was given, the bond should 
 
 BOOTY OF WAE. 
 
 The High Court of Admiralty has no original 
 jurisdiction in matters of booty of war. Its juris- 
 diction is derived solely from the statute 3 & 4 
 Vict. c. 65, and Orders in Counoiljssued in pursu- 
 ance of that statute. The Banda and Kirwee 
 Booty, 44 Law J. Eep. (n.s.) Adm. 41 ; Law Eep. 
 4 Adm. & Ecc. 436. 
 
 The matter of the Banda and Kirwee booty had 
 been by Order in Council referred to the Court to 
 determine the persons entitled to share, and in 
 what proportions, and as to costs. Certain moneys, 
 the proceeds of the booty, had, as alleged, not been 
 paid to the parties who had been declared by the 
 Court entitled to the booty :— Held, that the Order 
 in Council gave the Court no power to order that 
 these moneys should be brought into Court for dis- 
 tribution, and that, therefore, the Court had no 
 jurisdiction to make such an order. Ibid. 
 
BEAWLING— BEOKER. 
 
 99 
 
 BEAWLma 
 
 [See Chukch, 22.] 
 
 BEEACH OF PEOMISE TO MAEEY. 
 An action for breach of promise of marriage 
 may be maintained against a man -who has pro- 
 mised to marry a woman after the death of his 
 father, and has afterwards absolutely declared his 
 intention never to fulfil his promise, although his 
 father be living at the time the action is brought. 
 Frost V. Kniffht, 41 Law J. Eep. (n.s.) Exoh. 78 ; 
 LawEep. 7 Exch. 111. 
 
 Jurisdiction at law : defendant residing out 
 of jurisdiction : cause of action. [See 
 
 JUE1SDICTI0N-AT-I,A.W, 5.] 
 
 Production of documents in action of. [See 
 Pboduction, 5.] 
 
 BEISTOL IMPEOVEMENT ACT. 
 
 A wall may be a party wall, within the mean- 
 ing of the Bristol Improvement Acts, 1840 and 
 1847, for part of its length or height, and an ex- 
 ternal wall for the remainder of its length or 
 height. Weston v. Arnold, 43 Law J. Eep. (n.s.) 
 Chanc. 123; LawEep. 8 Chanc. 1084. 
 
 A wall in Bristol separating buildings, but 
 having in it, above the buildings, windows enjoy- 
 ing rights of light, was condemned as a party wall 
 under the local Acts, on proceedings taken by the 
 owner of the lights, and ordered to be rebuilt. 
 The Acts contain provisions that there shall be no 
 openings in party walls of new or re-erected 
 buildings, except iron doors for communication 
 between the separate buildings : — Held, that the 
 Acts did not apply to these windows, and that the 
 owner of the lights could maintain a suit to re- 
 strain the erection of a building that would inter- 
 fere with them. Ibid. 
 
 BEOKEE. 
 
 BEEAD 
 
 Adulteration. 
 
 1. — A person cannot be convicted under s. 8 of 
 6 & 7 Will. 4. c. 37, for using prohibited mixtures 
 or ingredients in the mating of bread for sale, 
 unless there be knowledge, either in himself or in 
 the person employed by him, of the presence of 
 the mixture or ingredient. Core v. James, 41 Law 
 J. Eep. (N.a.) M. 0. 19 ; Law Eep. 7 Q. B. 135. 
 
 Sale hy weight. 
 
 2. — The appellant was convicted under 6 & 7 
 Will. 4. c. 37, s. 4 for selling bread without 
 having a correct beam or scales, &c. The material 
 of which the bread was made was in all respects 
 the same as ordinary bread, except that carbonic 
 acid gas was forced into it. It was crusty all 
 round, and was known in the trade as French or 
 fancy bread, but in no way, except the manner of 
 baking in separate loaves, resembled what was 
 called French or fancy bread at the time of the 
 passing of the Act: — Held, that the conviction 
 was right, as the exception in s. 4 as to selling 
 French or fancy bread could not be construed to 
 apply to bread of such a description. The Queen 
 V. Wood (38 Law J. Eep. (ir.s.) M. C. 144 ; Law 
 Eep. 4 0. B. 569) observed upon. The Aerated 
 Bread Company v. Grigg, 42 Law J, Eep. (n.s.) 
 M. C. 117 ; Law Eep. 8 Q.B. 355. 
 
 BEIDGE. 
 
 Toll ; injury to bridge by statutory powers : 
 compensation. [See Toix, 1 .] 
 
 Bepair of bridge hy railway company. [See 
 Eailwat, 28; Negligence, 11.] 
 
 County bridge: damage to by locomotive. 
 rSee LocoMOHVB.] 
 
 [See Stock Exchange ; Pkinoipal and Agent ; 
 Factors Act.] 
 
 lAahilityfor want of skill. 
 
 1. — The defendant, a broker, was employed by 
 the plaintiff to seU, and as selling broker he sold 
 for the plaintiff " to arrive" certain goods on the 
 terms that they were " fair average quality in 
 opinion of selling broker." The buyers having, on 
 arrival of such goods, refused to take them, the 
 defendant went and inspected them, and gave his 
 opinion that they were not of fair average quality, 
 according to the contract : — Held, affirming the 
 decision of the Court of Common Pleas (41 Law 
 J. Eep. (n.s.) C. p. 1 1 ; Law Eep. 7 C P. 36), that 
 the defendant was not liable to an action by the 
 plaintiff for not using due skill in order to form 
 a correct opinion of the quality of the goods, as 
 there was no contract by him, express or implied, 
 to exercise any skill whatever in forming such 
 opinion, Pappa v. Bose (Exch. Ch.), 41 Law J. 
 Eep. (n.s.) C. p. 187 ; Law Eep. 7 C. P. 698. 
 
 Usage of mmket. 
 
 2. — ^Although a person who, as principal, em- 
 ploys a broker to transact business for him in a 
 particular market, is bound by the usage of that 
 market, though unknown to him, provided the 
 usage is one that merely regulates the mode of 
 performing the contract, and does not change the 
 intrinsic character of the contract, yet where the 
 usage is one which gives the broker an interest at 
 variance with his duty, as by converting him into 
 a principal instead of a mere agent, to establish 
 privity of contract between two principals, such a 
 usage is not binding on a principal who, being 
 ignorant of the usage, employs a broker to whom 
 the usage is known, to perform the ordinary and 
 accustomed duties belonging to the office or em- 
 ployment of a broker. The principal is not bound 
 to enquire what the usage may be, or whether 
 o2 
 
100 
 
 BROKER— CAMPBELL'S ACT. 
 
 there be any particular usage afifecting the market 
 in which he proposes to deal. Robinson v. Molhtt 
 (H. L.), 44 Law J. Rep. (n.s.) 0. P. 362 ; Law Rep. 
 7 E. & I. App. 802. 
 
 Liability of broker in trover. [See Pbin- 
 oiPAi AND Agent, 24.] 
 
 Criminal fraud. 
 [See FEAro, E.] 
 
 BURIAL. 
 
 (A) New Bceial Gkound ; Dwellino-hoitse. 
 
 (B) Compensation for disused Burial Ghound 
 
 TAKEN TINDER SlATUTOBT PoWEES. 
 
 (C) Burial Fees. 
 
 (D) Sexton. 
 
 [Regulations as to the approval by the Secre- 
 tary of State of the appointments of burial 
 boards. 34 & 35 Vict. c. 33.] 
 
 (A) New Burial Ground : Dwelling house. 
 
 1.— The provisions of s. 9 of 18 & 19 Vict. c. 
 128, whereby it is enacted that no ground not 
 already used as or appropriated for a cemetery 
 shall be used for burials under 1 5 & 16 Vict. c. 
 85, or that Act, within the distance of 100 yards 
 from any dwelling-house, without the consent in 
 writing of the owner, lessee and occupier, are 
 general provisions, and apply to all new burial 
 grounds, whether parochial or non-parochial. 
 Greenwood v. Wadsioorth, 43 Law J. Rep. (n.s.) 
 Chanc. 78; Law Rep. 16 Eq. 288. 
 
 (B) Compensation poe disused Burial Ground 
 taken undbe Statutory Powees. 
 
 2. — A burial ground provided by Act of Par- 
 liament, but of which the rector was the free- 
 holder, was closed by Order in Council. Subse- 
 quently a portion of the land was taken for public 
 purposes, and a sum paid into Court under the 
 Lands Clauses Act, 1845: — Held, that, inasmuch 
 as the freehold was in the rector, and he received 
 the burial fees, he was entitled to receive the di- 
 vidends of the fand in Court. Ex parte the 
 Rector of Liverpool, 40 Law J. Rep. (n.s.) Chanc. 
 65; Law Rep. 11 Eq. 15. 
 
 Semble — the parish clerk and sexton had no 
 right to any interest in the fund, although they 
 received certain fees for burials. Ibid. 
 
 In re St. Pancras Burial Ground (36 Law J. 
 Rep (n.s.) Chanc. 52; Law Rep. 3 Eq. 173) fol- 
 lowed. Ibid. 
 
 3. — An Act of Parliament empowered certain 
 persons to purchase land out of the rates of a 
 parish, the laud to be conveyed to the rector and 
 churchwardens, in trust for the inhabitants of the 
 parish. The Act was silent as to any right to re 
 ceive burial fees. Land was purchased accord- 
 ingly and duly consecrated, and the rector had 
 always received the fees. A portion of the burial 
 ground was taken by a railway company, and a 
 sum of money was paid into Court under the 
 
 Lands Clauses Act, 1845 (8 & 9 Viet. c. 18), as 
 compensation money for the land taken. Subse- 
 quently the churchyard was closed by an Order 
 in Council : — Held, that the rector was entitled to 
 the dividends of the fund in Court. Ex parte The 
 Rector of St. Martin's, Birmingham, 40 I/aw J. 
 Rep. (n.s.) Chanc. 69; Law Rep. 11 Eq. 23. 
 
 The above case, Li re The Rector of Liverpool, 
 explained. Ibid. 
 
 (C) BuriaIlFees. 
 
 4.— In 1851, the church of St. T. was built and 
 consecrated. In 1852, an Order in Council under 
 59 Geo. 3. c. 134. s. 16, authorised services to be 
 performed in the new church, assigned a district 
 to it out of the ancient parish of W., in which it 
 was situated, and granted the incumbent the fees. 
 There was then no burial ground in the district, 
 and the persons dying in it continued to be buried 
 as before in the churchyard of the parish. The 
 plaintiff was appointed incumbent of this church 
 in 1854, and in 1856 a burial ground for the whole 
 parish was consecrated, the district of the new 
 church contributing to the rates for providing it. 
 A new rector of the parish was appointed in 
 1864 :— Held, by the Exchequer Chamber, affirm- 
 ing the judgment of the Queen's Bench, that the 
 district of St. T. was a "new parish" within 
 20 & 21 Vict. u. 81, and that the plaintiff, on the 
 first avoidance of the rectory, was entitled to the 
 burial fees in respect of inhabitants of St. T. 
 buried within the parish. Oronskaw v. The Wigan 
 Burial Board (Exch. Ch.), 42 Law J. Rep. (n.s.) 
 Q. B. 137 ; Law Rep. 8 Q. B. 217. 
 
 5. — ^A parson having the freehold of the body 
 of the church may contract for a money conside- 
 ration to permit the burial of a non-parishioner 
 therein, and may sue upon such contract in a 
 Court of law. Neville v. Bridger, 43 Law J. Rep. 
 (N.s.) Exch. 147 ; Law Rep. 9 Exch. 214. 
 
 (D) Sexton, 
 
 e.— Where under 16 & 17 Vict. c. 134, and 
 15 & 16 Vict. 0. 85, a new consecrated burial 
 ground and chapel have been provided for a 
 parish, the parish sexton has a right, at reason- 
 able and proper times and places, and in a rea- 
 sonable and proper way, to dig the graves of 
 parishioners in the burial ground, and ring the 
 chapel bell at their funerals, and he may appoint 
 a deputy to do it, who is not liable to an action of 
 trespass at the suit of the burial board for enter ■ 
 ing under such circumstances to do these acts, 
 such board refusing permission on the ground 
 that they are ready and willing to perform these 
 duties by their own servants. Burial Board of 
 St. Margarets, Rochester, v. Thompson, iQlus-yt J. 
 Rep. (n.s.) C.P. 213 ; Law Rep. 6 C. P. 445. 
 
 CAMPBELL'S ACT. 
 
 [See Action, 1 ; Carbibe, 7 ; Master and 
 Servant, 13.] 
 
 1, — In actions under Lord Campbell's Act, 9 & 
 10 Vict. c. 93, to recover damages for the benefit 
 
CAMPBELL'S ACT— CANAL. 
 
 101 
 
 of a relative to whom the deceased had covenanted 
 to pay an annuity during their joint lives, it is 
 unobjectionable to direct the jury that they may 
 estimate the damages to the annuitant by calcu- 
 lating what sum would buy him an equally good 
 annuity. That sum must depend, in addition to 
 other contingencies, on the probable duration of 
 the lives, and to ascertain that it is material to 
 know the average duration of the lives of persons 
 of the same age as the lives in question. Such 
 average and probable duration cannot be better 
 shewn than by proving the practice of life assur- 
 ance companies who learn it by experience ; evi- 
 dence may therefore be given of such practice, and 
 tables — ^which purport to shew the average dura- 
 tion of the lives of persons of all ages, and the value 
 of annuities on government or other very good 
 security for such lives, and to which those compa- 
 nies refer for information — may be consulted to 
 shew what is the average and probable duration 
 of the lives in question, and what is the present 
 value of the annuity, provided the attention of 
 the jury be called to the difference in value 
 between an annuity on government security, and 
 one secured by a personal covenant. — So held, per 
 Blackburn, J., Keating, J., Grove, J., Archibald, 
 J. {dissetiiiente Brett, J.). Bowleg v. The London 
 and North-Western EaUway Company (^Eisxh. Oh.), 
 42 Law J. Eep. (n.s.) Exch. 163; Law Rep. 8 
 Exch. 221. 
 
 Per Brett, J. — In suck eases the only legal 
 direction to the jury is that they must not attempt 
 to give damages to the full amount of a perfect 
 compensation for the pecuniary injury, but must 
 take a reasonable view of the case, and give what 
 they consider, under all the circumstances, a, fair 
 compensation. A direction, therefore, which 
 leaves it open to the jury to give the present value 
 of an annuity equal in annual amount to the 
 income lost, for a period supposed to be equal to 
 that which would have continued if there had 
 been no accident, is a misdirection, and any evi- 
 dence (such as that instanced above) given solely 
 to enable a jury to calculate such present value is 
 inadmissible, because necessarily misleading and 
 legally irrelevant. Ibid, 
 
 A person who though not an actuary is 
 acquainted with the business of life insurance is 
 competent to give evidence as to the average and 
 probable duration of lives and the present value 
 of annuities as given by the tables and accepted 
 by life insurance companies. — So held, per Black- 
 bum, J., Keating, J., Grove, J., and Archibald, J. 
 {diibitante Brett, J.). Ibid. 
 
 The jury may properly be directed to consider 
 the lives in question as average lives, unless there 
 is evidence to the contrary ; and if there is such 
 evidence, it is for the party excepting to the 
 direction to place the evidence on the bill of 
 exceptions. — So held, per Blackburn, J., Keat- 
 ing, J., Grrove, J., Archibald, J. {cliasentiente 
 Honyman, J.). Ibid. 
 
 2. — In order to maintain an action under 9 & 
 10 Vict, u, 93, the persons upon whose behalf it is 
 brought must prove that during the lifetime of the 
 deceased a pecuniary advantage accrued to them 
 
 owing to their relationship with hira : they are not 
 entitled to compensation under that statute, if the 
 only pecuniary benefit to them from his life was 
 derived from a contract which they had entered 
 into with him. Syhes v. The North-Eastern Rail- 
 way Company, 44 Law J. Eep. (n.s.) C.P. 191. 
 
 The plaintiff, as administrator, sued the 
 defendants to recover damages for the death of his 
 son, who had been killed by their negligence. The 
 deceased was a bricklayer, and received from the 
 plaintiff the wages of a skilled workman ; he was 
 of great assistance to the plaintiff, who was also 
 a bricklayer ; owing to the loss of assistance from 
 the deceased, the plaintiff could not take the con- 
 tracts which he had taken during his son's lifetime : 
 — Held, that the plaintiff had not suffered a pecu- 
 niary loss by his son's death entitling him to sue 
 under 9 & 10 Vict. c. 93. Ibid. 
 
 CANAL, 
 
 1. — An action was brought by the plaintiff^, as 
 owners of mines lying beneath a canal of the 
 defendants, for so negligently managing the canal 
 as to allow water to escape from it, and flood the 
 mines. The canal was constructed by the defend- 
 ants, a company, under the provisions of a local 
 Act, by which it was enacted that if any proprietor 
 of mines under the canal, or within twelve yards 
 of either side of it, should be desirous of working 
 them, he should give three months' notice to the 
 company, who, if they failed to inspect the mines 
 within thirty days, should be considered as per- 
 mitting them to be worked, and if on inspection 
 they refused permission, they should be compelled 
 to purchase the same. There was a proviso that 
 in working the mines " no injury be done to the 
 navigation, anything therein contained to the con- 
 trary notwithstanding." By the compensation 
 clauses of the Act, the company, in making the 
 canal, are to do as little damage as possible, and 
 to make satisfaction for damage sustained by the 
 owners of lands, tenements or hereditaments 
 taken, used or prejudiced by the execution of the 
 powers of the Act, and compensation is made 
 payable for damage which should be at any time 
 or times whatsoever sustained by the owners of 
 lands, &c., by reason of making, repairing or 
 maintaining the canal, or by the flowing, leaking or 
 oozing of the water over or through the banks of 
 the canal (if Qomplaint be made within six months 
 of the injury). 
 
 The plaintiffl gave notice of their intention to 
 work the mines within the prescribed distance of 
 the canal. The defendants did not inspect the 
 mines, and refused to purchase them. The plain- 
 tiffs proceeded to work the mines, the canal being 
 then in good order and watertight. They worked 
 the mines in the usual manner, without which 
 they could not have had the full beneflt of the 
 coal, and the effect of such working was to let 
 down and crack the bed of the canal and to allow 
 the water to flow into and cause damage to the 
 mines. The defendants, during the working of 
 
102 
 
 CANAL-CAEEIER. 
 
 the mines, took all proper precautions to keep the 
 canal watertight. 
 
 The Court of Queen's Bench, 41 Law J. Eep. 
 (n.s.) Q. B. 121 ; Law Eep. 7 Q. B. 244 (Hannen, 
 J., dissenting), having held that the defendants 
 were not responsible for the damage to the mines, 
 as there was no proof of any negligence on their 
 part, or of anything done in excess of their statu- 
 tory powers, — -Held, hy the Exchequer Chamber, 
 affirming that decision, that the action, for the 
 above reasons, was not maintainable. Dunn v. 
 The Birmmgham Canal Compaity, 42 Law J. Eep. 
 (n.s.) a. B. 137 ; Law Eep. 8 Q. B. 217. 
 
 Semble, per Kelly, C.B., and Pigott, B., that the 
 plaintififs were entitled to relief under the com- 
 pensation clauses of the Canal Acts. Ibid. 
 
 2.— An injunction will be granted at the suit 
 of a canal company entitled to take water from a 
 stream to prevent abstraction of the water though 
 damage is only shewn to have taken place in an 
 exceptionally dry season. The Wilts and Berks 
 Canal Navigation Company v. The Swindon Wa- 
 terworks Company, 43 Law J. Eep. (n.s.) Chanc. 
 393 ; Law Eep. 9 Chanc. 451 : affirmed with a 
 variation on appeal to the House of Lords, Law 
 Eep. 7 E. & I. App. 697. 
 
 Semble — ^that at law, an action could be brought 
 and nominal damages recovered for the abstraction 
 of the water, though no real damage was shewn 
 to prevent an adverse title being acquired by pre- 
 scription. Ibid. 
 
 Where a canal company lawfully buy land to 
 enable them to take a stream and construct a 
 culvert for that purpose, they acquire in respect 
 of that land, and of the culvert constructed, the 
 rights of ordinary riparian proprietors, and though 
 a canal company may be entitled to sell any sur- 
 plus water from their canal, they are only entitled 
 to an injunction to prevent interference with a 
 feeding stream so as to cause damage to their 
 navigation or their ordinary use of the water as 
 riparian proprietors. Ibid. 
 
 Sating of land lying near canal. [See 
 E.ITE, 25.] 
 
 CAEEIEE. 
 
 (A) ConvetAncJb of EassSngees. 
 
 (a) Negligence in conveyance, of passenger. 
 
 (j) Invitation to passengers to alight. 
 
 (c) Insufficient accommodation for pas- 
 senger to alight. 
 
 {d) Contributory negligence by passenger. 
 
 (e) Passenger travelling at his own risk. 
 
 (/) Conveyance by railway company over 
 other company's line. 
 
 (B) CONVETANOE OF PasSENSEe's LrOGAGfi. 
 
 (C) Conveyance of Goobs. 
 
 (a) Liability as common carrier, 
 
 (b) Special agreement. i 
 
 (c) Owner's ris7c. 
 
 id) " Parcel or package." 
 e) Loss by felony of servants. 
 
 (D) Dblivbet. 
 
 (a) Liability for misdelivery or late de- 
 
 livery. 
 
 (b) Goods left in hands of carriers. 
 
 (E) CONVEVANCE OF LiVE StOOK. 
 
 (A) Conveyance of Passengees. 
 (a) Negligence in conveyance of passenger. 
 
 \.- — Where the execution of a work, which, if 
 carefully and properly done, need not result in 
 accident to passers by, is entrusted to skilled and 
 proper workmen, there is no obligation on a rail- 
 way company whose line adjoins the work to take 
 special precautions to avert from their passengers 
 a danger which can only be apprehended on the 
 supposition that the workmen engaged will do 
 their work negligently ; at all events, if the com- 
 pany have no control over the workmen, and are 
 otherwise not responsible for their acts — and by 
 Lord Westbury, not even if those proper and 
 skilled workmen were employed directly by the 
 company. Daniel v. The Metropolitan RaUway 
 Company (H.L.), 40 Law J. Eep. (n.s.) C.P. 121 ; 
 Law Eep. 6 E. & I. App. 45. 
 
 The plaintiif, while travelling by the defend- 
 ants' railway, was injured by the fall of an iron 
 girder, which was being placed over part of the 
 railway, with the knowledge of the defendants, 
 and in the construction of the works which were 
 to be executed, partly to their satisfsiction but 
 were not under the control of the defendant com- 
 pany. It was proved that the work was ex- 
 tremely dangerous, though no girder had ever 
 fallen before. It was also proved that generally 
 when work of such a nature was being carried on 
 over a railway, the company had posted a signal- 
 man, either to warn the worlqieople of the 
 approach of the train, and to stop them if they were 
 under the control of the railway company, or to 
 warn the driver of the train, so as to stop the 
 train before incvu-ring any danger, and this pre- 
 caution" was not adopted. By consent, a verdict 
 had been entered for the plaintiff, with leave 
 reserved to the defendants to set it aside, &c., on 
 the ground that there was not sufficient evidence 
 of the defendants' negligence — the Court to be at 
 liberty to dlaw inferences of fact, and to adjudge 
 upon the evidence : — Held, that the Court were 
 to find such a verdict as, in their judgment, a jury 
 ought upon the evidence to have found, and that, 
 though there was evidence on which a jury might 
 find negligence, the Court, sitting as a jury, were 
 at liberty to and did find that the defendants had 
 not been guilty of negligence. 
 
 2. — By the rules and bye-laws of a railway 
 company, the porters were directed to prevent 
 passengers from leaving trains whilst in motion, 
 and to do all in their power to promote the 
 comfort of the passengers and interests of the 
 company, and specially given powers of removal 
 under certain specified circumstances not. applic- 
 able to the particular case. And it was found by a 
 case stated in an action for injury to a passenger 
 in his removal from a carriage by a porter under 
 
CAEEIER (A). 
 
 103 
 
 the miataken idea that he was in the wrong train, 
 that he was violently removed just as the train 
 was moving ; that it was the duty of the porters 
 to prevent passengers going by wrong trains as 
 far as possible ; but if they were, to request them 
 to alight, and on refusal, report them with a 
 view to charging an excess of fare, but not 
 remove them : — Held, by the Court of Exchequer 
 Chamber, affirming the decision of the Court of 
 Common Pleas (41 Law J. Eep. (n.s.) C. P. 278 ; 
 Law Eep. 7 C. P. 415), that there was evidence 
 of the porter having acted within the scope of 
 his authority and abused it, and that the com- 
 pany were responsible. Bay ley \. T^ Manchester, 
 Sheffield and Lincolnshire Eailway Company, 42 
 Law J. Eep. (n.s.) C. P. 78 ; Law Eep. 8 C. P. 148. 
 
 3. — In an action for injury to a passenger 
 in an omnibus from the kick of one of the horses 
 who kicked through the front panel of the vehicle, 
 it was proved that the panel bore marks of other 
 kicks, and that no kicking-strap was used as a 
 precaution against the horse's kicking, but there 
 was no evidence that the horse was a kicker : — 
 Held, that there was evidence of negligence to 
 go to a jury. Simpson v. The London General 
 Omnibus Company, 42 Law J. Eep. (n.s.) C. P. 
 112; Law Eep. 8 C. P. 390. 
 
 4. — The plaintiff was a passenger in a railway 
 carriage, when three persons got in beyond the 
 number it was constructed to carry, and remained 
 standing in it until the train arrived at. the next 
 station, where, the platform being crowded, a rush 
 was made for places, and notwithstanding there 
 were these three extra persons in the carriage, 
 the door of it was opened and other persons tried 
 to get in, but the plaintiff prevented them from 
 doing so. The door, however, remained open 
 after the train had begun to move, when, just as 
 it was entering a tunnel at the end of the station, 
 a porter shut the door with a slam, and in doing 
 so caught and crushed the plaintiff's thumb whilst 
 the plaintiff, who had been holding out his hand 
 to prevent more persons from getting into the 
 carriage, had had it pushed against the frame- 
 work of the door by the extra persons who were 
 standing. There was only one porter at the 
 station, and it was not unusual for the trains to 
 be full and the platform to be crowded at the 
 time when the accident occurred: — Held, in an 
 action against the railway company, that their 
 not removing the three extra persons from the 
 carriage after its arrival at the station, when 
 there was an opportunity to do so, and their not 
 having a sufficient number of porters to control 
 the crowd at the platform, were, when taken to- 
 gether, evidence on which a jury might find neg- 
 ligence of the company, which contributed to the 
 accident. Jackson v. The Metropolitan Eailway 
 Company, 44 Law J. Eep. (n.s.) C. P. 83 ; Law 
 Eep. 10 C. P. 49. 
 
 Omission of statutory precaution : com- 
 munication between passengers and 
 railway guard. [See Eailway Com- 
 PANT, 30.] 
 Carrying passengers to wrong station : re- 
 moteness of damage. [See Damases, 19.] 
 
 (i) Invitation to passengers to alight. 
 
 5.— An invitation to railway passengers to 
 alight on the stopping of a train without any 
 warning of danger to a passenger, who is so 
 circumstanced as not to be able to alight without 
 danger, such danger not being visible or apparent, 
 amounts to negligence on the part of the rail- 
 way company ; and the bringing up a train to 
 a final stand-still for the purpose of the passen- 
 gers alighting amounts to an invitation to alight, 
 at all events after such a time has elapsed that 
 the passenger may reasonably infer that it is 
 intended he should get out if he proposes to 
 alight at the particular station. Cockle v. The 
 Southr-Eastern Railway Company (Exch. Ch.), 41 
 Law J. Eep. (n.s.) C.P. 140; Law Eep. 7 C P. 
 321. 
 
 6, — The mere stopping of a train, and calling 
 out the name of a station, is no evidence of an 
 invitation to alight. Lewis v. The London, Chat- 
 ham and Dover Railway Company, 43 Law J. Eep. 
 (n.s.) Q. B. 8 ; Law Eep. 9 Q,. B. 66. 
 
 The plaintiff was a passenger by the defendants 
 railway to Bromley station. As the train arrived 
 there, she heard " Bromley, Bromley," called out 
 several times. The train was brought to a stand- 
 still, but not before it had partly overshot the 
 platform. The engine was then on the other side 
 of a bridge adjoining the platform. As the 
 plaintiff was in the act of getting out, and when 
 her foot was on the step of the carriage, the train 
 was put back, with a jerk, and she fell on the 
 platform. The period occupied by the stoppage 
 was little more than momentary, and the plaintiff 
 knew the station well : — Held, that there was no 
 evidence of negligence onthe part of the defendants 
 to go to the jury. Ibid. 
 
 7. — The plaintiff was a passenger by the defend- 
 ants' railway, and as the train reached the station to 
 which he was to be carried, he heard the name 
 of such station called out; the train afterwards 
 stopped, and he heard the opening and shutting 
 of doors usual upon passengers alighting. He 
 then opened the door of the carriage in which he 
 travelled, and which was the second from the 
 engine, and put one foot on the step and the other 
 on what he expected to be the platform, but the 
 part of the train in which he was carried having 
 overshot the platform he fell on to the embank- 
 ment. It was a dark night at the time, and there 
 was no light within forty feet of the spot, and the 
 plaintiff was therefore unable to see whether the 
 platform was or was not by the side of the car- 
 riage. A passenger in the third carriage from 
 the engine proved that he got out and alighted on 
 the platform, and that he afterwards saw the 
 plaintiff fall. No warning was given by the 
 defendants' servants to any of the passengers not 
 to leave their seats, and the train was never 
 backed, but after the accident proceeded on its 
 journey. In an action for the injury the plaintiff 
 had sustained by such fall through the defendants' 
 negligence, — Held, that there was evidence on 
 which a jury might reasonably find negligence on 
 the part of the defendants, without contributory 
 negligence of the plaintiff. Weller v. The London, 
 
104 
 
 CAERIEE (A). 
 
 Srighton and South Coast Eailway Company, 43 
 Law J. Eep. (n.s.) C.P. 137; LawEep. 9 C.P. 
 126. 
 
 8. — In an action, brought under Lord Camp- 
 ■bell's Act, 9 & 10 Vict. o. 93, against a railway 
 company, for negligently causing the death of one 
 of their passengers, it appeared that the deceased, 
 who was short-sighted, was in the habit of travel- 
 ling daily from Highbury station to Broad Street 
 station, and hack. One eyening after dark the 
 deceased arrived at Highbury station in one of 
 the company's trains. The train was stopped 
 when part of it was brought up to the platform 
 and part of it was in a tunnel, through which the 
 station is approached from Broad Street station. 
 Part of the platform runs a short distance into 
 the tunnel, and from the end of the platform a 
 slope leads down to the level of the line. On the 
 night in question there was a quantity of hard 
 rubbish, from one to two feet high, lying along 
 beyond the slope. The carriage in which the 
 deceased was riding was pulled up opposite this 
 rubbish, at the distance of twenty-seven feet from 
 the mouth of the tunnel. After the train had 
 stopped, a passenger in the next carriage gave 
 evidence that he heard the company's servant call 
 out " Highbury ; " that he got out ; that he then 
 heard called out " Keep your seats ; " that he then 
 heard a groan, and going to the sound found the 
 deceased, lying partly on the rubbish, and partly 
 with his legs on the rails between the wheels, 
 and having sustained such internal injuries in 
 attempting to alight from the carriage that he 
 died soon afterwards. The wheels of the carriage 
 had not gone over the deceased, the train must 
 therefore have been at a stand-still long enough 
 for the passenger who gave evidence to alight, 
 and then to proceed in the darkness, and to find 
 the deceased in the situation described. The 
 tunnel was dark, being filled with steam, but there 
 was a lamp at the end of the tunnel. The Judge 
 at Nisi Prius having on this evidence directed a 
 nonsuit, — Held (reversing the judgment of the 
 Excheqaer Chamber, 40 Law J. Eep. (n.s.) Q. B. 
 188 ; Law Eep. 6 Q.B. 377), that without laying 
 down any rule as to the effect in all cases of the 
 company's servant calling out the name of the 
 station, the evidence of the calling out the name 
 in this case, coupled with the stopping of the train, 
 and the interval of time which elapsed before it 
 was again moved on, was evidence which ought to 
 have gone to the jury, as it was, in the absence of 
 rebutting evidence on the part of the company, 
 sufBcient to authorise their finding a verdict for 
 the plaintiff. Bridges v. The North London Sail- 
 way Company, 43 Law J. Eep. (n.s.) Q, B. 151 ; 
 Law Epp. 7 E. & I. App. 213. 
 
 («) 
 
 to alight. 
 
 9. — The plaintiff was a passenger on the de- 
 fendants' railway, and on arriving at the station 
 at which she intended to alight, the carriage in 
 which she was travelling was carried past the 
 platform, and came to a final stand-still. The 
 
 circumstances were such as to induce the plaintiff 
 to believe she was to alight at that spot. There 
 were no railway servants to assist her; and fear- 
 ing she would be' carried on, she attempted after 
 a time to alight by stepping from the iron step 
 on to the foot-board, and so to the ground. 
 In doing so she slipped her foot, fell and sustained 
 injuries :— Held, that the duty of the defendants 
 not to expose a passenger to undue danger re- 
 quired them to provide for a person in the plain- 
 tiff's situation some reasonably fit and safe 
 substitute for the ordinary means of descent, and 
 that a jury might reasonably find the defendants 
 had not performed this duty to the plaintiff, 
 and had been guilty of negligence. Bobson 
 V. The North-TLastern BaUway Company, 44 
 Law J. Eep. (n.s.) Q. B. 112; Law Eep. 10 
 G. B. 271. 
 
 (d) Contributory negligence by passenger. 
 
 10. — The plaintiff, in company with his 
 brother, was travelling by an underground rail- 
 way. While the train was in motion he got up 
 for the purpose of looking out of the window, in 
 order to point out some object to his brother, and 
 placed his hand against a bar which went across 
 the carriage window, when the door fiew open, 
 and he fell out and was injured : — Held, by the 
 Exchequer Chamber, upon the argument of a 
 rxile, to enter the verdict for the defendants, on 
 the ground that there was no evidence of negli- 
 gence to go to the jury, that the rule must be dis- 
 charged, as the qxiestion whether the omission 
 to fasten the door was the cause of the accident 
 was rightly left to the jury. Per Kelly, C.B. — 
 That assuming that the question of contributory 
 negligence could be taken into account in con- 
 sidering whether the plaintiff had established a 
 priinli facie case, there was no evidence of 
 contributory negligence on the part of the plain- 
 tiff. Gee V. The Metropolitan Bailway Company, 
 42 Law J. Eep. (n.s.) Q.'B. 105; Law Eep. 8 
 a.B. 161. 
 
 11. — The L. & N. "W. Eailway Company have 
 running powers over the defendants' railway. 
 The plaintiff, employed by the L. & N. W. Eail- 
 way Company as travelling inspector of carriages, 
 was upon a journey with a free pass, in a car- 
 riage of a train of that company over the defend- 
 ants' line, when the train ran past an adverse 
 danger signal, and into some trucks which were 
 then being shunted on the line by the defendants' 
 servants. The collision hurt the plaintiff. In an 
 action by him against the defendants, the jury 
 found that the driver of the L. & N.W. Eailway 
 train was negligent in passing the signal, and 
 that the servants of the defendants were also'negli- 
 gent in shunting the trucks :— Held (substantiat- 
 ing Thorogoody. Bryan, 18 Law J. Eep. (n.s.)C. P. 
 336), that the contributory negligence of the 
 driver of the train disentitled the plaintiff to re- 
 cover damages for the defendants' negligence. 
 Armstrong v. The Lancashire and Yorkshire Bail- 
 way Company, 44 Law J. Eep. (n.s.) Exch. 89 
 Law Eep, 10 Exch. 47. 
 
CARRIER (A), (B). 
 
 105 
 
 («) Passenger travelling at his own risk. 
 
 12. — Declaration, that the plaintiff was re- 
 ceived by the defendants, a rail-way company, as a 
 passenger to be safely carried on their railway on 
 a journey from Kel Pier to Carlisle, and that the 
 defendants so negligently managed the railway and 
 the traffic upon it that a collision took place, by 
 which the plaintiff was injured. Plea, that the 
 plaintiff was received as a passenger under an 
 agreement that he should travel at his own risk. 
 Replication, that it was by reason of gross and wil- 
 ful negligence and mismanagement of the defend- 
 ants that the collision took place :— Held, that the 
 replication was bad, for the agreement stated in 
 the plea must be taken to include the negligence 
 mentioned in the replication. Macauley v. The 
 Farness Bailway Company, 42 Law J. Rep. (n.s.) 
 Q.B. 4; Law Rep. 8 Q,. B. 57, nom. McCawley 
 V. Fwmess Bailway Company. 
 
 13. — Where a passenger travels on a railway 
 at his own risk, the exemption from liability on 
 the part of the railway company extends, not 
 only to the actual transit, but to risks incurred 
 on the premises of the company in coming to and 
 going from the points to which the contract to 
 carry applies ; so that a cattle drover so travelling 
 who had to alight at a siding, and in necessarily 
 going to the station passed a dangerous place at 
 which he met with an accident, was held not en- 
 titled to recover, although the jury found there 
 had been negligence on the defendants' part. 
 Gallin v. 2Tie Lo^idon and North- Western Mail- 
 way Company, 44 Law J. Rep. (n.s.) Q. B. 89 ; 
 Law Rep. 10 Q. B. 212. 
 
 14. — ^A cattle drover booked stock at a station 
 on the North British line to a station on the 
 North-Eastern line, taking from the North British 
 Company a free pass to travel by the same train 
 with the stock at his own risk, and exonerating 
 the company from all responsibility for injury 
 or loss to himself, however occasioned, on the 
 journey for which it was issued or used. By the 
 negligence of the North-Eastern Company a train 
 of that company ran into the train in which the 
 plaintiff was on the North-Eastern line, and in- 
 jured him: — Held, that the North-Eastern Com- 
 pany were free from liability to the plaintiff by 
 reason of the above contract, and that the plaintiff 
 could not recover against them. Hall v. The 
 North-Eastern Railway Company, 44 Law J. Rep. 
 (N.S.) ft.B, 164; Law Rep. 10 Q.B. 437. 
 
 (/) Conveyance by railway company over other 
 company's line. 
 
 15. — Under an agreement embodied iu an Act 
 of Parliament, the M. Railway Company granted 
 running powers, on the payment of a mileage 
 charge, over a portion of their own line to the L. 
 Railway Company, and regulated by their own 
 servants the passage of all the trains of both 
 companies over such portion. Through the negli- 
 gence of the servants of the L. Company in the 
 exercise of the running powers, a train of that 
 company ran into a train of the M. Company, by 
 which the M. Company were carrying a passenger 
 in fulfilment of a contract over such portion of 
 Digest, 1870-1875. 
 
 their line. The servants of the M. Company 
 were not guilty of any negligence : — Held, that 
 the M. Company were not liable to the passenger 
 for the injuries caused by the collision, since the 
 servants of the L. Company, whose negligence 
 caused the collision, were not concerned in the 
 carriage of the passenger, and were not employed 
 by, or under the control of, the M. Company. 
 Wright v. The Midland Bailway Company, 41 
 Law J. Rep. (n.s.) Exch. 89 ; Law Rep. 8 Exch. 
 137. 
 
 16. — The plaintiff purchased a ticket from the 
 defendants, a railway company, entitling him to 
 travel from C. to C. An intermediate portion o'f the 
 journey was along the railway of the T. V. Com- 
 pany, over which, by Act of Parliament, the defend- 
 ants had running powers upon payment of certain 
 tolls ; the whole of the traffic arrangements being 
 left by the Act under the control of the T. V. Com- 
 pany. On that portion of the line, the train of 
 the defendants in which the plaintiff was travel- 
 ling ran into a train of the T. V. Company, and 
 the plaintiff was injured by the collision, which 
 was owing solely to the negligence of the servants 
 of the T. V. Company in sending on their own 
 train without proper tail lights, and in allowing 
 the defendants' train to proceed upon the same 
 line of rails too soon after their own train, with- 
 out giving any warning to the driver of the de- 
 fendants' train : — Held, affirming the judgment of 
 the Court of Queen's Bench (see 39 Law J. Rep. 
 (N.s.) Q,. B. 141), that the defendants were liable 
 for the negligence of the T. V. Company. Thomas 
 V. The Bhymney Bailway Company, 40 Law J. 
 Rep. (n.s.) Q. B. 89 ; Law Rep. 6 Q. B. 266. 
 
 Statutory precaution : communication with 
 [See RiiLWAT, 30.] 
 
 (B) Conveyance of Passenger's Lttgoage. 
 
 17. — The liability of common carriers to insure 
 the safe delivery of goods does not attach to a 
 railway company in respect of passengers' lug- 
 gage which is not put in the usual luggage van, 
 under the entire control of the company, but is 
 placed in the carriage with the passenger and 
 under his control. With respect to luggage so 
 placed, the obligation of the railway company is 
 only to take reasonable care of it, and conse- 
 quently the company will not be responsible for 
 its loss unless occasioned by their negligence. 
 The Great Western Bailway Company v. Talley, 
 40 Law J. Rep. (n.s.) C. P. 9 ; Law Rep. 6 C. P. 
 44, iiom. Talley v. Great Western Bailway Com- 
 pany. 
 
 In an action by a passenger against a railway 
 company for not safely carrying his portmanteau 
 which formed his luggage, the evidence was that 
 the plaintiff had the portmanteau put into the 
 same carriage with him, and that in the course of 
 the journey he got out for refreshment at a 
 station where the train stopped for a short time, 
 and upon returning failed to find his carriage, 
 and completed his journey in anotlier carriage in 
 the same train. He afterwards obtained his 
 portmanteau, but cut open and minus a portion of 
 its contents, which had been stolen by some one 
 P 
 
106 
 
 CAREIEB (B), (C). 
 
 in the carriage after the plaintiff had left it. The 
 jury negatived negligence on the part of the de- 
 fendants' servants, and found that the plaintiff 
 had by his negligence contributed to the loss : — 
 Held, that the general liability of the defendants 
 was, under the circumstances, modified by the im- 
 plied condition that the plaintiff should use 
 reasonable care, and that as the loss was occa- 
 sioned by his neglect to do so, and would not have 
 happened without such neglect, the defendants 
 were entitled to have the verdict entered for 
 them. Ibid. 
 
 18, — A clause of exemption from liability on 
 the back of a passenger's ticket, of which the pas- 
 senger had no knowledge, the ticket being com- 
 plete on the face of it : — Held, not to exempt a 
 steam packet company from responsibility for 
 loss of luggage. Henderson v. Stevenson, Law 
 Eep. 2 Sc. App. 470. 
 
 19. — The plaintiff, while travelling as a pas- 
 senger by the defendants' railway, lost a box 
 which had been received by the defendants as part 
 of his personal luggage, and placed in the van. 
 He had recently returned from Canada, with the 
 intention of settling in England, and the box con- 
 tained six pairs of sheets and a like number of 
 blankets and quilts, which had formed part of his 
 household goods in Canada, and which he in- 
 tended to be again part of his household goods 
 when he should have provided himself with a 
 home : — Held, that although a pair of sheets or 
 the like taken by a passenger for his own use on 
 a journey might fairly be considered as personal 
 luggage, yet that a quantity of articles of this de- 
 scription, intended not for the use of the traveller 
 on the journey but for the use of his household 
 when permanently settled, could not be so re- 
 garded, and that the defendants were not respon- 
 sible for them. Macrow v. The Great Western 
 Railway, 40 Law J. Eep. (n.s.) Q. B. 300; Law 
 Eep. 6Q.B. 612. 
 
 20. — The plaintiff went to the defendants' sta- 
 tion at Bath, and there took a through ticket to 
 Chester, having on it, " This ticket is issued sub- 
 ject to the regulations and conditions stated in 
 the company's time tables and bills ;" and there 
 were notices on the company's time tables, " The 
 company does not hold itself responsible for any 
 delay, detention, or other loss or injury whatso- 
 ever arising off its lines, or from the acts or 
 default of other parties." The train arrived at 
 Birmingham, from which point to Chester the 
 journey is on the London and North- Western 
 Company's line, the London and North-Western 
 train departing from a different platform to that 
 at which the Midland Company's train arrives. 
 The station at Birmingham belongs to the London 
 and North-Western Company, and the porters 
 there are employed and paid by that company, 
 the Midland Company having, by agreement 
 between them and the London and North-Western 
 Company, the right of using the station, with its 
 appliances (including the services of the porters), 
 for their trains. On the arrival of the train at 
 Birmingham, a porter came to the plaintiff and 
 took charge of his luggage out of the train, and said 
 
 that he would meet him with the luggage at the 
 train for Chester. When the plaintiff came to 
 the train for Chester the porter was on the plat- 
 form with the luggage ; the plaintiff never saw it 
 again: — Held (without deciding whether the 
 plaintiff was bound by the condition, though he 
 had not read the reference to it on the ticket, and 
 whether the condition itself was so reasonable as 
 to be binding upon him), that he was entitled to 
 recover as there was no evidence that the London 
 and North-Western Company ever took the lug- 
 gage into their custody. Kent v. The Midland Bcalr 
 way Company, 44 Law J. Rep. (n.s.) Q. B. 18; 
 Law Eep. lOQ.B. 1. 
 
 (C) CoNVETANCE OP GoODS. 
 
 (o) lAcMity as common carrier, 
 
 21. — The owner of a lighter, hoy or flat which' 
 he uses regularly for carrying therein for hire 
 from place to place on the banks of the Mersey 
 the goods of such persons as choose to employ 
 him, though not plying regularly between fixed 
 termini, is a common carrier, and may therefore, 
 without negligence on his part, be liable for the 
 loss of goods delivered to him for carriage and lost 
 whilst under his charge, notwithstanding that all 
 the goods carried on the journey when the loss 
 occurs belong to one and the same person. The 
 JAver Alkali Company v. Johison, 41 Law J. Eep. 
 (n.s.) Exch. 110 ; Law Eep. " Exch. 267 : afiSrmed 
 on appeal, see next case. 
 
 22. — A person who exercises the ordinary em- 
 ployment of a lighterman by carrying goods in his 
 flats for reward, although he may not be bound 
 as a common carrier to receive the goods of all 
 comers indifferently, nevertheless incurs the lia- 
 bility of a common carrier for the safety of goods 
 carried by him. So held by the majority of the 
 Court. The Liver Alkali Company (Lim.) v. John- 
 son, 43 Law J. Eep. (n.s.) Exch. 216 ; Law Eep. 9 
 Exch. 338. 
 
 Per Brett, J., such person is not a common 
 carrier, but, in the absence of any special agree- 
 ment, is, by a custom adopted and recognised by 
 the Courts, liable as a shipowner upon an implied 
 undertaking to carry at his own absolute risk, the 
 act of God and the Queen's enemies alone ex- 
 cepted. Ibid. 
 
 (b) Special agreement. 
 
 23. — The plaintiff wishing his household furni- 
 ture removed, asked the defendant, whose business it 
 was to remove furniture in vans, to undertake the 
 removal. The defendant having sent his foreman, 
 who inspected the goods, wrote to the plaintiff: "I 
 beg to inform you the terms for removal of your 
 furniture and effects from Paignton to Plymouth 
 will be 221. 10s., with risk of breakage in transit, 
 including the use of all necessary mats, cases and 
 packing materials, and every expense. In the 
 event of yowr accepting the estimate, be kind 
 enough to sign and return to me the annexed 
 memorandum, by which I am liable to the amount 
 therein specified. Payment of the account is re- 
 quired on delivery of the goods," The memoran- 
 
CARRIEE (C). 
 
 107 
 
 duin, whioh the plaintiff signed, was : " I hereby 
 agree to pay you the sum of 221. \0s. for the re- 
 moval of my furniture and effects from Paignton 
 to Plymouth, you undertaldng risk of breakages 
 (if any) not exceeding 51. on any one article." The 
 goods were removed by the defendant, but, -while in 
 transit, -were destroyed by accidental fire without 
 any negligence on his part. In an action against 
 him as a common carrier, to recover for the loss 
 of the goods, he described his occupation by say- 
 ing, " I carry goods for all that ask me to all 
 parts of the kingdom, they paying the price. I 
 receive furniture of customers by contract : " — 
 Held, that as he had made a special contract ren- 
 dering himself liable for breakages only, any 
 other liability was excluded from it, and he was 
 not responsible for the damage which the plaintiff 
 had sustained. Scaife v. Tarrant, ii Law J. Eep. 
 (n.s.) Exch, 234 ; Law Eep. 10 Exch. 359. 
 
 (c) Owner's risk. 
 
 24. — Where goods were conveyed by a railway 
 company at a lower rate than ordinary, "at 
 owner's risk:" — ^Held, that the company were 
 liable for damage occasioned by an unreasonable 
 delay. Sobinson v. The Great Western Railway 
 Company (35 Law J. Eep. (n.s.) C.P. 123) fol- 
 lowed. I/Arc V. 7^e London ^ North-Western 
 Bailway Company, Law Eep. 9 C.P. 325. 
 
 {d) " Parcel or package'' 
 25. — Pictures were laid upon one another 
 without any covering or tie in the owner's wag- 
 gon, which had sides but no top ; and the waggon 
 was delivered to a railway company, and placed 
 1^ their servants on one of their trucks for car- 
 riage by the railway : — Held, that the pictures 
 were " contained in a parcel or package " within 
 the meaning of section 1 of 1 Will. 4. c. 68, so as 
 to give the company the protection of that statute. 
 Whaite v. The Lancashire and Yorkshire Bailway 
 Company, 43 Law J. Eep. (n.s.) Exch. 47 ; Law 
 Rep. 9 Exch. 67. 
 
 («) Loss hy felony of servants. 
 
 26. — In an action against a railway company 
 for the loss of a parcel of money above the value 
 of lOZ., the issue being whether the loss was oc- 
 casioned by the felonious act of one of the com- 
 pany's servants, who had absconded at the time of 
 the parcel being missed, it is allowable to call a 
 police of&cer to prove instructions which he re- 
 ceived from the station master tending to shew 
 that he, the station master, had suspicions that 
 the servant had stolen the parcel. The KirkstaU 
 Brewery Company {Lim.) v. The Ftimess Railway 
 Company, 43 Law J. Eep. (n.s.) Q.B. 142 ; Law 
 Eep. 9 Q.B. 468. 
 
 27. — In an action against common carriers for 
 the loss of goods within section 1 of the Carriers 
 Act, and which are alleged to have been lost by 
 the felonious acts of the carriers' servants, the 
 plaintiff must estahlish a prim& facie case that the 
 loss has arisen from such felonious acts, and it is 
 not sufficient to shew that it is more probable that 
 
 the loss has arisen from such felonious acts than 
 by the act of some person not in the emplojrment 
 of the carriers. The judgment of Pigott, B., in 
 Vauffhton v. The London and North-Western Rail- 
 way Company (43 Law J. Eep. (n.s.) Exch. 76 ; 
 Law Eep. 9 Exch. 93) commented on. M'Queen 
 V. The Great Western Bailway Company, 44 Law 
 J. Eep. (n.s.) Q.B. 130 ; Law Eep. 10 a.B. 669. 
 
 28. — In order to support a replication under 
 the Carriers Act (1 Will. 4. c. £8. s. 1) of loss by 
 the felonious acts of the defendants' servants, it is 
 not necessary to give such an amount of evidence 
 as would be required to justify a Judge in leaving 
 it to the jury upon an indictment for felony, be- 
 cause in the civil action the servants have an op- 
 portunity of being witnesses for the defence, and 
 of clearing themselves from imputation ; nor is it 
 necessary for the plaintiffs to charge any one in- 
 dividual servant with the theft. Vaughton v. The 
 London and North-Western Bailway Company, 
 43 Law J. Eep. (n.s.) Exch. 75 ; . Law Eep. 9 
 Exch. 93. ... 
 
 On the 29th of January the plaintiffs delivered 
 a box of jewellery, worth more than lOl., although 
 the nature and value was undeclared, to the de- 
 fendants, as common carriers, for carriage to the 
 L. Hotel, Liverpool. The box was transmitted 
 by the defendants' railway, reached the Liverpool, 
 Lime Street, station, on their line, next morning, 
 and was entered with other parcels directed to 
 the same hotel, in the delivery book of H., a car- 
 man employed by the defendants' agent to deliver 
 goods. H. then went with his cart to the hotel, 
 and there, while allowing the housekeeper to sign 
 a receipt for three parcels, only delivered two ; 
 the hotel manager, however, noticed the deficiency, 
 and asked him where the other was. H. said, 
 " Isn't it there ? " and on being answered in the 
 negative, went out to search his van, but came 
 back, saying that he could not find the parcel. 
 This was the plaintiff's box. On Monday, the 
 10th of February, some of the jewellery was 
 handed to a detective by a pawnbroker, with 
 whom it had been pledged. Two men were ap- 
 prehended in consequence. One of them took the 
 detective to a siding of the station, and there, at 
 a place a hundred yards away from the spot near 
 the defendants' parcels delivery office, where the 
 cart was loaded, a small piece of the jewellery and 
 a bit of a broken box were picked up. The men 
 were released, and afterwards the articles found 
 were shewn to the clerks in the office, one of 
 whom, W., said that on the Thursday before, he 
 had found a pin near the same spot, and another 
 man had found two. When told that he ought to 
 have spoken about it, W. answered that he did 
 not think it worth anything. In an action against 
 the defendants for the loss of the jewellery, they 
 pleaded the Carriers Act, 1 Will. 4. c. 68. s. 1, to 
 which the plaintiffs replied that the loss arose 
 from the felonious acts of servants in the employ 
 of the defendants and not otherwise. At the trial 
 the facts above stated were proved, the defen- 
 dants called no witnesses, and the jury found a 
 verdict for the plaintiffs : — Held that, having re- 
 gard to the fact of the defendants' servants not 
 p2 
 
108 
 
 CAEEIEE (C), (E). 
 
 having been called to rebut by their explanations 
 the primd facie case made out against them, there 
 was evidence to go to the jury in support of the 
 replication. Ibid. 
 
 (D) Delivery. 
 (a) Liability for misdelivery or late delivery. 
 
 29. — A common earner is liable for the late 
 delivery of goods received by him in the amount 
 of damages which may reasonably be expected to 
 arise out of the breach of an ordinaiy contract ; 
 but he is not liable to an unusual amount of 
 damages, arising out of exceptional circumstances, 
 unless distinct notice is given to the carrier by 
 the consignor before the delivery, of the excep- 
 tional circumstances touching the delivery o^ the 
 goods. Horn v. The MidlandBailway Company, 41 
 Law J. Eep. (n.s.) C. P. 264 ; LawEep. 7 C. P. 683 : 
 affirmed on appeal, 42 Law J". Eep. (n.s.) C. P. 
 69; LawEep. 8 C.P. 131. 
 _ A consignor, having a contract with his con- 
 signees for the delivery to the consignees of goods 
 by a particular day at an exceptional price, with 
 power in the consignees to reject the goodi and 
 rescind the contract if not performed to the day, 
 delivered to a railway company goods within the 
 contract, in time for delivery to the consignees 
 within the time mentioned by the contract, and at 
 the time of delivery the company had notice that 
 the consignor was under a contract to deliver by 
 the time mentioned in the contract, and was 
 liable, in case of late delivery, to have the goods 
 thrown on his hands. The company did not de- 
 liver the goods till after the time stipulated in 
 the contract, and the consignees refused to receive 
 them : — Held, that the measure of damages to 
 which the company were liable was the difference 
 between the market price of the goods on the day 
 when they ought to have been delivered and on 
 the day on which they were delivered, and any 
 incidental expenses to which the consignor may 
 have been put in finding a customer and re-selling 
 the goods ; but that the company, under the 
 notice Which they had received, were not liable to 
 repay to the consignor the difference between the 
 exceptional price mentioned in the contract and 
 the price of resale. Ibid. 
 
 30. — Where goods are consigned to a carrier 
 to be delivered to a purchaser, whose name is 
 made known to the carrier, the inference is that 
 the contract is between the carrier and the con- 
 signee, and therefore if the goods are consigned to 
 be delivered at a certain place, the carrier is jus- 
 tified in delivering them to the consignee on de- 
 mand elsewhere, and cannot be made liable for 
 loss thereby occasioned to the consignor, e.g. by 
 his being forced to pay custom duties. Special 
 circumstances must be shewn to establish a con- 
 tract between the carrier and consignor. Cork 
 Distillery Company v. Tlie Great Southern and 
 Western Bailway Company, Law Eep. 7 E. & I. 
 App. 269. 
 
 31. — H., agent for obtaining orders for the 
 plaintiffs' goods in Glasgow, directed them to send 
 parcels of goods to C. & Co. and T. & Co. respec- 
 
 tively, giving the addresses of those firms in Glas- 
 gow. The defendants, in accordance with the 
 plaintiffs' instructions, carried the goods to Glas- 
 gow, and there delivered them (having observed 
 all the rules of their ordinary course of business) 
 at the addresses written on the parcels. H., who 
 had endorsed delivery orders in the names of the 
 firms, received the parcels at both addresses and 
 made away with them. The name of C. & Co. 
 was found put up at the one address, but there 
 was no such name or firm as T. & Co. at the 
 other : — Held, that the defendants having, in fol- 
 lowing the plaintiffs' directions, pursued bond fide 
 their usual course of business were not liable for 
 misdelivery in the case of either parcel. M'Kean 
 V. M'lver, 40 Law J. Eep. (n.s.) Exch. 30 ; Law 
 Eep. 6 Exch. 36, mm. M'Keane v. M'lvor. 
 
 (b) Goods left in hands of carriers. 
 
 32. — ^When carriers by land have carried goods 
 to their destination, in pursuance of a contract 
 with one who is both consignor and consignee, 
 and through his default the goods are left in the 
 carriers' hands, they are bound to take reasonable 
 measures for the preservation of the goods, and 
 can recover from him payments they have made 
 on account of expenses so incurred. The Great 
 Northern Bailway Company v. Swaffield, 43 Law 
 J. Eep. (n.s.) Exch. 89; Law Eep. 9 Exch. 132. 
 
 The defendant sent a horse by railway con- 
 signed to himself to a station on the Une, and paid 
 the fare. When the horse arrived at the station 
 there was no one on the defendant's behalf to 
 receive it, and the railway company therefore 
 placed it with a livery stable keeper : — -Held, that 
 they could recover from the defendant the reason- 
 able charges which they had paid to the stable 
 keeper. Ibid. 
 
 33. — A railway company, as carriers, brought 
 some goods by their railway to one of their sta- 
 tions, and immediately gave the consignee notice 
 of the arrival, and that they held the goods "not 
 as common carriers, but as warehousemen, at 
 owners' sole risk, and subject to the usual ware- 
 house charges." The consignee acquiesced in this, 
 and the goods remained in the charge of the com- 
 pany, and, by their negligence, were damaged. In 
 an action by the consignee against the company, 
 — Held, that on the true construction of the 
 notice, the defendants were not exempted from all 
 liability, but were bound as bailees to take 
 reasonable care of the goods. Mitchell v. The Lan- 
 cashire and Yorkshire Bailway Company, 44 Law J. 
 Eep. (n.s.) Q.B. 107 ; Law Eep. 10 Q.B. 256. 
 
 (E) Conveyance op Lite Stock. 
 
 34. — E. delivered a dog to a railway company 
 for carriage on their railway. The company re- 
 ceived it, not as common carriers, but as ordinary 
 bailees. The dog was delivered with a collar on 
 it and a strap attached thereto. During the 
 journey there was a change of trains ; for secu- 
 rity during the interval of change a servant of the 
 company fastened the dog up by means of the 
 strap, and the dog slipped through the collar, got 
 
CAERIER (E)— CERTIORARI. 
 
 109 
 
 on to the railway, and was killed: — Held, that 
 the company were not liable. The North-Eastern 
 Sailway Company v. Sioltardson, 41 Law J. Rep. 
 (n.s.) C. p. 60 ; Law Rep. 7 C. P. 75, nom. Richard- 
 son V. The North-Eastern EaUvaay Company. 
 
 35. — A saddled horse, delivered to a railway 
 company to be carried on a journey, was placed 
 by their ser\-ants in a proper horse box in the 
 usual manner. The saddle was left on the horse 
 according to the usual custom in such cases with 
 the stirrups hanging down. At the journey's end 
 the horse was found to be injured in the forearm 
 and fetlock. The horse was proved to be free 
 from vice, and it was shewn by the defendants 
 that nothing unusual occurred to the train during 
 the journey : — Held, by Martin, B., and Bramwell, 
 B., that, in the absence of further proof of the 
 cause of the mischief, the company were not liable. 
 Contra, by Pigott, B., on the ground that, in order 
 to relieve themselves from their common law 
 liability, the company must shew affirmatively the 
 mischief arose from the act of the animal itself. 
 Kendall v. The London and South- Western Railway 
 Company, 41 Law J. Rep. (n.s.) Exch. 184 ; Law 
 Rep. 7 Exch. 373. 
 
 36.— The G. N. R. Co. and the defendants 
 agreed that a complete and full system of inter- 
 change of traffic should be established from all 
 parts of one company and beyond its limits, to all 
 parts of the other company and beyond its limits, 
 with through tickets, through rates and invoices, 
 and interchange of stock at junctions, the stock 
 of the two companies being treated as one stock. 
 The agreement provided for the division of the 
 traffic. The plaintiff, wishing to send a cow from 
 D. to S., went to the station of the Gr. N. R. Co. 
 at D. and booked her for S. by the defendants' 
 line. He signed a contract, by which it was agreed 
 that the cow was to be conveyed upon certain 
 conditions, one of which was as follows : " The 
 G-. N. R. Co. give notice that they convey horses, 
 cattle, sheep, pigs and other live stock in waggons, 
 subject to the following condition : That they will 
 not be responsible for any loss or injury to any 
 horse, cattle, sheep, or other animal, in the re- 
 ceiving, forwarding or delivering, if such damage 
 be occa.sioned by the kicking, plunging, or restive- 
 ness of the animal." The cow was put into a 
 truck belonging to the defendants, and was con- 
 veyed to S., where a servant of the defendants, 
 who was in charge of the yard or loading place, 
 let her out of the truck, although he was cautioned 
 by the plaintiff not to do so at that time. The 
 cow rushed out of the truck, and after running 
 about the yard, got upon the line and was killed : 
 — Held, per totam Curiam, having power to draw 
 inferences of fact, that the G. K. R. Co. were the 
 agents of the defendants to make the contract for 
 the carriage of the cow, and that if the defend- 
 ants were not protected by the condition above 
 set out, an action was maintainable against them. 
 Held, also, per Blackburn, J., and Lush, J. (Mel- 
 lor, J., dissentiente), that the accident to the cow 
 was attributable to the fact that the porter let her 
 out of the truck without waiting a reasonable 
 time, aa he might have done, and that the de- 
 
 fendants were therefore liable to the plaintiffs for 
 the value of the cow. Gill v. The Manchester, 
 ^c. Railway Company, 42 Law J. Rep. (n.s.) 
 Q. B. 89 ; Law Rep. 8 a. B. 186. 
 
 37. — The liability of a railway company as 
 common carriers of live animals as well as of goods 
 is, in the absence of any negligence, subject not 
 only to the exemption of the act of God or the 
 Queen's enemies, but to the further exemption of 
 any act wholly attributable to the development of 
 a latent inherent vice in the animal itself. The 
 Great Western Railviay Comparvyy. Blower, 41 Law 
 J. Rep. (n.s.) C. p. 268 ; Law Rep. 7 C. P. 655. 
 
 A bullock, one of a number of cattle delivered 
 to a railway company, was properly loaded into a 
 proper truck by the railway company. The truck 
 was properly fastened and secured, but in the 
 course of its journey the bullock escaped from the 
 truck and was found lying dead on the railwa,y. 
 There' was no negligence on the part of the rail- 
 way company, and the fact was that the escape of 
 the bullock was wholly attributable to the efforts 
 and exertions of the animal itself : — Held, that 
 the company were not liable for the loss of the 
 animal. Ibid. 
 
 Neglect to supply animals with water. [See 
 Animals, 3.] 
 
 CATHEDRAL CLERGY. 
 [See Chxtroh.] 
 
 CATTLE. 
 [See Contagious Diseases Act.] 
 
 CEMETERY. 
 Rating of. [See Rate, 11.] 
 
 CERTIORARI. 
 
 On an appeal against a conviction under 12 
 & 13 Vict. c. 92, s. 2, passed for the more ef- 
 fectual prevention of cruelty to animals, the ses- 
 sions, with the consent of counsel on both sides, 
 confirmed the conviction, subject to a case to be 
 stated for the Court of Queen's Bench. A writ 
 of certiorari, for the purpose of bringing up the 
 conviction and the case, had been obtained. By 
 12 & 13 Vict. c. 92, o. 26, no conviction, judgment 
 or proceeding relative thereto, shall be removed 
 by certiorari, or otherwise, into any superior 
 Court; — Held, that the writ of certiorari, having 
 been taken away generally, without any exception 
 in favour of a special case, the consent of the 
 parties could not give the Court- jurisdiction, and 
 therefore that the writ had issued improvidently, 
 
110 
 
 CEETIOEARI— CHAEITY. 
 
 and must be quashed. The Queen v. Chantrell, 
 44 Law J. Eep. (n.s.) M. C. 94 ; LawEep. 10 Q. B. 
 587. 
 
 TiToe for application for : order of quarter 
 sessions. [See Justice of the Peack, 
 12.] 
 Costs of prosecution. [See Costs at Law, 
 
 ATnendmient of order of ;}ustices. [See 
 Justice of the Peace, 13.] 
 
 Practice on, in equity. [See Pbactice in 
 Equity, 42.] 
 
 CHAEGING OEDEE. 
 [See Judgment.] 
 
 CHAMPEETY. 
 
 Declaration that H., a brother of the defend- 
 ant and a cousin of the plaintiff, had died leaving 
 landed estates and personal property, and the de- 
 fendant was heir-at-law of the deceased and one 
 of his next-of-kin, and the deceased died leaving a 
 will whereby his property, real and personal, was 
 left to persons other than the plaintiff and the 
 defendant, and the plaintiff believed that such 
 will revoked a former will by which the testator 
 had bequeathed certain property to the plaintiff, 
 and in consideration that the plaintiff would take 
 the necessary steps to contest the validity of the 
 said will and would advance certain moneys and 
 obtain evidence for such purpose, and instruct an 
 attorney in that behalf, the defendant promised 
 that he would pay to the plaintiff one half of any 
 personal property and convey to him a moiety of 
 any landed estates he might recover or which 
 might come to him, the defendant, by reason of 
 the taking of such proceedings for the setting 
 aside of such will ; and the plaintiff took such 
 steps as aforesaid and advanced certain moneys 
 and instructed an attorney, and a large sum of 
 money was thereby recovered by the defendant, 
 and the said will was declared invalid, and the 
 defendant became entitled to and obtained posses- 
 sion of large landed estates of the deceased. 
 Breach, that the defendant had not paid to the 
 plaintiff half the personal property, or conveyed 
 to him one-half of the real estates : — Held, on 
 demurrer, that the declaration was bad, for the 
 agreement being' to advance money and procure 
 evidence for the purpose of a suit in consideration 
 of a share in what was recovered by it, was prim& 
 fade invalid on the ground of champerty, and that 
 the relationship of the parties, and the other cir- 
 cumstances stated in the declaration, did not give 
 the plaintiff such an interest in the suit as to alter 
 the nature of the transaction. Hutley v. Hutley, 
 42 Law J. Eep. (n.s.) Q. B. 62 ; Law Eep. 8 Q, B. 
 112. 
 
 CHAEITY. 
 
 CHANCEEY FUNDS ACT, 1872. 
 
 [Eules under the 21st of December, 1872, and 
 the 23rd of Decembet, 1872. See 42 Law J. Eep. 
 (n.s.) Chanc. Introd.] 
 
 (A) Charitable Trusts Acts. 
 
 (B) Gift inter vivos. 
 
 (C) Devises and Bequests. 
 
 (a) Validity of. 
 
 (1) Gift for building. 
 
 (2) Covenant to pay money. 
 
 (3) Power of particular chanties to 
 
 receive bequests. 
 (i) Construction of, 
 
 (1) What bequests are charitable. 
 
 (2) Lapse or failure of bequest. 
 
 (3) Uncertainty. 
 
 (4) Cy-pres. 
 
 (5) Trust or condition. 
 (c) Marshalling assets. 
 
 (D) Administration. 
 {a) Scheme. 
 
 (b) Election. 
 
 (c) Trustees and investment. 
 
 (A) Charitable Trusts Acts. 
 
 1. — The Charity Commissioners have jurisdic- 
 tion to appoint new trustees in contentious cases. 
 In re the Burnham National Schools, 43 Law J. 
 Eep. (N.s.) Chanc. 340; Law Eep. 17 Eq. 241. 
 
 The dictum of Lord Eomilly in Hackney Cha- 
 rities ; In re Nicholls (34 Law J. Eep. (n.s.) Chanc. 
 169), that section 5 of the Charitable Trusts 
 Act of 1860 excludes their jurisdiction in con- 
 tentious cases, disapproved of. Ibid. 
 
 Where the Charity Commisssioners have juris- 
 diction the Court of Chancery will only interfere 
 in a case of great miscarriage. Ibid. 
 
 Under 6 & 7 "Will. 4. c. 70, two joint rectors of 
 a parish were ex officio trustees of a Church school, 
 and through their disagreement a vacantmastership 
 was not filled up, and the school was consequently 
 closed for more than two years. The Charity 
 Commissioners appointed three additional trus- 
 tees (all members of the Church of England), who 
 immediately after their appointment, with the 
 concurrence of one of the old trustees, transferred 
 the school to the School Board. The Court re- 
 fused to interfere with the appointment of the 
 additional trustees. Ibid. 
 
 Semble — It is very doubtful whether the Cha- 
 rity Commissioners could have removed the ex 
 officio trustees. Ibid. 
 
 If either of the netv trustees had not been a 
 member of the Church of England the appoint- 
 ment would have been improper. Ibid. 
 
 2.— Property originally given for superstitious 
 uses in a parish became, by the. statutes for avoid- 
 ing superstitious uses, vested in the Crown. It 
 Was granted by the Cl-oWn to Lord Wentworth, 
 and by money raised out of the property the trus- 
 tees of the parish obtained a re-grant to two 
 
CHAEITY (A), (0). 
 
 Ill 
 
 persons absolutely Vithont any trust expressed, 
 and ever since the property had been applied for 
 valid charitable purposes in the parish :— Held, 
 that such property was not the private property 
 -of the parish, but was subject to the powers of 
 the Charity Commissioners ; also, that as the 
 trustees, acting against advice, had compelled the 
 Attorney-General to file an information, they must 
 heai their own costs. The Attorney- General v. 
 Webster, 44 Law J. Eep. (n.s.) Chanc. 766 ; Law 
 Rep. 20 Eq. 483. 
 
 Although parishioners may hold an advowsou 
 for their general benefit, and nominate their vicar, 
 this is an exception' to the general law, and other 
 property held upon trust for a parish or parish- 
 ioner is charity property. Ibid. 
 
 (B) Gut inteb vivos. 
 
 3.— On the 24th of March, 1866, D. gave a 
 cheque for 5,0001. to trustees for the purpose of 
 building a hospital. The money was received and 
 immediately invested in stock in the names of 
 the trustees, who on the 3rd of April, 1866, exe- 
 cuted a declaration of trust to that effect, which 
 was not communicated to the donor. D. died on 
 the 7th of April, 1866 :— Held, that the gift was 
 void under the Mortmain Act, and that the next- 
 of-kin were entitled to the 5,000?. Hawkins v. 
 Allen, 40 Law J. Eep. (n.s.) Chanc. 23 ; Law Eep. 
 10 Eq. 246. 
 
 (C) Devises and Bequests. 
 
 (o) Validity/ of. 
 
 (1) Gift for bwUding. 
 
 [Gifts and bequests of land for providing or 
 erecting public parks, elementary schools, and 
 miiseums excepted from the operation of the 
 Mortmain Acts. 34 & 36 Vict. c. 13.] 
 
 4. — ^A charitable bequest for building is in- 
 valid unless it either refers to an existing site on 
 which the building is to be erected or contains 
 words expressly excluding the application of the 
 money in the purchase of land. Pratt v. Harvey, 
 Law Eep. 12 Eq. 544. 
 
 5. — A testatrix bequeathed her residuary per- 
 sonal estate to tru.stees upon trust to be by them 
 applied in aid of erecting or of endowing an ad- 
 ditional church at A. There was no additional 
 church in course of erection or intended to be 
 erected at the date of the will or at the testatrix's 
 death : — Held, reversing the decision of one of the 
 Vice-Chancellors (40 Law J. Eep. (n.s.) Chanc. 
 509 ; Law Eep. 12 Eq. 201), that the intentions 
 of the testatrix were not confined to a church in 
 course of erection or contemplated at the date of 
 the will, or at the death of the testatrix, and an 
 enquiry was directed whether the bequest, or any 
 and what part thereof, could be laid out and em- 
 ployed as directed by the will. Sinnett v. Herbert, 
 41 Law J. Eep. (n.s.) Chanc. 388 ; Law Eep. 7 
 Chanc. 232. 
 
 A bequest for building or endowing a church is 
 not void under the statutes of Mortmain, becaase 
 the trustee having an option may apply the whole 
 
 fund for endowment. GirSlestone v. Creed (10 
 Hare, 480) distinguished. Ibid. 
 
 Gift supported under the 43 Geo. 3. c. 108, to 
 the extent of 500?. out of the mixed personalty. 
 Ibid. 
 
 (2) Covenant to fay money . 
 
 6. — A voluntary covenant to leave by will 
 money to a charity stands on the same footing 
 as a legacy to a charity, and must abate in the 
 same proportion as the impure bears to the pure 
 personalty of the covenantor's estate. Fox v. 
 Lownds, 44 Law J. Eep. (n.s.) Chanc. 474 ; Law 
 Eep. 19 Eq. 453. 
 
 (3) Fower of particular charities to receive bequests. 
 
 7. — A charity by its statute of incorporation 
 authorised to receive money, " paid, given, devised 
 or bequeathed " to it, and with license in mortmain 
 " to take, receive, hold and enjoy " any lands or 
 interest in lands, for the purposes of the charity, 
 cannot take by bequest money secured on lands. 
 Nethersole v. The Indigent Blind School, 40 Law 
 J. Eep. (n.s.) Chanc. 26 ; Law Eep. 11 Eq. 1. 
 
 8. — ^Where a charitable institution was em- 
 powered by private Act of Parliament to take all 
 sums of money "paid, given, devised, and be- 
 queathed " to it, and to purchase, take, or receive 
 lands not exceeding two acres, without incurring 
 any of the penalties of the Statutes of Mortmain : 
 — Held, that the institution could not take a be- 
 qviest of impure personalty. Chester v. Chester, 
 Law Eep. 12 Eq. 444. 
 
 , 9, — A statute which in terms conferred upon a 
 charity the power to acquire real estate by will, 
 was held by implication to empower testators to 
 devise real estate to the charity, and the charity 
 was held entitled to have a legacy payable out of 
 mixed realty and personalty paid in fuU, although 
 the pure personalty was insufficient. Ferrimg v. 
 Trail, 43 Law J. Eep. (n.s.) Chanc. 775 ; Law Eep. 
 18 Eq. 88. 
 
 10. — A testator bequeathed pure personalty to 
 an existing charity whose funds might be applied 
 at the discretion of the trustees in any of various 
 objects, some of which were within the Act of 
 9 Geo. 2. c. 36, and some not : — Held, that the 
 legacy was valid. Wilkinson v. Barber, 41 Law J. 
 Eep. (n.s.) Chanc. 721 ; Law Eep. 14 Eq. 96. 
 
 The testator directed that the duty on the charit- 
 able legacies should be paid out of impure persbn- 
 alty : — Held, that this direction was invalid. 
 Ibid. 
 
 The next-of-kin who unsuccessfully opposed the 
 charitable legacies applied for their costs as be- 
 tween solicitor and client on the authority of 
 Carter v. Green (3 Kay & J. 591) :— -Held, that 
 they were only entitled to costs as between party 
 and party. Ibid. 
 
 11, — An English convent may be a devisee or 
 legatee of real or personal estate. Cocks v. Man- 
 ners, 40 Law J. Eep. (n.s.) Chanc. 640; Law Eep. 
 12 Eq. 574. 
 
 Testatrix by her will appointed the residue of 
 her disposable property equally between the fol- 
 lowing religious institutions, viz, : — The Newport 
 
112 
 
 CHAEITY (G). 
 
 Catholic Chapel, for the general purposes thereof 
 (and payable to the officiating priest for the time 
 being) ; the Brighton Catholic Chapel, in Upper 
 St. James's Street (payable for the like purposes, 
 to the officiating priest) ; the Dominican Convent 
 at Carisbrook (payable to the superior for the 
 time being); and the Sisters of the Charity 
 of St. Paul, at Selley Oak, near Birmingham 
 (payable to the superior thereof for the 
 time being). The receipts of the priests and 
 superiors were respectively made discharges for 
 the same. The testatrix died, seised and possessed 
 of (inter alia) considerable realty, and pure and 
 impure personalty, all subject to her appointment. 
 The priests each claimed only one-fourth of the 
 residue of the pure personalty, which was not dis- 
 puted : — Held, that the appointment in favour of 
 the Dominican Convent was valid, in toto, but that 
 in favour of the Sisters at Selley Oak was good as 
 a charitable bequest only. Ibid. 
 
 (A) Construction of. 
 (1) What bequests are charitable. 
 
 12. — A bequest of 200?. " to each of ten poor 
 clergymen of the Church of England, to be selected ■ 
 by A." is not a charitable bequest. Thomas v.. 
 Howell, 43 Law J. Eep. (n.s.) Chanc. 799. 
 
 13. — Under a will directing payment of charit- 
 able legacies out of pure personalty : — Held, 1 . 
 That a sum standing to testator's credit at his 
 banker's, to whom he owed a larger sum payable 
 at a day certain which had not arrived at the time 
 of his death ; 2. That a sum for rents collected in 
 the hands of testator's agent, to whom a larger 
 sum was due for commission, were respectively to 
 be set off against the larger sums, and not treated 
 as assets. Arrears of rent due in respect of which 
 ground rents and other outgoings were payable, 
 and a sum due for the apportionment of a quarter's 
 rent of leaseholds : — Held, to be pure personalty. 
 Bequest of a sum to each of ten poor clergymen to 
 be selected by testator's friend J. 0. : — Held, not 
 charitable. Thomas v. Howell, 43 Law J. Eep. 
 (n.s.) Chanc. 511 ; Law Eep. 18 Eq. 198. 
 
 14. — Testatrix by will gave a legacy of 1001. 
 to each of several persons, " to be applied by each 
 of them to such charitable purposes as each may 
 think most advisable." Some of these persons 
 died in the testatrix's lifetime : — Held, that the 
 legacies given to those persons lapsed. Chamber- 
 lain Y..JSrockett, 41 Law J. Eep. (n.s.) Chanc. 789. 
 
 15. — Testatrix by will, "feeling that she was 
 doing right in returning her money in charity to 
 God who gave it," bequeathed all her residuary 
 personal estate to be applied in building alms 
 houses " when land should be given for the pur- 
 pose " : — Held, reversing the decision of the Master 
 of the EoUs, to be a good charitable gift. Cham- 
 berlayn t. Broekett, 42 Law J. Eep. (n.s.) Chanc. 
 368 ; Law Eep. 8 Chanc. 206. 
 
 16.— Testator devised and bequeathed the resi- 
 due of his real and personal estates to trustees, in 
 order that it might be invested in Government 
 security, in their joint names, and the interest 
 from time to time given to such of the lineal de- 
 
 scendants of E. W., his "dearest mother's brother," 
 as they might severally need ; and that the trus- 
 tees of the fund should make such provisions as 
 would ensure a continuance of the said trust at 
 their decease : — Held, that the bequest was charit- 
 able, and resulted as to the realty to testator's 
 heir-at-law ; and as to the impure personalty to 
 his next-of kin. As to the pure personalty, a 
 scheme was decreed. Gillam v. Taylor, 42 Law 
 J. Eep. (n.s.) Chanc. 674; Law Eep. 16 Eq. 581. 
 
 (2) Lapse or failure of bequest. 
 
 [And see supra Nos. 14, 16, infra No. 22.] 
 
 17. — S. bequeathed 600Z. arising from such part 
 of his estate as should not be secured upon mort- 
 gages or chattels real, to apply the income to keep 
 in good repair the tombstones of himself and 
 several of his relatives, and directed the surplus 
 income to be given away on his birthday in charity ; 
 — Held, that the prior gift to keep the tombstones 
 in repair being void, the whole fand went to the 
 charity. Dawson v. Small, 43 Law J. Eep. (n.s. 
 Chanc. 406 ; Law Eep. 18 Eq. 114. 
 
 (3) Uncertainty. 
 
 18 . — Bequest to the Kent County Hospital. Th ere 
 being no hospital so nained, — Held, that a general 
 county hospital must be presumed to be intended, 
 and that the Kent County Ophthalmic Hospital 
 could not take, but that the legacy must be equally 
 divided between the Kent and Canterbury Hospital 
 and the West Kent General Hospital, which to- 
 gether formed a general county Hospital. In re 
 Alchin's Trusts ; Ex parte Furley ; Ex parte Earl 
 Bomney, Law Eep. 14 Eq. 230. 
 
 (4) Cy-pres. 
 
 19. — QuBere — whether the doctrine of cy-pris 
 is applicable in the case of a gift for a particular 
 purpose which there is no reasonable prospect of 
 carrying into effect. Sinnett v. Herbert, 41 Law 
 J. Eep. (n.s.) Chanc. 388 ; Law Eep. 7 Chanc. 
 232. 
 
 20. — A testatrix gave a legacy to the " trea- 
 surer for the time being of the fund for the relief 
 of the widows and orphans of the clergy in the 
 diocese of "Worcester." There was no society which 
 exactly answered to this description, nor was there 
 any single society whose funds were devoted to 
 the relief of the widows and orphans of clergy 
 in the whole diocese, which consisted of the 
 archdeaconries of Worcester and Coventry. 
 But there were in existence two societies' — 
 one for the relief of widows and orphans of 
 clergy in the archdeaconry of Worcester, another 
 for the relief of widows and orphans in the 
 archdeaconry of Coventry : — Held, that there being 
 no society exactly answering to the description in 
 the will, the Court must consider the charitable 
 object expressed by the testatrix, that this ex- 
 tended to the whole diocese, and would be fulfilled 
 by dividing the legacy between the two societies 
 in proportion to the number of beneficed clergy- 
 men in each. In re Kilverfs Trusts, 40 Law J. 
 Eep, (n,s.) Chanc. 703 ; Law Eep. 12 Eq. 183. 
 
CHAEITY (C). 
 
 113 
 
 Evidence of surrounding cireumstances, includ- 
 ing the fact of subscription by testatrix and lier 
 family to one society, was admitted in order to 
 shew that she intended to benefit a particular 
 society to which the description in part applied. 
 Ibid. 
 
 21. — Numerous charities were established for 
 the relief, some of "Poor Prisoners," some of 
 " Prisoners for Debt " : — Held, that the terms were 
 synonymous. In re The Prison Charities, 42 Law 
 J. Eep. (n.s.) Chanc. 748 ; Law Eep. 16 Eq. 129. 
 And see The Atiornet/- General v. Hankey, Law 
 Eep. 16 Eq. liOn. 
 
 Such charities having failed, — Held, that a 
 scheme for the establishment of an industrial 
 school for the children of criminals was not cj/- 
 prh the original purposes. Ibid. 
 
 22. — That testator devised a freehold house 
 as a Sailors' Home, and gave 10,000Z. upon trust, 
 to apply the income to the repair of the Sailors' 
 Home, and for insurance, and to apply the residue 
 " in or towards payment of the salaries of the 
 several officers of the establishment, and all other 
 expenses necessary for keeping up the said estab- 
 lishment as a Sailors' Home ; " and provided that 
 in case the number of ships belonging to his docks 
 fell below ten, the trustees should convey the 
 home and assign the funds to be purchased with 
 the 10,000Z. to the trustees of the Sailors' Home, 
 WeUs Street, so that the said buildings should be 
 continued as a Sailors' Home for ever, and the in- 
 come of the fands applied as an endowment for 
 the same: — Held, that the 10,000^. could not be 
 applied ct/-pris, but failed with the devise. Green 
 V. Britten, 42 Law J. Eep. (n.s.) Ohanc. 187- 
 
 (5) Trmt or condition. 
 
 23.— A testator, in 1570, devised house property 
 to the Merchant Taylors' Company and their suc- 
 cessors for ev*, to this intent, and upon this con- 
 dition, that they should yearly, for ever, of and 
 with the rents and profits, provide and give to a 
 specified number of poor persons, certain articles 
 of clothing of a specified value, and he prayed the 
 chamberlain and town clerk of the city of London 
 for the time being to call upon and put in mind 
 the master and wardens of the said company, and 
 look that the said articles should be justly and 
 truly given, and he gave to the same chamberlain 
 and town clerk for their labour and pains in that 
 behalf, 10s. a piece yearly, to be received at the 
 hands of the company, out of the rents and profits, 
 and so that the whole residue of the said rents 
 and profits they should maintain, and gather 
 yearly into an whole stock, and therewith do 
 and keep the reparations of the said tenements 
 to them devised, and if need be, new buUd the 
 same as to their discretions need should appear, 
 as the same stock would fall out. And in case 
 the company should be remiss in the perform- 
 ance of the trust, he devised the same premises 
 to' the parson, churchwardens, and parishioners 
 of St. M., to the same intent and upon the 
 same condition. The rents and profits, having 
 since the death of the testator increased to an 
 amount considerablj larger than was necessary to 
 Digest, 1870-1875. 
 
 answer the purposes mentioned in his will : — Held, 
 aifirraing the decision of the Master of the EoUs 
 (Law Eep. 11 Eq. 35), that the Merchant Taylors' 
 Company were not entitled to appropriate the sur- 
 plus to their own purposes, but the same must be 
 applied cy-prh for charitable purposes. The Mer- 
 chant Taylors' Company v. The Attorney General, 
 40 Law J. Eep. (if.s.) Chanc. 546 ; Law Eep. 6 
 Chanc. 512. 
 
 The Attorney- General v. The Wax Chandlers' 
 Company (39 Law J. Eep. (n.s.) Ohanc. 782 ; Law 
 Eep. 5 Ohanc. 503) distinguished. Ibid. 
 
 24. — Houses were devised to a city company 
 for the intent and purpose and upon the condition, 
 "that the company yearly distribute four pounds 
 among the poor of parish A., two pounds among 
 the poor of parish B., thirty-five shillings among 
 the poorest members of the company, and five 
 shillings between the Master and Wardens of the 
 same company." The rest of thb profits of the said 
 houses the testator willed should " be bestowed 
 upon the reparations of the said houses and tene- 
 ments." If the company should neglect to do the 
 things directed by his will, the testator willed that 
 his next-of-kin should enter on and hold the houses 
 for ever, upon condition that he and his heirs 
 should do the said things. It was proved that 
 eight years before the date of the will, the rents 
 out of which these payments were directed ex- 
 ceeded the amount of the payments by only thir- 
 teen shillings ; sixteen years after that date it 
 was found by inquisition that the annual value of 
 the property was sixteen pounds, or more than 
 double the amount of the payments. The rents 
 having increased to an amount considerably larger 
 than was necessary to meet the payments men- 
 tioned in the will, — Held, that this was not a gift 
 upon condition, but upon trust, and as part of the 
 rents was given for charitable purposes, the resi- 
 due being directed to be applied in maintaining 
 the property, the whole of the rent must be taken 
 to be specifically dedicated to charitable purposes, 
 and not to the purposes of the company, and there- 
 fore the whole increased rents must be devoted to 
 charitable purposes. An account was directed 
 from the date of the filing of the information. The 
 Attorney-General Y. The Wax Chandlers' Company, 
 42 Law J. Eep. (n.s.) Chanc. 425 ; Law Eep. 6 
 E. & I. App. 1. 
 
 A piece of land intermingled with the devised 
 property, and which the corporation bought and 
 built over so that the two sites could not be dis- 
 tinguished by external marks, and the whole had 
 been for many years treated as one property, was 
 held to be exempt from the charitable trust, it 
 not being proved that it was purchased out of 
 proceeds of the devised property. Ibid. 
 
 (a) Marshalling assets. 
 
 . 25. — The testator directed his personal estate, 
 including leaseholds, to be converted into money, 
 and the residue of the proceeds, after payment of 
 his funeral and testamentary expenses, debts and 
 legacies, to be invested, and, subject to a life 
 interest therein given to his wife, and to certain 
 annuities and legacies including a charitable 
 Q 
 
lU 
 
 CHAEITY (C), (D)— CHARTER. 
 
 legacy of 100?., bequeathed all the residue of his 
 personal estate in equal thirds to three charitable 
 institutions, and directed that the three last- 
 mentioned legacies should be paid out of such 
 part of his personal estate as could laivfully be 
 applied to the payment thereof, and which should 
 be reserved by his trustees for that purpose : — 
 Held, reversing the decision of one of the Vice- 
 Chanoellors, that the assets must be marshalled 
 in favour of the three charities, so as to throw 
 the debts, funeral and testamentary expenses, 
 including costs of administration, suit and lega- 
 cies, except the lOOl. charitable legacy, upon the 
 impure personalty, but that there could be no 
 marshalling as against the 1001. charitable legacy 
 which must be paid in the proportion which the 
 pure personalty bore to the impure, and fail as to 
 the residue. Miles v. Harrison, 43 Law J. Rep. 
 (n.s.) Chane. 85; Law Rep. 9 Chano. 316. 
 
 26. — ^Bequest of all the residue of the testator's 
 personal estate which might be legally applied 
 for such purposes to six hospitals (two of which 
 had power by law to hold land, notwithstanding 
 9 Geo. 2. u. 36, while the other two had not) with 
 a direction that his estate should be so marshalled 
 and administered as to give the fullest possible 
 effect to the charitable bequests, and gift of resi- 
 duary real estate and residue of personal estate 
 not applicable to the charitable purposes to the 
 M. Hospital, which had power by law to receive 
 the same : — Held, that the bequest to the six 
 hospitals included impure personalty, and that 
 such impure personalty must be applied as far as 
 possible in payment of the shares of those of the 
 six hospitals which had power to hold land. Wigg 
 v. NichoU, Law Rep. 14 Eq. 92. 
 
 Who take under oharitdble bequests. [See 
 Will, Constbuotion, H 1-3.] 
 
 (d) administration. 
 {a) Scheme, 
 
 27. — Where, in consequence of the object of a 
 charity being incapable of being carried out, a 
 scheme has been sanctioned by the Court for the 
 application of the fund cy-prks to a different but 
 most useful charitable object, the Court will not 
 alter the scheme for the purpose of restoring the 
 fund to its original application, except upon very 
 strong grounds. Quaere, whether a scheme can 
 be reviewed except upon the application or at all 
 events with the consent of the Attorney-General. 
 The Attorney- General v. Stewart, Law Rep. 14 
 Eq. 17. 
 
 (J) Election. 
 
 28. — By the scheme of a charity, it was pro- 
 vided that the income should be applied towards 
 the maintenance of a scholar at Oxford or Cam 
 bridge, who was child of a resident of Guild- 
 ford, "preference being given ceteris paribus to 
 the son of a freeman : " it was also provided that 
 the scholar should be examined and approved by 
 examiners ; that the examination and approbation 
 should be declared in writing delivered to the 
 trustees before election. On a vacancy occurring 
 
 there were two candidates ; one the son of a free- 
 man resident, the other the son of a resident who 
 was not a freeman. The examiners recommended 
 for election the one who was not the son of a 
 freeman, reporting that he was the superior in 
 every respect, but that they thought the other, if 
 admitted to the university, would pass the exami- 
 nations. The trustees elected the son of the free- 
 man : — Held, on petition to set aside the election, 
 that the preference to be given to the son of a 
 freeman was only to be given in case of substan- 
 tial equality; that the trustees should have 
 followed the recommendation of the examiners, 
 and elected the best scholar; that the election 
 must be set aside, and the son of the non-free- 
 man, who passed the best examination, elected. 
 In re'Nettle's Charity, 41 Law J. Rep. (n.s.) Chanc. 
 694 ;Law Rep. 14 Eq. 434. 
 
 29. — A scheme provided {inter alia) that no 
 child should be considered eligible for election to 
 the benefits of a charity unless he or she should 
 have been born in, or unless his or her parents or 
 one of them should be, or should have been 
 " parishioners " or a " parishioner " of the parish. 
 The father of a boy who was a candidate for elec- 
 tion to the charity, in order to qualify his son 
 took a house in the parish for three months, with 
 an option of continuing it at a rent of thirty shil- 
 lings per month ; but with the exception of sleeping 
 in it once or twice, and paying rates for it, the day 
 before the election, he did not reside in the parish. 
 His son was elected : — Held, in a suit instituted 
 for the purpose of declaring the election invalid, 
 that the father's attempt to qualify himself was 
 not a compliance with the scheme ; and the elec- 
 tion was set aside accordingly. Etherington v. 
 Wilson, 44 Law J. Rep. (n.s.) Chanc. 637 ; Law 
 Rep. 20 Eq. 606 : reversed, on appeal, 45 Law 
 .T. Rep. (n.s.) Chane. 153 ; Law Rep. 1 Chanc. 
 Div. 160. 
 
 (c) THistees and investments. 
 
 [29 & 30 Vict. c. 57 amended and provision 
 made for the incorporation of charitable trustees. 
 35 & 36 Vict. c. 24.] 
 
 [Corporations or trustees for a public or chari- 
 table purpose empowered to invest in real securi- 
 ties. 33 & 34 Vict. c. 34.] 
 
 30.— Under 23 &24 Vict. c. 38, s. 11, stock in 
 the funds belonging to an incorporated charity may 
 be sold for reinvestment in any of the stocks in 
 which cash under the control of the Court may 
 be invested, including Metropolitan Consolidated 
 Stock. In re the Clergy Orphan Corporation, Law 
 Rep. 18 Eq. 280. 
 
 Exchange of votes for charitable institution : 
 consideration for contract. [See Con- 
 tract, 5.] 
 
 CHARTER. 
 
 In order to prevent the sealing sf a supple- 
 mental charter to an existing corporation, it 
 must be shewn (1) that the proposed charter is 
 
CHARTER— CHUfiCH AND CLERGY (A). 
 
 115 
 
 contrary to law, or (2) that no proper authority to 
 apply for it has been given, or (3) that some per- 
 sonal right of a member is wrongly interfered 
 with. Ex parte the Society of Attorneys, ^-c, Law 
 Rep. 8 Chanc. 163. 
 
 CHARTER-PARTY. 
 [See Shipping Law.] 
 
 CHEaUE. 
 [See Bill of Exchanoe.] 
 
 CHILD. 
 
 [SeePABBNT AND ChILD.] 
 
 CHIMNEY SWEEPERS. 
 
 [3 & 4 Vict. c. 85 and 27 & 28 Vict. c. 37 
 amended. Provisions as to certificates of chimney 
 sweepers, offences, &c. 38 & 39 Vict. o. 70.] 
 
 CHOSE IN ACTION. 
 
 [ABsigmneuts of debts and choses in action to 
 pass the legal right to sue after November 2, 
 1874. Saving of rights of persons liable, to call 
 upon adverse claimants to interplead. 36 & 37 
 Viet. c. 66. s. 25.] 
 
 The assignee of a life policy, who had no know- 
 ledge of the assignor's bankruptcy, and who, after 
 the assignor's death, gave notice to the insurance 
 ofSce before notice was given them by the assignees 
 in bankruptcy, — Held, entitled to priority. In re 
 BitsseWs Policy Trusts, Law Eep. IS Eq. 26. 
 
 Notice as between equitable assignees of ■pro- 
 ceeds of sale of commission of officer in 
 the army. [See Moetgage, 17, 18.] 
 
 Things in action vdthin Bankruptcy Act, 
 1869. [See Bahkettptcy, C 13-17.] 
 
 Seduction into possession by husband, [See 
 Baeon and Feme, 6-8.] 
 
 CHURCH AND CLERGY. 
 [See BuBiAL.] 
 
 (A) Bishop : Jubisdiction and Functions op. 
 
 (B) Cathedbal Clebgt. 
 
 (C) Abchdeaconhies. 
 
 (D) Colonial Cleeot. 
 
 (B) EjELINaUISHMENT OF ObDEES. 
 
 (F) Benefices. 
 
 (G) Adtowson. 
 
 (a) Presentation. 
 
 (5) Simony. 
 
 (c) Devise of. 
 (H) DiLAPrnATioNS. 
 (I) Sexton. 
 (K) Chubchwaedbns. 
 (L) Chubchyabd. 
 (M) Faculty. 
 (N) Fees, 
 
 (0) Pbtvatie and Peopeietaby Chapels. 
 (P) Chuech Building Acts. 
 (Q) Chuech Seats. 
 (R) Offences. 
 
 (o) Sites, ceremonies, and ornaments. 
 
 (J) Doctrine. 
 
 (c) Disturbance in chwrck. 
 (S) EccLESiAsTicAi, CouETS : Pleadins and 
 Pbacticb. 
 
 (o) statement of offence. 
 
 (J) Act on petition. 
 
 (c) Monition. 
 
 (d) Commission under Church Discipline 
 Act. 
 
 (e) Appeal. 
 
 If) Duplex querela and quare impedit. 
 (g) Sequestration. 
 (h) Suspension. 
 (i) Proctor. 
 
 [The law relating to the Tables of Lessons and 
 Psalter contained in the Boot of Common Prayer 
 amended. 34 & 35 Vict. c. 37.] 
 
 [The Ecclesiastical Titles Act repealed. 34 & 
 35 Vict. c. 53.] 
 
 [Provision made for the use of shortened forms 
 of Morning and Evening Prayer, and of special 
 forms of prayer on special occasions, and for the 
 separation of services, and the preaching of ser- 
 mons without previous service. 35 & 36 Vict. c. 35.] 
 
 [Further facilities afforded for the conveyance 
 of land for sites for places of religious worship 
 and burial places. 36 & 37 Vict. c. 60.] 
 
 (A) Bishop : Jubisdiction and Functions op. 
 
 [Provisions empowering bishops to appoint 
 curates, &c., in cases of sequestration of benefices. 
 34 & 36 Vict. c. 45.] 
 
 [32 & 33 Viet. c. Ill, s. 16, repealed, and the 
 Act made perpetual. 38 & 39 Vict. c. 19.] 
 
 1. — The bishop of a diocese as ordinary has a 
 visitatorial jurisdiction in respect of the fabric of 
 the cathedral church of his diocese, but he has 
 no discretion to order any alteration in the fabric 
 except on some definite legal ground. PhilVpotts 
 V. Boyd, 44 Law J. Rep. (n.s.) Ecc. 44 ; Law Rep. 
 6 P. C. 436. 
 
 The injunctions of Ed. 6 and of Eliz., directing 
 the removal ,\nd destruction of images, relate to 
 images which have been abused by superstitious 
 observances. Ibid. 
 
 A reredos containing figures in relief represent- 
 ing the transfiguration and ascension of Christ, 
 and the descent of the Holy Ghost, is lawful — 
 affirming the decision of the Arches Court, Boyd 
 
116 
 
 CHUECH AND CLEEGY (A), (H). 
 
 V. Phillpotts, 44 Law J. Eep. (n.s.) Bco. 1 ; Law 
 Eep. 4 Adm. & Eoe. 297. 
 
 The 36th article and the 46th and 49th canons, 
 which give directions as to the reading of the 
 homilies, must not be taken to do more than 
 approve the doctrines contained therein. Ibid. 
 
 The absence of an episcopal faculty does not 
 render the erection of a reredos in a cathedral 
 illegal. Ibid. 
 
 (B) Cathedeal Cleeqy. 
 
 [Provision made for the resignation of deans 
 and canons incapacitated for the performance of 
 their duties. 36 Vict. e. 8.] 
 
 [Previous Acts amended and provision made 
 to facilitate the endowment of cauonries by private 
 benefaction. 36 & 37 Vict. c. 39.] 
 
 (C) Aechdeaconbies. 
 
 [The powers of re-arranging the boundaries of 
 archdeaconries and rural deaneries, given by 6 & 
 7 V7ill. 4. e. 77, and 3 & 4 Vict. c. 113, extended. 
 37 & 38 Vict. c. 63.] 
 
 (D) COLONIAI. Clehqy. 
 
 [Previous Acts repealed. Clergy not ordained 
 by a bishop of one of the churches of England or 
 Ireland not to officiate in England without per- 
 mission from the archbishop, or to hold prefer- 
 ment or act as curates without consent of bishop. 
 37 & 38 Vict. c. 77.] 
 
 (E) Eelinouishment of Okdeks. 
 
 2.— A clergyman who commences proceedings 
 for relinquishing his position under the 33 & 34 
 Vict. c. 91, has a locus pcenitentia until they are 
 completed, and on his changing his intention after 
 enrolment of the deed but before delivering a 
 copy of it to the bishop, the Master of the EoUs 
 may, on motion by him to that effect, order the 
 enrolment to be vacated. In re a Clergyman, 42 
 . Law J. Eep. (n.s.) Chanc. 260 ; Law Eep. 16 Eq. 
 154. 
 
 (F) Benefices. 
 
 [1 & 2 Vict. c. 106, and 13 & 14 Vict. e. 98, as 
 to the union of benefices, amended. 34 & 36 Vict. 
 c. 90.] 
 
 [Provisions for the resignation of their benefices 
 by incumbents, and the payment to them of pen- 
 sions charged on their benefices. 34 & 35 Vict. 
 c. 44.] 
 
 (Gr) Advowson. 
 
 [The law extended so as to facilitate the trans- 
 fer of advowsons. 33 & 34 Vict. c. 39.] 
 
 (a) Presentation. 
 
 3. — The bishop having refused to admit and 
 institute the owner of an advowson, who as patron 
 had presented himself to a parish church in the 
 diocese of Lincoln, the latter, in order to assert 
 his right to admission and institution, commenced 
 an action of quare impedit against the bishop in 
 the Court of Common Pleas, and also instituted a 
 suit of duplex querela in the Court of Arches. 
 On the application of the bishop, the plaintiff was 
 
 ordered to elect in which suit he would proceed, 
 the question raised in both being substantially 
 the same, and it being contrary to justice and 
 equity that the defendant should be harassed by 
 a double litigation. Walsh v. The Bishop of 
 Lincoln, 43 Law J. Eep. (n.s.) Ecc. 13 ; Law Eep. 
 4 Adm. & Ecc. 242. 
 
 4. — Under 6 Geo. 4. c. 103, a church building 
 Act, where only one subscriber of 60^. is left sur- 
 viving, and only one trustee by election, the 
 incumbent of the parish becomes trustee ex officio 
 jointly with the surviving trustee by election, and, 
 on the death of the latter within forty years, 
 entitled to nominate on the vacancy in the incum- 
 bency of the church. Allen v. The Bishop of 
 Gloucester and Bristol (H. L.), 42 Law J. Eep. 
 (N.9.) C. P. 299 ; Law Eep. 6 E. & L App. 219. 
 
 construction of will. 
 
 STEUCTION, I 33.] 
 
 [See "Will, Con- 
 
 (5) Simony. 
 
 5. — The words " next avoidance of, or presen- 
 tation to, any benefice," as used in 12 Anne, st. 2, 
 c. 13, s. 2, refer only to chattel interests, and do 
 not extend to freehold estates in an advowson, 
 and therefore a clerk in holy orders, who by pay- 
 ment of a pecuniary consideration becomes seised 
 of an advowson for the life of another, and claims 
 to be admitted when the benefice is subsequently 
 vacant, does not commit simony within the mean- 
 ing of that statute. Walsh v. The Bishop of 
 Lincoln, 44 Law J. Eep. (n.s.) C. P. 244; Law 
 Eep. IOC. P. 818. 
 
 A clerk in holy orders who is seised of a free- 
 hold estate in an advowson, may by the common 
 law offer himself to the ordinary and pray to be 
 admitted whenever the benefice is vacant, and the 
 bishop is bound to institute him. Ibid. 
 
 A declaration in quare impedit stated that S., 
 being seised of an estate for his own life in an 
 advowson within the defendant's diocese, sold the 
 same for 3,O0OZ. to the plaintiff; that during the 
 lifetime of S. the benefice became vacant, and that 
 the defendant would not permit the plaintiff to 
 present a fit clerk. The defendant pleaded, first, 
 that the plaintiff had presented himself, and that 
 this presentation was void by reason of 12 Anne, 
 St. 2, c. 12, s, 2 ; secondly, that the plaintiff had 
 offered himself for admission, and prayed to be 
 admitted, and that the defendant refused to admit 
 him, although he was willing to admit a fit clerk 
 other than the plaintiff: — Held, upon demurrer, 
 that the pleas were bad. Ibid. 
 
 {d) Devise of. 
 
 6. — Devise of an advowson in Ireland : — Held, 
 that the effect of section 18 of 32 and 33 Vict. e. 
 42, was to adeem the devise and that the compen- 
 sation money was payable to the testator's execu- 
 tors. Prewen v. Frewen, Law Eep. 10 ChauC. 610. 
 
 [And see Wiii, CoNSTHtrcTiON, I 32.] 
 (H) Dilapidations. 
 [Amendment of the law as to ecclesiastical 
 dilapidations. Provisions as to the inspection and 
 
CHUECH AND CLERGY (11), (P). 
 
 117 
 
 repair of houses of residence, &o., during vacancies 
 of benefices as well as at other times, and as to 
 adTanoements of money for that purpose by the 
 Governors of Q,ueen Anne's Bounty. 34 & 35 
 Vict. c. 43. 
 
 The above Act amended. 35 & 36 Vict. c. 96.] 
 
 (1) Sexton. 
 
 Bight of sexton to dig graves and ring hell 
 in nevi burial gromtd and chapel. [See 
 BUBIAI, 6.] 
 
 (K) Churchwaedens. 
 
 7. — A perpetual curate is a "minister" within 
 the general custom founded on canon 89 by which 
 churchwardens in every parish are to be chosen 
 by the joint consent of the minister and the 
 parishioners, and if they cannot agree, one by 
 the minister and another by the parishioners. 
 The Queen, v. Allen, 42 Law J. Eep. (k.s.) Q. B. 
 37 ; Law Eep. 8 Q. B. 69. 
 
 (L) Chuechtaed. 
 
 8. — The parish churchyard is the freehold of 
 the incxunbent, subject to the right of the parish- 
 ioner or stranger happening to die in the parish 
 to simple interment. The incumbent may alto- 
 gether prohibit, or permit upon proper conditions, 
 the placing of a gravestone in the churchyard, 
 but the exercise of his right in the matter is 
 subject to the control of the ordinary. Keet v. 
 Smith, 44 Law J. Eep. (n.s.) Ecc. 70 ; Law Eep. 
 4 Adm. & Ecc. 398. 
 
 K. propospd to erect over the grave of his 
 daughter, who was buried in the parish chiirch- 
 yard of Owston Ferry, in the diocese of Lincoln, 
 a tombstone, the inscription on which described 
 him as the " Eev. H. Keet, Wesleyan Minister." 
 The Vicar having refused to grant permission for 
 the erection of the tombstone, unless the words 
 " Eeverend " and " Wesleyan minister " were 
 expunged from the inscription, Mr. Keet applied 
 to the Consistory Court to issue a citation to the 
 Vicar, calling upon him to shew cause why a 
 faculty should not be granted for the erection of 
 a tombstone with the insciiption in full. The 
 Court refused to issue the citation, holding that 
 the Vicar was clearly entitled to object to the 
 prefix "Eeverend," as it implied, contrary to the 
 fact, that Mr. Keet was in Holy Orders ; and, on 
 appeal, the judgment was upheld by the Court of 
 Arches. Ibid. 
 
 [Eeversed on appeal, 45 Law J. Eep. (n.s.) 
 P. C. 10 ; Law Eep. 1 P. D. 73.] 
 
 Eight to compensation in respect of disused 
 burial ground taken under parliamen- 
 tary powers. [See BuEiAii, 2, 3.] 
 
 (M) Facclti. 
 9._A " baldacchino," or canopy, over the com- 
 munion table in a parish church is a church orna- 
 ment within the meaning of the rubrics, but as it 
 is not prescribed by the rubrics, and cannot be 
 regarded as in any way necessary or subsidiary 
 to the performance of the services of the Church, 
 
 the Court declined to order a faculty to issue for 
 its erection. White v. Bowron, 43 Law J. Eep. 
 (n.s.) Ecc. 7 ; Law Eep. 4 Adm. & Ecc 307. 
 
 lO. — In granting a faculty, the Court will, in 
 matters connected with the comfort and conve- 
 nience of those who attend the church, give weight 
 to the opinion of the majority of the parishioners 
 who are members of the Church of England 
 rather than to the majority of the vestry who are 
 not members. The Vicar of Tottenham v. Vine, 
 Law Eep. 4 Adm. & Ecc. 221. 
 
 11. — A faculty for erection of a school on por- 
 tion of a parish churchyard closed by Order in 
 Council allowed under special circumstances. In 
 re Bettison, Law Eep. 4 A. & E. 294. 
 
 Prayer for faculty in act on petition. [See 
 infra No. 27.] 
 
 (N) Fees. 
 
 [Baptismal fees made unlawful. 3d & 36 Vict, 
 c. 36.] 
 
 Bight of incumbent to burial fees. [See 
 BUBIAI, 4.] 
 
 (0) Peivate AND Peopeietakt Chapels. 
 
 [Power to bishop to license clergymen to chapels 
 belonging to colleges, schools, hospitals, &c. 34 
 & 35 Vict. c. 66.] 
 
 12. — The consent of the incumbent to a license 
 to a clergyman to ofSciate in a proprietary chapel 
 or unconsecrated building in the parish is revok- 
 able at the will of his successor, and when revoked 
 the license ceases. Bichards v. Fincher, 43 Law 
 J. Eep. (n.s.) Ecc. 21 ; Law Eep. 4 Adm. & Ecc. 
 255. 
 
 (P) Chukch Building Acts. 
 
 [8 & 9 Vict. c. 70 and 14 & 15 Vict. c. 97 
 amended as to the assignment of Consolidated 
 Chapelry Districts. 34 & 35 Vict. c. 82.] 
 
 13. — ^Where real estate has been from time 
 immemorial vested in and applied by the church- 
 wardens of a parish for the use and repair of the 
 parish church,— Held, that such a charity is not 
 a charitable devise, bequest, or "gift made or 
 given for the use of the parish within the meaning 
 of section 22 of 8 & 9 Vict. c. 70, and is therefore 
 not apportionable, under the same section, on 
 the parish being subdivided and other churches 
 erected and new parishes constituted. 7» re 
 Wandsworth Church Estate Charity, 40 Law J. 
 Eep. (n.s.) Chanc. 157 ; Law Eep. 6 Chanc. 296. 
 
 The Attorney General v. Love (23 Beav. 499) 
 approved and followed. Ibid. 
 
 14.— Section 6 of the 5 Geo. 4. c. 103, a church 
 building Act, provides that the persons subscribing 
 501. to the building of a church built under that 
 Act, shall have power to elect three trustees from 
 among themselves for the management of the tem- 
 poral affairs of the church, and for the nomination 
 to the bishop of a spiritual person to serve the 
 same; such trustees to be called life trustees. 
 Section 7 provides that, in case of the death or 
 resignation of any of such trustees, the majority 
 of the subscribers of 501. present at a meeting, 
 which the surviving trustee or trustees are 
 
118 
 
 OHUEOH AND CLERGY (P), (E). 
 
 required to conyene, may elect from among them- 
 selves another person to be a life trustee in the 
 place of the trustee so dying or resigning. Sec- 
 tion 1 2 limits the «ight of nomination by the life 
 trustees elected under sections 6 and? to the first 
 two turns, or to any number of turns that may 
 occur ■within forty years after the consecration of 
 the church. All subsequent nominations are to 
 be in the incumbent of the parish in which such 
 church shall be built, and if all the subscribers 
 entitled to elect trustees die within the forty 
 years, &c., the nominations are to be made by the 
 incumbent during such period. " Provided also, 
 that if all such subscribers shall die, so that no 
 such election of any trustee can be made, and any 
 one of the trustees for the time shall die or 
 vacate, then, and in every such case, the incum- 
 bent for the time being shall be and become a 
 trustee, to use and exercise all powers and aiitho- 
 rities given to trustees under the provisions of 
 this Act " : — Held, that where only one subscriber 
 of 501. was left surviving, and only one trustee by 
 election, the incumbent of the parish became 
 trustee ex officio, jointly with the surviving 
 trustee by election, and, on the death of the 
 latter within the forty years, entitled to nomi- 
 nate on the vacancy in the incumbency of the 
 church. Alien v. The Bishop of Gloucester and 
 Bristol (H. L.), 42 Law J. Eep. (n.s.) C. P. 299 ; 
 Law Eep. 6 E. & I. App. 219. 
 
 In 1830, F. and others, exceeding three in 
 number, subscribed 501. a-piece towards build- 
 ing a church which was built under the -above 
 Act. Three life trustees were duly elected, who 
 all died, and fresh trustees were elected in their 
 places. In April, 1866, only one of these new 
 trustees thus elected in the place of the original 
 trustees, viz., H., was living. In July, 1866, F., 
 believing that he was the sole surviving sub- 
 scriber of 501., and being unaware that H. was 
 yet alive, went tlu-ough the form of publishing a 
 notice, in the mode prescribed by the Act, con- 
 vening a meeting of the subscribers of 501., and 
 at the time and place mentioned in the notice he 
 elected himself a life trustee. In April, 1867, H., 
 the survivor of the trustees, died, and F. there- 
 upon became in fact the sole surviving sub- 
 scriber of 50^. On the 11th of August, 1867, the 
 incumbency of the church became vacant, and F., 
 immediately, viz., on the 22nd of August, 1867, 
 nominated the Eev. J. A. The bishop refused to 
 accept that nomination, and approved, licensed 
 and inducted another clerk, who had, on the 1 9th 
 of August, 1867, been nominated by the incum- 
 bent of the parish. By this time F. had disco- 
 vered that in July, 1866, he was not the sole 
 surviving subscriber of 501. He therefore went 
 through the form of convening another meeting 
 for the 20th of September, 1867, at which he 
 again elected himself a life trustee in the place 
 of H., the original trustee, and on the same day 
 he again nominated the Eev. J. A. to the bishop : — 
 Held, that prior to the incumbency becoming 
 vacant in August, 1867, the incumbent of the 
 parish had become a trustee jointly with the then 
 surviving trustee, and had a right of nomination 
 
 of a spiritual person to serve the church, and 
 that H. was not, either on the 22nd of August 
 or on the 20th of September, 1867, a sole trustee 
 either by election or by reason of his being the 
 sole surviving subscriber of 501., and therefore he 
 was not solely entitled to nominate to the living 
 on either of those days. Ibid. 
 
 (Q) Church Seats. 
 
 [Provision for the free use of seats in certain 
 churches. 35 & 36 Vict. e. 49.] 
 
 (ll) Offences. 
 
 (a) Rites, ceremonies, and ornaments. 
 
 [Facilities given for proceeding against clergy- 
 men offending against the laws ecclesiastical by 
 the introduction of illegal ornaments of the church 
 or minister, or offences against the rubric. In- 
 stitution of a new Judge to supersede certain 
 existing ecclesiastical ofiSces on vacancies oc- 
 curring. 37 & 28 Vict. c. 85.] 
 
 15. — The Act of Uniformity of Elizabeth pro- 
 vides (in clause 25), " that such ornaments of the 
 church and the ministers thereof shall be retained 
 and'be in use as was in' this Church of England by 
 authority of Parliament in the second year of King 
 Edward VI., until ' other order ' shall be therein 
 taken by authority of the Queen's Majesty, etc.": 
 — Held, that the Advertisements of 1564, acted 
 upon under Eoyal Commission, with the approval 
 of the Metropolitan, was a taking "other order" 
 within the meaning of that clause. Hehhert v. 
 Purchas, 40 Law J. Eep. (n.s.) Ecc, 33 ; Law Eep. 
 3 P. C. 605. 
 
 The canons of 1603-4, relating to the vestments 
 of the clergy, are not repealed by the Act of 
 Uniformity of 1662. They had the same force 
 after the passing of that statute as before, and 
 are to be construed together with the statute. 
 Ibid. 
 
 The cope is to be worn in ministering the Holy 
 Communion on high feast days in cathedrals 
 and collegiate churches as directed by the 24th 
 canon, and the surplice in all other ministrations, 
 as directed by the 58th canon. Ibid. 
 
 The use of a chasuble, alb, and tunic or tunicle 
 in the administration of the Holy Communion is 
 unlawful. So is the mingling water with the 
 wine, and the use of wafer bread. Ibid. 
 
 The proper position for the officiating minister 
 during the prayer of consecration in the Holy 
 Communion is at the north end of the holy table, 
 facing south, when the table is set at the east 
 end of the church, and the minister must not turn 
 his back upon the people, but must so stand that 
 they may see him break the bread and take the 
 cup into his hands. Ibid. 
 
 16. — The respondent, a clerk in orders, was mo- 
 nished to abstain from the elevation of the cup and 
 paten above his head during the administration 
 of the Holy Communion, and from kneeling or pros- 
 trating himself before the consecrated elements 
 during the prayer of consecration. Upon motion to 
 enforce this monition, it appeared that the respon- 
 dent elevated and suffered an elevation of a 
 
CHUROH AND CLBEGY (R). 
 
 119 
 
 consecrated wafer of tread above his head, 
 and of the cup so that the rim was above his 
 head, and that during the prayer of consecration 
 the respondent bowed down to the Communion 
 table after replacing the wafer and cup upon it, 
 and remained some seconds in that posture : — 
 Held, first, that the elevation wliieh is unlawful is 
 the elevation of the consecrated bread, and not of 
 the paten in which it is placed, and that the ele- 
 vation of any part of the cup is an elevation of 
 the cup itself, and their Lordships expressed an 
 opinion that any elevation of the consecrated ele- 
 ments is unlawful; secondly, that a reverential 
 bow is not an act of prostration, but that the 
 posture assumed and maintained for some seconds 
 by the respondent was not a mere bow but a 
 prostration, and that the respondent had not 
 complied with the monition in either respect, and 
 their Lordships ordered him to be suspended from 
 discharge of his clerical duties for three months. 
 Martin v. Mackonoahie, 40 Law I. Rep. (n.s.) Ecc. 
 1 ; Law Rep. 3 P. C. 409. 
 
 17. — The use of lighted candles on the com- 
 munion table, or on a ledge above it, during 
 morning prayer, when not required to give light, 
 and the singing the hymn called the " Agnus " 
 during the Holy Communion, after the prayer of 
 consecration and before reception of the elements, 
 declared unlawful. Observations on Hebbert v. 
 Purchas (Law Rep. 3 P. C. 605 ; 40 Law J. Rep. 
 (n.s.) Ecc. 33). Martin v. Maohonochie, Law Rep. 
 4 Adm. & E. 279. 
 
 Baldaechino. [See supra No. 9.] 
 Images. [See supra No. 1.] 
 
 (i) Doctrine. 
 
 18. — ^A clergyman is justified in refusing to ad- 
 minister the Holy Communion to a parishioner 
 who avowedly and persistently denies the doctrine 
 of the eternity of punishment and the personality 
 of the devil, such denial constituting him, within 
 the meaning of the Canons and Rubrics, " an evil 
 liver " and " a depraver of the Book of Common 
 Prayer and administration of the Sacraments," 
 and therefore disqualifying him from partaking 
 of the Sacrament. Jenkins v. Cook, 44 Law J. Rep. 
 (n.s.) Ecc. 57 ; Law Rep. 4 Adm. & Ecc. 463. 
 
 Reversed on appeal, 45 Law J. Rep. (n.s.) 
 P.C. 1 ; Law Rep. 1 P. C. 80. 
 
 19, — In a charge of heresy the Judicial Com- 
 mittee is not compelled to affix a definite mean- 
 ing to any given Article of Religion the construc- 
 tion of which is fairly open to doubt, even if the 
 Committee itself should be of opinion that a par- 
 ticular construction is supported by the greater 
 weight of reasoning, and the accused ought to be 
 allowed a reasonable latitude of opinion with re- 
 ference to conformity to the Articles and formu- 
 laries of the Church. Voysey v. Noble, 40 Law J. 
 Rep. (n.».) Ecc. U ; Law Rep. 3 P. C. 357. 
 
 It is not necessary to establish a charge of 
 heresy that there should be a contradiction totidem 
 verbis of some passages in the Articles. The pub- 
 lication of opinions repugnant or inconsistent with 
 their clear construction is sufficient. Ibid. 
 
 It is not competent for any private clergyman 
 of his own mere will, not founded upon any cri- 
 tical enquiry, but simply upon his own taste and 
 judgment, to assert that whole passages of some 
 canonical books are without authority, as being 
 contrary to the teaching of Christ as contained in 
 other canonical books. Ibid. 
 
 A clerk in orders was charged with opposing 
 " commonly received doctrines," but the doctrines 
 were not specified. The Judicial Committee re- 
 jected the charge, on the ground that the doc- 
 trines could not be assumed to be the same as 
 those contained in the Articles of Religion or for- 
 mularies of the Church. Ibid. 
 
 20. — The Church of England does not by her 
 Articles or formularies affirm or require her 
 clergy to accept any other presence in the Holy 
 Communion than a presence in the soul of the 
 faithful receiver ; but the Articles and formu- 
 laries of the Church do not exclude the maintain- 
 ing a "real, actual, objective" presence in that 
 sacrament, inasmuch as a presence other than 
 spiritual is not thereby affirmed. Sheppard v. 
 Bennett, 41 Law J. Rep. (n.s.) P. G. 1. 
 
 It is not lawful for a clergyman to teach that 
 the sacrifice or offering of Christ upon the cross, 
 or the redemption, propitiation, or satisfaction 
 wrought by it, is or can be repeated in the ordi- 
 nance of the Lord's Supper ; nor that in that 
 ordinance there is or can be any sacrifice or offer- 
 ing of Christ which is efficacious in the sense in 
 which Christ's death is efficacious, to procure the 
 remission of the guilt or punishment of sins. 
 Ibid. 
 
 The Articles and formularies of the Church of 
 England forbid all acts of adoration of the conse- 
 crated elements in the Holy Communion. Ibid. 
 
 The successive alterations and omissions in the 
 Book of Common Prayer, by which words or pas- 
 sages inculcating particular doctrines, or assuming 
 a belief in them, have been struck out, are evi- 
 dence that the Church has ceased to affirm those 
 doctrines ; but the effect of such changes, when 
 they stand alone, is that it ceases to be unlawful 
 to contradict such doctrines, and not that it be- 
 comes unlawful to maintain them. Ibid. 
 
 (c) Disturbance in chnroh. 
 
 21.— By 23 & 24 Vict. c. 32, s. 2, it is enacted, 
 inter alia, that any person who shall molest, let, dis- 
 turb, vex or trouble, or by any otherunlawftil means 
 disqmet or misuse any preacher duly authorised 
 to preach therein, or any clergyman in holy orders, 
 ministering or celebrating any sacrament or any 
 divine service, rite or office, in any cathedral, 
 church or chapel, or in any churchyard or burial- 
 ground, shall, on conviction thereof before two 
 justices of the peace, be liable to a penalty of not 
 more than five pounds for every such offence. A 
 clergyman in holy orders, after preaching the 
 sermon in the course of the service in a, parish 
 church, descended from the pulpit, and proceeded 
 with another clergyman to collect the alms whilst 
 the offertory sentences were being read at the 
 communion table by a third clergyman. The 
 alms were to be devoted to the defraying of the 
 
120 
 
 OHUECH AND CLEEGY (E), (,8). 
 
 church expenses. In passing down the church 
 in the course of his collection, he was stopped in 
 a forcible manner by the defendants, who claimed 
 to be the proper persons as churchwardens to 
 perform that duty. Upon an information laid 
 under the above portion of the section by the 
 clergyman against the defendants, the justices 
 dismissed the information : — Held, that the cler- 
 gyman in collecting the alms under the above cir- 
 cumstances was not celebrating a part of the 
 divine service, rite or office, and that the statute 
 did not extend to protect the clergyman when 
 performing other duties, and therefore that the 
 decision of the justices was right. Cope v. Barber, 
 41 Law J. Eep. (n.s.) M. C. 137; Law Eep. 7 
 C.P. 393. 
 
 (S) Ecclesiastical Couets : Pleading and 
 
 PitACTICE. 
 
 (o) Statement of offence. 
 
 22. — In a commission under the Church Dis- 
 cipline Act (3 & 4 Vict. c. 86) it is only neces- 
 sary to state the general nature of the offence, 
 sufficiently in order to found the Articles there- 
 upon, and to give the party .proceeded against 
 notice of the general nature of the charges. Shep- 
 pard V. Bennett, Law Eep. 4 P. 0. 350. 
 
 Articles charging publication of heresy in a 
 book, by references to works of other authors, 
 struck out, as the passages from other authors 
 were not shewn to have been adopted by the 
 party proceeded against. Ibid. 
 
 23. — It is not necessary, in order to establish 
 a charge of heresy, that there should be a contra- 
 diction totidem verbis of some passages in the 
 Articles. The publication of opinions repugnant 
 or' inconsistent with their clear construction is 
 sufficient. A clerk in orders was charged with 
 opposing " commonly received doctrines," but the 
 doctrines were not specified. The Judicial Com- 
 mittee rejected the charge, on the ground that 
 the doctrines could not be assumed to be the 
 same as those contained in the Articles of Eeli- 
 gion or formularies of the Church. Voysey v. Noble 
 (P. C), 40 Law J. Eep. (n.s.) Ecc. 11 ; Law Eep. 
 3 P. C. 357. 
 
 24. — In a suit against a clergyman for using 
 unlawful ceremonies and wearing unlawful dresses. 
 Articles charging that the offences were com- 
 mitted on certain specified days and on " divers 
 other days" within two years before suit, and 
 charging the wearing of "divers dresses and 
 things " other than the habits appointed by law, 
 are not inadmissible for want of particularity. 
 Defences that the suit was being promoted con- 
 trary to the wish of the parishioners, and that 
 the promoter had a pew in an Independent chapel, 
 struck out as irrelevant. Combe v. Edwards, Laif 
 Eep. 4 Adm. & Ecc. 390. 
 
 25. — Where articles charged a clergyman with 
 doing a certain illegal acts "in a ceremonious 
 manner, or as connected with and being part of 
 the ceremonies of public worship," — Held, that 
 these words were allegations of fact, and not con- 
 clusions of law, or inadmissible as embarrassing. 
 
 An allegation that the incumbent sanctioned or 
 permitted illegal acts is sufficient without charg- 
 ing that they were authorised by him. In an 
 article charging a clergyman with an offence 
 in administering the Communion when there were 
 not a sufficient number of communicants, it is 
 sufficient to follow the words of the rubric, and 
 not to negative possible circumstances which might 
 shew that there was no offence in fact. Parnell 
 V. Boughton, Law Eep. 6 P. C. 46. 
 
 (b) Act on petition. 
 
 26. — Citation in a Consistory Court of vicar 
 and a churchwarden, and parishioners and inhabi- 
 tants of a parish, to shew cause why a faculty 
 should not issue to remove articles alleged to 
 have been placed in the church without a faculty. 
 The vicar and churchwarden having appeared, 
 brought an act on petition, ending with a prayer 
 for the issue of a faculty, confirming the placing 
 of the articles in the church. The Judge 
 having struck the prayer out, — Held, that 
 the prayer should stand, as the defendants were 
 entitled to pray for a faculty without a fresh cita- 
 tion. Gardner v. Mlis, Law Eep. 4 Adm. & Ecc. 
 265. 
 
 (c) Monition. 
 
 27. — It is not necessary to the validity of a 
 monition that it should shew on the face of it the 
 interest, official or private, of the petitioner in the 
 matter complained of. Lee v. Bidsdale, 42 Law 
 J. Eep. (n.s.) Ecc. 1. 
 
 Where the object of the monition is to enforce 
 obedience to the law, everyone has an interest, and 
 is entitled to institute proceedings for that pur- 
 pose. But a plaintiff in a civil suit must shew 
 an interest, and the correct mode of objecting to 
 his interest is, either by the party cited appearing 
 under protest, or praying the Court to order the 
 plaintiff to propound his interest, or by raising 
 the objection on the admission of the libel, or by, 
 or on, the subsequent pleadings. Ibid. 
 
 28. — A monition issued out of the Commissary 
 Court of Canterbury, at the petition of L., de- 
 scribed therein as of No. 2, Broad Sanctuary, in 
 the city of Westminster, calling upon the incum- 
 bent and churchwardens of St. Peter's Church, 
 Folkestone, in the diocese of Canterbury, to re- 
 move certain alleged unlavrful ornaments in the 
 church, or to appear and shew cause against 
 such removal. The churchwardens appeared and 
 prayed that they might be dismissed from the 
 suit, on the ground that the monition did not shew 
 the interest of L. in the matter, but the Court 
 rejected the application: — Held, on appeal to the 
 Arches Court of Canterbirry, that the monition 
 should disclose on its face such an interest in the 
 person at whose instance it issued as would have 
 entitled him to institute and carry on a civil suit 
 commenced in the ordinary way by citation, and 
 should therefore contain an allegation that the 
 party taking proceedings had the status of a par- 
 ishioner in the parish. The churchwardens were 
 accordingly dismissed from the suit with costs. 
 
CHUEOH AND CLEEGY (S)— CIVIL CODE. 
 
 121 
 
 Fagg v. Lee, 43 Law J. Eep. (n.s.) Eoc. 1 ; Law 
 Eep. Adm. & Eco. 135. 
 
 Affirmed on appeal to the 'Pthy C<>unoil. Lee 
 V. Fogg, 43 Law J. Eep. (n.s.) Eoo. 17; Law Eep. 
 6 P. C. 38. 
 
 (<Z) Commission under Church Discipline Act, 
 
 29. — Whether it is competent to the bishop to 
 refuse to entertain an application for a commis- 
 sion of enquiry under section 3 of the Act 3 & 4 
 Vict. c. 86, made by any person whatever, guars. 
 But at least it is in his discretion to issue such 
 commission when he has been applied to for that 
 purpose. Therefore an application by the ac- 
 cused person for a prohibition restraining the 
 issuing of the commission until objections to the 
 fitness of the promoter should be determined was 
 refused as unfounded and frivolous. Esc parte 
 Edwards, 43 Law J. Eep. (n.s.) Chanc. 350 ; Law 
 Eep. 9 Chanc. 138. 
 
 (e) Appeal. 
 
 30. — An appeal from the Arches Qourt was 
 heard ex parte and judgment was delivered. 
 Before any report was presented to Her Majesty 
 an application was made to rehear the appeal on 
 the ground that the respondent was unable to in- 
 struct counsel at the hearing, or to appear in 
 person through ill health, and on the ground that 
 the judgment was binding upon all the clergy. 
 Their lordships refused to rehear the appeal. 
 Rebbert v. Purchas, 40 Law J. Eep. (n.s.) Ecc. 
 65 ; Law Eep. 3 P. C. 664. 
 
 31. — Before an appeal is presented to the 
 Queen in Council in respect of an order directing 
 the reformation of articles of charge or other 
 pleadings, the actual reformation which appears 
 to the Judge to be required should be made by 
 him on the face of the order, so that on appeal 
 the very passages omitted may be clearly brought 
 under the judgment of the Judicial Committee. 
 Sheppard v. Bennett, 41 Law J. Eep. (n.s.) P. C. 1. 
 
 (/) Duplex querela and quare impedit. [See 
 supra No. 3.] 
 
 (^) Sequestration. 
 
 32. — During the vacancy of a benefice, and 
 sequestration of the proceeds, by reason of the 
 suspension of the clerk under the Church Disci- 
 pline Act, the friiits of the sequestration belong 
 to the bishop, subject to the duty of providing for 
 the services. In re Thakeham, Sequestration 
 Moneys, Law Eep. 12 Eq. 494. 
 
 (Ji) Suspension. 
 
 33. — Persistent contempt by a clerk in orders 
 in disobeying a monition prohibiting certain cere- 
 monies and the use of certain vestments punished 
 by sentence of suspension ab officio et a benefido, 
 Hebbert v. Purchas, Law Eep. 4 P. C. 301. 
 
 (i) Proctor. 
 34. — A defendant in a suit in the Arches 
 Court of Canterbury cannot appear by a solicitor; 
 Digest, 1870-1875. 
 
 he must appear either in person or by a proctor. 
 Burch V. Beid, Law Eep. 4 Adm. & Eco. 112. 
 
 Ecclesiastical Law of Canada. [See Colo- 
 nial Law, 17, 18.] 
 
 Church bells : Scotland. [See Scotch 
 Law, U.] 
 
 CHUECH EATES. 
 
 1. — The 5 Geo. 4. c. 36. sect. 1, authorising the 
 churchwardens and overseers of a parish to borrow 
 money for repairing the church on the security of 
 rates (to be levied in the same way as church 
 rates), and so as to secure the repayment with 
 interest by " annual or half-yearly instalments 
 within the period of twenty years at furthest 
 from the advancing of the loan": — Held, to forbid 
 both expressly and impliedly the making of a 
 rate after the twenty years had elapsed to enforce 
 payment of instalments which had for many 
 years remained unpaid. J%e Queen v. The Church- 
 wardens of All Saints, Wigan (Exch. Ch.), Law 
 Eep. 9 Q. B. 317. 
 
 . 2. — The 6 Geo. 4. c. 36, by sec. 1, provides 
 that it shall and may be lawful for the church- 
 wardens and overseers of any parish, with the 
 consent of the major part of the inhabitants and 
 occupiers assessed to the relief of the poor, in 
 vestry assembled, to make application to com- 
 missioners authorised to make advances for public 
 works, for a loan to defray the expense of " re- 
 building, repairing, and enlarging " the church or 
 chapel of any parish, and from and after the 
 grant of such loan, it " shall be lawful for the 
 churchwardens and oveerseers of the poor of the 
 parish, in respect of which such loan shall be ad- 
 vanced, to make such annual and half-yearly rates 
 for the repayment of the sum, &c., advanced, 
 with interest." Section 2 provides, that it shall 
 be lawful for any churchwarden, &c., in any 
 parish in which any rate shall be made under the 
 provisions of the Act, &c., to levy and recover all 
 such rates, by all such ways and means as any 
 church-rate may by law be sued for or levied " : 
 — Held, that the owner of tithe rent-charge in a 
 parish where money has been borrowed under the 
 provisions of the Act, is liable to be assessed to 
 the rate made for repayment of the money. 
 Smallbones v. Edney, 40 Law J. Eep. (n.s.) Ecc. 
 8 ; Law Eep. 3 P. C. 444. 
 
 CHUECHWAEDEN. 
 [See Chuech and Clergy.] 
 
 CIVIL CODE. 
 
 [See Colonial Law, 10-16; Contract, 41.] 
 E 
 
122 
 
 CLERGY— COLOKIAL LAW (A). 
 
 CLERGY. 
 [See CmjBCH and Clhegy.] 
 
 COAL MINES. 
 
 [Provisions made for the regulation of coal 
 mines and metalliferous mines. 35 and 36 Vict. 
 CO. 76 & 77.] 
 
 The owners of a colliery who have appointed a 
 certificated manager under the Coal Mines Regu- 
 lation Act, 1872 (3/5 _& 36 Vict. c. 76), s. 26, are 
 not liable for an injury to a ■workman in the 
 colliery caused by the negligence of the manager, 
 as there Is nothing in the statute to make him 
 other than fellow workman of the person injured. 
 Howells V. Landore Siemens Steel Company, 44 Law 
 J. Rep. (k.s.) Q. B. 28 ; Law Rep. 10 Q. B. 62. 
 
 COIN. 
 
 authority as well as excuse. That the Judge on 
 the above evidence was right in neither ruling 
 nor asking the jury whether the possession of the 
 dies was without lawfal authority or excuse, and 
 further that it was not a question for the jiiry 
 whether the prisoner had a guilty intention in re- 
 ference to the possession and use of the dies 
 (though there was evidence as to this both ways), 
 and that the Judge rightly lefb to the jury no 
 other questions than whether the dies were found 
 on the prisoner, and whether they had an ap- 
 parent resemblance to the two sides of a sovereign. 
 The Queen v. Harvey, 40 Law J. Rep. (n.s.) 
 M. C. 63. 
 
 [The laws relating to the coinage and the mint 
 consolidated and amended. Tender of payment in 
 coins to be legal if made in gold to any amount, 
 if in silver up to 40s., if in bronze up to Is. And 
 other enactments passed regulating the pecuniary 
 proceedings against offenders against the Act. 
 33 Vict. c. 10.] 
 
 1. — ^An indictment charged a felonious uttering 
 of counterfeit coin after a previous conviction for 
 the offence of uttering of counterfeit coin, and the 
 prisoner was arraigned and tried upon the subse- 
 quent offence and found guilty, and then upon 
 arraignment as to the part of the indictment which 
 charged that he had been previously convicted, 
 denied that he had been so previously convicted, 
 and the jury after enquiry found that he had not 
 been BO previously convicted: — Held, that the 
 prisoner could not be convicted of the misde- 
 meanour of uttering the counterfeit coin. The 
 Queen v. Thomas, 44 Law J. Rep. (n.s.) M. C. 42 ; 
 Law Rep. 2 C.C.R. 141. 
 
 2.— By 24 & 25 Viet. c. 99, a. 24, whosoever 
 without lawful authority or excuse (the proof 
 whereof shall lie on the party accused) shall 
 knowingly make or vend, or begin or proceed to 
 make or vend, or buy or sell, or have in his cus- 
 tody or possession any die impressed with the ap- 
 parent resemblance of the sides of any of the 
 Queen's current gold coin, shall be guilty of 
 felony. The prisoner was convicted on an indict- 
 ment which alleged that he " knowingly and with- 
 out lawfal excuse feloniously had in his custody," 
 &o. The evidence was that he ordered of a die 
 sinker two dies to be made for him. The sinker 
 thereupon communicated with the police, who 
 under the direction of the Mint authorities gave 
 him permission to make them and give them to 
 to the prisoner. The prisoner paid for them when 
 made, and received them from the sinker, and he 
 was taken into custody with the dies in his pos- 
 session : — Held, that the indictment was sufficient, 
 without other allegation, to hegativS a lawful 
 
 COLONIAL CLERGY. 
 [See Chuech B.] 
 
 COLONIAL LAW. 
 
 (A) Action hebe foe Wbongs coManTTBD m 
 
 Colony. 
 
 (B) Law or paeticulaj! Colonies. 
 (a) Canada. 
 
 (1) Provincial legislature. 
 
 (2) Canadian Courts, 
 
 (3) Avoid. 
 
 (4) XJsufructmary, 
 
 (5) Testamentary law. 
 
 (6) Civil Code. 
 
 (7) Ecclesiastical law. 
 (i) Cape Colony. 
 
 (1) Insolvent Ordinance, 1843. 
 
 (2) Boman Dutch law. 
 (e) Ceylon. 
 
 (d) East India. 
 
 (e) Gibraltar. 
 If) Jersey, 
 (g) Malta, 
 (h) Mauritius, 
 (i) Natal. 
 
 (k) New South Wales, 
 {l) New Zealand, 
 (m) Fenang. 
 (n) South Australia. 
 (o) Victoria. 
 
 (A) Action here foe Weonqs committed 
 IN Colony. 
 
 1. — An Act passed by a colonial Legisla- 
 ture, indemnifying persons against the conse- 
 quences of anything done in the suppression of a 
 rebellion in the colony may be pleaded in bar to 
 civil proceedings in this country, as such a sta- 
 tute is neither contrary to any positive law of this 
 country nor to the principles of natural justicS. 
 Phillips V. Eyre (Exeh. Ch.), 40 Law J. Rep. 
 (N.s.) Q. B. 28 ; Law Rep. 6 a. B. 1. 
 
 The validity of such a statute is not affected 
 by the fact, that the governor of the Colonyj who 
 necessarily joined in passing it, was thereby 
 
COLONIAL LAW (A), (B). 
 
 123 
 
 Enabled to indemiiify himself from the conse- 
 quences of illegal acts committed by him. Ibid. 
 A confirmed Act of the Local Legislature, law- 
 fully constituted, whether in a settled or con- 
 quered colony, has, as to matters within its 
 competence and the limits of its jurisdiction, the 
 operation and force of sovereign legislation, 
 though subject to be controlled by the Imperial 
 Parliament. Ibid. 
 
 (B) Law of paetictjlar Colonibs. 
 
 (a) Canada, 
 
 (1) Provincial legislatwre. 
 
 2i — An Act to relieve the financial embarrass- 
 ment of a local society relates to a " matter 
 merely of a local or private nature in the pro- 
 vince," within section 92 of the British North 
 America Act, 1867, and as such is within the 
 legislative capacity of the Quebec Provincial Le- 
 gislature, and does not fall within the category of 
 bankruptcy or insolvency, or the other matters 
 excepted by section 91. L' Union St. Jaoques de 
 Montrealy. Sdide, Law Eep. 6 P. C. 31. 
 
 3.—'' The British North America Act, 1867," 
 by section 91, declares that "the exclusiv6,legis- 
 lative authority of the Parliament of Canada 
 extends to all matters relating to the raising of 
 money by any mode or system of taxation." Sec- 
 tion 92 provides that "in each province the 
 Legislature may exclusively make laws in relation 
 to local works and undertakings other than rail- 
 ways extending beyond the province," and " to all 
 matters of a merely local or private nature." Before 
 the passing of this Act a company had been 
 incorporated by an Act of a. provincial Legisla- 
 ture, with powers to construct a railway from a 
 place in the province to a place out of the pro- 
 vince. After the passing of the Imperial Local 
 Act, an Act of the same provincial Legislature 
 was passed enabling such company to connect 
 their railway with a certain town in the pro- 
 vince ; and that Act provided that the inhabitants 
 of such town should contribute a sum of money 
 to such works, to be raised by assessment on the 
 property of the inhabitants : — Held, that the pro- 
 vincial Act was not " a raising of money by taxa- 
 tion," within the meaning of section 91 of the 
 Imperial Act, and that such Act did not relate to 
 a railway within the meaning of section 92, but 
 was " a matter of a merely local or private 
 nature," and was, therefore, within the powers of 
 the provincial Legislature. Dow v. Black, 44 
 Law J. Eep. (n.s.) P. C. 52 ; Law Eep. 6 P. C. 
 227. 
 
 [And see next case.] 
 
 (2) Canadian Cowts. 
 
 4.— -By statutes of Quebec (31 Vict. c. 32 and 32 
 Vict. c. 29) commissioners were appointed to 
 investigate the origin of any fires in the cities of 
 Quebec and Montreal, with power to compel 
 attendance of witnesses and to examine them on 
 oath : — Held, that the constitution of such Courts 
 was within the power of the Provincial Legisla- 
 
 ture. The Queen v. Coote, 42 Law J. Eep. (n.s.) 
 P. 0. 45 ; Law Eep. 4 P. 0. 599. 
 
 5. — A Judge of the Court of Queen's Bench in 
 Lower Canada, whilst sitting alone in the exer- 
 cise of the criminal jurisdiction, has no power, 
 under section 72 of the Consolidated Statutes of 
 Canada, to pronounce a counsel in contempt for 
 publishing letters reflecting upon the conduct of 
 such Judge, or to impose a fine. The counsel so 
 fined was allowed to petition the Crown for a 
 reference to the Judicial Committee under 3 & 4 
 Will. 4. c. 41, s. 4. In the matter of Thomas 
 Kennedy Ramsay, Law Eep. 3 P. C. 427. 
 
 (3) AvouL 
 
 6. — By the law of Canada an "avou6" has no 
 general power to bind his client by a " transac- 
 tion." King v. Finsoneawlt, 44 Law J. Eep. 
 (n.s.) p. C. 42 ; Law Eep. 6 P. C. 246. 
 
 The appellant having commenced an action 
 against the respondent, the respondent entered into 
 a "transaction " with the avoui " of the appellant, 
 to settle the action on certain terms. The appel- 
 lant afterwards, without discontinuing the first 
 action, brought another action to enforce the 
 "transaction:" — Held, that as the first action 
 was not for the same cause as the second, an 
 action might be maintained to enforce the "trans- 
 action " without discontinuing the first action. 
 Ibid. 
 
 (4) Usufructuary. 
 
 7. — Under the old law of Canada a usufruc- 
 tuary of land with power of sale for a rent- 
 charge if judged advantageous by experts may 
 sell without the sanction of the Court, and if he 
 does apply to the Court he is not bound by any 
 additional conditions which the decree of the Court 
 may impose. A sale of his life-interest by the 
 usufructuary will not extinguish his power of sale. 
 An appointment of tutor to those entitled in sub- 
 stitution is not necessary. . Construction of docu- 
 ment. Leclerc v. Beaudry, Law Eep. 5 P. C. 363. 
 
 (5) Testatnentary law. 
 
 8. — By the imperial statute 14 Geo. 3. c. 83, it 
 is provided that it shall be lawful for the owner of 
 any lands or goods in the province of Quebec to 
 bequeath or devise the same by will, " such will 
 being executed either according to the laws of 
 Canada or according to the forms prescribed by 
 the laws of England." A testator being ill, sent 
 for it notary for the purpose of mating his will. 
 The notary came, and the testator, in the pre- 
 sence of the notary and two witnesses, expressed 
 his wishes in respect of his property, including 
 the gift of an annuity to the appellant. The notary 
 proceeded to write the will, and whilst doing so, 
 and when he had completed the clause relating to 
 the annuity, the testator died. The will was then 
 completed by the notary, and was attested by the 
 witnesses, and, the heir having been first cited to 
 appear and having appeared, was admitted to 
 probate: — Held that the practice and usage of 
 Canadian Courts does not attach to the grant of 
 k2 
 
121 
 
 COLONIAL LAW (B). 
 
 probate the conclusive character which it has in 
 England, and that the validity of the -vpill might 
 therefore be impugned. Secondly, that the paper 
 containing the instructions written out by the 
 notary was a valid will according to the law of 
 England at the time of the passing of the Act, 14 
 Geo. 3. c. 83. Thirdly, that the law which intro- 
 duced into the colony the English law of wills 
 introduced at the same time the admissibility of 
 oral evidence in support of them. Migneavlt v. 
 Malo, 41 Law J. Eep. (n.s.) P. C. 11 ; Law Eep. 4 
 P.O. 123. 
 
 9.— The English Act, 14 Geo. 3. c. 83, and the 
 Canadian Act, 41 Geo. 3. c. 4, have the effect of 
 validating testamentary dispositions in favour of 
 adulterine bastards. In the case of limitations 
 by way of substitution, the time when the substi- 
 tution opens is the time when the capacity of the 
 substituted to take is to be determined. King v. 
 Timstall, Law Eep. 6 P. C. 66. 
 
 [See also infra No. 16.] 
 (6) Civil Code. 
 
 10. — By a donation inter vivos certain land in 
 Lower Canada was conveyed by the donor to his 
 son. The deed of gift, after reserving the usu- 
 fruct to the donor for life, and afterwards to the 
 son for life, find after his death to his children 
 born in wedlock, contained the following provision : 
 "Et adtfaut d'enfans nes en legitime mariage du 
 dit Maltre Joseph Eoy, la propriki demeurera et 
 appartiendra aux autres hdritiers du dit donateur 
 qui en jouiront et disposeront conform^ment a ce 
 qu'il en aura dispose et ordonni par son testament 
 et ordonnance de derniere volenti : " — Held, first, 
 that under the Civil Code of Lower Canada the 
 word " h&itier" has a signification wider and dif- 
 ferent from its meaning under the old French 
 law ; secondly, that the words " autres heritiers " 
 did not designate the legal heirs of the donor at 
 the date of the deed of gift, but the persons who the 
 donor should by will constitute his heirs ; thirdly, 
 that the clause gave the property to the son of 
 the donor, with a substitution in favour of his 
 children ; but that, in default of such children, 
 it created no further estate, and that such a pro- 
 vision was a valid resolutive condition within the 
 provisions of the Civil Code of Lower Canada. 
 Hcrse v. Bufatix, 42 Law J. Eep. (n.s.) P. C. 1 ; 
 Law Eep. 4 P. C. 468. 
 
 11.— Article 1,190 of the Civil Code of Lower 
 Canada provides that " Compensation takes place, 
 whatever be the cause or consideration of the 
 debts, or either of them, except in the following 
 cases " (amongst others) "a debt which has for 
 its object an alimentary provision not liable to 
 seizure." A testator bequeathed his estate to his 
 sons in trust to apply the revenue thereof as an 
 alimentary provision for the whole of his children 
 until the accomplishment of the majority of his 
 youngest grandchild. At the death of the testator 
 one of the sons, who was also a trustee under the 
 will, was indebted to the estate : — Held, that the 
 fact that such son was a trustee created no excep- 
 tion to the rule as to compensation, and that such 
 Bon was entitled to be paid his alimentary allow- 
 
 ance without any deduction in respect of his debt. 
 Mwir V. Mwir, 43 Law J. Eep. (n.s.) P. 0. 7 ; Law 
 Eep. 6 P. C. 66. 
 
 12. — By the Civil Code of Lower Canada, art. 
 366, corporations are declared to be prohibited 
 from acquiring immoveable property without the 
 permission of the Crown. Art. 1,607 declares 
 that " legal warranty is implied by law in the 
 contracts of sale without stipulation." Art. 1,509 
 declares "that, although it be stipulated that the 
 seller is not obliged to any warranty, he is, never- 
 theless, obliged to a warranty against his personal 
 acts." Art. 1,510 declares that "When there is 
 a stipulation excluding warranty, the seller, in case 
 of eviction, is obliged to return the price of the 
 thing sold." The appellants, a mining corpora- 
 tion, purchased land in Canada from F., who had 
 purchased from the respondents. The deed of 
 sale from the respondents to F. limited the trans- 
 fer to the rights and interest of the respondents, 
 and guaranteed F. " against all mortgages, debts 
 and dowers whatever." Neither the respondents 
 nor F. had any title to the land, and the appellants 
 were evicted. In an action by the appellants 
 against the respondents, as arrieregarant, under 
 art. 126 of the Civil Code,— Held, fii-st, that the 
 appellants, being a corporation, were incapable of 
 acquiring title to the land, and that a legal war- 
 ranty, under Art. 1,507, can only apply to a valid 
 sale, and was therefore not implied in the sale 
 from F. to the appellants ; secondly, that the 
 " legal warranty " was excluded by the express 
 warranty on the sale by the respondents to F. ; 
 and thirdly, that the right to the restitution of 
 the price, under Art. 1,510, is independent of war- 
 ranty, and can only be enforced between the imme ■ 
 diate parties to a sale. Chawdiere Gold Mining 
 Company of Boston v. Desbarats, 42 Law J. Eep. 
 (n.s.) p. C. 73 ; Law Eep. 5 P. C. 277. 
 
 13.— Article 2,108 of the Civil Code provides 
 that " Le vendeur priviUgi^ conserve son privilege 
 par la transcription du titre qui a transf4r6 la pro- 
 priety a I'acquJreur, et qui constate que la totality 
 ou parti e du prix lui est due ; a I'effet de quoi la 
 transcription du contrat faite par I'acquereur 
 vaudra inscription pour le vendeur et pour le pre- 
 teur qui lui aura fourni les deniers payfe, et qui 
 sera subrogi aux droits du vendeur par le memo 
 contrat; sera nSanmoins le conservateur des hy- 
 potheques tenu, sous peine de tous dommages et 
 interets euvers les tiers, de faire d'oflBce i'inscrip- 
 tion sur son registre, des crtences resultant de 
 I'acte translatif de propri4t6, tant en faveur dn 
 vendeur qu'en faveur des pr^teurs, qui pourront 
 aussi faire faire, si elle ne I'a Ate, la transcription 
 du contrat de vente, a I'effet d'acquerir I'insorip- 
 tion de ce qui leur est du sur le prix." Article 
 2,109 provides that " Le co-hfeitier ou co-parta- 
 geant conserve son privilege sur les biens de chaque 
 lot ou sur le bien licitA, pour les soulte et retour 
 de lots, ou pour le prix de la licitation, par I'in- 
 scription faite a sa diligence, dans soixante jours 
 i dater de I'aote de partage ou de I'adjudioation 
 par licitation, durant lequel temps aucune hypo- 
 thique ne pent avoir lieu sur le bien charg6 de 
 soulte ou adjugA par licitation au prejudice -du 
 
COLONIAL LAW (B). 
 
 125 
 
 crSanoier de la soule ou du prix.'' The appellants, 
 being part owners of an estate in the colony, and 
 creditors of other part owners, a sale of the estate 
 was ordered by licitation, and the appellants be- 
 came the purchasers. An " inscription " was made 
 by the proper officer on behalf of the " co-lici- 
 tants," but no other " inscription " was made by 
 the appellants. The estate was afterwards seized 
 by creditors of the appellants, whose debts were 
 duly inscribed, pursuant to Article 2,148, and was 
 sold to the respondent : — Held, first, that the sale 
 by " licitation" was not a sale within the provi- 
 sions of Article 2,108, so as to give the appellants 
 the privilege of unpaid vendors, but was a sale by 
 co-proprietors subject to the provisions of Article 
 2,109 ; secondly, that the inscription by the officer 
 did not satisfy the provisions of that Article, and 
 that the claim of the respondent took priority over 
 that of the appellants. Coartaux v. Hewetson, 
 a Law J. Eep. (n.s.) P. C. 86 ; Law Rep. 6 P. 0. 
 407. 
 
 14. — The anterior possessionof property which 
 can be the subject of a " don manuel " is ecjuiva- 
 lent to delivery at the time of gift. The fact of 
 gift may be proved by parol evidence. Quaere — 
 whether bank deposit certificates in Canada are 
 negotiable instruments. Eeasons given by a Judge 
 for his decision in the Canadian Appeal Court 
 should be stated publicly and sent to the regis- 
 trar of the Privy Council, or that tribunal will not 
 recognise them. Bicker v. Voyer, Law Eep. S P. C. 
 461. 
 
 15. — A suit to recover a sum of money payable 
 by instalments, and secured on land is not a suit 
 " concerning titles to land or tenements, annual 
 rents, or other matters, in which the rights of 
 future parties may be affected " as to which an 
 appeal may be granted under article 1,178 of 
 the Civil Code. Course to be adopted where an 
 appeal has been irregularly granted. Sauvageau 
 V. Gauthier, Law Eep. 5 P. C. 494. 
 
 16. — The Civil Code is the primary source from 
 which the law of Lower Canada is now to be 
 drawn. When it contains rules on any subject 
 complete in themselves they are binding, and can- 
 not be controlled by the pre-existing law. When it 
 refers to existing laws not formulated in its 
 articles, or in so far as it is silent on any subject, 
 enquiry is permissible into the old law. The 
 second article of the edict of 1743 is abrogated 
 by the Code. Article 366 provides, with respect 
 to the disabilities of corporations, that " The dis- 
 abilities arising from law are those comprised in 
 the general laws of the country respecting mort- 
 main or bodies corporate, prohibiting them from 
 acquiring immovable property, or property so re- 
 puted, without the permission of the Crown." 
 The Civil Code, Article 836, provides that " Cor- 
 porations or persons in mortmain can only receive 
 by will such property as they may legally possess." 
 A testator devised and bequeathed all the residue 
 of his estate, moveable or immoveable, to trustees 
 in trust to establish an institute or free public 
 library,and he directed his trustees to procure a 
 charter of incorporation for such institute : — Held, 
 that the devise being to trustees, and not to a 
 
 corporation, existing at the death of the testator, 
 did not contravene the laws of Canada respecting 
 mortmain. Abbott v. Fraser, 45 Law J. Eep. 
 (n.s.) p. C. 26 ; Law Eep. 6 P. C. 96. 
 
 Civil Code of Canada : marine insurance : 
 acceptance of abandonment. [See Ma • 
 
 EINE InSUBANCB, 37.] 
 
 (7) Ecclesiastical law. 
 
 17. — Although the Eoman Catholic Church of 
 Canada may on the conquest have ceased to be an 
 Established Church in the fall sense of the term, 
 it nevertheless continues to be a Church recognised 
 by the State, retaining its endowments and con- 
 tinuing to have certain rights and obligations 
 enforceable at law. Brown v. The Curate and 
 Churchwardens of Montreal, 44 Law J. Eep. (n.s.) 
 P. C. 1 ; Law Eep. 6 P. C. 157. 
 
 The Quebec ritual, which regiilates the Eoman 
 Catholic Church of Lower Canada, provides that 
 " on doit refuser la sepulture eccUsiastique, a ceux 
 qui auraient ktk nomm^ment excommuni^s ou in- , 
 tendits, si ce n'est qu'avant de mourir ils aient 
 donni des marques de douleur, auquel cas ou 
 pourra leur accorder la sepulture eccUsiastique, 
 aprfes que la censure aura ktk levie par nos ordres ; 
 aux pecheurs publics qui seraient mors dans I'im- 
 ptoitence ; tels sont les concubinaires, les filles 
 ou femmes prostitutes, les sorciers et les farceurs, 
 usuriers," &c., &c. G-., a Eoman Catholic in Ca- 
 nada, being a member of a literary society, the 
 members of which had been decreed by the bishop 
 to be deprived of the sacraments of the Church, 
 died. The respondents, who had the control of 
 the parish cemetery, refused to permit his body to 
 be buried in that part of the cemetery which was 
 devoted to Eoman Catholics : — Held, that G-., not 
 being "un pecheur public" within the meaning of 
 the above ritual, and not having been " nomme- 
 ment excommunies " at the time of his death, was 
 entitled to be buried in that part , of the ceme- 
 tery, and that a mandamus should issue com- 
 manding the respondents to permit such burial. 
 Ibid. 
 
 18. — The municipal council of an unincorpo- 
 rated village being about to form a street across 
 a portion of the "fabrique," the cure and mar- 
 guilUers of the parish at a meeting at which certain 
 former marguilliers were present, but at which no 
 other parishioners were present, resolved to take 
 legal proceedings to restrain the making of such 
 street, and an action was brought for this purpose 
 by the cur6 and marguilliers. The corporation 
 pleaded that the cur6 and marguilliers were not 
 competent to bring such action : — Held, that the 
 curi and marguilliers were not competent to bring 
 such action without the consent of the parishioners, 
 and that the plea was a bar to the action. Les 
 Cure et Marguilliers de la Paroisse de VercUres y. 
 La Corporation de la Paroisse de Verchires, ii Law 
 J. Eep. (n.s.) p. C. 34 ; Law Eep. 6 P. C. 330. 
 
 French jurisprudence is admissible in the con- 
 struction of Canadian law, or the interpretation 
 of Canadian usage. Ibid. 
 
126 
 
 COLONIAL LAW (B). 
 
 (i) Cape Colony. 
 
 (1) Insolvent Ordinance, 1843. 
 
 19. — The Plaoaat of Charles V., sec. 6, is in 
 force in the Cape Colony, and is not repealed by 
 the Colonial Insolvent Ordinance of 1843, and ap- 
 plies to all wives, no matter where their marriage 
 be celebrated or what their domicil may be at the 
 time of marriage ; and, where there is a seques- 
 tration in that colony against a husband, the wife's 
 claims under her marriage settlement are post- 
 poned until his other creditors have been paid ; 
 but, if he be a member of a firm, her claim is only 
 postponed to his separate creditors under such 
 sequestration, and not to the claims of joint cre- 
 ditors under a joint sequestration against the firm. 
 Thurbum v. Stewart, 40 Law J. Eep. (n.s.) P. C. 
 5 ; Law Eep. 3 P. C. 478. 
 
 (2) Romart Dutch law. 
 
 20. — By the Eoman Dutch law the mutual will 
 of a husband and wife, notwithstanding its form, 
 is to be read as the separate will of each. The 
 dispositions of each spouse are to be treated as 
 applicable to his or her half of the joint property. 
 Each is at liberty to revoke his or her part of 
 the will during the co-testator's lifetime, with or 
 without communication vrith the co-testator, and 
 after the co-testator's death, but where a spouse 
 who dies first has bequeathed any benefit in favour 
 of the survivor, and has afterwards limited the 
 disposal of the property in general after the death 
 of such survivor, then such survivor, if he or she 
 acpepts such benefits, may not afterwards dispose 
 of his or her share in any manner at variance with 
 the will of the deceased spouse. Dent/ssen v, 
 Mostert, 41 Law J. Eep. (k.s.) P. C. 41 ; Law Eep.. 
 4 P. C. 236. 
 
 (c) Ceylon. 
 
 21. — By the Eoman Dutch law in Ceylon an 
 executor has the power of an English executor 
 extended to immoveables as well as moveables. 
 Gavin t. Hadden, Law Eep. 3 P. C. 707. 
 
 The Supreme Court of Ceylon is a Court of law 
 and equity, and it is in accordance with the practice 
 in Ceylon that for moneys bon& fide advanced to 
 an executor for the purposes of the estate a suit 
 may be sustained against him in his representative 
 capacity. Ibid. 
 
 {d) East India. 
 
 22. — The child born in India of a father who 
 is a European British subject and Christian, has 
 the religion and civil and social' status of his 
 father, and the guardian ought to bring him up in 
 that religion. Skinner v. Orde, Law Eep, 4 P. 0. 
 61, 
 
 23. — A decree of the Court of First Instance in 
 India for a divorce a vinculo, being binding only 
 on confirmation by the decree of the Chief Court, 
 ia not to be considered as a separate judgment 
 from such latter decree, so as to bring into opera- 
 tion the, rule that the Privy Council will not 
 reverse the concurrent findings of Indian Courts on 
 matters of fact. Such a decree by the Chief Court 
 
 reversed on the ground of delay in bringing the 
 suit, and of the refusal by the Court to hear further 
 evidence on the appeal to rebat the plaintiff's 
 case. The reservations contained in the Limita- 
 tions of Suits Act, No. XIV. of 1869, s. 1, c. 16, 
 do not apply to suits for divorce a vinculo. Hay 
 V. Gordon, Law Eep. 4 P. C. 337. 
 
 24. — In reference to the annexation of Oudh 
 in 1856:— Held, (l)that a debt not recoverable 
 against the King of Oudh before the annexation 
 did not become enforceable after the annexation, 
 (2) that the annexation of Oudh being a sovereign 
 act could not create any civil rights enforceable in 
 any municipal Court. Boss v. The Secretary of 
 State for India, Law Eep. 19 Eq. 609. 
 
 (e) Gibraltar. 
 
 25. — The Supreme Court of Gibraltar has 
 jurisdiction, in a suit for specific performance, 
 where it appears that the plaintiff ought to have 
 proceeie(i>at law, to amend the pleadings and pro- 
 ceed as in an action at law. Larios v. Bonany y 
 Gurety, Law Eep. 5 P. C. 346. 
 
 (/) Jersey. 
 
 26. — The 16th and 16th articles of the Jersey 
 Act of 1867) "Loi sur les Arrangements entre 
 Debiteurs et leur Crediteurs," must be read 
 together, and the Eoyal Court is only entitled to 
 register a composition which is signed by the 
 number of creditors required by Art. 16, and it is 
 only in reference to such a composition that its 
 decision is final. Therefore a petition for leave 
 to appeal against such a composition on the 
 ground that a certain claim had been omitted, and 
 that by reason of this and another error of com- 
 putation the requisite assents had not been 
 obtained, was allowed ; but other grounds of appeal 
 relating to the mode of proceeding, &c., were 
 struck out. Leave to proceed by adoleance will not 
 be readily granted. Credit Fancier of England v. 
 Amy ; Baily v. Amy, Law Eep. 6 P. C, 146. 
 
 27. — The Coutumes Eeformies de Normandie 
 are not written laws. They are written illustra- 
 tions and evidence of what the common law or 
 custom of Normandy was, and unless some new 
 principle has been introduced into the Duchy of 
 Normandy since the separation of Jersey from 
 the Duchy, they are evidence of the law of Jersey. 
 La Cloche v. La Cloche, 41 Law J. Eep. (h'.s.)P. C. 
 81 ; Law Eep. 4 P. C. 325. 
 
 The principle of the law of Jersey that a father 
 cannot make a gift inter vivos of his real estate 
 to one of his several co-heirs, applies to the case 
 of a sole heir and to the child of a sole heir. 
 Ibid. 
 
 {g) Malta. 
 
 28. — A villa residence with oUt-hoUses and 
 ornamental grounds held to be property which 
 could not be " conveniently divided and without 
 disadvantage " between co-heirs, and that there 
 fore according to the law of Malta such residence 
 was properly sold by auction and the proceeds 
 divided. Bugeja v. Camilleri, Law Eep. 3 P. C. 
 258. 
 
COLONIAL LAW (B). 
 
 127 
 
 29.— The Ordinance of Malta, No. 5, 1867, by 
 Art. 46, provides that " Ciasouno dei conjugi pud 
 domandare la separazione per eoeessi, sevizie, 
 minaoce a ingiurie gravi dell' altro, contro 1' attore 
 medesimo, o contro qualunque dei suoi figli " : — 
 Held, that the -vrords "ingiurie grari" leave a 
 large discretion to the tribunal having to consider 
 the facts, and that words as well as acts designed 
 to wound the feelings of the party complaining 
 may amount to " inguirie gravi." Sant v. Sant, 43 
 Law J. Eep. (n.s.) P. 0. 73 ; Law Eep. 5 P. C. 
 642. 
 
 (A) Mauritius. 
 
 30. — Testator having " enfants naturels reeon- 
 nus " made his will, and bequeathed one moiety 
 of the estate of which he should die possessed to 
 these children. Testator subsequently married 
 the mother of the children and died, not having 
 revoked the will : — Held, that the will must be 
 construed by the circumstances of testator at the 
 date of the will, and that the legacy given to the 
 children was a, moiety of the whole succession 
 and not of the " quotitA disponible." Lagesse v. 
 Mlard, 42 Law J. Rep. (n.s.) P. 0. 37 ; Law Eep. 
 4 P. C. 553. 
 
 (j) Natal. 
 
 31. — An ordinance of the Natal Legislature 
 directing that shareholders of a partnership who 
 had executed a partnership deed should be and 
 continue joint-stock proprietors of the sum of 
 1 0.OOOZ. (the capital of the partnership) for the 
 purposes mentioned in their deed and constituta 
 and be a company : — Held, not to convert the co- 
 partnership into a body corporate, or to exempt 
 shareholders from individual liability in respect 
 of the company's debts. Aldridge v. Cato, Law 
 Eep. 4 P. C. 313. » 
 
 {K) New South Wales. 
 Crown lands. [See Ceown Lands.] 
 
 Colonial law : New South Wales : Customs 
 Segulation Acts. [See Customs.] 
 
 (Z) New Zealand. 
 
 32. — The power to cancel a license or lease 
 from the Crown in respect of lands on which gold 
 is discovered, given by the Gold Fields Act, 1866, 
 s. 16, applies to a lease granted in lieu of a license 
 after the passing of the Act. The words " shall 
 have been " in the earlier part of the section are 
 equivalent to " shall be." Maclean v. Macandrew, 
 43 Law J. Eep. (n.s.) P. C. 69. 
 
 (to) Penang. 
 
 33.^-The general law of England, such as the 
 rule against perpetuities and the exception to that 
 rule as to charitable uses, is the law of the colony 
 of Penang; but not English statutes in their 
 nature inapplicable to that colony. Neo v. Neo, 
 Law Eep. 6 P.O. 381. 
 
 Consideration of the powers of appeal from the 
 Supreme Court of Penang. Ibid. 
 
 (n) Soiith Australia. 
 
 34.— An Act of South Australia, 1865-6, No. 
 4, by section 1 provides "that in all cases where 
 any person shall make any bond fide advance of 
 money, &e., to any proprietor of sheep, on con- 
 dition of receiving in payment or as security, &c., 
 the wool of the then next ensuing clip of such 
 proprietor, and where the agreement relating to 
 such security shall be made in the form prescribed, 
 and shall be duly registered, &c., the possession 
 of such wool by the said proprietor shall be, to 
 all intents and purposes in the law, the possession 
 of the person or persons making such advance." 
 A partner in a firm having sheep runs in Australia 
 obtained certain advances from a banking company 
 in the colony, on the security of the next ensuing 
 clip of wool of the sheep on the run ; and the 
 agreement was in the proper form, and was duly 
 registered. The bank was incorporated by charter, 
 which provided that it should not make advances 
 on merchandise: — Held, 1st. That any person who 
 is in possession of the sheep either as principal 
 or agent, and who has authority to deal with the 
 sheep, is the proprietor within the meaning of the 
 statute, and that the firm were therefore bound 
 by the act of the partner. 2nd. That the pro- 
 vision contained in the bank charter did not pre- 
 vent the property in the wool passing under the 
 conveyance to the bank, and that inasmuch as the 
 person who has made an advance is to be deemed 
 in possession, an action of trover might be brought 
 by the bank. At/res v. The South Amtralian 
 Banking Company, 40 Law J. Eep. (n.s.) P. C. 22 ; 
 Law Rep. 3 P. C. 548. 
 
 35.— "The Fencing Act, 1865" (South Aus- 
 tralian Statutes, 1865, No. 6), does not apply to 
 waste lands in the colony demised by the Crown 
 for pastoral purposes. Brown v. McLachlan, 42 
 Law J. Eep. (n.s.) P. C. 18 ; Law Eep. 4 P. 0. 543. 
 
 36.— Under the Northern Territory Act, 1863, 
 No. 23 of South Australia, certain lots of waste 
 lands in Australia were sold. Section 6 provided 
 that every land order issued under the Act should 
 entitle the purchaser within five years from the 
 date thereof to select from and out of the surveyed 
 lands the particular land whereof he would become 
 purchaser. No survey of the lands was made 
 within five years, but another Act was passed 
 substituting other provisions in respect of the 
 selection of the lands: — Held, that the Colonial 
 G-overnment had entered into a contract with 
 the purchasers of land orders under the Act of 
 1863 to have the lands surveyed and to give the 
 purchasers the selection provided by the Act, and 
 that the purchasers of land orders were entitled 
 to a return of their purchase money with interest 
 from the time of payment. Blackmore v. North 
 Australia Company, 43 Law J. Eep. (n.s.) P. C. 1 ; 
 Law Eep. 5 P. C. 24. 
 
 (o) Victoria. 
 
 37.— The Mining Statute, 1865 (Statutes of 
 Victoria, No. 228), which defined the powers of 
 the Court of Mines, and created a Chief Judge, 
 of that Court, by s. 172 gives an appeal to such" 
 
128 
 
 COLONIAL LAW (B). 
 
 Judge to any party trho shall be dissatisfied with 
 any decree or order of the said Court ; and by 
 sefation 244, no " proceedings under that Act shall 
 be removed or removable into the Supreme Court 
 save and except as therein before provided : " — 
 Held, first, that the Court of Mines is, in relation to 
 the Supreme Court, an inferior Court, but that the 
 power to issuea writ of certiorari to such Court had 
 been taken away by the above section. Secondly, 
 that a winding-up order under the " Mining Com- 
 panies Limited Liability Act, 1864," is a proceed- 
 ing under the Mining Statute, 1865, and is there 
 fore within the provisions of section 244. The 
 Colonial Bank of Australasia v. Willan, 43 Law 
 J. Eep. (n.s.) p. C. 39 ; Law Eep. 5 P. C. 417. 
 
 An order was made by a Court of Mines under 
 the Mining Companies Limited Liability Act, 1864, 
 for the winding up of a company. The order upon 
 the face of it was regular, but it was objected 
 that the petitioning creditor's debt was not proved : 
 ■ — Held, that, although, notwithstanding the pro- 
 visions of section 244 of the above statute, the 
 Supreme Court had power to issue a writ of cer- 
 tiorari in case of manifest defect of jurisdiction 
 in the Court of Mines, or of manifest fraud in 
 the party procuring an order, yet that the objec- 
 tion to the order did not justify the exercise of 
 such jurisdiction. Ibid. 
 
 38.— By a Mining Act of Victoria, 1865, No. 
 201, Courts for mining purposes are constituted, 
 composed of a warden and assessors, and it is 
 provided by section 193 that a minute of the 
 decision of the assessors shall be entered in 
 the register, and that the warden shall make 
 an order in accordance therewith. The appellants 
 occupied land in Victoria for mining purposes, 
 and obtained a Crown lease of the land. A 
 small part of the land occupied by the appellants 
 was omitted from the lease. The respondents 
 took possession of so much of the land as was 
 not included in the lease. The appellants then 
 sued the respondents in the Court of Mines to 
 remove them and to recover damages. A majority 
 of the assessors found that the respondents had 
 not encroached on the land. This finding was 
 not entered in the register, nor did the warden 
 make any order in accordance therewith : — Held, 
 first, that intentional abandonment is only to be 
 proved by cogent evidence of the existence of 
 such intention, and that the fact that the lease 
 did not include all the land occupied by the 
 appellants was not sufficient evidence of aban- 
 donment. Secondly, that the finding of the 
 assessors in the Court of Mines not being fol- 
 lowed by any order or adjudication by the war- 
 den was in effect a verdict not followed by any 
 judgment, and was therefore a nullity. The 
 Walhaila Gold Mining Company v. Mulcahy, 40 
 Law J. Eep. (n.s.) P. C. 41. 
 
 39.— The 18 & 19 Vict. c. 55, by section 35, 
 provides " that it shall be lawful for the legisla- 
 ture of Victoria by any Act, &c., to define the 
 privileges, immunities and powers to be held, 
 enjoyed and exercised by the Council or Assembly, 
 and by the members thereof respectively : provided 
 that no such privileges, &c., &c., should exceed 
 
 those then held, enjoyed and exercised by the 
 House of Parliament or the members thereof." 
 The 20 Vict. (Victoria Acts), No. 1, after reciting 
 the above statute, provides that " the privileges, 
 immunities, and powers of the said Council and 
 Assembly respectively, &c., are hereby defined to 
 be the same as at the time of the passing of the 
 said recited Act, were held, enjoyed and exercised 
 by the Commons House of Parliament of Great 
 Britain, &c." : — Held, that the House of Assembly 
 in Victoria had power under these statutes of 
 judging itself what is contempt, and of committing 
 for contempt by warrant, stating generally that a 
 contempt had taken place. The Speaker of the 
 House of Assembly of Victoria v. Glass, 40 Law J. 
 Eep. (n.s.) P, C. 17 ; Law Eep. 3 P. C. 560. 
 
 40. — The Land Acts of Victoria provide that 
 land in the colony shall be set out for selection. 
 That every selector shall be entitled to purchase 
 one moiety of land selected in fee, and shaE re- 
 ceive a lease of the other moiety at an annual rent 
 to be applied in the purchase in fee of the other 
 moiety. The leases are subject to forfeiture for 
 non-payment of rent and to penalties for non-per- 
 formance of other conditions. Grants are directed 
 to bear date from the day when the grantees be- 
 came entitled to such grant. Section 101 of the 
 Land Act, 1869, provides that the notices hereto- 
 fore published in the Government Gazette, pur- 
 porting to declare that the Government had 
 revoked, &c., any lease, &c., issued under any of 
 the Land Acts, &c., should be received in aU 
 Courts of justice as conclusive evidence that the 
 lease, &c., was lawfully revoked, &c. S. became 
 a grantee under the Land Acts, but failed to per- 
 form certain conditions. The first was, however, 
 with knowledge of such failure received by the 
 Crown. Subsequently the allotment was declared 
 forfeited, and notice thereof was published in the 
 Government Gazette. The respondent became the 
 purchaser of the allotment under the knowledge 
 of the Crown, and a lease was granted to the re- 
 spondent dated the day on which S. became en- 
 titled. The respondent completed the purchase, 
 and obtained a certificate of title under the Land 
 Transfer Act: — Held, first, that section 101 
 applies only to cases where the Governor has 
 power of his own will to declare a forfeiture, and 
 that such power did not apply to such a lease ; 
 secondly, that the failure to perform the conditions 
 did not of itself avoid the leased and that the 
 failure of S. was waived by the grant to the re- 
 spondent ; thirdly, that the grant to S. was not 
 forfeited, but that the respondent was liable to all 
 penalties incurred by S., together with interest on 
 any suit in answer. ITie Attorney-General of 
 Victoria v. Ettershank ; Ettershank v. The Attor - 
 ney-General of Victoria, 44 Law J. Eep. (n.s.) 
 P. C. 65 ; Law Eep. 6 P. C. 354 f and The Attorney- 
 General of Victoria v. Glass, Law Eep. 6 P. C. 
 375. 
 
 Penal servitude : sentence for manslamghter 
 on high seas. [See Penai, Sebvitude.] 
 
COMMON EMPLOYMENT— COMMON (B). 
 
 129 
 
 COMMON EMPLOYMENT. 
 [See Master and Servant, 13, 14.] 
 
 COMMON. 
 
 (A) Rights op Commonees. 
 
 (B) Etidence of Eight. 
 
 (a) Appurtenant or in gross, 
 (i) Excliisive right of pasturage. 
 
 (A) Rights of Commombhs. 
 
 1. — A custom for all the owners and occupiers 
 of lands within a forest comprehending numerous 
 manors to have rights of common over all the 
 ■waste lands within the forest is not bad in point 
 of law, and such a right may be established against 
 all the lords of manors within the forest who dis- 
 pute it by one single suit ; for if the plaintiff claim 
 one and the same right under one and the same title 
 against them all, the bill is not rendered mul- 
 tifarious by the fact that they may raise different 
 defences. Hie Commissioners of the Sewers of the 
 City ofLmidon v. Glasse — Epping Forest Case, 41 
 Law J. Rep. (n.s.) Chanc. 409; Law Rep. 7 
 Chanc. 456. . 
 
 2. — ^A right of common over any district, how- 
 ever large, may be claimed by prescription. The 
 Commissioners of the Sewers of the City of London 
 v. Glasse — Epping Forest Case, 44 Law J. Rep. 
 (n.s.) Chanc. 129 ; Law Rep. 19 Eq. 134. 
 
 In common because of vicinage the cattle must 
 always be turned out in the commoner's own 
 manor ; therefore, if a right be proved to turn 
 out in another manor, it proves a right of com- 
 mon direct, and not merely because of vicinage. 
 Ibid. 
 
 The lords of manors within a forest contended 
 that they had customs to enclose the wastes within 
 their manors with the consent of the homages 
 of their respective manors. It appears that 
 other persons, strangers to the manors, had rights 
 of common over the lands claimed to be enclosed : 
 — Held, that the enclosures were bad as against 
 the commoners. Ibid. 
 
 Boidcott V. Winmill (2 Campb. 261) dissented 
 from. Ibid. 
 
 3. — If cattle which are levant and coitchant 
 upon a coramon stray on to another, there being 
 no inclosure, a commoner upon the latter com- 
 mon has no right to distrain them ; he has no 
 ■ right to take the law into his hands, the cattle 
 being upon the common under some colour of 
 right. Cape v. Scott, 43 Law J. Rep. (n.s.) Q. B. 
 65 ; Law Rep. 9 a. B. 269. 
 
 4. — In 1835 certain bye-laws of a manor were 
 passed, which provided "that every copyholder 
 and freeholder of lands and tenements within the 
 manor should be entitled to common of pasture 
 for one head of cattle for every lOl. annual 
 value of his lands and tenements, provided always 
 that the whole number of cattle to any one copy- 
 holder or freeholder should not exceed thirty, and 
 Digest, 1870-1875. 
 
 that each copyholder or freeholder should, on or 
 before the 12th of August in every year, claim such 
 right ; in default of such claim the same should 
 be transferable to the occupiers of such lands or 
 tenements respectively in rateable proportions, 
 in addition to their own rights as occupiers ; and 
 that every occupier of any copyhold or freehold 
 lands or tenements within the manor should be 
 entitled to common of pasture, when his or her 
 rent or annual value was at or under lOl. a year, 
 to three head of cattle, and so on in proportion 
 of three head of cattle up to the value of 50^, 
 after which there was to be only one head of 
 cattle for every 51. of value." Portions of the 
 common lands were purchased by the East Lon- 
 don Waterworks Company and other companies, 
 and the purchase-money, amounting to about 
 4,000Z., paid into Court. A suit was instituted 
 to determine the rights of the parties in the 
 4,000?. :— Held, that the fiind was divisible among 
 the copyhold tenants of the manor and the free- 
 holders within it, according to the " stint " fixed 
 by the first of the above clauses. Fox v. Am- 
 herst, 44 Law J. Rep. (n.s.) Chanc. 666; Law 
 Rep. 20 Eq. 403. 
 
 Compensation under Lands Clauses Act for 
 
 extinction of commonable rights. [See 
 
 Lands Clauses Act, 23.] 
 Inclosure Act: rights of pasturage. [See 
 
 Inclosube Act.] 
 
 (B) Evidence of Right. 
 (a) Appurtenant or in gross. 
 
 5. — A claim of exclusive right of common for 
 cattle, sheep, and other commonable animals, 
 levant and couchant, is not conclusive that the 
 right claimed is in its nature appurtenant, but 
 such right may have had its origin in a grant in 
 gross. If such right be shewn by evidence to 
 have existed in gross without question for a long 
 period of time, it ought to be sustained. The 
 recognition and repetition of releases from the 
 sixteenth century downwards without question, is 
 evidence that the right admitted of severance by 
 its original grant. Therefore, where a municipal 
 corporation claiming an exclusive right of com- 
 mon for cattle, &c., levant and couchant, in 
 certain lands, lying scattered round the town, 
 had in the reign of Henry VIII. and thence- 
 forward exercised the right of releasing such 
 right of common over part of the lands subject 
 thereto, and had continued to exercise their rights 
 over the rest as before, whilst the grantees of 
 such released rights had exercised the right of 
 common instead of the corporation : — Held, in an 
 action by the tenant of a part of the lands subject 
 to the claim of right of common, against a person 
 claiming under a grant of the right from the cor- 
 poration for exercising such right ; that the evi- 
 dence established a right of common in gross, with 
 power of severance, and to grant or release any 
 part, and that the grantee of such a right was 
 justified in entering upon the land in question in 
 the exercise thereof. Johnson v. Barnes, 41 Law 
 J. Rep. (n.s.) C.P. 250; Law Rep. 7 C.P. 592. 
 S 
 
130 
 
 COMMON (B)— COMPANY. 
 
 (J) Exclusive right of paatm'cige. 
 
 6. — Where an exclusive right of pasturage had 
 been enjoyed for a long series of years, but was 
 described in various documents as a right of com- 
 mon, the Court held as a conclusion of fact that 
 such description did not cut down the exclusive 
 right so established by user. Johnson v. Barnes, 
 42 Law J. Eep. (n.s.) C. P. 259 ; Law Eep. 8 
 C.P. 627. 
 
 Fraduotion of documents in suit to establish 
 common right. [See Pboduction, 24.] 
 
 COMPANY. 
 
 [See Feiendlt Societv ; Paetnbbship ; Eail- 
 WAY Company.] 
 
 (A) Peomoteb's Eights and Liabilities unbee 
 
 CONTEACT. 
 
 (B) Peospeotus. 
 
 (C) Eemsteation of Companies. 
 
 (o) Tinder Joint Stock Companies Acts, 
 
 1856 and 1867. 
 (i) Mutual insurance association, 
 (c) Company whose constitution is incon- 
 sistent with the Act. 
 
 (D) Manaoembnt and Constitution of Com- 
 
 pany. 
 (a) Memorandum and articles of associa- 
 tion. 
 (5) Jurisdiction of equity to interfere. 
 (e) lAability of company for acts of agent, 
 
 (1) Contracts and agreements. 
 
 (2) Fraud by agent, 
 
 (d) Remedy against company transgressing 
 
 parliamentary limits. 
 
 (e) Officers. 
 
 (/) Authority to enter appearance for trustee 
 
 of banking company, 
 {g) Directors. 
 
 (1) Powers. 
 
 (\) Ajs tofwnds of company, 
 
 (ii) Purchases. 
 
 (iii) As to contracts to take shares. 
 
 (iv) Powers individually. 
 
 ( y) Inequitable use of powers. 
 
 (2) Liabilities. 
 
 ( i ) Personal liability under con- 
 tract. 
 
 ( ii ) Liability for breach of trust, 
 
 (iii) lAability for misrepresentation 
 or omission in prospectus. 
 
 (iv) Incapacity of director to profit 
 by his office. 
 
 (v) Liability in respect of over- 
 drawn banking account, 
 
 (vi ) Liability for solicitor's costs. 
 
 (3) Liability of directors as share- 
 
 (k) Acts ultra vires. 
 
 (1) Contracts and agreements. 
 
 (2) Ratification by shareholders. 
 {I ) Register of shares. 
 
 (1) Rectification of register. 
 
 (2) Suit to remove name. 
 
 (3) Description of firm. 
 
 (m) Powers of majority of shareholders. 
 («) Capital. 
 
 (1) Reduction and redistribution,. 
 
 (2) Expenditure cha/rgeable to capital, 
 (o) Right of preemption as against com- 
 
 (p) Scheme of arrangement under Joint 
 Stock Companies Arrangement Act, 
 1870. 
 (E) Amalgamation and Teansfee of Business. 
 
 (a) Validity of amalgamation, 
 
 (1) Variation between two parts of 
 
 contract. 
 
 (2) Reconstruction under sec, 161. 
 
 (A) ^ect of amalgamation on rights of 
 
 ( i ) Director's qualification, 
 (ii) Payment for shares, 
 
 {h) Borrowing powers, 
 
 (i) Debentures, 
 
 (c) Effect of setting aside amalgamation, 
 
 (d) Novation of contract by ■policy-hold^ or 
 
 annuitant, 
 
 (e) Application for or acceptance of shares 
 
 in new company, 
 (/) Dealings with shares after amalgama- 
 tion. 
 
 (F) Suits and Peoceedings. 
 
 (a) BUI by one shareholder. 
 
 (b) Plaintiff cdmpany ordered to give secu- 
 
 rity for costs. 
 
 (c) Debtor's summons by secretary of com- 
 
 pany. 
 
 (G) Ssaeeholdbes. 
 (a) Allottees. 
 
 (1) Persons who have signed the me- 
 
 morandum of association. 
 
 (2) Persons who have applied for shares, 
 ( i ) Scrip holders, 
 
 (ii) Application in name of married 
 
 woman, 
 (iii) Conditional application for 
 shares, 
 
 (1) Officer of company. 
 
 (2) Condition as to liahility of 
 
 applicant. 
 (iv) Allotment of shares to directors 
 for distribution. 
 
 (3) Notice of allotment. 
 
 ( i ) What notice sufficient. 
 (ii) Notice through post. 
 
 (4) Rescission of ultra vires allot- 
 ment, 
 
 (i) Agreement to take shares. 
 
 (1) What amounts to. 
 
 (2) Ri^ht of repudiation. 
 (c) Fully paid-up shares, 
 
 (1) Subscription of memorandum, 
 
 (2) Payment in bonds. 
 
 (3) Payment " in cash " within sec, 25 
 
 of the Companies Act, 1867. 
 
 (4) Transferee oj bonus shares, with 
 
 notice. 
 
COMPANY (A). 
 
 131 
 
 (5) Eeciification of register where con- 
 tract not registered, 
 (d) Contributories entitled to set-off. 
 («) Transfer of shares. 
 
 (1) Liability of person taking transfer 
 
 in name of infant. 
 
 (2) Right of transferee to indemnity. 
 (i) Implied contract by transferee. 
 (ii) Right against real purchaser 
 
 where transferee an infant. 
 
 (3) Effect of guaranty by transferor.. 
 
 (4) Purchase of shares in name of 
 
 trustee. 
 
 (5) Shares held in Joint names. 
 
 (6) Registration and validity of trans- 
 
 fers. 
 ( i ) Transfer or registration after 
 winding up, or calls being due. 
 ( ii) Misdescription and mistake. 
 (iii) Irregularity: directors inte- 
 rested. 
 (iv) Enforcement of equitable right 
 to be registered as share- 
 holder. 
 ( T ) Rules of Stock Exchange, 
 {f) Bankrupt contributory, 
 (g) Forfeiture of shares. 
 (A) Inability limited by contract. 
 (i ) Shares subject to lien by company. 
 (A) Preference shares, 
 {l ) Past members. 
 
 SI) Extent of their liability. 
 2) Debt to bank: appropriation of 
 
 (3) Transfer ib infant. 
 
 (4) I'ransfer more than a year before 
 
 (5) Application (^contributions of past 
 
 members. 
 
 (6) Relative rights of past and present 
 
 members. 
 
 (7) Affidavit by official liquidator : 
 
 compromises, 
 {m) Shareholder in foreign company, 
 (n) Distribution of surplus. 
 (o) Scire facias against shareholder. 
 (H) Cbeditobs. 
 
 (a) Proof qf debts. 
 
 (1) Secured creditors. 
 (i) Sight of proof . 
 
 (ii) Amount of proof : deductions. 
 
 (2) SUl holders. 
 
 ( i ) Acceptance by director pending 
 
 winding up. 
 (ii) Double proof . 
 (iii) Authority to accept bills. 
 
 (3) Bond holders : notice : equities. 
 
 (4) Debenture holders. 
 (6) Policy holders. 
 
 (6) Judgment creditors. 
 
 (7) Improper loan. 
 
 (8) Prospective claims -and claims for 
 
 damages. 
 
 (9) Proof by officer of company. 
 (10) Claim for professional services, 
 ^l.]!) Statuie of Limitations. 
 
 (12) Interest. 
 
 (13) Proof by nominee of company. 
 
 (i) Effect of winding-up order or ammlga^ 
 maiion on rights of creditors. 
 (I) Winding up. 
 (o) On petition. 
 
 (1) Right to order ex debito justitvB. 
 (i) Creditors. 
 
 (ii) Shareholders. 
 
 (2) Inability to winding-tip order. 
 ( i ) Number of members. 
 
 (ii) Company unable to pay debts. 
 (iii) Diluted debt. 
 
 (3) Benefit building society, 
 
 (4) Unregistered company, 
 
 (5) Railway company. 
 
 (6) Question of advantage. 
 
 (7) Demurrable petition : petitioner in 
 
 arrear of calls. 
 
 (8) Petition of debenture holder. 
 
 (9) Right to have petition dismissed. 
 
 (b) Jurisdiction. 
 
 (1) In voluntary winding up. 
 
 (2) Winding up under superuision .• 
 
 rights of single shareholder. 
 
 (c) Practice. 
 
 (1) Branch of Court: concurrent pro- 
 
 ceedings. 
 
 (2) Advertisement of petition. 
 
 (3) Service. 
 
 (4) Production of documents. 
 
 (5) Examination of mtnesaes. 
 
 (6) Evidence on heairing of summons. 
 
 (7) Enrolment of order, 
 {d) Liquidator. 
 
 (1) Appointment and removal. 
 
 (2) Powers. 
 
 (3) Liability to action by creditor. 
 
 (4) Costs of. 
 
 (e) Compromises and arrangements. 
 
 (1) Deed purporting to release debts. 
 
 (2) Compromises under sees. 160-163, 
 
 (3) Sale of assets abroad and release 
 
 of a class of contributories. 
 
 (4) Lien on shares. 
 (/) Costs. 
 
 (1) Priorities. 
 
 (2) How payable. 
 
 (3) Security for costs, 
 (.g) Effect of winding-up order. 
 
 (1) Staying execution or other pro- 
 
 (2) Leave to proceed.' 
 
 (3) Distress for rent. 
 
 (4) Protected transaction. 
 (6) Sequestration. 
 
 (6) lAen under previous agreement. 
 
 (A) Pkomotbe's Eights and Liabilities undeb 
 Contract. 
 
 1, — ^Wliere an agreement, entered into with the 
 
 promoter of a company for payment of expenses 
 
 incurred, -was recited in the articles of association 
 
 of the company: — Held, that the company had 
 
 s2 
 
132 
 
 COMPANY (A), (C). 
 
 adopted the agreement, and that the parties en- 
 titled could maintain a suit against the com- 
 pany and directors (of -whom the promoter was 
 one), and need not sue in the name of the pro- 
 moter. The agreement was conditional on the 
 company's being in a position to carry on their 
 undertaking before a certain day : — Held, that it 
 was not therefore contingent on their actually 
 commencing business. Toitche v. The Metropo- 
 litan Railway Warehousing Company, Law Eep. 6 
 Chano. 671. 
 
 2. — A provision in the articles of association of 
 a company incorporated under the Companies 
 Acts, 1862 and 1867, that preliminary expenses 
 shall be defrayed by the company, does not enable 
 the promoters to sue the company after its forma- 
 tion in respect of expenditure necessary for its 
 establishment; for no privity of contract exists 
 between it and the promoters. Melhado v. The 
 Porto Jlegre and New Hamburg and Brasilian 
 Railway Company, 43 Law J. Eep. (n.s.) C.P. 
 253 ; Law Eep. 9 C. P. 503. 
 
 3. — Persons subscribed to a scheme for the 
 purchase and resale of a. theatre. The association 
 was wound up. The subscriptions amounted to 
 over 5,000^., and were attached to a form ap- 
 pended to a prospectus which falsely stated that 
 out of 12,000Z. 5,000?. only remained for subscrip- 
 tion : — Held, that the promoters who issued the 
 prospectus were contributories to an extent pro- 
 portionate to the amount not subscribed for. In 
 re the Victoria Palace Theatre Syndicate, 43 Law 
 J. Eep. (n.s.) Chane. 751 ; Law Eep. 18 Eq. 661. 
 
 4. — M. agreed with a, patentee to purchase a 
 patent for 65,000?., to be paid in cash and shares, 
 and to form a company to work it. Two months 
 after he sold the patent to a trustee for a company, 
 which was then forthwith to be formed, for 
 125,000Z. to be paid in cash and shares mostly de- 
 fined. He became a director of the company. A 
 prospectus was issued, which disclosed the second 
 agreement but not the first. On the faith of this 
 prospectus G-. took shares, but as soon as she dis- 
 covered the first agreement she applied to have 
 her name removed from the register of members, 
 on the ground that the omission to disclose the 
 first agreement made the prospectus fraudu- 
 lent within the meaning of the 38th section of 
 the Companies Act, 1867 :— Held, that M. was 
 not proved to have been a "promoter" at the 
 time the first agreement was entered into ; and 
 that even if he had been the contract with the 
 company to take shares would not have been 
 avoided, and the only remedy of Gr. would have 
 been against M. In re the Coal Economising Gas 
 Company {Lim.); Ex "parte Crover, 44 Law J. Eep. 
 (n.s.) Chanc.'323; Law Eep. 20 Eq. 114 : affirmed, 
 on appeal, Law Eep. 1 Chanc. Div. 182. 
 
 5. — In adjusting the rights of contributories 
 under the 109th section of 25 & 26 Vict. c. 89, the 
 Court will not enforce an alleged contract of in- 
 demnity by promoters of a company. Considera- 
 tion how far a railway company is bound by a 
 representation made by its solicitor to persons 
 signing the subscription contract, that they would 
 not be called upon to pay unless the line was 
 
 made and opened. In re the Brampton and 
 Longtown Railway Company ; Adddson's case, Law 
 Bep. 20 Eq. 620. 
 
 (B) Pbospecttjs. 
 
 Liability of promoters for misre^egentation 
 or omission in prospectus. [See supra 
 A 3, 4.] 
 
 lAability of directors for the like. [See 
 infra D 25, 26.] 
 
 (C) Eeoistaation of Companies. 
 
 (a) Under Joint Stock Companies Acts, 1856 
 and 1857. 
 
 1. — ^By section 2 of the Joint Stock Companies 
 Act, 1856 (19 & 20 Vict. c. 47), it is enacted that 
 the Act shall not apply to persons associated to- 
 gether for the purposes of banking or insurance, 
 and by the 107th section, the Joint Stock Com- 
 panies Act of 1844 (7& 8 Vict. c. 110) is repealed; 
 but by the 20 & 21 Vict. e. 80, it is enacted that 
 that Act should not be deemed to have been re- 
 pealed as to companies already formed for the 
 purpose of carrying on the business of insurance 
 thereunder, or as to companies thereafter to be 
 formed for the said purpose: — Held, that the 
 Legislature had by this Act put a construction 
 upon the Act of 1856, and by sweeping out of 
 the repeal two classes of companies, had in effect 
 declared that as to all other associations the Act 
 was repealed. Therefore, an insurance associa- 
 tion formed as a common law partnership between 
 the passing of the Acts of 1 866 and 1857, and 
 never completely registered, not being within 
 either of the exceptions, was liable to be wound 
 up under 'the Companies Act, 1862, as an unre- 
 gistered company. In re the Bank of London and 
 National Insurance Association, and Companies 
 Acts, 1862 and 1867 ; Durham's Petition, 40 Law J. 
 Eep. (n.s.) Chanc. 562; Law Eep. 6 Chanc. 421. 
 
 2. — A foreign railway company and partner- 
 ship is not within the scope of the English Joint 
 Stock Companies Acts, 1866, 1857. Bulkeley v. 
 Schutz, Law Eep. 3 P. C. 764. 
 
 Therefore such a company need not be regis- 
 tered as one of limited liability. Ibid. 
 
 (6) Mutual insurance association. 
 
 3. — A mutual insurance association is an asso- 
 ciation for the acquisition of gain, so as to require 
 registration under the Companies Act, 1 862, if it 
 consists of more than twenty members. In re 
 the Arthur Average Association ; Ex parte Cory, 
 44 Law J. Eep. (n.s.) Chanc. 569 ; Law Eep. 10 
 Chanc. 642, iwm. Ex parte Hargrove ^ Co.. 
 
 Semble — that a company which ought to be 
 but is not registered under the Companies Act, 
 1862, is not an "unregistered company" that can 
 be wound up under section 199. Ibid. 
 
 A call having been made to answer debts found 
 by the chief clerk's certificate, the contributories 
 applied to vary the certificate. The application 
 was allowed, though six months had elapsed since 
 the certificate was filed. Ibid, 
 
COMPANY (C), (D). 
 
 (c) Company whose constitution is inconsistent with 
 the Act. 
 
 4. — After a company has been regularly regis- 
 tered under the Companies Act, 1862, although 
 it appear by the light of subsequent events, 
 coupled with the registered articles of association, 
 that its objects, or its constitution, are in truth 
 inconsistent with those intended by the Act of 
 Parliament to belong to companies registered 
 under the Act — so that it may even be surmised 
 that the incorporation of the company was colour- 
 ably or evasively obtained — ^the registration ought 
 not to be vacated, but the company, whether sol- 
 vent or insolvent, ought to be wound up. The 
 Princess of Bei(ss v. Bos (H. L.), 40 Law J. Eep. 
 (n.s.) Chanc. 665 ; Law Eep. 5 E. & I. App. 176. 
 
 There are no means by which such a company 
 can be got rid of, except by a winding-up under 
 the Act ; and the Court has jurisdiction to order 
 it to be wound up under the 79th section of the 
 Qompanies Act, 1862. Ibid. 
 
 (D) Manaobment and Constitution op 
 Company. 
 
 (a) Memorandum and articles of association. 
 
 1. — -The rights and powers of a company incor- 
 porated by registration under the Companies Act, 
 1862, are not in all respects such as are by com- 
 mon law inherent in corporations created other- 
 wise than under that Act, but are limited by re- 
 ference to the objects and purposes specified in 
 the memorandum of association as those for which 
 the company was established. The company ex- 
 ists only for those objects and purposes, and any 
 act done or contract made by the -company in 
 attempt to extend them, or which is at variance 
 with or goes beyond the scope of the memoran- 
 dum of association, is idtra vires of the company, 
 and absolutely void and incapable of ratification, 
 though the whole body of shareholders should 
 assent to such extension act or contract, and 
 although such extension, with such assent, may 
 be expressly contemplated by the articles of asso- 
 ciation ; for the office of the articles of associa- 
 tion is only to define and regulate the internal 
 management of the company and the duties of 
 the directors in carrying on its business. The Ash- 
 bury Railway Carriage and Iron Company {Lim.) 
 V. Biche (H.L.), 44 Law J. Eep. (n.s.) Exch. 185 ; 
 Law Eep. 7 E. & I. App. 653. 
 
 The articles of association may be varied by the 
 whole body of shareholders, so that an act ultra 
 vires of the directors under them may be autho- 
 rised or ratified if it be not ultra vires of the 
 company, that is to say, if it be within the scope 
 of the memorandum of association. Ibid. 
 
 The memorandum of association cannot be 
 varied, except in the particulars provided for by 
 the 12th section of the Act, with regard to the in- 
 crease or consolidation of capital or shares, or by 
 the 13th section, with regard to changing its name, 
 with the approval of the Board of Trade. Ibid. 
 
 General Words are to be taken and explained 
 with reference to the words which immediately 
 
 precede them, and with which they are connected 
 in sense. Therefore, where the memorandum of 
 association specified that a company was formed 
 to carry on the business of mechanical engineers 
 and general contractors, also to purchase, lease, 
 work and sell mines and minerals, lands and build- 
 ings, — Held, that the words, " general contractor," 
 were limited by their association with the words, 
 "■mechanical engineers," and only authorised the 
 making of such contracts as mechanical engineers 
 in the ordinary course of their business are in the 
 habit of making, and that the generality of the 
 words, " lands and buildings," was limited by 
 their connection with the words, "mines and 
 minerals," and- meant that the lands, &c., were 
 only to be acquired, &c., for purposes connected 
 with the mines or minerals, and did not autho- 
 rise the company to contract or pay for the con- 
 struction of a railway. Ibid. ■ 
 
 The memorandum of association of a company 
 incorporated under the Companies Act, 1862, 
 stated that it was formed for certain objects and 
 purposes. One of the articles of association of 
 the same company provided that the objects and 
 purposes specified in the memorandum might be 
 extended by a resolution passed at a general 
 meeting of the company : — Held, that this article 
 was wholly inoperative, and the directors having 
 entered into a contract for a purpose not speci- 
 fied by nor within the scope of the memoran- 
 dum of association, it was also held that it was 
 wholly immaterial whether any resolution had or 
 had not been passed authorising such an exten- 
 sion of its business as that contemplated by the 
 contract or ratifying the contract when made ; for 
 as the object of the contract was beyond the scope 
 of the memorandum of associatioii, the contract 
 itself was ultra vires of the company, wholly void, 
 and incapable of ratification, and that an action 
 brought upon it against the company could not be 
 sustained. Ibid. 
 
 Alteration of articles of association. [See 
 infra D 69, E 3, 8.] 
 
 (A) JimsdicUon of equity to vnierfere. 
 
 2. — The Court has no jurisdiction to compel 
 directors of a company to summon a general 
 meeting for any purpose connected with the ma- 
 nagement, where the company's articles contain 
 provisions for the summoning of such meetings. 
 Macdougall v. Gardiner, Law Eep. 10 Chanc. 606. 
 
 3. — Injunction and receiver granted to protect 
 the property of a company where disputes existed 
 between the members of the governing body of 
 such a nature as to prevent its afiTairs being pro- 
 perly carried on. The interference of the Court 
 in such a case will only be continued for the least 
 possible time. Featherstone v. Coo^e ; The Trade 
 Auxiliary Company v, Fickers, Law Eep. 16 Eq. 
 298. 
 
 [And see infra D 19.] 
 
 Jurisdiction to reot\fy register. [See infra 
 D 68-63.] 
 
134 
 
 COMPANY (D). 
 
 (c) Liability of company for acts of agent. 
 [And see infra, Officers, Directors.'] 
 
 (1) Contracts and agreements. 
 
 4. — By deed under seal P. entered into a con- 
 tract with the managing director of a company 
 (who had power to enter into contracts on behalf, 
 and for the benefit of the company) under which, 
 in consideration of certain assignments, the direc- 
 tor bound himself to pay a sum of money, but no 
 mention of the company was made in the deed, 
 although P. was well aware that the contract was 
 on their behalf and for their benefit : — Held 
 (affirming Stuart, V.O.), that P. had elected to 
 charge the director alone, and had no equity 
 against the company. In re the International 
 Contract Company, Law Eep. 6 Chane. 626. 
 
 5. — Where the managing director of a com- 
 pany, being aware that by agreement between the 
 company and the defendant, certain funds owing 
 to A. were to be appropriated to the payment of 
 a debt due from A. to the company for which the 
 defendant was surety to the company, procm-ed 
 payment out of such funds of a private debt owing 
 to such director from A. : — Held, that the com- 
 pany were not responsible for the act of their 
 managing director, as he was not acting within 
 the scope of his employment. McGowan ^ Co. 
 (Limited) v. Dyer, Law Eep. 8 Q. B. 141. 
 
 6. — An agreement for the sale of leaseholds 
 belonging to a company was signed by the secre- 
 tary on their behalf. It appeared from the me- 
 morandum of association that one of the objects 
 of the company was to sell houses : — Held, that 
 under section 37 of the Companies Act, 1867, the 
 secretary in signing was acting under the implied 
 authority of the company, and that the contract 
 satisfied the Statutes of Prauds. An allegation 
 that the secretary was the company's agent, held 
 sufficient allegation that he was their agent for 
 this special purpose. Semble — a contract by an 
 auctioneer for an undisclosed principal is Talid 
 under the Statute of Frauds. Beer v. The London 
 and Paris Hotel Company, Law Eep. 20 Eq. 412. 
 
 Liability for neglect of officer to register 
 bond. [See infra H 11.] 
 
 (2) Fraud by agent. 
 
 7. — An action of deceit will lie against an in- 
 corporated company for the fraud of their agent, if 
 the fraud of the agent is the fraud of the company, 
 and the company is benefited thereby. Mackay t.. 
 The Commercial Bank of Nm Brunswiclc, 43 Law 
 J. Eep. (n.s.) p. C. 31 ; Law Eep. 5 P. C. 894. 
 
 L., a merchant at New Brunswick, consigned 
 goods to the appellants at Liverpool. The appel- 
 lants accepted L.'s bills, sometimes for goods 
 received and sometimes on the guarantee of the 
 respondents, an incorporated banking company. 
 The appellants telegraphed to L. that certain of 
 these bills would not be accepted unless cer- 
 tain guarantees were remitted. The manager of 
 the bank telegraphed a reply, " Sent last mail, 
 L." This was true, but at this time L. had be- 
 come insolvent. The appellants accepted the 
 
 bills, and their acceptances were placed to the 
 credit of the respondents : — Held, that the re- 
 spondents were liable to make good the amount 
 of the bills so accepted. Ibid. 
 
 Liability of company for representation by 
 solicitor to persons signing subscrvption 
 contract. [See supra A 5.] 
 
 {d) 'Remedy agamtst company transgressing parlia- 
 mentary limits. 
 
 8.— Theplaintiffs and the defendants, two neigh- 
 bouring gas companies, were by their respective 
 Acts empowered to make and supply gas within 
 certain defined limits. The defendants proceeded 
 to supply gas to buildings beyond their own par- 
 liamentary limits and within those of the plain- 
 tiffs, who thereupon filed a bill to restrain the 
 defendants from so doing. The bill alleged that 
 by the unauthorised acts of the defendants, the 
 plaintifiTs would be deprived of the profits arising 
 from the sale of gas to the buildings illegally sup- 
 pUed or about to be supplied by the defendants, 
 and that great loss would be sustained by the 
 plaintiffs if such illegal acts were allowed to con- 
 tinue. A demurrer by the defendants for want 
 of equity was allowed, on the ground that the 
 bill had not alleged such a private injury as a 
 Com-t of Equity could take notice of, and that 
 the question of excess of parliamentary powers 
 could only be determined upon an information by 
 the Attorney-G-eneral. The Stockport District 
 Waterworks Company v. The Mayor, ^c, of Man- 
 chester (9 Jur. N.S. 266) followed. The Pudsey 
 Coal Gas Company v. The Mayor, ^c, of Bradford, 
 42 Law J. Eep. (h.s.) Chanc. 293 ; Law Eep. 15 
 Eq. 167. 
 
 (e) Officers. 
 
 9. — The manager of a company is not entitled 
 to sign the name of the partnership. So held in 
 the case of a manager appointed by trustees repre- 
 senting three-foxuTths of the property of the part- 
 nership. Beveridge v. Beveridge, Law Eep. 2 Sc. 
 App. 183, 
 
 10. — The appellant was appointed secre- 
 tary of a joint stock company, registered on 
 the 31st of July, 1872. Before the formation of 
 the company, the appellant had entered into 
 several contracts to enable the company to 
 acquire patents to carry out its objects, and he 
 was a contracting party to a subsequent agree- 
 ment, dated the 29th of December, 1872. He 
 called a general meeting of the directors which 
 was held on the 9th of December, 1872, and on 
 the 13th of January, 1874, he threatened to call 
 a general meeting. No general meeting was held 
 in the year 1873, and no list of members as 
 required by section 26 of 25 & 26 Vict. c. 89, was 
 forwarded during that year: — Held, first (per 
 Blackburn, J., and Lush, J. ; Quain, J., dissen- 
 tiente), that there was evidence upon which the 
 appellant might be held to be a "manager," liable 
 within the meaning of the 26th and 27th sections 
 for not forwarding the list of members. Secondly 
 (per Blackburn, J., and .Lvsh, J. ; Quain, J,, dis- 
 
COMPANY (D). 
 
 135 
 
 ^eniienie), that inasmuch as he did not take any 
 steps to call a general meeting in 1873, he could 
 not defend himself jigainst the information for not 
 forwarding the list, by saying that no meeting 
 had been held. Thirdly, that a general meeting 
 of the company ought to be held once in each 
 calendar year. Gibson v. Barton, 44 Law J. Eep. 
 (n.s.) M. C. 81 ; Law Eep. 10 Q. B. 329. 
 
 11, — ^Although a charge on the property of a 
 company is not made void by want of registration, 
 -yet no officer of the company having such a charge 
 can avail himself of it unless it is registered, as it 
 is his duty to see that every charge aflfecting pro- 
 perty of the company is registered. So held in the 
 case of a solicitor, only employed by the company 
 for a, particular purpose, and who had taken a 
 charge as security for his costs. /» re the Patent 
 Bread Machinery Co.; Ex partyValpy and Chaplin, 
 Law Eep. 7 Chanc. 289. 
 
 [And see infra HI.] 
 
 Liability of company in respect of acts of 
 managing director. [See supra I) 
 4, 5, and infra D 14.] 
 
 (/) Authority to enter appearance for trustee of 
 banking company. 
 
 12. — The deed of settlement of a banking com- 
 pany, provided that where property was Tested 
 in trustees, the directors should have power to 
 direct any actions or suits to be commenced or 
 defended on account of the property of the bank, 
 and to direct the necessary parties to such actions 
 and suits to <a.rry them on or defend them, and 
 that such parties should be indemnified :— Held, 
 that the solicitors of the bank were justified in 
 entering an appearance without his knowledge for 
 a trustee who had executed the deed, and who was 
 madeaco-defendant, by persons claiming adversely 
 to the bank. Heinrich v. Sutton, Law Eep. 6 
 Chanc. 220. 
 
 {g) Directors, 
 (1) Powers. 
 (i) As to funds of company. 
 13. — The governing body of a corporation, 
 which is in fact a trading partnership, cannot in 
 general use the funds of the community for any 
 purpose other than those for which they are con- 
 stituted, whether that governing body is exclu- 
 sively directors, or a council general, or the majority 
 at a general meeting of the company. Therefore 
 the special powers given either to the directors or 
 to a majority by the statutes or other constituent 
 documents of the association, are always to be 
 construed as subject to a paramount and inherent 
 restriction, that they are to be exercised in subjec- 
 tion to the special purposes of the original bond 
 of association. That is not a mere canon in the 
 English Municipal Law, but a great and broad 
 principle, which must be taken (in the absence of 
 proof to the contrary) as part of any given system 
 of jurisprudence. Pickering v. Stevenson, 41 
 Law J. Eep. (n.s.) Chanc. 493; Law Eep. 14 Eq. 
 322. 
 
 The costs of a prosecution for libel instituted 
 by the directors of a trading company are not pro- 
 perly payable out of the assets of the company. 
 Such payments will accordingly be restrained for 
 the future ; but it does not follow that the 
 directors will be ordered to repay past costs so dis- 
 charged by them. Ibid. 
 
 (ii) Purchases, 
 
 14. — The articles of association of a loan and 
 discount company gave the directors power to pur- 
 chase, with the company's moneys, the shares of 
 any shareholder, and also gave them power to ap- 
 point a general manager to perform such duties as 
 they might determine : — Held, that the power to 
 purchase shares, which was expressly given to the 
 directors themselves, could not be delegated by 
 them to the manager. Held also, that the ma- 
 nager could not, by implication, bind the company 
 by a contract to purchase shares, such an act not 
 being within the ordinary scope of the authority 
 of the manager of such a company. In re the 
 County Palatine Loan and Discount Co.{TAm.); 
 Cartmell's case, 43 Law J. Eep. (n.s.) Chanc. 588 ; 
 Law Eep. 7 Chanc. 691. 
 
 In 1871 the manager told one of the shareholders 
 that the company would purchase his shares. The 
 shareholder thereupon executed a transfer to two 
 trustees for the company. They, however, knew 
 nothing of the transfer, and had not authorised 
 the making of it. It was registered in the books 
 of the company, and thenceforth the transferor 
 was not treated as a shareholder, but received in- 
 terest on the purchase money, which he left on 
 deposit with the company. In 1873 the company 
 was ordered to be wound up : — Held, that the 
 transferor had not ceased to be a shareholder, and 
 that he was liable as a contributory. Ibid. 
 
 15. — Bill by a company in liquidation against 
 its surviving directors, and the executors of a 
 deceased director, seeking to make them liable for 
 all loss sustained by reason of their having pur- 
 chased the goodwill and undertaken the liabilities 
 of a bill-broking and money-dealing business, 
 which had tiirned out a losing concern. The bill 
 shewed that the directors were authorised by the 
 memorandum and articles of association to pur- 
 chase the business in question upon such terms 
 and under such stipulations as to guarantee 
 or otherwise as might be agreed upon, but alleged 
 that under the circumstances of the case the 
 directors ought not to have completed the trans- 
 action without the sanction of a general meeting, 
 and that they had in fact exercised their function 
 so imprudently, with such want of wisdom and 
 judgment, both in purchasing the business at all 
 and in not taking mortgages on the private pro- 
 perty of the vendors, that they ought to be fixed 
 with the consequences thereof. The bill raised 
 no implication of fraud, mala fides or personal 
 misconduct against the directors ; nor did it dis- 
 tinctly charge them with gross negligence i — Held, 
 afiSrming the judgment of the Lord Chancellor 
 (Hatherley), on demurrer by the executors of the 
 deceased director, that a bill could not be main- 
 tained in a Court of Equity for any loss beyond 
 
136 
 
 COMPANY (D). 
 
 the money which had passed into the directors' 
 hands ; that as the main object of the company 
 was to purchase a business necessarily of a hazard- 
 ous and speculative character, the charges in the 
 bill did not amount to such a breach of trust on the 
 part of the directors as to fix the estate of the de- 
 ceased director with liability for the loss which 
 had accrued. That the purchase of the business 
 being strictly intra vires of the directors, being in 
 fact the object for which they were called into 
 existence, they were not responsible for the ruin- 
 ous results of that purchase. That as the pro- 
 spectus was issued after the purchase, the liability 
 of the directors for having made the purchase was 
 not affected by any statements in the prospectus. 
 That the power to purchase under such stipula- 
 tions as to guarantee as might be agreed upon did 
 not imply that the directors were bound to take 
 mortgages on the property of the vendors. 
 Overend, Gurney ^ Co. (lAm.) v. CHbb (H.L.), 42 
 Law J. Eep. (n.s.) Chanc. 67 ; Law Eep. 5 E. & 
 I. App. 480. 
 
 (iii) As to contracts to take shares. 
 
 16. — By the 48th clause of the articles of 
 association, general powers of management were 
 given to the directors, including power to " alter, 
 rescind, or abandon contracts," and generally to 
 act as they thought fit for the benefit of the com- 
 pany. By another clause it was declared that the 
 company might, " with the sanction of a special 
 resolution previously given in general meeting," 
 decrease its capital by purcha,sing its own shares, 
 or cancelling unincreased shares, or postpone the 
 issue of shares. T., the secretary of the company, 
 agreed to take up 1,000 shares, "for the purpose 
 of providing money for the working of the con- 
 cern," 100 shares to be taken up per month. When 
 he had taken up 850 shares, the directors ivithout 
 the sanction of a general meeting agreed, in con- 
 sideration of his immediately resigning the secre- 
 taryship, to release him from his obligation to take 
 the remaining 150 shares : — Held, that they had 
 power to do so, and that T.'s name must not be on 
 the list of contributories in respect of the 150 
 shares. In re the Nantios Consols Mining Co.; 
 Thomas's Case, 41 Law J. Rep. (n.s.) Chanc. 365 ; 
 Law Eep. 13 Eq. 437. 
 
 17.— Directors having power to compromise 
 claims made against, or owing to, their company, 
 or to settle disputes arising between the company 
 and any other body or person, have power tocom- 
 promise a bond fide claim by a shareholder to be 
 removed from the list of contributories, and to 
 annul the allotment to him, provided the claim is 
 fairly a matter of dispute and no ulterior purpose 
 is sought to be accomplished by the compromise. 
 I>ixon V. Evans (H.L.), 42 Law J. Eep. (n.s.) 
 Chanc. 139 ; Law Eep. 5 E. & I. App. 606. 
 
 (iv) Powers individually. 
 
 18.-^The concurrence of directors in an act 
 which they are empowered to do may be given 
 separately and without any meeting of the 
 directors in one place. In r-e Bonelli's Electric 
 
 Co. (Li/m.'); Collins Claim, 40 Law J, 
 EepT (n.s.) Chanc. 567 ; Law Eep. 12 Eq. 246. 
 
 Therefore where the directors of a Telegraph 
 Company (limited) were empowered by the articles 
 of association to manage all the affairs of the 
 company, and amongst other things to sell any 
 property of the company, and to employ agents to 
 transact business relative to the objects of the 
 company at such remuneration as they should 
 think fit, and the company in general meeting 
 passed a resolution for the sale of their undertak- 
 ing to the government, and then all the directors 
 separately, and without any meeting or resolution 
 of the board, entered into an agreement with a 
 certain person to employ him as their agent in 
 negotiating the sale, and pay him for his services 
 a commission graduated in a rising scale, and 
 which, at the price for which the sale was ulti- 
 mately effected, amounted to 25 per cent, on that 
 price, — Held, that the agreement was valid and 
 binding on the company, and the agent was enti- 
 tled to his commission under it. Ibid. 
 
 (v) Inequitable use of powers. 
 
 19. — Where directors call the annual meeting 
 of a company earlier than usual, in order to dis- 
 qualify certain transferees of shares from voting, 
 the directors were restrained from calling the 
 meeting before the transferees were qualified. 
 Cannon v. Trask, 44 Law J. Eep. (n.s.) Chanc. 772 ; 
 Law Eep. 20 Eq. 669. 
 
 (2) LiaMlities. 
 (i) Personal liability under contract. 
 
 20. — The plaintiff lent money to a building 
 society, established under 6 & 7 WiU. 4. c. 32, 
 and received the following certificate — "LP. 
 Benefit Building Society. This is to certify that 
 E. has this day deposited the sum of 70Z. with the 
 I. P. Benefit Building Society, for a period of 
 three months certain, upon which interest at the 
 rate of 61. per cent, per annum will be allowed." 
 This certificate was signed "W., L. (the defen- 
 dants), directors." The plaintiff afterwards dis- 
 covered that the rules of the society did not em- 
 power it to borrow money, and sued the defen- 
 dants : — Held, the Court having power to draw 
 inferences of fact, that the defendants were per- 
 sonally liable, as the certificate amounted to a 
 warranty on their part that the society had power 
 to borrow money. Siohardson v. WUliamson, 40 
 Law J. Eep. (n.s.) Q,. B. 145 ; Law Eep. 6 Q,. B. 276. 
 
 21. — The plaintiff advanced money for the pur- 
 poses of a joint-stock company in which he was a 
 shareholder, and received a promissory note : 
 " We, the directors of the Isle of Man, &c., Co. 
 (limited), do promise to pay to John Button the sum 
 of 1,6001. sterling, with interest at the rate of," &c. 
 It bore the seal of the company, and was signed by 
 four directors. The plaintiff had stated that he 
 would lend the money to the directors only: — 
 Held, that the directors who signed the note were 
 personally liable upon it. Dutton v. Marsh, 40 Law 
 J. Eep. (n.s.) a. B. 175 ; Law Eep. 6 Q. B. 361. 
 
 [And see infra D 29, 50.]' 
 
COMPANY (D). 
 
 137 
 
 (ii) Liability for breach of trust. 
 22.— The infant children of W., a director of 
 a company, by their father's advice applied for 
 shares in the company which were allotted to 
 them, the amount due upon allotment being paid 
 by W. The -vrhole number of shares in the com- 
 pany was subscribed for. The company was aub- 
 sequently wound up, and the children, who at the 
 date of the winding-up order were still on the 
 register, were taken to have repudiated the shares 
 allotted to them: — Held, that W.'s conduct in 
 allowing the allotment of shares to his infant 
 children was a breach of trust within the meaning 
 of the 165th section of the Companies Act, 1862, 
 and that "W. was consequently liable to contribute 
 to the assets of the company by way of compensa- 
 tion for the loss sustained by the company by 
 reason of the non-payment of the calls by the 
 infant allottees. Also, that the fact that all the 
 other shares had been allotted was sufficient to 
 support the presumption that these shares would 
 have been taken by other persons, and conse- 
 quently that the company had sustained loss by 
 reason of their having been allotted to the infants. 
 In re the Crenver and Wheal Abraham United 
 Mining Company {Lim.), 42 Law J. Eep. (n.s.) 
 Chanc. 81 ; Law Eep. 8 Chanc. 45. 
 
 23. — Shares in a company which had no power 
 to hold shares were placed in the name of a di- 
 rector in trust for the company. He paid calls 
 on the winding up of the company; and he re- 
 covered contributions from those of his co-directors 
 who were privy to the facts. A director who 
 attended a meeting was held to be affected with 
 notice of a resolution confirmed at that meeting. 
 But a director who approved a transfer was held 
 to be not affected with notice of circumstances 
 relating to the transfer. Ashurst v. Mason and 
 Ashnrst v. Fowler, 44 Law J. Eep. (n.s.) Chanc. 
 3^7 ; Law Eep. 20 Eq. 226. 
 
 24. — ^A bill was filed by a shareholder in a 
 waterworks company, incorporated by Act of Par- 
 liament, on behalf of himself and the other share- 
 holders, except the defendants, against the com- 
 pany, the directors, and the promoters of a rival 
 bill, withdrawn in the session of 1874, alleging that 
 the withdrawal of the bill was the result of a 
 corrupt agreement (which was stated in the biU) 
 between the directors and the promoters ; that 
 the directors had paid to the promoters, out of 
 the funds of the company, the sum of S,600Z. in 
 pursuance of the agreement ; that the promoters 
 well knew that that sum was paid out of the 
 funds of the company, and the directors had no 
 authority to pay it ; and that no resolution was 
 ever passed at any meeting of the shareholders 
 authorising or confirming such payments ; and 
 charging that the sum of 5,500Z. was illegally 
 paid out of the funds of the company to the pro- 
 moters, with notice that the same was so paid to 
 them illegally and by a breach of trust, and that 
 they concurred therein ; and praying a declaration 
 that the agreement and the payment of the 5,600Z. 
 was not binding on the company ; that an account 
 might be taken of the moneys so paid, and that the 
 directors and promoters might repay the same, 
 Digest, 1870—1875. 
 
 with interest:— Held, on demurrer, that the bill 
 could not be sustained, for the company were the 
 proper plaintiffs in a suit to bring back the fund, 
 and it was not alleged that they refused to institute 
 a suit, or that there was anything to prevent their 
 doing so. Leave to amend was given. Russell v. 
 The WaJcefield Waterworks Company, 44 Law j. 
 Eep. (n.s.) Chanc. 496 ; Law Eep. 20 Eq. 474. 
 
 [And see supra D 15. 
 
 (iii) Liability for misrepresentation or omission 
 in prospeotiis. 
 
 25. — In proceedings in equity for damages, by 
 one who has been deceived to his own injury by 
 the misrepresentations of another, made in a pro- 
 spectus, the only amount of delay which is a bar 
 to relief is that fixed by the Statute of Limitations 
 as to actions for deceit at law. Peek v. Gurney 
 (H.L.), 43 Law J. Eep."(N.s.) Chanc. 19 ; Law Eep. 
 6 E. & L App. 377. 
 
 Non -disclosure of material facts, though a ground 
 for setting aside an allotment or purchase of shares, 
 is not a ground for an action for deceit or for pro- 
 ceedings in equity in the nature of such an action. 
 Ibid. 
 
 The office of a prospectus is to invite persons to 
 become allottees, and, the allotment having been 
 completed, such office is exhausted and the lia- 
 bility to allottees does not follow the shares into 
 the hands of subsequent transferees — Bedford v. 
 Bagshaw (4 Hurl. & N. 538 ; s. u. 29 Law J. Eep. 
 (n.s.) Exch. 59), and Bagshaw v. Seymour (18 
 Com. B. Eep. 903; s. c. 29 Law J. Eep. (n.s.) 
 Exch. 60, note), disapproved ; Scott v. Dixon (29 
 Law J. Eep. (n.s.) Exch. 62, note), and Gerhard v. 
 Bates (2 E. & B. 476 ; s. c. 22 Law J. Eep. (n.s.) 
 Ci.B. 364) distinguished. Ibid. 
 
 A company was formed for taking to a bill 
 broking business of long standing and high credit. 
 The prospectus stated that the good-will of the old 
 firm had been purchased for 500,000/., half to be 
 paid in cash, half in shares with 15/. per share 
 credited; and that the vendors guaranteed the 
 company against loss on the assets or liabilities 
 transferred. The liabilities of the old firm ex- 
 ceeded its bond fide assets by upwards of 4,000,000?., 
 or, including the value of the private estates of 
 the members of the old firm, by upwards of 
 2,000,000?. Upwards of 4,000,000?. of almost 
 hopelessly bad debts were entered in the balance- 
 sheet prepared by the old firm with a view to the 
 transfer as assets worth 20s. in the \l. By a deed 
 executed between the company and the old firm, 
 referred to in the prospectus, power was given to 
 the directors of the company to reserve such ac- 
 counts as they should think fit, to be wound un by 
 the old firm. And by a second deed which'was 
 executed soon after the prospectus was issued, 
 these bad or suspicious accounts were excepted 
 and were left for collection in the hands of the 
 old firm during three years and a half, at the end 
 of which time, if these accounts should have rea- 
 lised more than the 4,000,000?., the old firm was 
 to have the benefit of the excess, and if they rea- 
 lised less than the 4,000,000?. the old firm was to 
 T 
 
COMPANY (D). 
 
 make good the defieieney. In the meantime the 
 250,0002. cash, and the whole of the shares allotted 
 to the members of the old firm as the price of the 
 goodwill of their business, were to be held in sus • 
 pense : — • 
 
 Held, that this prospectus not only intentionally 
 concealed material facts, but also contained state 
 ments amounting to an actual misrepresentation, 
 for which the promoters who signed it would be 
 personally liable either at law or in equity to one 
 ■who, on the faith of the prospectus, had applied 
 for and obtained an allotment of shares in the 
 company. But Held, affirming the Master of the 
 EoUs, 41 Law J. Eep. (n.s.) Chanc. 436 ; Law Eep. 
 13 Eq. 79, that one who purchased shares in the 
 open market had no remedy against the promoters, 
 though he bought on the faith of the representa- 
 tions contained in the prospectus. Ibid. 
 
 One who took no part in the preparation or 
 issuing of the prospectus, but, with full know- 
 ledge of all the facts, consented to be a director 
 and allowed his name to remain unchallenged at 
 the foot of the prospectus, and signed the memo- 
 randum and articles of association which referred 
 to the prospectus was held as liable as the other 
 directors who prepared and issued the prospectus. 
 Ibid. 
 
 One of the directors having died before the suit 
 was instituted, — Held, that as the suit was, not 
 to recover profits derived by their testator or by 
 his estate, but to recover damages for the wrong 
 done by him, the suit could not be sustained 
 against the executors of such deceased director, 
 either in a Court of Equity or in a Court of Law, 
 on the principle actio personalis moritur cum per- 
 sona. Ibid. 
 
 Where the judgment of the Court below was 
 aflSrmed on appeal, though on totally different 
 grounds, the appeal was dismissed with costs. 
 Ibid. 
 
 Directors may not be liable to a criminal prose- 
 cution under 24 & 25 Vict. c. 96, s. 84, and yet 
 may be liable in a Court of Equity to indemnify 
 persons taking shares on the faith of representa- 
 tions made by them in a prospectus. Ibid. 
 
 26.— The 38th section of the Companies Act, 
 1867 (30 & 31 Vict. 0. 131), enacts that "every 
 prospectus of a company " " shall specify the dates 
 and names of the parties to any contract entered 
 into by the company, or the promoters, directors, 
 or trustees thereof before the issue of such pro- 
 spectus ;" " and any prospectus " " not specifying 
 the same shall be deemed fraudulent on the part 
 of the promoters, directors, and officers of the 
 company knowingly issuing the same, as regards 
 any person taking shares in the company on the 
 faith of such prospectus, unless he shall have had 
 notice of such contract." A declaration, after 
 alleging the defendant to have been director of 
 a certain corporation, and that before the issue of 
 the prospectus the promoters of the said corpora- 
 tion had entered into a contract with the defendant, 
 by which, in consideration of the defendant's name 
 appearing in the prospectus as such director, the 
 promoters were to pay him a certain sum, averred 
 that such contract was not specified upon the pro- 
 
 spectus, and that the defendant knew of the said con- 
 tract, and knowingly issued the prospectus with 
 fraudulent intent to induce the plaintiff to take 
 bonds of the said corporation ; and that the plaintiff 
 took such bonds on the faith of the said prospectus, 
 vrithout having had notice of the said contract; 
 and by reason of the aforesaid fraud of the de- 
 fendant the plaintiff lost the value of the said 
 bonds : — Held, that the declaration was bad as a 
 declaration on the 38th section, since that section 
 does not apply to the ease of a bondholder, and 
 that the declaration if treated as a declaration at 
 common law for a fraudulent representation, was 
 embarrassing, and likely to delay the fair trial of 
 the action, vrithin the meaning of section 52 of the 
 Common Law Procedure Act, 1862. Cornell v. 
 Torrens ; Same v. Haj/ ; Same v. Massey, 42 Law 
 J. Eep. (n.s.) C. p. 136 ; Law Eep. 8 C. P. 328. 
 
 Qusere— if section 38 of 30 & 31 Vict. c. 131, 
 gives a cause of action where a prospectus is issued 
 contrary to that section. Ibid. 
 
 (iv) Incapacity of director to 'profit by his 
 office. 
 
 27. — The rule that neither a director or other 
 person holding a fiduciary position with regard 
 to a company, nor any firm of which he is a mem- 
 ber, may derive profit from any contract with the 
 company, or from the employment of the com- 
 pany's funds in any matter in which he or his 
 firm has an interest, can only be set aside by ex- 
 press stipulation between the parties and on a 
 clear explanation of the fall extent and nature of 
 such interest. The Imperial Mercantile Credit 
 Association v. Coleman (H.L.), 42 Law J. Eep. 
 (n.s.) Chanc. 644 ; Law Eep. 6 E. & I. App. 189. 
 
 By one of the articles of association of the I. 
 company, it was provided that the oifice of a 
 director should be vacated if he should contract 
 or participate in the profits of any contract with 
 the company, or in the profits of any work done 
 for the company without declaring his interest, 
 and no director so interested should vote at any 
 meeting or on any committee of the directors on 
 any question relating to such contract or work. 
 C, who was a member of a firm of stockbrokers, 
 and also a director of the I. company, proposed to 
 sell to his company a contract for placing rail- 
 way debentures at a price considerably higher 
 than the price at which his firm had agreed to 
 place them for the railway company. At the 
 meeting of the directors, at which his proposal 
 was taken into consideration, he stated that he 
 had an interest in the sale of the debentures and 
 retired from the board-room ; but he did not state 
 distinctly either the nature or the amount of his 
 interest. The proposal was accepted, and C.'s 
 firm cleared a large profit out of the transac- 
 tion :— Held, that he and his firm must refund to 
 the company the whole of the profit derived by 
 him or them from the transaction, with interest 
 at four per cent. Ibid. 
 
 The decision of the Lord Chancellor (40 Law 
 J. Eep. (n.s.) Chanc. 262 ; Law Eep. 6 Chanc. 
 558) reversed. Ibid. 
 
 28. — A director of a company formed to pur- 
 
COMPANY (D). 
 
 139 
 
 chase certain oil-works received from the vendor 
 out of the purchase money paid under the oon- 
 ttact, -which was approved and carried out with 
 his concurrence, the sum of 1,000^. to pay up 
 shares for which he had signed the memorandum 
 of association. There was some question whether 
 the 1,000?. was paid under a previous general 
 agreement for his indemnity, or whether the 
 ^reement was only that his director's qualifica- 
 tion shoidd be found in vendor's fully paid-up 
 shares, hut afterwards, as an act of grace, the 
 vendor supplied the money to satisfy his liability, 
 when it was found that his subscription shares 
 must be paid in cash. The money was paid at 
 a board meeting, where cheques for 68,000?. were 
 handed to the vendor's agent on account of the 
 purchase money, the contract having been ap- 
 proved, and part of the purchase money paid some 
 time previously. The director in question joined 
 in signing all the cheques but one for 1,000?., 
 which being handed to the vendor's agent, was 
 then and there indorsed to the director, who paid 
 it into his hanking account, and next day drew a 
 cheque in payment of his shares : — Held, that in 
 either view of the doubtful circumstances, the 
 company could reclaim the money. In re the 
 Canadian OUworks Corporation; Ha^s case, 44 
 Law J. Eep. (n.s.) Chanc. 721 ; Law Eep. 10 
 Chanc. 593. 
 
 The director had subsequently paid for the 
 company's use a sum exceeding 1,000?., and, in the 
 winding up of the company, claimed a right of 
 set-off, — Held, that the company might elect to 
 treat the 1,000?. as their own, and say that the 
 shares paid up therewith were never paid at all. 
 Their present claim being thus for calls, no right 
 of set-off was allowed. Ibid. 
 
 (v) Liabilitr/ in respect of overdrawn banking 
 account. 
 
 29. — ^Directors of a company are not to be 
 held personally liable to find cash for cheques 
 drawn by them as officers of their company upon 
 the company's bank, and which the bank may 
 choose to honour when the company has no ftinds 
 at the bank. A letter written by such directors, 
 at a time when the company has funds at the 
 bank, requesting the bankers to honour cheques 
 of the company drawn in a particular manner, is 
 only an intimation not to treat cheques as cheques 
 of the company, unless signed in that manner ; it 
 is not any representation either of any authority 
 in the directors to overdraw the account or that 
 there will be ftinds forthcoming to answer the 
 cheques, and it does not imply any undertaking 
 on the part of any director signing it that he will 
 personally pay or be answerable for any cheques, 
 though drawn in that particular manner, if they 
 should not be paid by the company. Beattie v. 
 Ebury (H.L.), 44 Law J. Eep. (n.s.) Chanc. 20 ; 
 Law Eep. 7 E. & I. App. 103. 
 
 As neither the directors who signed such letter 
 nor those who, by cheques drawn in conformity 
 therewith, subsequently overdraw the account 
 incur any personal liability, so neither do such 
 directors as at subsequent meetings confirm the 
 
 letter, or acquiesce in the cheques drawn in con- 
 formity with it. Ibid. 
 
 Banters, to whom on such cheques large sums 
 were owing by a railway company, having ob- 
 tained a transfer to two of their number of pre- 
 ference shares, on which nothing had been paid, 
 as a collateral security for the advances made by 
 them, — Held, that as on the literal construction 
 of the correspondence which resulted in the trans- 
 fer there was nothing to shew that the shares 
 were to be fully or at all paid up, there was no 
 misrepresentation or liability on the part of the 
 directors to pay what was due upon the shares. 
 But that under the circumstances the bankers 
 were entitled to be relieved from liability in re- 
 spect of such shares, and to have their names 
 cancelled in the register of the shareholders of 
 the company. The House refused to delay the 
 order for payment by the appellants, the bankers, 
 of the respondents' costs until after their names 
 should have been taken off the register. Ibid. 
 
 Decision of the Court below (41 Law J. Eep. 
 (n.s.) Chanc. 804; Law Eep. 7 Chanc. 777) 
 affirmed. Ibid. 
 
 (vi) Liability for solicitor's costs. 
 
 30. — A director is not liable to his solicitor 
 for legal expenses incurred, by his company, nor is 
 a liquidator in a voluntary winding up. But a 
 director is liable for costs of defending a suit to 
 which he is made party as director, and for costs 
 of opposing a winding xip petition in his own 
 name. In re Trueman; Hooke v. Piper, 41 Law 
 J. Eep. (n.s.) Chanc. 585 ; Law Eep. 14 Eq. 278. 
 
 (3) lAaMlity of directors as shareholders. ■ 
 (i) Director's qualification. 
 
 31. — A special Act of Parliament forming a 
 company provided that there should be four 
 directors, and that the qualification of a director 
 should be the possession of twenty-five shares in 
 the company, and it named K. as one of the first 
 directors. K. signed the bill in parliament, which 
 subsequently passed as the Act, but never applied 
 for nor had allotted to him any shares in the 
 company : — Held, in the winding up of the com- 
 pany, that K. was a contributory to the extent of 
 twenty-five shares. In re the North Kent Railway 
 Extension Co, (Lim.); Kincaid^s case, 40 Law J. 
 Eep. (n.s.) Chanc. 19 ; Law Eep. 11 Eq. 192. 
 
 32. — A person who accepts the office of direc- 
 tor of a public company, and acts in that capacity, 
 will he held to have contracted to take the mini- 
 mum number of shares which constitute a direc- 
 tor's qualification. In re the Great Oceanic 
 Telegraph Company {Limited); Harward's case, 
 41 Law J. Eep. (n.s.) Chanc. 283 ; Law Eep. 13 
 Eq. 30. 
 
 The name of H. was advertised as a director 
 of a public company, he attended a meeting of 
 directors at which a committee was appointed, who 
 subsequently allotted to him fifty shares, being 
 the number required by the articles of association 
 as a director's qualification, and he signed a 
 cheque as a director; but ho never otherwise 
 T 2 
 
140 
 
 COMPANY (6). 
 
 acted as a director and never applied for shares 
 or received notice of the allotment to him; — ■ 
 Held, that H. must be considered as having ap- 
 plied for and contracted to take the number of 
 shares constituting a director's qualification, and 
 that consequently he -was a shareholder, and 
 must be placed upon the list of contributories in 
 respect of fifty shares. Ibid. 
 
 33. — The name of an acting director qualified 
 by an allotment to him of fifty shares as fully 
 paid was removed from the list of contributories 
 on the ground that the payment was really collu- 
 sive, and only by means of fictitious cheques. In 
 re the Empire Assurance Corporation ; Leeke's case, 
 40 Law J. Kep. (n.s.) Chanc. 264 ; Law Eep. 6 
 Chanc. 469. 
 
 34. — The subscribers of the memorandum of a 
 limited company passed a resolution allotting to 
 F. and others twenty-five shares each (the direc- 
 tor's qualification), and appointed them directors. 
 F. attended the next board meeting, and a few 
 days later applied for twenty shares. On the 
 company being wound up, he was put on the list 
 of contributories for forty-five shares. He stated 
 that he applied for the shares as his director's 
 qualification, which he knew to be 500^ worth of 
 shares, but thought it was twenty 261. shares, 
 and not twenty-five 20Z. shares ; and that he did 
 not know till some time after of the previous 
 allotment of twenty-five shares. He was willing 
 to remain on the list for five of the twenty-five 
 shares, so as to make twenty-five in all : — ^Held, 
 that he was a contributory in respect of the 
 whole number. In re the British and Americcm 
 Telegraph Company; Fowler's case, 42 Law J. 
 Eep. (n.s.) Chanc. 9 ; Law Eep. 14 Eq. 316. 
 
 35. — The first directors of a company registered, 
 under the Companies Acts, 1862and 1867, without 
 any articles of association, were named in the 
 memorandum of association. Before any ordinary 
 general meeting of the company had been held, 
 and within four months from the registration of 
 the company, two extraordinary general meetings 
 were held, at which special resolutions were 
 passed, postponing the first ordinary general meet - 
 ' ing of the company for three years, and providing 
 that the "future qualification" of a director 
 should be the holding so many shares in his own 
 right ; — Held, that the provision as to the direc- 
 tors' qualification did not affect the existing 
 directors, who continued subsequently to act as 
 such, so as to put them under any liability to take 
 shares. The word " qualification " means require- 
 ment at the time of election. In re the La Mancha 
 ■ Irrigation and Land Company (Lim.) ; In re 
 Hamilton, 42 Law J. Eep. (n.s.) Chanc. 465 ; Law 
 Eep. 8 Chanc. 548. 
 
 Semble —It is not required by the law that a 
 director of a company registered under the Com- 
 panies Acts, 1862 and 1867, should hold any shares 
 in the company. Ibid. 
 
 36. — In March, 1865, G. was asked to become 
 a director of a company. He then attended 
 three board meetings of the directors, and his 
 name was entered in the minute book as attend- 
 ing, but he alleged he merely came as a yisitor, 
 
 and to see how the company was managed. He 
 allowed a prospectus to be issued on which his 
 name appeared as a director. In May, 1865, he 
 wrote to the secretary, requesting that his name 
 might be withdrawn, and though he afterwards 
 acted for the company as auctioneer, he never 
 again interfered as director. No shares were 
 allotted to &., and his name did not appear on the 
 register of members. In 1870 the company was 
 ordered to be wound up. In July, 1873, the 
 oflB.cial liquidator, for the first time, fixed G. on 
 the list of contributories, in respect of twenty 
 shares, the number required by G. for his qualifi- 
 cation as director : — Held, that having regard to 
 the lapse of time, and as G. had entered into no 
 actual contract to take shares his name was im- 
 properly placed upon the list. In, re the Freehold 
 and General Investment Company {Lim.) ; Green's 
 case, 43 Law J. Eep. (n.s.) Chanc. 629 ; Law 
 Eep. 18 Eq. 428. 
 
 37. — By articles of association of a joint stock 
 company the qualification for a director was fixed 
 at fifty shares. The promoter of the company 
 applied to B. to become a director, and promised 
 to provide his qualification out of some fully paid 
 up shares to which the promoter was entitled. B. 
 consented and was appointed a director, and took 
 his seat at the board. The promoter then 
 requested the directors to allot to B. fifty of the 
 promotion shares, which was done, the shares 
 being entered in the register as fully paid up. 
 B. never had any other shares. On the winding 
 up of the company, — Held, affirming the decision 
 of "Wickens, V.C., that no contract to take shares 
 other than the fully paid-up shares registered in 
 his name could be inferred from B.'s acceptance 
 of the office of director, and therefore he was not 
 liable as a contributory. Leeke's case (40 Law J. 
 Eep. (n.s.) Chanc. 172, 254; Law Eep. 11 Eq. 100, 
 ■6 Chanc. 469) explained. In re the Metropolitan 
 Public Carriage and Repository Company {Lim.') ; 
 Brown's case, 43 Law J. Eep. (n.s.) Chanc. 153 ; 
 Law Eep. 9 Chanc. 103. 
 
 38. — By the private Act of a Eailway Com- 
 pany (with which the Companies Clauses Act, 
 1835, was incorporated) it was enacted that certain 
 persons mentioned nominatim in the Act, and all 
 other persons and corporations who had already 
 subscribed or should thereafter subscribe to the 
 undertaking, should be united into a company ; 
 that the directors should be six in niunber ; that 
 the qualification of a director should be the 
 possession of fifty shares ; that the persons 
 specified by the Act and one other should be the 
 first directors ; and that at the first ordinary 
 meeting of the company the shareholders might 
 elect new directors, or continue in office the direc- 
 tors appointed by the Act, such directors being 
 " if qualified " eligible for re-election. A. was one 
 of the persons mentioned in the Act. He never 
 applied for any shares in the company, nor 
 had he any allotted to him, nor did he pay 
 any money on account of a share. He was 
 not re-elected a director at the first ordinany 
 meeting, nor had anything to do with the company 
 after that date, The company was ordered to be 
 
COMPANY (D). 
 
 141 
 
 wound up : — Held, that there was no difference 
 between this case and In re the North Kent Bail- 
 way Extension Company ; Kinoaid!s case (40 Law 
 J. Eep. (n.s.) Chanc. 19 ; Law Eep. 11 Eq. 152 ; 
 No. 31 supra) ; and that A. was a contributory in 
 respect of fifty shares. In re the Teme Valley 
 Baliway Company; Forbes' case, 44 Law J. Eep, 
 (n.s.) Chanc. 366 ; Law Eep. 19 Eq. 353. 
 
 39. — Articles of association of a limited com- 
 pany provided that K. and two other persons 
 should be the first directors of the company, that 
 the qualification of a director should be the hold- 
 ing of fifty shares, and that the office of a director 
 should he vacated if he ceased to hold the pre- 
 scribed number of shares. K. signed the memo- 
 randum of association for ten shares, and also 
 signed the articles of association. The prospectus 
 of the company was published, containing K.'s 
 name in the list of .directors, but within three 
 days after piiblication he gave to the secretary 
 written notice of his withdrawal from the com- 
 pany, on the ground of misrepresentations of its 
 character and objects made by the promoter, and 
 he never acted as a director, nor applied for shares, 
 nor had any shares allotted to him. The company 
 was ordered to be wound up ; and on an applica- 
 tion by the official liquidator that K. should be 
 settled on the list of contributories for fifty shares, 
 including the ten shares for which he signed the 
 memorandum of association, — Held, that the mere 
 acceptance of the office of a director did not 
 amount to a contract to- take shares from the 
 company, but that he was entitled to a reasonable 
 time to qualify himself, and that having retired 
 without acting as a director before the reasonable 
 time for qualifying himself had expired, he must 
 be placed on the list of contributories for ten 
 shares only. In re the Pelotas Coffee Company ; 
 Karuth's case, 44 Law J. Eep. (n.s.) Chanc. 622 ; 
 Law Eep. 20 Eq. 506. 
 
 40. — ^Where directors of a company adopted 
 an agreement for the purchase of property from 
 "W., partly in cash, and partly in fully paid-up 
 shares, and after completion of the contract each 
 of them accepted on the nomination of W., the 
 vendor, an allotment of 30 paid-up shares (being 
 a director's qualification) : — Held, that the trans- 
 action was the same as if the shares had been 
 allotted to W., and transferred by him, and that 
 whatever might be the liability of the directors 
 for breach of trust under 25 & 26 Vict. c. 89, s. 
 165, or otherwise, they could not be fixed as con- 
 tributories in respect of unpaid shares. Decision 
 of the M. E. (Law Eep. 20 Eq. 580) reversed. In 
 re the Western Canada Oil Company; Curling, Hes- 
 peler and Walsh's cases, 45 Law J. Eep. (n.s.) 
 Chanc. 5; Law Eep. 1 Chanc. D. 115. 
 [And see infra G- 3."] 
 
 (ii) Payment for shares. 
 
 41. — The Companies Act, 1862, contains 
 nothing to countenance the notion of anything 
 but "money" being a satisfaction of the limited 
 liability. In re the Empire Absm anae Corporatimi 
 {Lim.) ; The case of " The Executors of Leehe" 40 
 
 Law J. Eep. (n.s.) Chanc. 172 ; Law Eep. 11 Eq. 
 100: affirmed, on appeal, 40 Law J. Eep. (n.s.) 
 Chanc. 254 ; Law Eep. 6 Chanc, 469, 
 
 The name of an acting director, qualified by an 
 allotment to him of fifty shares, as fally paid up, 
 was removed from the list of contributories on 
 the ground that the payment was really collusive, 
 and only by means of fictitious cheques. Ibid, 
 
 42. — Articles of association provided that each 
 director should hold at least twenty-five shares of 
 102. each ; and that all the shares in the company 
 should be fally paid-up. The directors were 
 empowered to purchase the business of D. for 
 170,0002. in fully paid up shares. At the request 
 of D. eight persons agreed to become directors, on 
 condition that the shares necessary for their 
 qualification should be provided by D. The 
 directors agreed to purchase the business of D, 
 for 168,0002, in shares, and 2,0002, in cash, D, 
 drew eight cheques for 2502. each, and delivered 
 them to the respective directors, who handed 
 them to the secretary as payment in full for their 
 shares. The company delivered the cheques back 
 again to D., in payment of the 2,0002. cash, part 
 of the purchase money. The company having 
 been wound up, — Held, that this arrangement 
 was nugatory, and that the directors were share- 
 holders who had paid nothing on their shares, and 
 were contributories on that footing. In re Bisderi 
 ^ Company, 40 Law I. Eep, (n.s.) Chanc. 248; 
 Law Eep. 11 Eq. 242, 
 
 43. — The directors of a company by the 
 articles of association were empowered to receive 
 payments in advance of calls, and were to be paid 
 a certain amount for their fees. The company 
 fell into a state of utter insolvency, and the direc- 
 tors knowing this, in order to get rid of their 
 liability on shares not fully paid up held by them, 
 passed a resolution authorising any director to pay 
 calls in advance. Under this resolution the direc- 
 tors from time to time paid to the account of the 
 company large sums purporting to be advances 
 on calls, and immediately afterwards they drew 
 against these sums for their fees. The company 
 was afterwards wound up. Upon summons by 
 the official liquidator to enforce a second payment 
 of the calls purported to have been paid under 
 this arrangement, —Held, that the arrangement 
 being a contrivance only for the benefit of the 
 directors could not stand, the pretended payments 
 in anticipation of calls were invalid, and the calls 
 must be enforced. M re the European Central 
 Railway Company ; SyJces' case, 41 Law J, Eep, 
 (n,s,) Chanc, 251 ; Law Eep. 13 Eq, 255. 
 
 44. — A,, a director of a company, had taken 
 shares in the company in order to obtain a certain 
 agreement as to freight. The agreement was 
 beneficial to A,, but at the end of two years the 
 company, which was then in difficulty, foimd the 
 agreement onerous and entered into another agree- 
 ment with A, that the first agreement should be 
 annulled in consideration of a payment to A, of 
 1,8002. in cash, 2002._by a bill, and 10,0002. in 
 shares, the shares being subject to a condition 
 under which, in the events which happened, they 
 were never issued. The 1,8002, was paid by credit- 
 
142 
 
 COMPANY (D). 
 
 ing that sum to the shares held by A, and his 
 friends in the books of the company, thereby 
 making all their shares in the company fully paid 
 up. Two months after the second agreement a 
 petition -was presented for winding up the com- 
 pany, and subsequently an order for winding up 
 was made on this petition :— Held, that the second 
 agreement amounted to a payment in cash within 
 the meaning of section 25 of the Companies Act, 
 1867, and that there was no further liability upon 
 the shares. In re the Paraguassu Steam Tramroad 
 Company {Lim.), Adamson's case, 44 Law J. Eep. 
 (n.s.) Chanc. 125 ; Law Eep. 18 Eq. 670. 
 
 (h) Borrowing powers. 
 
 45 .■ — A company in difficulties, but not in the 
 immediate prospect of a winding up, deposited 
 the deeds of some freehold property with their 
 bankers, to secure their current account, then 
 largely overdrawn. They afterwards continued 
 to draw upon their account, and to pay in moneys 
 for a period of two months until the bank stopped 
 payment. The company resolved upon a voluntary 
 winding-up rather more than six months after the 
 transaction : — Held, that the mortgage was valid. 
 In re the Patent File Company {Lim.), The Bir- 
 mingham Banking Company's Claim, 40 Law J. 
 Eep. (n.s.) Chanc. 190; Law Eep. 6 Chanc. 83. 
 
 The articles of association provided that the 
 company might, with the sanction of a general 
 meeting, borrow money not exceeding in amount 
 one half of the nominal capital, upon mort- 
 gage : — Held, that the express power did not 
 negative the general power, the rule being that a 
 company may mortgage its property unless ex- 
 pressly prohibited by its articles from so doing. 
 Ibid. 
 
 46. — It was provided by the articles of associa- 
 tion of a limited company that the directors might, 
 from time to time, borrow, on behalf of the com- 
 pany, any sum of money not exceeding -one half 
 of the nominal capital, for the time being, of the 
 company, and might secure the repayment thereof, 
 or raise any money authorised to be borrowed by 
 them by mortgage of the undertaking, or by the 
 issue, on behalf of the company, of debentures, 
 promissory notes or bills of exchange, or in such 
 manner as the directors deemed expedient : — Held, 
 that the directors were thereby authorised to 
 raise money by the issue of debentures at a dis- 
 count. In re the Anglo-Banwbian Steam Naviga- 
 tion Company; Ex parte the International Financial 
 Association, 44 Law J. Eep. (n.s.) Chanc. 502 ; 
 Law Eep. 20 Eq. 339. 
 
 47. — Where contemporaneous documents can 
 be read in two ways, in one of which they appear 
 consistent and in the other inconsistent, the con- 
 struction is to be preferred which will render 
 them consistent. In re the Fhmnia: Bessemer 
 Steel Company, 44 Law J. Eep. (n.s.) Chanc. 683. 
 
 If one of two contemporaneous documents is 
 ambiguous in its terms, and the other ' is clear, 
 force is to be given to the document whose terms 
 are clear, so as to interpret the one containing 
 ambiguous terms. Ibid. 
 
 The memorandum of association of a limited 
 
 company stated one of the objects of the company 
 to be the raising of money for the purposes of the 
 company upon mortgage or charge of any property 
 of the company, or upon the debentures, bonds, 
 bills, notes, or any other security of the company, 
 and the articles gave express power to mortgage 
 future calls : — Held, to authorise a mortgage of 
 future calls. Ibid. 
 
 48. — A charge on future book-debts, under a 
 power to mortgage the property of a company, 
 was upheld. Blooms v. 2'A« Union Coal and 
 Iron Company, 43 Law J. Eep. (n.s.) Chanc. 96 ; 
 Law Eep. 16 Eq. 383. 
 
 49. — The deed of settlement of a joint-stock 
 company gave power to the directors to mortgage 
 the " property " of the company : — Held, that 
 such power did not enable the directors to charge 
 the unpaid capital of the company. The Bank of 
 South Australia v. Abrahams, 44 Law J. Eep. (n.s.) 
 P. C. 76 ; Law Eep. 6 P. C. 662. 
 
 [And see infra HI.] 
 
 (i) Debentures. 
 
 50. — The directors of a railway company which 
 had exhausted its statutable powers of borrowing 
 money on debentures, published an advertisement 
 in which they stated they were prepared to receive 
 proposals for loans on debentures of the company 
 "to replace loans falling due," the intention of 
 the directors being to apply the money so raised 
 in discharge of an equal amount of the then exist- 
 ing debentures. In consequence of such adver- 
 tisement "W. offered to lend SOOZ. on the debentures 
 of the company. The directors accepted such 
 offer and promised to issue a debenture to him 
 when he was prepared with the money. On the 
 faith of this W. paid the 500Z., and the directors 
 gave the money to H., who had held debentures 
 of the company, and directed him to transfer a 
 debenture for 500?. to "W., but H. kept the money 
 without transferring any debenture, upon which 
 the directors issued a new debenture of the com- 
 pany in favour of W., but which was not binding 
 on the company as it was in excess of its borrow- 
 ing powers : — Held, that on these facts the direc- 
 tors were to be deemed to have given "W. a 
 warranty that they had power to issue a debenture 
 to him which was binding on the company, and 
 they were therefore personally liable for the 
 breach of such warranty. Weeks v. Fropert, 42 
 Law J. Eep. (n.s.) C. P. 129 ; Law Eep. 8 C. P. 
 427. 
 
 51. — A company incorporated under the Com- 
 panies Act, 1862 (25 & 26 Vict. c. 89), issued a 
 debenture under the seal of the company, and 
 countersigned by two of the directors and the 
 secretary. Ey it the company promised, subject 
 to conditions indorsed, to pay to the bearer the 
 sum of lOOZ. upon the 1st of May, 1872, or upon 
 any earlier day Upon which it should be entitled 
 to be paid off or redeemed according to the con- 
 ditions. Bythe conditions the company contracted 
 not only to pay the money, but also to cause a 
 portion of the debentures to be drawn in a stipu- 
 lated manner. Of late years a custom of trade 
 
COMPANY (D). 
 
 US 
 
 had prevailed to treat such bonds as negotiable 
 instruments : — Held, that the debenture was not 
 a negotiable instrument, and that therefore where 
 it had bgen stolen from the owner, no action could 
 be maintained upon it against the company by a 
 person who claimed through the thief. Oroitch v. 
 The Credit Fonder Company, 42 Law J. Eop. 
 (n.s.) Q. B. 183 ; Law Eep. 8 Q. B. 374. 
 
 issue of debentures at discount. [See supra 
 D46.] 
 
 {k) Aots ultra vires. 
 (1) Contracts and agreements. 
 
 52. — An agreement between companies A. and 
 B. (neither being registered under the Companies 
 Act, 1862) for the transfer of the business of A. 
 to B., although wholly ultra vires of company A. 
 under its deed of settlement, may be carried out 
 by registering company A. under that Act, and 
 then passing resolutions for a voluntary winding 
 up, and directing the liquidator to adopt the 
 agreement. Southall v. The British Mutual Life 
 Assurance Society, 40 Law J. Rep. (n.s.) Cbano. 
 97 ; Law Eep. 11 Eq. 65 : affirmed, on appeal, 40 
 Law J. Eep. (n.s.) Chanc. 698 ; Law Rep. 6 Chanc. 
 614. 
 
 53. — The W. Company being formed for the 
 purpose of making wharves, &c., covenanted by 
 deed with the I. company, formed for the purpose 
 of contracting for public works, that the latter 
 company should construct the works, and should 
 have the privilege of nominating future directors 
 on the board of the W. Company, and the I. 
 Company agreed to perform the works, also to pay 
 until the works were finished seven per cent, on 
 the capital from time to time paid up by the 
 shareholders in the W. Company. The I. Com- 
 pany was to act as bankers for the W. Company, 
 and all moneys received by the "W. Company were 
 to be paid to the I. Company, which company was 
 to render a monthly account of all moneys paid 
 by it by direction and on account of the "W. 
 Company, and the "W. Company was to repay such 
 moneys, together with a commission of thirty-five 
 per cent, thereon. Both companies came to a 
 winding-up before the contemplated works were 
 commenced. But the I. Company received 
 72,000?. from the W. Company, and paid 60,000Z. 
 to the order of this company for the purchase of 
 land : — Held, that the I. Company was not entitled 
 to the commission of thirty-five per cent, on the 
 60,0002. paid to the order of the W. Company, for 
 the whole deed was void, the W. Company having 
 no power to allow another company to nominate 
 its directors : — Held also, that the provision as to 
 paying interest on the paid-up capital was illegal, 
 was equivalent to a paying of dividends out of 
 capital, and that the I. Company was not entitled 
 to recover from the W. Company the amount of 
 interest it had actually paid to tte "W. shareholders 
 under that provision. James v. Eve (H. L.) 42 
 Law J. Eep. (n.s.) Chanc. 793 ; Law Eep. 6 E. & 
 I. App. 335. 
 
 64. — ^Where during negotiations for, and with 
 a view to the carrying out of, an amalgamation 
 
 between two companies, a shareholder in the com- 
 pany whose business is to be transferred applies 
 through that company for shares in the transferee 
 company, and the transaction ultimately fails of 
 completion, there the applicant does not become a 
 contributory to the transferee company. But it is 
 otherwise where the shareholder makes a personal 
 application for shares in the transferee company. 
 In re the Empire Assurande Corporation (Lim.); 
 Dr. Dougan's case, 42 Law J. Eep. (n.s.) Chanc. 
 460 ; Law Eep. 8 Chanc. 540. 
 
 A power given to a special general meeting of 
 a company " to sell, dispose or otherwise deal 
 with" the business, &c., of the company, does not 
 authorise a transfer of the business to another 
 company upon the terms of ail exchange by the 
 members of the transferring company of their 
 shares in that company for shares in the transferee 
 company. Ibid. 
 
 55. — A resolution to sell a company's business 
 under section 161 of the Companies Act, 1862, in 
 consideration of shares in another company, must 
 be an agreement to sell to such other company 
 itself ; and, therefore, an agreement to sell to an 
 individual in consideration (in part) of shares in a 
 company he intends to form is ultra vires, even if 
 such agreement is intended to be followed by a 
 resolution to wind up, and a fortiori if it is not. 
 Bird V. Bird's Patent Sewage Company, 43 Law J. 
 Eep. (n.s.) Chanc. 399; Law Eep. 9 Chanc. 358. 
 
 Amalgamation ultra vires. [See infra E 1-4.] 
 
 (2) Satijication by shareholders. 
 
 56. — The directors of a limited liability com- 
 pany, incorporated under the Companies Act, 1862, 
 entered, on behalf of the company, into contracts 
 with E., which were ultra vires and beyond the 
 scope of the memorandum of association : — Held, 
 per Blackburn, J., Brett, J., and Grove, J. (affirm- 
 ing the judgment of the Court of Exchequer), that 
 as the contracts, athough unauthorised, were not 
 expressly or impliedly prohibited by the memo- 
 randum and the statute, they were capable of 
 ratification by the unanimous shareholders. Per 
 Archibald, J., Keating, J.,' and Quain, J. (dissen- 
 tientes), that the contracts being ultra vires of. 
 the company were incapable of ratification. Biche 
 V. The Ashbury Bailway Carriage and Iron Com- 
 pany, Lim. (Excb. Ch.), 48 Law J. Rep. (n.s.) 
 Exch. 177; Law Eep. 9 Exoh. 224. 
 
 57.— Where directors of a company accepted 
 and cancelled the shares of a shareholder, in a 
 manner which was ultra vires as amounting to a 
 purchase of the shares, and afterwards at a gene- 
 ral meeting of the company the fact that the shares 
 had been " forfeited " was mentioned to the share- ' 
 holders and published in a circular, and the books 
 of the company were open for inspection, but no 
 objection was made : — Held, that the shareholders 
 had ratified the directors' acts and could not open 
 the transaction anew after profiting by the in- 
 creased dividend arising therefrom. Where a 
 shareholder has the means of knowing that direc- 
 tors have acted ultra vires, and makes no objection, 
 he will be held bound by their acts. The Phos- 
 
144 
 
 COMPANY (D). 
 
 phaie of Lime Company v. Green, Law Eep. 7 
 C.P. 43. 
 
 [And see supra D 1.] 
 
 {I) Register of shares. 
 (1) Bectificaiion of register. 
 
 58. — ^Where directors in the exercise of a dis- 
 cretionary power have refused to register a transfer 
 of shares, the Court will not compel them to give 
 the reasons for their refusal unless the existence 
 of some improper motive is alleged and proved 
 against them ; and the onus of such proof lies on 
 the transferring shareholder. The jurisdiction of 
 the Court to rectify a register under the Companies 
 Act, 1862, s. 35, is general, but the exercise of it 
 is discretionary. Order of the Master of the EoUs 
 reversed. In re the Gresham Life Assurance 
 Society ; Penneifs Case, 42 Law J. Eep. (n.s.) 
 Chanc. 183 ; Law Eep. 8 Chanc. 446. 
 
 59. — A company issued fully paid-up shares as 
 part of the consideration under a contract, before 
 the registration of the contract. Upon proof that 
 the persons to whom the shares were issued did 
 not know at the time of issue that the contract 
 had not been registered, the register of share- 
 holders of the company was ordered to be rectified 
 by striking out their names to the intent that the 
 shares might be validly re-issued to them as fully 
 paid-up shares. In re the New Zealand Kapanga 
 Chid Mining Com/pany {Lim.) ; Ex parte Thomas, 
 42 Law J. Eep. (n.s.) Chanc. 781. 
 
 60. — Where there is no reason to the contrary 
 under the articles of association of ■>■ company, it 
 is the duty of directors to receive and register 
 transfers at once, and this, although the object of 
 the transfers is to distribute the shares and so to 
 obtain a larger number of votes, and command 
 greater influence at a meeting of shareholders 
 already summoned. In re the Stranton Iron and 
 Steel Company, 43 Law J. Eep. (n.s.) Chanc. 215 ; 
 Law Eep. 16 Eq. 659. 
 
 61. — Where a holder of fully paid-up shares 
 in a limited company applied by motion under the 
 36th section of the Companies Act, 1862, to have 
 his name struck off the register of shareholders, 
 on the ground that he had been induced to take 
 the shares through misrepresentation and conceal- 
 ment of material facts in the prospectus, and his 
 application had been granted in the Court below, 
 the Lords Justices on appeal declined to dispose 
 of the case, on the grounds that the effect of 
 granting the application would be to entitle the 
 applicant to recover from the company as of course 
 the money he had paid for his shares, that the 
 question would be more properly heard and deter- 
 mined in an action or suit than in a summary way 
 upon an application of this kind, and that since 
 the applicant's shares were fully paid up he would 
 be subjected to no liabilities by being retained on 
 the register pending such proceedings. They ac- 
 cordingly directed the motion in the Court below 
 to stand over, with liberty to the applicant to take 
 such proceedings as he might be advised. In re 
 the Buby Consolidated Mining Company (Lim.); 
 Ashew's case, 43 Law J. Eep. (n.s.) Chanc. 633 ; 
 Law Eep, 9 Chanc. 664. 
 
 62. — A new company was formed under the 
 Companies Acts, 1862 and 1867, for purchasing the 
 assets, and carrying on the business of an old one. 
 The members of the two companies were the same 
 persons. The transaction was to be effected, and 
 the purchase-money satisfied, by fully paid up 
 shares. The shares were issued by the new to the 
 old company ; but no contract in writing was filed 
 as required by the Companies Act, 1867, s. 25. 
 The question, therefore, was whether, under that 
 section, the shares could be considered as fully 
 paid up ? A motion was made by the new com- 
 pany to rectify its register by striking out the 
 names of all the allottees in order to file the con- 
 tract, and then replace the names : — Held, that 
 the register might be rectified accordingly. In re 
 the Broitvnch Salt Company (Lim.), 43 Law J. 
 Eep. (n.s.) Chanc. 681. 
 
 63.— When, in performance of an agreement 
 to allot fuUy paid-up shares, the shares have been 
 allotted before the agreement has been filed with 
 the Eegistrar of Joint Stock Companies, the com- 
 pany may cancel the shares and issue new ones 
 without coming to the Court. In re the Poole 
 Fire Brick and Blue Clay Company ; Hartley's case, 
 44 Law J. Eep. (n.s.) Chanc. 96 ; Law Eep. 18 Eq. 
 542 : afJrmed, on appeal, 44 Law J. Eep. (n.s.) 
 Chanc. 240; Law Eep. 10 Chanc. 157. 
 
 (2) Suit to remove name, 
 
 64. — The plaintiff applied for and received an 
 allotment of scrip certificates to bearer under a 
 prospectus which stated that " on registration of 
 the scrip, of which due notice will be given," the 
 certificates would be divided into five shares of 
 10^. each; — Held, that he could not be registered 
 as a shareholder without his consent. M'llwraith 
 V. The Dublin Trunk Connecting Railway Com- 
 pany, 40 Law J, Eep. (n.s.) Chanc. 652 : aSfirmed, 
 on appeal, 41 Law J. Eep. (n.s.) Chanc. 262 ; Law 
 Eep. 7 Chanc. 134. 
 
 After his name had been wrongfully put on the 
 register, new directors were appointed, who, when 
 asked to remove the name, replied that they knew 
 nothing of the circumstances under which it was 
 put on, and through the change of ofScials were 
 unable to ascertain, and they could not undertake 
 the responsibility of removing the name. To a 
 bill filed against the company alone, they refused 
 to enter an appearance : — Held, that they were 
 properly made parties by amendment, and must 
 pay the costs of the suit. Ibid. 
 
 (3) Description of firm. 
 
 65. — L., as security for a loan, transferred 
 shares in a company to a firm. At date of transfer 
 L. had no shares standing in his name, though 
 subsequently a sufficient number were transferred, 
 but these were not registered at the date of regis- 
 tration of the transfer of shares to the firm. Upon 
 repayment of the loan the firm re-transferred the 
 shares. Two books were kept by the company, 
 one called " Eegister of Members," which however 
 referred to the other, called " Shareholders' Ee- 
 gister ; " in the latter only was inserted the name 
 of M. H. W. & Co. The company was wound up 
 
COMPANY (D). 
 
 145 
 
 before return made to registration office, ■where- 
 upon M. H. W. & Co. were placed upon the B list 
 of contributories, L. having previously died insol- 
 vent :■ — Held (afBrming the decision of the Master 
 of the EoUs),that the fact of the transfers from L. 
 having been registered before the registration of 
 transfers to him did not render the transfer by 
 L. invalid, and that the entry in the register of 
 shareholders was sufficient. In re the Land Credit 
 Company of Ireland {lAm.) ; Weikershei'm ^ Co.'s 
 case, 42 Law J. Eep. (n.s.) Ohauo. 435 ; Law Eep. 
 8 Chanc. 831. 
 
 Duty of officer to see that charge is regis- 
 tered. [See supra D 11.} 
 
 (m) Powers of majority of shareholders. 
 
 66. — A. shareholder in a joint stock company 
 entered into an agreement with the majority of 
 the shareholders to amalgamate the company with 
 another company, and it was provided that the 
 shares of any shareholder who refused to enter 
 into this agreement should be divided amongst the 
 majority: — Held, that this agreement was not 
 binding on any shareholder who was not a party 
 to it, and that the allottees were trustees in respect 
 of their shares. Smith v. The Bank of Victoria, 
 41 Law J. Eep. (n.s.) P. C. 34. 
 
 67. — ^Though a shareholder in a company is 
 entitled to vote with an exclusive view to his own 
 interest, yet where the majority of shareholders 
 deal with the assets of the company for their own 
 benefit, to the exclusion of the minority, the Court 
 will, at the instance of the minority, restrain such 
 dealing, and compel the majority to account in 
 respect of such dealings. Menier v. Hooper's 
 Telegraph Works, 43 Law J. Eep. (n.s.) Chanc. 
 330 ; Law Eep. 9 Chanc. 350. 
 
 A telegraph company instituted a suit against 
 one of their directors, asserting a claim to a con- 
 cession which he had obtained for his own benefit. 
 Afterwards, by the influence of one shareholder, 
 who held a majority of the shares in the company, 
 the suit was compromised and a release of the 
 claim was executed. It was also resolved to wind 
 up the company voluntarily, and a liquidator was 
 appointed. A bill was filed by one of the minority 
 of shareholders (on behalf of himself and the rest 
 of the minority) against the company, the liquida- 
 tor, and the holder of the majority of the shares, 
 alleging that the motive for entering into the 
 compromise was the obtaining by that shareholder 
 of a secret benefit to himself, and praying that he 
 might be ordered to account for that which he had 
 so received. On demurrer, — Held (affirming a 
 decision of Bacon, T.C.), that the suit was sustain- 
 able, and that the bill was properly filed in the 
 name of a shareholder. Ibid. 
 
 (m) Capital. 
 
 (1) Seduction and redistribution.. 
 
 68. — Before a resolution can be passed for re- 
 duction of a capital of a company whose regula- 
 tions do not authorise such reduction, there must 
 Digest, 1870-1875. 
 
 be a separate special resolution varying the regu- 
 lations. In re the West India and Pacific Steamboat 
 Company, Law Eep. 9 Chanc. 11,m. 
 
 69. — Creditors, including the holders of deben- 
 tures payable to bearer, who do not oppose an 
 order to confirm reduction of capital, are deemed 
 to consent. Where a company, at the date of an 
 order confirming reduction of capital, had used the 
 words, " and reduced," as part of its title, for more 
 than three months, it was ordered to use those 
 words for a fortnight longer. In the absence of 
 special circumstances, the order for confirmation 
 was ordered to be advertised once in the London 
 Gazette, and twice in each of three London daily 
 papers. In re the Credit Fonder of England, 40 
 Law J. Eep. (n.s.) Chanc. 187; Law Eep. 11 Eq. 
 356. 
 
 70.^A company not authorised by its original 
 articles of association to accept surrenders of 
 shares, by special resolutions altered their articles 
 so as to authorise the cancellation of existing 
 shares, and the issue of new shares in lieu thereof 
 imder an arrangement which varied the liability 
 of the respective shareholders, diminishing the 
 liability of some of them on their shares, and in- 
 creasing that of others, but which in the ultimate 
 result materially increased the amount of capital 
 raiseable on all the shares collectively. — Held, 
 that the alteration was intra vires and effectual, 
 and that a surrender of the old shares under the 
 altered articles was valid. In re the County 
 Palatine Loan and Discount Co. ; Teasdale's case, 
 43 Law J. Eep. (n.s.) Chanc. 578 ; Law Eep. 10 
 Clianc. 54. 
 
 [And see supra D 16]. 
 
 (2) Expenditure chargeable to capital. 
 
 71. — A waterworks company constructed their 
 works themselves in preference to entrusting them 
 to a contractor in the ordinary manner. In the 
 course of construction they expended large sums, 
 which they were compelled to raise by borrowing, 
 or by the issue of preference shares, which re- 
 spectively bore interest or dividends from the 
 time of issuing them, while the works upon which 
 the money was expended being yet incomplete, 
 were unproductive. The preference shareholders 
 had an option of converting their shares into 
 ordinary shares during a period which would not 
 expire untU after the completion of the works. If 
 the works had been executed by a contractor in 
 the usual manner, he would have been paid by 
 stated sums at deferred periods, and the interest 
 on the moneys advanced by him during the pro- 
 gress of the works would in effect have been paid 
 out of capital : — Held, that the interest or divi- 
 dends accruing due in respect of the money bor- 
 rowed or raised by preference shares, and ex- 
 pended during the progress of the works, ought, 
 as between the ordinary and the preference share- 
 holders, to be charged to capital, and not to 
 income. Bardwell v. The Proprietors of the Sheffield 
 Waterworks, 41 Law J. Eep. (n.s.) Chanc. 700 
 Law Eep. 14 Eq. 517. 
 
 [And see supra D 63, and infra I ?3.] 
 U 
 
Ufi 
 
 COMPANY (D), (E). 
 
 (0) Right of pre-emption as against eompany. 
 
 72. — An Act of Parliament gave a company 
 power to buy lands for the purpose of its under- 
 taking, and to re-sell any lands -which it might 
 purchase but not make use of, and directed it 
 before selling any land, to offer the same to the 
 person or persons of whom it was purchased, but 
 it fixed no limit of time within which the sale 
 of surplus l§,nd was to.be made : — Held, that the 
 right of pre-emption thus given was merely per- 
 sonal to an individual from whom land was pur- 
 chased, and was extinguished on his death. The 
 Highgate Archway Company v. JeaJces, 40 Law 
 Eep. (n.s.) Chauc. 408; Law Eep. 12 Eq. 9. 
 
 (/i) Schema of arrangement under Joint Stock 
 Companies Arrangmnent Act, 1870. 
 
 73. — The A. Life Assurance Company had, 
 during the period of its existence, absorbed a 
 number of other similar companies, undertaking 
 their liabilities. The A. Company and several of 
 the absorbed companies were ordered to be wound 
 up. Numerous policies issued by the absorbed 
 companies were still current, some only of the 
 holders of these having accepted the A. Company 
 in lieu of the absorbed company. In order to put 
 an end to the liquidation, a scheme of reconstruc- 
 tion was proposed and accepted by large majorities, 
 at meetings held, both of the shareholders and 
 creditors of the A. Company, and also of the 
 policy-holders of the absorbed companies. The 
 outline of the scheme was, that the contributories 
 of the A. Company should pay up something more 
 than the full amount of their shares; the con- 
 tributories of the absorbed companies should pay 
 such an additional sum as would be sufficient to 
 raise the whole fund to the amount of the claims, 
 less five per cent., and that the creditors should 
 give up five per cent, of their claims. The fund 
 thus raised was to be handed over to trustees for 
 a new assurance company, which was to take over 
 all the business, and undertake to fulfil all 
 liabilities, the trust fund being held in trust to 
 secure payment : — Held, that as it was practically 
 impossible to ascertain the true amount of the 
 valid claims upon all the current policies, the 
 Court could not be judicially satisfied that ma- 
 jorities, in number representing three-fourths in 
 value of the creditors of the several companies, 
 had respectively assented to the scheme, and there- 
 fore the Court had no power, under the Joint 
 Stock Companies Arrangement Act, 1870, to sanc- 
 tion the scheme. In re the Albert lAfe Assurance 
 Company, 40 Law J. Eep. (n.s.) Chanc. 605 ; Law 
 Eep. 6 Chanc. 381. 
 
 Held, also, that as regards the absorbed com- 
 panies, the 95th, 159th and 160th sections of the 
 Companies Act, 1862, did not apply. Ibid. 
 
 (E) Amaigamation and Teansfer of Bttsiness. 
 (a) Validity of amalgamation. 
 
 (1) Variation between two parts of contract. 
 
 1.— An agreement was entered into for an 
 amalgamation of the P. Company, Limited, with 
 the U. Company, Unlimited, upon the terms" that 
 
 the U. Company should purchase the business and 
 property of the P. Company for a sum of money, 
 and should issue to shareholders in the P. Com- 
 pany shares in the U. Company to the same value 
 and with the same amount considered as paid up 
 thereon as the shares previously held by such 
 shareholders in the P. Company, and should take 
 upon itself and indemnify the officers of the P. 
 Company against all the debts and liabilities of 
 the P. Company. This agreement was reduced 
 into writing, and engrossed in duplicate for the 
 purpose of one part being executed by each of 
 the two companies. Before executing their part 
 the U. Company inserted in it, without notice to 
 the P. Company, a clause limiting the liability 
 of the U. Company under the agreement to the 
 amount of its capital stock and property. The 
 part executed by the P. Company contained no 
 such provision. 
 
 W., a paid-up shareholder in the P. company, 
 applied for 100 shares in the U. Company upon 
 the terms of the above agreement. In reply he 
 received a letter from a person purporting to be 
 the general manager of the U. Company stating 
 that the directors had allotted him a certain 
 number of shares in pursuance of the arrange- 
 ment between the companies, and that the amount 
 to be credited on such shares would be the pro- 
 portionate amount of the net assets of the P. 
 Company. W. received this letter at the end of - 
 August whilst absent from home. In the begin- 
 ning of October he came to London and asked for 
 an explanation about the letter, but could not 
 learn by whose authority it was written. He 
 also saw the chairman and solicitor of the U. 
 Company, and told them that he objected to take 
 the shares, when they both assured him his name 
 was not on the register. It turned out that his 
 name had been placed on the register. On the 
 16th of October he wrote to the secretary of the 
 company and formally repudiated the shares. In 
 November the U. Company was ordered to be 
 wound up on a petition presented before W.'s 
 repudiation of the shares : — Held, that the varia- 
 tion between the two parts of the agreement for 
 amalgamation rendered it invalid ; that under the 
 circumstances there was no contract between W. 
 and the company to take the shares allotted, and 
 that W. was not bound by acquiescence or laches, 
 and his name must be removed from the register. 
 In re the United Ports Insurance Company; Wyn/ne's 
 case, 43 Law J. Eep. (n.s.) Chanc. 138 ; Law Eep. 
 8 Chanc. 1602. 
 
 (2) Seconstruction under sect. 161. 
 
 2. — A company was wound up voluntarily for 
 the purpose of re-construction, by the formation 
 of a new company with new articles : — Held (in 
 Vining's case) that the company so re-constructed 
 was " another company" within the 161st section 
 of the Companies Act of 1861, and that a share- 
 holder in the old company was entitled to give 
 notice of dissent (though he was not the equitable 
 owner of the shares) and to have his shares can- 
 celled and bought under the provisions of that 
 section: — Held (in Jeaffresone case), that the 
 
COMPAITY (E). 
 
 147 
 
 arrangement for re-construetiuu did not bind 
 creditors bo as to absolve a shareholder in the 
 new company from paying calls required for pay- 
 ment of debts on the shares in the old company 
 which he had given up. In re the Imperial Land 
 Company of Marseilles ; Vining's case, and Jeaffre- 
 son's case, 40 Law J. Eep. (n.s.) Chanc. 3 ; Law 
 Eep. 11 Eq. 109. 
 
 3. — An English company whose operations 
 were entirely confined to France, became involved 
 in considerable difficulties, financially and other- 
 wise. Arrangements were made by the directors 
 for the constitution of a French SoeiAtA Anonyme, 
 for the purpose of taking over the assets of the 
 company in consideration of the discharge of the 
 company's obligations, and the allotment of shares 
 to the shareholders of the English company. In 
 order to carry this arrangement into effect, a 
 special resolution was passed for the purpose of 
 inserting in the articles of association a clause 
 providing for the sale, in a voluntary winding-up, 
 of the assets to another company, or to a Soci^te 
 Anonyme. At the same meeting at which this 
 resolution was passed, resolutions were also 
 passed for a voluntary winding-up, and for giving 
 authority to the liquidators to sell the assets to a 
 new French company. These resolutions for work- 
 ing out the sale to the French company were, as 
 the Court held, except the resolution to wind up, 
 irregular. One shareholder (whose shares were 
 fully paid up), however, alone dissented : — Held, 
 confirming the decision of one of the Vice-Chan- 
 eeUors, that the desired arrangement, though in- 
 capable of being carried out by virtue of the 
 clause affected to be inserted in the articles, could 
 be effected imder the 161st section of the Com- 
 panies Act, and that a petition for winding up 
 compulsorily or under supervision, presented by 
 the dissentient shareholder, must, so far as it 
 prayed such winding-up, be dismissed, but that 
 the petitioner had a right to require his interest 
 in the company to be valued under the 161st 
 section. In re the Irrigation Com/pany of France, 
 Ex parte Fox, 40 Law J. Eep. (n.s.) Chanc. 433 ; 
 Law Eep. 6 Chanc. 176. 
 
 A resolution to wind up a company was passed 
 amongst a series of resolutions for effecting a 
 desir^ reconstruction of the company, which were 
 attempted to be supported under section 161, but 
 were considered to be irregularly passed under 
 that section : — Held, that nevertheless the resolu- 
 tion to wind up was valid. Ibid. 
 
 Leave refused to file a bill in the name of the 
 company to set aside the reconstruction scheme, 
 upon the ground that though the resolutions 
 authorising it were irregular through defect of the 
 notices convening the meeting, yet they were 
 capable of confirmation, and might, but for the 
 irregularity, have been validly passed. And per 
 MeUish, L.J. — It is not competent for a com- 
 pany, having in view an immediate voluntary 
 winding up, to insert a provision in its articles 
 for the purpose of authorising that which may be 
 done under section 161, with the omission of the 
 proviso in favour of dissentient shareholders con- 
 tained in that section. Ibid. 
 
 4. — An agreement between companies A. and 
 B. (neither of them being registered under the 
 Companies Act, 1862), for the transfer of the 
 business of A. to B.,was held to be ultra vires on the 
 part of company A., there being no power in its 
 deed of settlement authorising such an agreement. 
 Nevertheless company A. having been registered 
 under the Act, and resolutions for winding-up 
 voluntarily passed, and the transfer, carried out 
 according to the terms of the agreement, under 
 s. 161, the transaction was upheld. Soutkall v. 
 The British Mutual Life Assurance Society, 40 
 Law J. Eep. (n.s.) Chanc. 698 ; Law Eep. 6 Chanc. 
 614: affirming the decision of the Master of the 
 Eolls, 40 Law J. Eep. (n.s.) Chanc. 96 ; Law Eep. 
 11 Eq. 65. 
 
 A mutual assurance society may, like any other 
 company, be registered under the Companies Act, 
 1862. Ibid. 
 
 [And see supra D 64, 55, infra G 13.] 
 
 (J) I^ect of amalgamation on rights of companies 
 
 5. — The W. Society, in pursuance of a power 
 contained in their deed of settlement, transferred 
 to the A. Company all their business assets and 
 liabilities, under an arrangement whereby the A. 
 Company took upon itself all debts, engagements, 
 and liabilities of the W. Society. Four years 
 afterwards the A. Company became insolvent, and 
 was ordered to be wound up. The W. Society 
 was also ordered to be wound up. Certain credi- 
 tors of the "W. Society in respect of assurances and 
 annuities, who had not accepted the A. Company 
 as their debtors, remained unpaid, and the liqui 
 dator of the W. Society claimed, on the ground of 
 the vendor's lien, and of a right as between principal 
 and surety, to be entitled to certain property for- 
 merly belonging to the W. Society, which remained 
 unrealised in the hands of trustees, and to the 
 benefit of certain reassurance policies which had 
 been effected by the W. Society with other offices 
 to meet part of their liability in respect of original 
 assurances effected with themselves, and which 
 had been handed over by them to the A. Company : 
 — Held, that, inasmuch as the transaction be- 
 tween the A. Company and the W. Society 
 amounted to an amalgamation of both societies 
 under which the assets of both were to form one 
 common stock, subject to the liabilities of both 
 companies, and also on the ground that no such 
 rights had been expressly reserved or could be in- 
 ferred from the agreement, the claim of the W. 
 Company to a lien upon a distinct portion of the 
 common assets could not be sustained. Held, also, 
 that the A. Company had not become liable as 
 principal debtors to those creditors of the W. So- 
 ciety who had refiised to substitute the A. Com- 
 pany for the W. Society as their debtors, and 
 therefore the "W. Society could have against the 
 A. Company no such rights as existed between 
 principal and surety. In re the Albert lAfe As- 
 surance Company, and Ex parte the Western Life 
 Assurance Society, 40 Law J. Eep. (n.s.) Chanc. 
 166; Law Eep. 11 Eq. 164. 
 
 tr2 
 
U8 
 
 COMPANY (E). 
 
 (c) Effeot of setting aside amaigamation. 
 
 8. —Upon a summons in the winding-up of Com- 
 pany A., money paid for shares in Company B. 
 under an amalgamation of Company B. with com- 
 pany A., which amalgamation had been declared 
 by,,a Court of Common Law to be void, through a 
 coihmon mistake of feet and law, was ordered to 
 be returned, together with interest at bl, percent. 
 from the date of the summons. In re the Bank 
 of Hindustan, China and Japan ; Ex parte Alison, 
 42 Law J. Eep. (n.s.) Chanc. 505 ; Law Eep. 15 
 Eq. 394. ' [See No. 8 infra.] 
 
 7. — Money paid for shares issued, without 
 fraud, under an amalgamation, held subsequently 
 to have been idtra vires of the amalgamating com- 
 panies, will be repaid with interest and costs ; 
 unless the party seeking such repayment has so 
 dealt with the shares allotted to him, as to render 
 himself otherwise liable in respect of them. A 
 transferee or a purchaser from a transferee, has 
 no right to repudiate the shares. In re the Bank 
 of Mindustan, China and Japan {Lim.) — GampbelVs 
 case; Hippesley's ease; CroonCs case, 42 Law J. 
 Kep. (n.s.) Chanc. 771 ; Law Kep. 16 Eq. 416. 
 
 An amalgamation of two large companies is not 
 like a contract between persons, which can be nul- 
 lified by their consent when its validity becomes 
 doubtful, or its invalidity is discovered ; but 
 exists, de facto, till a competent Court pronounces 
 against it. Ibid. 
 
 The right of a person dealing with a, company 
 to set aside (as against the company) a contract, 
 founded on the latter's unintentional misrepresen- 
 tation, may be waived or released, expressly or 
 indirectly ; but cannot be easily waived by any- 
 thing the person does, or omits, while the false- 
 hood of the misrepresentation remains doubtful. 
 Alison's Case (42 Law J. Bep. (n.s.) Chanc. 505 ; 
 Law Eep. 15 Eq. 394) followed. [See next 
 case.] 
 
 8. — In 1864 an agreement was entered into be- 
 tween the H. Company and the I. Company, for 
 an amalgamation and transfer of the property and 
 business of the I. Company to the H. Company, 
 and special resolutions were passed and approved 
 of, and confirmed at general meetings of the H. 
 Company, pursuant to the 50th and 51st sections 
 of the Companies Act, 1862, for the increase of 
 their capital by the issue of new shares to the 
 shareholders of the I. Company. A. was a share- 
 holder in the I. Company, and applied for and was 
 allotted shares in the H. Company, and paid 1 50/. 
 for deposit and on account of premium thereon ; 
 but the shares were afterwards declared forfeited 
 for non-payment of calls. In December, 1866, the 
 H. Company was ordered to be wound up. In 
 May, 1868, at the hearing of a cause instituted by 
 shareholders in the I. Company, who dissented 
 from the amalgamation, for the purpose of setting 
 it aside, one of the Vice-Chancellors held the 
 amalgamation to be ultra vires. No decree was 
 drawn up, compromises were effected with the dis- 
 sentient shareholders, and all proceedings in the 
 suit stayed, and the H. Company retained possession 
 of the assets of the I. Company, which had been 
 
 handed over to them under the agreement. An 
 action at law was commenced against A. for the 
 unpaid calls upon his shares, and upon a special 
 case, in which it was incorrectly stated that a de- 
 cree had been made in the Chancery suit, and no 
 mention was made of the subsequent compromise, 
 it was held by the Court of Common Pleas, and 
 aifirmed in the Exchequer Chamber, that the 
 amalgamation being void A. never was a share- 
 holder in the H. Company. A. then took out a 
 summons in the winding-up of the H. Company 
 for repayment of the money paid by him in respect 
 of the shares :— Held (by the full Court of Ap- 
 peal), affirming the decision of the Court below, 
 that he was entitled to recover the money paid for 
 deposit and on account of premium, with interest 
 at 51. per cent, from the date of the summons. In 
 re the Bank of Hindustan, China and Japan 
 (Lim.) — CampbelVs case ; Hippesley's case ; and 
 Alison's case, 43 Law J. Bep. (n.s.) Chanc. 1 ; 
 Law Eep. 9 Chanc. 1. 
 
 C. and H. were original shareholders in the I. 
 Company, and they also accepted and had allotted 
 to them shares in the H. Company upon the terms 
 of the amalgamation, and paid the deposit, pre- 
 miums and calls upon them. Upon summonses 
 taken out by C. and H., — Held, reversing the de- 
 cision of one of the Vice-ChanceUors, that the 
 Court was not bound by the decision of the Court 
 of law pronounced in A.'s case upon a case errone- 
 ously stated, and that C. and H. having entered 
 voluntarily into the contracts of which they had 
 had the full benefit, and which had become bind- 
 ing on the company before anything was done to 
 avoid them, were not now entitled to be relieved 
 therefrom. Ibid. 
 
 Held also that the increase of capital was well 
 effected by the resolutions without altering the 
 articles of association. Ibid. 
 
 9. — In May, 1865, resolutions were passed for 
 amalgamating the F. Company with the 0. Bank, 
 and to wind up the i'. Company voluntarily for 
 enabling the amalgamation to be carried out. The 
 two plaintiffs, who had recently purchased shares 
 in the F. Company (the one the day before the 
 resolutions for amalgamation were confirmed, the 
 other shortly after) in the same month of May 
 contracted to sell their shares and executed trans- 
 fers thereof. On the 2nd of June following, and 
 before the transfers were sent in for registration, 
 the liquidators under the voluntary winding-up 
 passed a resolution that they would not register 
 any more transfers, except upon the terms of the 
 transferors executing a deed by which they should 
 guarantee the payment of all calls by their trans- 
 ferees. The plaintiffs not being able to obtain 
 transfers otherwise executed the deeds in April, 
 1866. In 1866 the voluntary winding-up was 
 superseded by a compulsory winding-up. In July, 
 1868, actions were commenced against the plain- 
 tiffs on their deeds to recover the amounts due 
 from them for calls and for damages, and there- 
 upon the plaintiffs filed bills, alleging that the 
 liquidation was invalid, and that the deeds were 
 obtained from them without consideration, by 
 misrepresentation and concealment, and praying 
 
COMPANY (E). 
 
 149 
 
 that they might be cancelled, and the actions 
 stayed. In another suit against the same com- 
 pany it had been decided, and confirmed on appeal, 
 that the amalgamation was ultra vires and void : 
 — Held, that the liquidation proceedings were valid 
 and could not be set aside, because the amalgama- 
 tion, for which they had been instituted, had been 
 declared void. Also that there was ample con- 
 sideration for the deeds, and that there was no 
 evidence of misrepresentation or concealment, and 
 that the liquidators were justified in refusing to 
 sanction the transfers except upon such terms as 
 they thought were for the benefit of the company. 
 Cleve V. The Mnancial Corporation ; and Williams 
 V. The Same, 43 Law J. Eep. (n.s.) Chanc. 54; 
 Law Eep. 16 Eq. 363. 
 
 It is not the effect of a compulsory winding-up 
 order to nullify proceedings which have been taken 
 under a previous voluntary winding-up. Ibid. 
 
 10. — Two limited banking companies, the H. 
 Bank and the I. Bank, entered into an agreement 
 of amalgamation, whereby the I. Bank was to 
 transfer its business and assets to the H. Bank, 
 and the shareholders of the I. Bank to be entitled 
 to shares additionally issued by the H. Bank. 
 There was power given, by the articles of associa- 
 tion of the H. Bank, to the directors to pay for the 
 amalgamation with or purchase of any similar 
 business by shares, and the directors resolved to 
 approve of the agreement and issue additional 
 shares, and a meeting of the company resolved to 
 adopt the agreement and issue such shares, and 
 a'seeond meeting confirmed this. Defendant, a 
 shareholder in the I. Sank, received a circular an- 
 nouncing the amalgamation, and offering him 
 shares on the terms of the arrangement, and he 
 applied for shares on those terms, and paid a cer- 
 tain sum as premium and deposit. The shares 
 were allotted, notice given to him, and certificates 
 prepared, but he did not apply for them, and took 
 no notice of three calls made in the ensuing year. 
 About a year afterwards the amalgamation was 
 set aside in equity : — Held, first, that the amalga- 
 mation was the foundation of the whole matter, 
 and that the shares (even if lawfully created) fell 
 with it; second, that the defendant was not a 
 shareholder by estoppel ; third, that the shares 
 were not lawfully created, as the above-mentioned 
 article of association only applied to existing and 
 did not authorise additional shares, and there was 
 no valid issue of additional shares under 25 & 26 
 Vict. e. 89, B. 12, because there had been no pre- 
 liminary meeting authorising the alteration of the 
 articles of association. The Bank of Hindustan, 
 China, and Japan (lAm.) v. Alison (Exch. Ch.), 
 40 Law J. Eep. (n.s.) 0. P. 1 17 ; Law Eep. 6 C. P. 
 222 : affirming the Court of Common Pleas, 40 Law 
 J. Eep. (n.s.) C. p. 1 ; Law Eep. 6 C. P. 54. 
 
 (a!) Novation of contract by policy-holder or 
 annuitant. 
 
 11. — S. was holder of a policy of the M. Assur- 
 ance Society, and entitled under it to participa- 
 tion in profits. The M. Society amalgamated with 
 the A. Company, handing over its assets, and the 
 
 A. Company undertaking its liabilities, a fund, 
 part of the M. assets, being set apart as a trust- 
 fund to guarantee certain policies of the M. So- 
 ciety, including S.'s policy. Under the arrangement 
 for the amalgamation proposals were made to S. 
 to cancel his policy, and accept in substitution a 
 policy upon similar terms of the A. Company. 
 This S. did not accede to ; he simply paid his pre- 
 miums to the A. Company, which company was, 
 according to the arrangement between the compa- 
 nies, authorised to receive the premiums. Two 
 years after the amalgamation a division of profit 
 for the three preceding years was declared by the 
 A. Company. A bonus was declared upon S.'s 
 policy, notice of which was given to S. S. accepted 
 the bonus in the form of a reduction of the pre- 
 miums upon his policy, and he subsequently paid 
 the reduced premiums. The M. Society being (as 
 well as the A. Company) ordered to be wound up, 
 S. claimed to prove as a creditor in respect of his 
 policy : — Held, affirming one of the Vice-Chancel- 
 lors, that he had by taking the bonus accepted the 
 A. Company as his debtors in lieu of the M. So- 
 ciety, and his claim was disallowed. In re the 
 Medical and Invalid and Qeneral lAfe Assv/rance 
 Society ; Spencer's case, 40 Law J. Eep. (n.s.) 
 Chanc. 455 ; Law Eep. 6 Chanc. 362. 
 
 12. — Where upon the amalgamation of the N. 
 & B. Insurance Companies, a deed of settlement, 
 reciting the agreement for amalgamation, was 
 executed, by which the B. Company was consti- 
 tuted as a common law partnership : — Held, that 
 a policy holder of the N. Company who executed 
 the deed of settlement, had accepted the liability 
 of the B. Company, and could not claim as creditor 
 against the N. Company. In re the National Provin- 
 cial Life Assurance Society ; Fleming's case. Law 
 Eep. 6 Chanc. 393. 
 
 13. — Gr. effected three life policies with the 
 M. Society without participation of profit. The M. 
 Society afterwards amalgamated with the A. Com- 
 pany, transferring its assets and liabilities to that 
 company. A notice of the amalgamation was sent 
 to G.'s assignees, requesting them to send in their 
 policies to be indorsed by the A. Company. To 
 this no reply was made. Afterwards a more spe- 
 cific request was made, asking them to send in the 
 polices to be indorsed. This was done, but upon 
 the company further asking the assignees to sign a 
 memorandum that they agreed to the amalgaina- 
 tion, the assignees refused to do so, and the poli- 
 cies, though they had been sent into the company, 
 were not indorsed, but returned without any alter- 
 ation. Meanwhile the premiums were paid to the 
 A. Company, which under the terms of the amal- 
 gamation was authorised to ^receive them. The 
 M. Company and the A. Company having both 
 been ordered to be wound up, the assignees sent 
 in a claim against the M. Company in respect of 
 the policies : — Held, reversing the decision of one 
 of the Vice-Chancellors, that they had not accepted 
 the A. Company in place of the M. Company, and 
 the claim was allowed. In re the Medical and In- 
 valid cmd General Life Assv/rance Society ; Griffith's 
 case, 40 Law J. Eep. (n.s.) Chanc. 464; Law Eep. 
 6 Chanc. 374. 
 
150 
 
 COMPANy (E). 
 
 14. — The I. Life Insurance Company had by its 
 deed of settlement a power to dissolve itself and 
 transfer its business and liabilities to another ap- 
 proved company, but " without prejudice to the 
 rights of the parties then assured." The I. Com- 
 pany, in 1860, under this provision, transferred 
 its business to the E. Society. D., the grantee of 
 an annuity in the I. Company, objected to the 
 transfer, and refused a policy in the E. Society, 
 but he took no proceedings in the matter and went 
 to the office of the E. Society and received his an- 
 nuity regularlyfrom that society until 1871, when 
 the E. Society was wound up insolvent : — Held, 
 that there was no novation of contract as between 
 
 D. and the E. Society, and that D. was entitled to 
 recur to the I. Company for payment, and to have 
 that company wound up for the purpose of going 
 against the uncalled-up share capital of the com- 
 pany. In re the India and London Life Assurance 
 Company; DyJc^s' case, 41 Law J. Eep. (n.s.) 
 Chanc. 601 ; Law Eep. 7 Chanc. 651. 
 
 15. — Where there was an agreement for the 
 transfer of the business and assets of Company A. 
 to Company B., and a transferee of a life policy in 
 Company A., after the decease of the assured, ob- 
 tained from Company B. a memorandum, duly 
 signed and sealed, indorsed on his policy, that the 
 property of Company B. was alone to be liable for 
 the payment of the sum assured, and a further me- 
 morandum stipulating for payment to the trans- 
 feree by instalments ; but it appeared that shortly 
 after the agreement for transfer, and before the 
 death of the assured, a compulsory order for 
 winding-up had been made against Company A.': 
 — Held, that there was good consideration for the 
 memorandum, and a, complete novation of con- 
 tract with Company B. In re the United Ports amd 
 General Insurance Company ; Evens's Claim, Law 
 Eep. 16 Eq. 354. 
 
 (e) Application for or acceptance of shares in new 
 company. 
 
 16. — Upon an agreement for the amalgama- 
 tion of the company with the E. Corporation, it 
 was arranged that the shareholders in the com- 
 pany should surrender their shares, receiving in 
 return shares in the corporation to an equivalent 
 amount, and accordingly certificates of shares in 
 the corporation were sent to the several share- 
 holders of the company, with a request that they 
 would return printed receipts for the same. C, 
 
 E. and S. were shareholders in the company, and 
 severally received certificates of shares in the 
 corporation, and C. and E. signed and returned 
 receipts for such certificates. S. retained the new 
 certificates biit signed no receipt, and the names 
 of C, F. and S. were returned to the Eegistrar of 
 Joint Stock Companies as members of the corpo- 
 ration. On winding up the corporation, — Held, 
 that C. and F. were liable as contributories, but 
 not S. In re the Empire Assurance Corporation; 
 ChalUs's case, Fordyc^s case, Somervill^s case, 40 
 Law J. Eep. (n.s.) Chanc. 431; Law Eep. 6 
 Chanc. 266. 
 
 17. — The B. Company agreed to transfer their 
 
 business to the P. Company. One of the terms of 
 such agreement (which was sanctioned by the Court 
 under the winding-up of the B. Company) was 
 that the holders of shares in the B. Company 
 should receive an equal number of shares in the 
 P. Company. A circular letter was sent by the 
 P. Company to the shareholders in the B. Com- 
 pany, referring to these terms, and requesting the 
 B. shareholders to fill in a form of application for 
 the shares to which they were entitled under the 
 arrangement. A., a holder of fifty shares in the 
 B. Company, filled in and returned this form, ap- 
 plying for fifty shares in the P. Company. The 
 directors of the P. Company by resolution allotted, 
 to him that nvmiber of shares. Before reeeiidng 
 notice of allotment, A. wrote to withdraw his 
 application. After considerable delay the solicitor 
 of the P. Company, to whom the question of A.-S 
 withdrawal had been referred by the directors, 
 wrote to A., stating (erroneously as now appeared) 
 that by a resolution of the board the allotment of 
 shares to him had been cancelled. The company 
 had no share register, but A.'s name was entered 
 in their allotment book for fifty shares, though no 
 particular shares were appropriated to him: — 
 Held, that as soon as A.'s application had been 
 accepted by the company, there was a binding con- 
 tract between them without any notice of allot- 
 ment being given to A. ; that even if the resolution 
 cancelling the allotment had been passed the 
 directors had no power under a general authority 
 to compromise proceedings, &e., contained in the 
 articles of association, to sanction A.'s withdrawal ; 
 and that as between A. and the company the entry 
 in the allotment book was sufficient. In re the 
 United Ports Company ; Adams's case, 41 Law J. 
 Eep. (n.s.) Chanc. 270 ; Law Eep. 13 Eq. 474. 
 
 18. — Where during negotiations for, and with 
 a view to the carrying out of, an amEdgamation 
 between two companies a shareholder in the com- 
 pany whose business is to be transferred applies 
 through that company for shares in the transferee 
 company, and the transaction ultimately fails of 
 completion, there the applicant does not become 
 a contributory to the transferee company, but it is 
 otherwise where the shareholder makes a personal 
 application for shares in the transferee company. 
 In re the Empire Assurance Corporation (Idm.) ; 
 Doiigan's case, 42 Law J. Eep. (n.s.) Chanc. 460 ; 
 Law Eep. 8 Chanc. 540. 
 
 A power given to a special general meeting of a 
 company "to sell, dispose or otherwise deal with" 
 the business, &c., of the company, does not autho- 
 rise a transfer of the business to another company 
 upon the terms of an exchange by the members of 
 the transferring company of their shares in that 
 company for shares in the transferee company. 
 
 The S. Company agreed for the sale of its busi- 
 ness to the E. Company upon the terms that the 
 S. shareholders should exchange their shares for 
 an equal number of shares in the E. Company. 
 With a view to carrying out this agreement the 
 secretary of the S. Company collected the share 
 certificates of the members of his company, and 
 forwarded them to the E. Company to be exchanged 
 for shares in that company. D., a director of the 
 
COMPANY (E), (F). 
 
 161 
 
 S. Company, ■who took a leading part in the nego- 
 tiations for amalgamation, thus sent in his share 
 certificates to the E. Company through the secre- 
 tary of the S. Company, and received in exchange 
 for them certificates of an equal number of shares 
 in the E. Company. Tliese he retained, but with- 
 out having acknowledged them. The amalgama- 
 tion failed to be carried out both because the 
 agreement was invalid and vltra vires of the S. 
 Company, and also because the E. Company was 
 wound up before the transaction had been com- 
 pleted : — Held, that D. was not a contributory to 
 the E. Company. 
 
 (/) Dealings with shares after amalgamation. 
 
 19. — Company A. transferred its business to 
 Company B., and the shareholders of A. received 
 shares of B. in exchange for their shares in A. : — 
 Held, by James, L. J., aflSrming the Master of the 
 RoUs, that Company A. was virtually dissolved 
 and that its shares could no longer be dealt Tnth. 
 But held, by Mellish L.J., that Company A. not 
 having been formally dissolved, or wound up, the 
 shares might still be dealt with. In re the Acci- 
 dental Death Insurance Company ; ChappeFs case 
 and Lancaster's case. Law Eep. 6 Chanc. 902. 
 
 20. — ^A company with the consent of all the 
 shareholders made over its business and all its 
 assets to another company. Afterwards an ar- 
 rangement was made between the second company 
 and the directors of the first company for rescind- 
 ing the amalgamation, and tlie directors of the first 
 company thereupon elected several new directors, 
 of whom A. was one, and at a meeting of directors 
 at which A. was present a transfer of 200 shares 
 out of A.'s name was sanctioned. The transfer 
 was registered, and the company was now being 
 wound up. The articles only gave the directors 
 powers to refuse to sanction a transfer on condi- 
 tion of their getting some other transferee to take 
 the shares at the market price. But at the time 
 of A.'s transfer the shares were worse than value- 
 less : — Held, that the transfer by A. was invalid, 
 and he was properly placed on the list of contri- 
 butories for the 200 shares. In re the Accidental 
 Death Inswance Company ; Allin's case, 43 Law 
 J. Eep. (n.s.) Chanc. 116; Law Eep. 16 Eq. 
 449. 
 
 21. — A company was wound up voluntarily for 
 the purpose of reconstruction by the formation 
 of a new company with new articles : — Held, that 
 a shareholder in the old company who had given 
 notice of his dissent from the arrangement, and 
 had under section 161 of the Companies Act, 1862, 
 required the liquidators to purchase the interest 
 held by him in the old company, could only sell 
 his interest in the assets of the company in liqui- 
 dation, and not his shares in it ; and, therefore, 
 that a transfer by him of his shares to the liqui- 
 dators was ultra vires, and did not discharge him 
 from his liability to be put on the list of contri- 
 butoiies of the old company. In re the Imperial 
 Land Company of Marseilles; Vining's case, 40 
 Law J. Eep. (n.s.) Chanc. 79; Law Eep. 6 
 Chanc. 96. 
 
 (F) Surrs and Peocbedings. 
 (a) Bill hy one shareholder. 
 
 1.— Where there is a corporate body capable of 
 suing, that body only is the proper plaintiff in a 
 suit for the recovery of property, whether from 
 its officers or directors or from any other person, 
 and a bill for that purpose cannot be sustained 
 by one shareholder on behalf of himself and all 
 others except the defendants. Gray v. Lewis and 
 Parker v. Lewis, 43 Law J. Eep. (n.s.) Chanc. 281 ; 
 Law Eep. 8 Chanc. 1035. 
 
 The only exception to this rule is where the 
 directors or majority of shareholders are doing 
 something fraudulent against the minority, who 
 are overwhelmed by them. Ibid. 
 
 In order to obtain the sale of a business to a 
 projected limited company, the L. Company, and 
 to procure a settling day for the company on the 
 Stock Exchange, it became necessary that 40,000 
 shares in the company should be subscribed for, 
 with 51. paid upon each. To effect this purpose, 
 it was arranged between the directors of the L. 
 Company, the I. Company — who were promoting 
 the L. Company — and the N. Bank, that the N. 
 Bank should discount promissory notes of the I. 
 Company to the amount of 200,000i. ; that the I. 
 Company should pay the sum so received back 
 into the N. Bank to the accoxmt of the L. Com- 
 pany ; that in return for such payment, 40,000 
 shares in the L. Company should be allotted to 
 the nominees of the I. Company, and that the 
 money so paid in should be retained by the bank, 
 and employed in meeting the promissory notes 
 when arrived at maturity. This scheme was car- 
 ried out. Subsequently a bill was filed by a share- 
 holder in the L. Company, on behalf of himself 
 and all other shareholders in the company for a 
 declaration that the application of these moneys 
 to meet the debts of the I. Company had been a 
 breach of trust, and for the recovery of the amount 
 from the directors of the L. Company and the N. 
 Bank : — Held, that such a suit came within the 
 above-stated rule, and was not sustainable. Ibid. 
 
 Held also, that the whole scheme was a sham, 
 with regard to which no liability could arise, 
 either at law or in equity, between the three com- 
 panies who were parties to it. 
 
 2. — Under an agreement sanctioned by Act of 
 Parliament a railway company was sold and 
 transferred to another railway company, who were 
 to issue 155,O0OZ. rent-charge stock at the selling 
 company's reqtiest (the dividends to be paid out of 
 a perpetual rent-charge of 7,0002., payable by the 
 purchasing company), and the proceeds of the 
 stock and of the sale of certain surplus lands and 
 other reserved assets were to be applied by the 
 selling company in payment of certain vendors' 
 debts, charges and costs, and the surplus to be 
 divided between the preferential shareholders and 
 creditors of the selling company in proportion to 
 the amount of their shares and debts. The agree- 
 ment further provided for the issue by the pur- 
 chasing company to the ordinaiy shareholders 
 of the selling company of ordinary stock in the 
 purchasing company. The agreement provided 
 
152 
 
 COMPAiry (F), (G). 
 
 that ■when the company's affairs had been wound 
 up as above, notice was to be advertised in the 
 " London Gazette," and thereupon the selling com- 
 pany was to be dissolved. The agreement was 
 sanctioned in 1866. In 1874 a creditor and or- 
 dinary shareholder of the company filed a bill on 
 behalf of himself and all other the creditors and 
 shareholders of the selling company against that 
 company, alleging (amongst other things) wilful 
 delay in winding up the company, default in pay- 
 ment of debts, and refusal or neglect to deliver to 
 the plaintiff the ordinary stock to which he was 
 entitled, and praying a winding-up and other con- 
 sequential relief. On demurrer to the bill for want 
 of equity : — Held (affirming the decision of Malins, 
 V.C.), that on the allegations plaintiff was en- 
 titled to some relief as a creditor, and the de- 
 murrer was not sustainable for want of equity ; 
 biit held also, that plaintiffs claim as an ordinary 
 shareholder made the bill demurrable for mul- 
 tifariousness and misjoinder, and on this ground 
 the demurrer was allowed, but with liberty to 
 amend. Ward v. The Sittingbov/rne Eailway 
 Company, 43 Law J. Eep. (n.s.) Chanc. S33 ; Law 
 Eep. 9 Chanc. 488. 
 
 The demurrer being sustained only on the 
 grounds alleged ore terms, the plaintiff was allowed 
 his costs under Consol. Ord. xiv. rule 1. Ibid. 
 
 3. — A bill by one shareholder on behalf of 
 himself and others which in substance seeks the 
 interference of the Court in the internal manage- 
 ment of a company cannot be sustained. The 
 company should be the plaintiffs. Where such a 
 bill against the directors of the company contained 
 allegations to the effect that the chairman at a 
 meeting refused a poll when properly demanded 
 and thereby set up his own decision as conclusive, 
 which by the constitution of the company it was 
 not : — Held, that the bill was demurrable. The 
 rule in Mozeley v. Alston (1 Ph. 790) and Foss v. 
 Harbottle (2 Hare, 461 ) will be strictly adhered to. 
 Decision of Malins, V.C. (Law Eep. 20 Eq. 383) 
 reversed. Mac Dougall v. Gardiner, 45 Law J. 
 Eep. (n.s.) Chanc. 27 ; Law Eep. 1 Chanc. Div. 
 13. 
 
 [And see supra D 24, 66.] 
 
 (6) Flaintiff company ordered to give security for 
 costs. 
 
 4. — "Where a limited company being wound up 
 was the plaintiff, an order for security for costs to 
 a limited amount to cover costs up to answer with 
 liberty to apply for further security after answer 
 was held proper and convenient. Such orders are 
 matters for the discretion of the Judge. The West- 
 em of Canada Oil Lands and Works Company 
 V. Walker, Law Eep. 10 Chanc. 628. 
 
 5. — A bill was filed by a limited company in 
 liquidation to set aside a mortgage which the 
 defendants were foreclosing, or to have the ac- 
 counts taken on a footing totally different from 
 that suggested in the foreclosure suit, and was 
 expressed to be a cross bill to the foreclosure suit : 
 — Held, that the bill was not a mere cross bill, 
 and that the plaintiff company must give security 
 for costs. 
 
 Semble — that even if it had been a mere cross 
 bill, the plaintiff company being in liquidation 
 must give security for costs. 
 
 Order of the Master of the Eqlls (41 Law J. 
 Eep. (n.s.) Chanc, 151) affirmed. The City of Mos- 
 cow Gas Company v. The International Financial 
 Society, 41 Law J. Eep. (n.s.) Chanc. 330 ; Law 
 Eep. 7 Chanc. 225. 
 
 (c) Debtor's smnmons by secretary of company. 
 
 6. — A debtor's summons taken out in the name 
 of the secretary of a company for a debt due to 
 the company is irregular. Ex parte Leathley ; 
 In re Hodges, 42 Law J, Eep. (n.s,) Bankr. 56 ; 
 Law Eep, 8 Chanc, 204, 
 
 (G) Shaeeholdees. 
 
 (s) Allottees. 
 
 (1) Persons who have signed the memorandum of 
 association. 
 
 1. — L. signed the memorandum of association 
 of a company for fifty shares in January, 1866. 
 The company was registered on the 18th of Janu- 
 ary, 1866. Directors were appointed on the 24th 
 of February, 1866. The company was wound up 
 on the 23rd of September, 1867. L,'s name had 
 not, up to that time, been placed on the list of 
 shareholders : — Held, that, notwithstanding the 
 lapse of time, L. must be made a contributory. In 
 re the ImperialLand Company of Marseilles {Lim.) ; 
 Levick's case, 40 Law J. Eep. (n.s.) Chanc. 180. 
 
 2, — When a person signs a memorandum of 
 association for any number of shares, he becomes 
 absolutely bound to take those shares and no 
 delay in placing his name on the register wiU 
 relieve him from that liability. In re Eobinson 
 and Preston's Brewery Company ; Sidney's case. 
 Law Eep. 13 Eq. 228, . 
 
 3. — D, signed the memorandum of association 
 for 100 shares. The articles of association regis- 
 tered on the same date as the memorandum, 
 provided that the shares allotted under the 
 memorandum should be fully paid-up shares : — 
 Held, nevertheless (afBrming Denies Case, 42 
 Law J. Eep. (n.s.) Chanc. 474; Law Eep. 15 
 Eq. 407), that D. was liable as a contributory. In 
 re the Anglo-Moravian Hungarian Junction Sail- 
 way Company (Lim.); Dent's Case and Forbes' 
 case, 42 Law J. Eep. (n.s.) Chanc. 827 ; Law Eep. 
 8 Chanc. 760. 
 
 The concessionaire and contractor for the works 
 of a company in course of formation (before the 
 passing of the Companies Act, 1867), applied to 
 F. to become a director, and offered to provide his 
 qualification as a director (fifty shares) out of the 
 fully paid-up shares to be issued to himself. F, 
 never signed the ai-ticles of association, nor made 
 any application for shares nor received any cer- 
 tificate of shares, but he took his seat at the 
 board as a director. Upon the winding-up of the 
 company, — Held, that F. was not liable as a con- 
 tributory. Ibid. 
 
 [And see infra G 23, 26.] 
 
COMPANY (G), 
 
 153 
 
 (2) Persons who have applied for shares. 
 (i) Scrip holders. 
 
 4. — A private Act of Parliament, under which 
 the defendant company was constituted, provided 
 that it should not be lawful for the company to 
 issue any share, nor should any share vest in the 
 person accepting the same, unless and until one- 
 fifth part of the amount of the share should he 
 paid up : — Held, that a person who applied for 
 shares and had them allotted to him before the 
 one-fifth was paid, was a shareholder in the com- 
 pany to all intents and purposes, except that he 
 could not transfer his shares until one-fifth was 
 paid up. M'Even v. The West London Wharves 
 and Warehouses Company, 40 Law J. Eep. (n.s.) 
 Chanc. 471 ; Law Eep. 6 Chanc. 656. 
 
 The East Gloucestershire 'Railway Company v. 
 Bartholomew {Ls.-^'d.jei^. SExch. 15) followed. Ibid. 
 
 With the same Act of Parliament was incor- 
 porated the 14th section of the Companies Clauses 
 Consolidation Act, 1845, which enacts that the 
 shares of a company can be transferred by deed 
 only. M., a shareholder in the company, received, 
 in respect of the shares which had been allotted 
 to him, scrip certificates, which stated that the 
 allottee or bearer was entitled to exchange the 
 scrip for share certificates. M. sold his right to 
 the shares, and delivered the scrip certificates to 
 the purchaser who paid the first call upon them ; 
 but no deed of transfer was executed. M. was 
 subsequently placed on the share register, and on 
 the company being wound up the liquidators com- 
 menced an action at law against him to recover 
 calls due on the shares : — Held, that notwith- 
 standing the terms of the scrip certificates, and 
 that the company had treated the purchaser from 
 M. as the virtual shareholder, M. had not ceased 
 to be the legal shareholder, as the right to the 
 shares had not been transferred by deed, and 
 therefore that the Court would not restrain the 
 action for calls, whatever rights M. might have 
 against his purchaser. Ibid. 
 
 5. — ^The plaintiff applied for and received an al- 
 lotment of scrip certificates to bearer under a pro- 
 spectus, which stated that on registration of the 
 scrip, of which due notice would be given, the 
 certificates would be divided into five shares of 
 VA. each. He never applied to have his scrip 
 registered : — ^Held, affirming the decision of the 
 Master of the Eolls (40 Law J. Rep. (n.s.) Chanc. 
 652), that he could not be registered as a share- 
 holder without his consent. Macllwraith v. The 
 Dublin Trunk Connecting Bailway Company, 41 
 Law J. Kep. (n.s.) Chanc. 262; Law Eep. 7 
 Chanc. 134. 
 
 (ii) Application in name of married woman. 
 
 6. — A person who applies for shares in a 
 fictitious name, or in the name of a person in- 
 capable of contracting, is liable to be himself 
 placed on the list of contributories in respect of the 
 shares so applied for. In re the Hercules Insurance 
 Company {Lim.); Piigh's case and Sharman's case, 
 41 Law J. Eep. (n.s.) Chanc. 580 ; Law Eep. 13 
 Eq. 566. 
 
 Digest, 1870-1875. 
 
 S., with the concurrence of an agent of the 
 company, induced his married daughter to sign 
 an application for shares, she being in ignorance 
 of the nature of the document she signed. S. 
 paid the deposit on the shares, and received a 
 dividend upon them. Both the married daughter 
 and her husband were in total ignorance that any 
 shares were standing in her name : — Held, that 
 the name of S. must be placed on the list of con- 
 tributories in respect of the shares. Ibid. 
 
 Evidence taken under the Companies Act, 1862, 
 s. 115, may be used on the hearing of a summons 
 against the person giving the evidence. Ibid. 
 
 (iii) Conditional application for shares. 
 (1) Officer of company. 
 
 7. — The fact that W. was an auditor of the 
 company was held to be sufficient to give him 
 notice who were the shareholders on the register, 
 and that he himself was one of them. And Held, 
 that having allowed his name to remain there till 
 after the winding-up order was made, he must be 
 fixed on the list of contributories. /» re the 
 Matlock Old Bath Hydropathic Company (lAm.); 
 Wheatcroft's case, 42 Law J. Eep. (V.s.) Chanc. 
 853. 
 
 8. — A. having applied for the secretaryship of 
 a company, was informed by B., the then secre- 
 tary, that he would have to take 120 shares in 
 the company, for which he accordingly signed a 
 written application, on the understanding that it 
 was not to be acted upon until he had finally de- 
 cided upon accepting the appointment. The next 
 day B. sent A. a formal notice of allotment of the 
 shares, but seven days afterwards A., having de- 
 cided not to accept the appointment, wrote to B. 
 repudiating them. The company subsequently 
 passed resolutions for a voluntary winding-up, 
 and A.'b name was settled on the list for 120 
 shares. An application by A. to strike his name 
 off was granted, with costs as between solicitor 
 and client, by way of damages. In re the Na- 
 tional Equitable Provident Society [lAm.); Ex 
 parte Wood, 42 Law J. Eep. (n.s.) Chanc. 403 ; 
 Law Eep. 15 Eq. 236. 
 
 Liability of director in respect of qualifying 
 shares. [See supra D 31-40.] 
 
 (2) Condition as to liability of applicant. 
 
 9. — Directors having power to compromise 
 claims made against, or owing to, their company, 
 or to settle disputes arising between the company 
 and any other body or person, have power to com- 
 promise a bond fide claim by a shareholder to be 
 removed from the list of contributories, and to 
 annul the allotment to him, provided the claim is 
 fairly a matter of dispute and no ulterior pur- 
 pose is sought to be accomplished by the com- 
 promise. JDixon V. Evans (H.L.) 42 Law J. Eep. 
 (n.s.) Chanc. 139 ; Law Eep. 5 E. & I. App. 606. 
 
 In 1846 D. became a shareholder in an un- 
 limited company, upon the faith of a promise by 
 W., the local manager, that he should not be- 
 come responsible as a shareholder until or unless 
 an Act of Parliament should be passed incorpo- 
 X 
 
164 
 
 COMPANY (G). 
 
 rating the company ■with limited liability. D. 
 never paid any calls upon his shares, but he acted 
 as a shareholder in some particulars. In 1848, 
 the company having failed to obtain an Act 
 limiting the liability of its members, D. applied 
 to have his shares cancelled, and the directors on 
 learning the facts, and considering that the com- 
 pany might be injured if they discredited their 
 agent aad local manager, resolved, in considera- 
 tion of the payment of the amount then due for 
 a call, to cancel the shares. This resolution was 
 not communicated to the shareholders generally, 
 but they -were made aware that money had been 
 received on account of cancelled shares ; and 
 during upwards of twenty years the name of D. 
 never appeared as a shareholder. The deed of 
 settlement contained a clause empowering the 
 directors to compromise any claims made against, 
 or owing to, the company, and either to refer to 
 arbitration or to settle as they should think proper 
 any dispute which might arise between the com- 
 pany and any other person or corporation. Ibid. 
 
 In 1869, the company being in course of wind- 
 ing up, it was sought to make D. liable as a con- 
 tributory: — Held, that- the compromise was intra 
 vires of the directors, and that D.'s name must be 
 removed from the list of contributories. Ibid. 
 
 10, — P. applied for shares in an unlimited 
 company (if limited). Shares were allotted to 
 him and his name placed on the register of mem- 
 bers. Six months after the company was ordered 
 to be wound up. P. was placed on the list of 
 contributories. In re the United Forts and Gene- 
 ral Insurance Company ; Perrett's case, 42 Law J. 
 Eep. (n.s.) Chanc. 305 ; Law Eep. 15 Eq. 260. 
 
 (iv) Attotmetit of shares to directors for dis- 
 tribution. 
 
 11. — Agreement in 1864 between two limited 
 banking companies, A. and B., that 10,000 new 
 shares in Company B. should be "allotted at par 
 to the directors " of Company A. " for distribution 
 amongst their shareholders." Company A. had 
 no power of holding shares in another bank. Two 
 hundred and sixty out of the 10,000 shares 
 were never allotted to shareholders of Company 
 A. : — Held, that the agreement was from the 
 beginning conditional on the circumstance of the 
 shareholders in the A. Company accepting the 
 shares, and could not in the year 1869 be speci- 
 fically enforced as to the 260 shares by the liqui- 
 dators of the A. Company against the B. Company. 
 In re the Mercantile and Exchange Sank; Ex 
 parte the London Bank of Scotland, Law Rep. 12 
 Eq. 268. 
 
 (3) Notice of allotment. ^ 
 
 (i) What notice sufficient. 
 
 12. — A joint stock company agreed to appoint 
 E. their district manager on condition that he 
 took twenty-five shares in the company. E. ac- 
 cordingly applied for twenty-five shares in the 
 usual printed form addressed to the directors, 
 and paid at the same time the required deposit 
 thereon. Afterwards twenty-five shares were 
 
 allotted to him, and his name was entered on the 
 register of shareholders, and on the same day he 
 was duly appointed district manager. Notice of 
 this appointment was given him, and he ac- 
 cepted the same, but he never received any formal 
 notice of the shares having been allotted to him. 
 He shortly afterwards desired that the shares 
 might not be allotted to him, and after a few 
 weeks he resigned his appointment: — Held, that 
 under the circumstances sufficient notification had 
 been given to E. that the shares had been allotted 
 to him, and that therefore his name was rightly 
 on the register of shareholders. In re the Home As- 
 surance Association ; Ex parte Richards, 40 Law J. 
 Eep. (w.s.) C. P. 290 ; Law Eep. 6 C. P. 591, nom. 
 Richards v. The HoTne Assurance Soeiety. 
 
 13.— The B. Company with limited liability, 
 carrying on the business of marine insurance only, 
 and having no power to sell its business, entered 
 into an agreement with the P. Company, being an 
 unlimited company and carrying on the business of 
 life, fire and marine insurance, for the transfer of 
 its business to that company, in consideration of a 
 sum of money, and of so many shares in the P. Com- 
 pany, to he issued to members of the B. Company. 
 In order to carry out this agreement, the B. Com- 
 pany was wound up voluntarily under an order of 
 the Court, and the sanction of the Court was ob- 
 tained to the agreement. Letters were sent by the 
 manager of the P. Company to the shareholders of 
 the B. Company, asking them to exchange their 
 shares in the B. Company for shares in the P. Com- 
 pany, in pursuance of the agreement, and enclosing 
 forms of application for shares in the P. Com- 
 pany : — Held, that shareholders of the B. Company, 
 who signed and returned such forms of application 
 to the manager of the P. Company, had entered 
 into a binding contract to take shares in that com- 
 pany, notwithstanding they had received no notice 
 of allotment of the shares. Held, also, that the 
 agreement for the amalgamation between the two 
 companies having been sanctioned by the Court 
 under the winding-up of the B. Company, was not 
 ultra vires, and therefore not invalid. In re the 
 United Forts and General Insurance Company ; 
 Brown's case and Tucker's case, 41 Law J. Eep. 
 (n.s.) Chanc. 157. 
 
 [And see supra E 17.] 
 
 (ii) Notice through post. 
 
 14. — Proof of the posting of several letters at 
 successive dates is not conclusive evidence of any 
 of them having been received at the address to 
 which they were directed. In re the Constantinople 
 and Alexandria Hotels Company ; Seidpath's case, 
 40 Law J. Eep. (n.s.) Chanc. 39; Law Eep. 11 
 Eq. 86. 
 
 An applicant for shares in a company, the 
 articles of association of which declare that an 
 application followed by an allotment shall be 
 treated as an acceptance of shares, is not bound 
 after a lapse of years as a contributory, unless it 
 is conclusively proved that he received notice of 
 the allotment. Ibid. 
 
 16. — A company being in course of formation, 
 T., in March, 1866, sent a written application for 
 
CO:\IPANY (G). 
 
 ]fl5 
 
 shares, giving an imperfect address. Shares were 
 allotted to him, and notice of the allotment posted 
 on the 16th of March to the adiress given on his 
 application. This should have reached him on 
 the 17th, but owing to this address heing im- 
 perfect, it did not reach him at all. Another 
 letter was posted on the 20th, wliich reached him 
 on the 21st. On the 20th he posted a letter to 
 revoke bis application for shares : — Held, that as 
 the notice of the 16th would have reached him but 
 for his giving a wrong address, its being posted 
 must be taken as good notice to him, and that 
 his revocation was too late. In re the Imperial 
 Land Company of Marseilles, Townsend's case, 41 
 Law J. Rep. (n.s.) Chanc. 198 ; Law Eep. 13 
 Eq. 148. 
 
 Held, also, that when a person has applied for 
 shares, and they have been allotted to him, and 
 notice of the allotment has been posted to and 
 received by the allottee, the date at which the 
 contract to take the shares is completed is the 
 time of the posting the notice ; and that if the 
 allottee sets up a revocation, he must prove that 
 the letter of revocation was posted before the 
 notice of allotment. Ibid. 
 
 16. — Where an application for shares in a 
 company has been sent by post, the contract 
 to take shares is complete and binding from the 
 moment that the letter announcing the allotment 
 is put into the post, whether such letter subse- 
 quently reaches the allottee or not. Townsend's 
 case (41 Law J. Eep. (n.s.) Ohanc. 198 ; Law 
 Eep. 13 Eq. 148) observed upon. The British and 
 American Telegraph Company v. Colson (40 Law 
 J. Eep. (n.s.) Chanc. 97 ; Law Eep. 6 Exch. 108) 
 disapproved. In re the Imperial Land Company nf 
 Marseilles (Lim.) ; Wall's case, 42 Law J. Eep. 
 (n.s.) Chanc. 372 ; Law Eep. 15 Eq. 18. 
 
 (4) Sescission of ultra vires allotment, 
 
 17. — An vltra vires allotment of shares, even 
 to a director, not completed by registration, may 
 be rescinded ; and if rescinded, the director is not 
 a contributory. In re the Essex Brewery Company, 
 Bametfs case, Law Eep. 18 Eq. 507. 
 
 (i) Agreement to take shares. 
 (1) What ainounts to, 
 
 18. — ^C., for good consideration, entered into 
 an arrangement with a company, part of which 
 was that he and his partner should take 260 
 shares. He applied for fifty shares, and paid the 
 deposit thereon. No allotment of shares in the 
 company was ever made, and his name was never 
 entered ijpon any register of members. The com- 
 pany afterwards being wound up,— Held, that D. 
 was rightly placed upon the list of contributories. 
 In re the Valparaiso Waterworks Company ; Davies' 
 case, 41 Law J. Eep. (n.s.) Chanc. 669. 
 
 19. — An agreement to "place" shares does not 
 render the contractor liable as a contributory, but 
 only to an action for damages. In re the Monarch 
 Insurance Company ; Gorissen's case, 42 Law J. 
 Eep. (n.s.) Chanc. 864 ; Law Eep. 8 Chanc. 507. 
 
 G. being desirous of being appointed agent of a 
 
 company oifered to place 1,000 shares upon being 
 promised the appointment. The offer was ac- 
 cepted and 1,000 shares were allotted to him, and 
 his name was entered on the register as the holder 
 thereof, but it did not appear that any notice of 
 the allotment was sent to him. The shares could 
 not be placed owing to a want of confidence on the 
 part of the public, and G. then proposed to esta- 
 blish a branch office in Germany with a second 
 issue of shares before placing those of the first 
 issue, and in reply to a letter from the secretary 
 of the company requesting him to complete his 
 agreement as to the placing of the 1,000 shares, 
 and stating that they stood in the register in blank 
 with merely G.'s name as reference, G. wrote au- 
 thorising his name to be left where it was placed, 
 and engaging to keep that amount himself out of 
 the commission on the second issue. No second 
 issue was ever made. On the winding-up of the 
 company : — Held, reversing the decision of one of 
 the Vice-Chancellors, that G. was not liable as a 
 contributory. Ibid. 
 
 20. — A special railway Act, passed in 1865, 
 incorporated certain persons mentioned by name 
 therein, " and all other persons who shall have 
 already subscribed or shall hereafter subscribe to 
 the undertaking." The Companies Clauses Consoli- 
 dation Act, 1846, was in part incorporated in the 
 Act. Before the passing of the Act the defendants, 
 with several other persons, signed a list headed 
 with the name of the proposed railway, and with 
 the words, "Wo, the undersigned, hereby agree, 
 on the passing of the Act for the construction of 
 the railway, to subscribe for the number of lOl. 
 shares set opposite our respective names." The 
 number opposite the name of the defendant's firm 
 was fifty. Subsequently an agent, alleging himself 
 to have authority from the defendants, but not in 
 fact having any, sent in a fresh list to the promoters, 
 in which list the defendants were set down for 100 
 shares. The company, after the passing of the 
 Act, allotted the larger number of shares, but at a 
 later period inserted the names of the defendants in 
 the register book of the company in respect of 
 fifty shares. The defendants had no notice of the 
 allotment or the entry in the register, and in 1868 
 had a call made upon them in respect of their 
 shares under the Companies Clauses Consolidation 
 Act, 1845, ss. 7, 8, 9:— Held, that the defendants 
 were liable as shareholders in the undertaking for 
 the amount of the calls. Burke v. Lechmere, 40 
 Law J. Eep. (n.s.) a. B. 98 ; Law Eep. 6 Q. B. 297. 
 
 Liability of directors in respect of qualifying 
 shares. [See supra I) 31 — 40.] 
 
 (2) Bight of repudiation. 
 
 21. — Shares in a company having been pur- 
 chased by C. from H., he in October, 1865, ob- 
 tained the consent of B., then an infant of nine- 
 teen years, to allow them to be placed in his name, 
 which was done. The company was ordered to 
 be wound up, and in December, 1867, B.'s name 
 was placed upon the list of contributories. B., 
 who attained the age of twenty-one years in Sep- 
 tember, 1867, wrote a letter in February, 1868, 
 x2 
 
156 
 
 COMPANY (G). 
 
 repudiating the shares. The official liquidator in 
 March, 1868, took out a summons to remove B.'s 
 name from the list and place that of H. in its 
 place. This summons, apparently -with B.'s con- 
 sent, was not proceeded with. B., at the request 
 of the liqiiidator, in April, 1871, gave liberty to 
 file a bill in his name against C. Afterwards B. 
 applied to have his name removed : — Held, afSrm- 
 iug the Master of the Rolls, that he was entitled 
 to an order. In re the Contract Corporation; 
 Baker's case, 41 Law J. Eep. (n.s.) Chanc. 275 ; 
 Law Eep. 7 Chanc. 115. 
 
 22. — The repudiation of a contract upon in- 
 sufficient grounds will be good, if at the time there 
 existed sufficient grounds of which the party re- 
 pudiating was not aware. In re the London and 
 Meciiterranean Bank (Lim.); Wright's case, 41 Law 
 J. Rep. (n.s.) Chanc. 1 ; Law Rep. 7 Chanc. 55. 
 
 Upon the faith of a false representation in the 
 prospectus of a joint-stock company, "W. applied 
 for shares and obtained an allotment, paying a de- 
 posit. The comnlittee of the Stock Exchange 
 having refused an application by the directors for 
 a settling day, "W., who had at that time no know- 
 ledge of the misrepresentation in the prospectus, 
 wrote to the secretary demanding his money back, 
 and subsequently, resolutions having been passed 
 at a general meeting giving to the allottees 
 the option of having their allotments cancelled 
 and the money returned without interest, "W. 
 availed himself of that option, returned the share 
 certificates, and received back his money, and the 
 register of shareholders was altered by setting 
 opposite to the shares entered in his name the 
 words, "Money returned and allotment cancelled." 
 The company was afterwards wound up, and the 
 A. list of contributories having become exhausted, 
 W.'s name was placed on the B. list of contribu- 
 tories as a past member of the company ; but upon 
 appeal. Held, reversing the decision of Wickens, 
 V.C. (Law Rep. 12 Eq. 331), that the shares had 
 been repudiated and the allotment cancelled, ab 
 initio, and that the repudiation by W. of the 
 shares was not the less effectual, because he was 
 not aware at the time, of the misrepi-esentation in 
 the prospectus, which alone entitled him to repu- 
 ■diate them. Ibid. 
 
 to take 
 [See. supra E 1.] 
 
 (c) Fully paid-up shares. 
 
 (1) Subscription of memorandum. 
 
 23. — J. E. sold a " take-note " or mining license 
 to F. and others, under an agreement that a por- 
 tion of the purchase-money, viz., 2, 0002., should 
 be taken in paid-up shares of a company about to 
 be promoted by E. and others for working the 
 mine. J. E., on the company's being formed, 
 signed the memorandum of association for 1,000 
 11. shares, and 1,000 shares were afterwards al- 
 lotted to him. In the share-ledger of the com- 
 pany was an entry debiting J. E. with 2,0002. for 
 the shares and crediting him with 2,O0OZ. de- 
 scribed as paid by E. and the others. J. E. after- 
 wards sold the 1,000 shares. On the company's 
 
 being wound up, — Held, that J. F. had done 
 nothing to exempt him from the liability he had 
 incurred by signing the memorandum to pay for 
 the 1,000 shares in cash, and that he was a con- 
 tributory in respect of 1,000 shares. Observations 
 of Mellish, L.J., in FothergUl's case (21 W.R. 301, 
 and Spargo's case, Ibid. 307) commented on. In 
 re the Fen' Allt Silver Lead Mining Gormpany 
 (Lim.) ; Eraser's case, 42 Law J. Rep. (n.s.) Chanc. 
 358. 
 
 24. — M. in November, 1865, signed the memo- 
 randum of association for one hundred lOl. shares, 
 and alleged that at the time he did so there was 
 a verbal understanding that the shares were to be 
 paid for by the conveyance of certain land to the 
 company. No allotment was made, but M. acted 
 as a director, for which a qualification of twenty 
 shares was required. Six months after the memo- 
 randum was signed M. agreed to sell and after- 
 wards conveyed the land to the company, and the 
 consideration was stated to be 1,0002. ; 100 shares 
 were afterwards allotted to M. in pursuance of the 
 purchase as fully paid-up shares. M. afterwards 
 purchased ten other fully paid-up shares, and his 
 name was on the register for 110 shares only: — 
 Held, by one of the Vice-Chancellors, that in the 
 absence of any written evidence of the under- 
 standing or agreement, the 100 fully paid-up 
 shares allotted for the land could not be taken as 
 being the 100 shares for which M. signed the 
 memorandum of association, but that he must be 
 considered liable for 100 shares. But upon appeal 
 this decision was reversed, and it was held that 
 M.'s name ought not to be on the list for any 
 other than fully paid-up shares. In re the Matlock 
 Old Bath Hydropathic Company (Lim.); Maynard's 
 case, 43 Law J. Rep. (n.s.) Chanc. 146 ; Law Eep. 
 9 Chanc. 60. 
 
 25. — Two owners of certain mines subscribed 
 the memorandum of association of a limited com- 
 pany incorporated in 1866, whose object was to 
 work the mines, each for 250 shares. The articles 
 sanctioned the adoption of an agreement by which 
 the owners sold the mines for a price, part of 
 which was to be 500 paid-up shares. The mines 
 were taken by the company, and the former 
 owners were entered on the register of members 
 as holders of 250 fully paid-up shares each : — 
 Held, in the absence of any evidence fiirther than 
 as to these facts, that the shares for which they 
 were so registered must be taken as paid-up 
 shares, and that the liability arising from their 
 subscription of the memorandum was satisfied. In 
 re the Bosmorthen and Fenzance Mining Company ; 
 Jones's and Taylor's case, 40 Law J. Eep. (n.s.) 
 Chano. 133 ; Law Eep. 6 Chanc. 48. 
 
 26. — D. signed the memorandum of association 
 of a company registered under the Companies Act, 
 1862, for 100 shares. He also signed the articles 
 of association of the company, and became a di- 
 rector of it. The memorandum and articles were 
 both dated and registered together. The former 
 said nothing as to the quality of the shares to be 
 subscribed for under it ; but the latter provided, 
 inter alia, that the shares allotted to the sub- 
 scribers of the memorandum should be "fully 
 
COMPANY (G). 
 
 157 
 
 paid-up shares." The company was ordered to 
 be -wound up, and D.'s name was placed on the 
 list of contributories : — Held, that D. having 
 signed the memorandum, had thereby agreed to 
 take "and pay for" the 100 shares; that having 
 regard to the Companies Act, 1862, s. 12, the sub- 
 stitution by the artides of fully paid-up shares, 
 for shires Jigreed to be paid for, was a substantial 
 alteration in the memorandum, which was not 
 warranted by the Act ; and that D. was a con- 
 tributory. In re the Anglo-Moravian Hungarian 
 Junction Railwai/ Company (Lim.) ; Dent's case, 42 
 Law J. Eep. (n.s.) Chanc. 474 ; Law Eep. 15 Eq. 
 407. 
 
 (2) Payment in bonds. 
 
 27. — Directors of a company formed for run- 
 ning a blockade accepted payment for shares in 
 bonds of the blockaded country, which ultimately 
 became valueless : — Held, that the directors were 
 justified in receiving payment in these bonds, and 
 that the shareholder who had thus paid for his 
 shares was not a contributory. In re the Mercantile 
 li-ading Company ; Sckroeder's case, 40 Law J. Eep. 
 (n.s.) Chanc. 130; Law Rep. 11 Eq. 131. 
 
 (3) Payment "in cash" within section 25 of the 
 Companies Act, 1867. 
 
 28. — An allottee of " fully paid-up shares " will 
 now be a contributory in respect of them unless 
 he discharges himself from his liability by com- 
 plying with the provisions of the Companies Act, 
 1867, s. 25. In re The Metropolitan Public Car- 
 riage and Repository Company (lAm.) ; ClelancHs 
 case, 41 Law J. Eep. (n.s.) Chanc. 652 ; Law Eep. 
 14 Eq. 387. 
 
 29. — Section 25 of the Companies Act, 1867, 
 requiring the registration of contracts for pay- 
 ment of shares otherwise than in cash, is not 
 satisfied by the registration of articles of associa- 
 tion providing for the execution of a contract of 
 purchase by the company for fully paid-up shares, 
 and signed by the vendor as a subscriber. In re 
 the Tavarone Mining Company (Lim.) ; Pritchard's 
 case, 42 Law J. Eep. (n.s.) Chanc. 768 ; Law Eep. 
 8 Chanc. 956. 
 
 Semble, per Mellish, L.J., even the proper re- 
 gistration of such a contract, for the issue of fully 
 paid-up shares to the vendor or his nominees, 
 would not protect nominees, unless there were 
 something on the register to identify them as 
 such. Ibid. 
 
 Articles of association provided that the com- 
 pany, immediately after incorporation, should enter 
 into an agreement for purchase of a mine, the con- 
 sideration to the vendor being cash and fully 
 paid-up shares, such agreement to be conditional 
 on a certain sum being actually paid up in cash 
 within three months on the shares other than the 
 fully paid-up shares. Such condition was not 
 fulfilled, but some of the shares were allotted as 
 fully paid up : — Held, affirming the decision of 
 "Wickens, V.C., that the articles did not constitute 
 a duly-registered agreement under the Companies 
 Act, 1867, and that the allottee was therefore 
 liable as a contributory; but Held also, that even 
 
 ifthere had been a duly -registered agreement the 
 shares were not properly issued under it, and on 
 that ground also could not be considered fully 
 paid up. Ibid. 
 
 30. — F. was the holder of fifty shares in the 
 company, which had been issued before the Com- 
 panies Act, 1867, came into operation, and on each 
 of which 14^. was unpaid. In 1868 W. brought 
 an action against the company, which was com- 
 promised upon the terms that the company should 
 pay to W. 3,200^. and should credit F. with 700Z. 
 in respect of his shares so as to make them fully 
 paid-up shares. The arrangement was carried out, 
 and certificates for fally paid-up shares were issued 
 to F. The company was afterwards wound up : — 
 Held (affirming the decision below, 43 Law J. Eep. 
 (n.s.) Chanc. 264), that there had been payment in 
 fall of the amount due upon F.'s shares, and there- 
 fore he was not a contributory. In re the Para- 
 guassu Steam Tramroad Company {Lim.) ; Ferrao's 
 case, 43 Law J. Eep. (n.s.) Chanc. 482 ; Law 
 Eep. 9 Chanc. 356. 
 
 Semble — the 25th section of the Companies Act, 
 1867, is not retrospective so as to apply to shares 
 taken before the commencement of the Act. Ibid. 
 
 31. — By the articles of association of a limited 
 company it was provided that immediately after 
 its registration the company should raise a loan 
 of 20,000?., to be secured by the issue of first 
 mortgage debenture bonds, bearing 15 per cent, 
 interest ; and that with each of the bonds so issued 
 the company should allot fully paid-up shares of 
 equal value to the amount of such bond, by way 
 of bonus to the lenders. A shareholder of the 
 company took debenture bonds, and bonus shares 
 of equal value were registered in his name as fully 
 paid-up shares. The company being ordered to be 
 wound up : — Held, that the Mticles of association 
 did not constitute a contract in writing between 
 the shareholder and the company within the 25th 
 section of the Companies Act, 1867, and that the 
 bonus shares were payable in cash. In re the 
 Malaga Lead Company ; Firmstone's case, 44 Law 
 J. Eep. (n.s.) Chanc. 617 ; Law Eep. 20 Eq. 524. 
 
 32. — A company at its first meeting resolved 
 " that the sum of 2,716?. be credited to S. for the 
 lease of a mine, and that the same be paid out of 
 the share capital of the company," and at the same 
 time that certificates should be issued to S. for 
 the shares agreed to be taken by him as fully paid 
 up. At the date of these resolutions S. had only 
 a verbal agreement with the parties equitably en- 
 titled to a lease of the mine, which was afterwards 
 put into writing ; the company was cognisant of 
 that agreement, and subsequently made arrange- 
 ments with S. and the other parties on the footing 
 of that agreement ; but in consequence of some 
 difficulties as to the form of the lease, it was never 
 executed. Upon the winding up of the company : 
 — Held, that the transaction between the company 
 and S. was equivalent to an exchange of cheques, 
 and was therefore a cash payment by him, and 
 might be pleaded as such at law ; and, conse- 
 quently, that it was not a contract requiring to be 
 made valid by registration under section 25 of the 
 Companies Act, 1867 (30 & 31 Vict. c. 131). Fur- 
 
158 
 
 COMPANY (G). 
 
 ther, that the company having had full knowledge of 
 the nature of the title of S., and having acted upon 
 it, could not now allege that the consideration pro- 
 ceeding from S. had failed. And that even if the 
 consideration had failed, the original payment was 
 none the less a cash payment, though the failure 
 of consideration might be the subject of an action 
 or bill for the recovery of the money or damages. 
 Semble, that it might also be matter for an order 
 under section 101 of the Companies Act, 1862 (26 
 & 26 Vict. c. 89). In re the Harmony and Mon- 
 tague Tin and Copper Mining Company (Lim.) ; 
 Spargo's case, 42 Law J. Eep. (n.s.) Chanc. 488 ; 
 Law Eep. 8 Chanc. 407. 
 
 The costs of an appeal from the Stannaries 
 Court being ordered to be paid out of the assets 
 of the company, of which the taxing officer of the 
 Stannaries was also official liquidator, directed to 
 be taxed by the officer in Chancery. Ibid. 
 
 33. — F. and others contracted with H., as a 
 trustee for the P. Company then about to be 
 formed, for the sale to thecompany of their in- 
 terest in the P. mine in consideration of 5,000 
 fully paid-up shares. This agreement was filed 
 with the Eegistrar of Joint Stock Companies to- 
 gether with the memorandum and articles of 
 association of the company, the memorandum of 
 association being signed by P. for 1,000 shares. 
 1,575 fully paid-up shares were afterwards allotted 
 to P. as part of the consideration to be paid 
 to him for the purchase of the mine, and no 
 other shares were ever allotted to him, nor was 
 he ever registered as the owner of any other shares. 
 -Upon the winding-up of the company, — Held, 
 affirming the decision of the Master of the EoUs, 
 that the contract was a separate transaction from 
 the signing of the memorandum of association and 
 the filing of it did not take th§ case out of the 
 25th section of the Companies Act, 1867, 30& 31 
 Vict. c. 131 ; and F.'s name must therefore be 
 placed on the list of contributories for 1,000 shares. 
 In re the Pen' AUt Silver Lead Mining Company 
 {Lim.); FothergiWs case, 42 Law J. Eep. (n.s.) 
 Chanc. 481 ; Law Eep. 8 Chanc. 270. 
 
 34. — A company was formed with a capital of 
 7,500 II. shares for the purpose, as stated in the 
 memorandum of association, of purchasing the 
 business of C. C. subscribed the memorandum 
 for 2,500 shares, and other persons subscribed it 
 for 3,625 shares, making the total number of 
 shares subscribed for 6,125. The articles, which 
 bore the same date as the memorandum, stated 
 that an agreement had been prepared for the pur- 
 chase of C.'s business, and that the purchase- 
 money was to be 5,000^., half to be paid in cash 
 and half in fully paid-up shares. The articles also 
 authorised the company by special resolution to 
 create new shares. Two days afterwards the 
 agreement between C. and the company was exe- 
 cuted, and it contained the same provisions as to 
 the payment of the purchase-money, but did not 
 in terms state that the 2,500 shares for which C. 
 had subscribed were the 2,600 fully paid-up shares 
 he was to receive in part payment. This agree- 
 ment was duly registered as a compliance with the 
 25th section of the Companies Act of 1867, and 
 
 2,500 shares were subsequently allotted to C. as 
 the shares for which he had subscribed the memo- 
 randum and articles of association, and 0. was 
 treated by the company and appeared on the re- 
 gister as the holder of 2,600 fully paid-up shares 
 only : — Held, in the winding-up of the company, 
 that the 2,500 shares for which C. had subscribed 
 were the 2,600 fully paid-up shares which he was 
 to receive in part payment, and that having given 
 money's worth for them, he had in fact paid for 
 them in " cash " within the meaning of the 25th 
 section, and was not liable to be placed on the list 
 of contributories. In re the Limehou.'e Works 
 Company (Lim.); Coatcs' case, 43 Law J. Bep. (n.s.) 
 Chanc. 538; Law Eep. 17 Eq. 169. 
 
 Observations upon Dent's case (42 Law J. Eep. 
 (n.s.) Chanc. 857; Law Eep. 8 Chanc. 270), 
 Spargo's case (42 Law J. Eep. (n.s.) Chanc. 488 ; 
 Law Eep. 8 Chanc. 407), and other authorities. 
 Ibid. 
 
 35. — The owners of certain works and patents 
 agreed with T., the promoter of a company, to sell 
 the same for a sum in cash and a number of fully 
 paid-up shares in the company. A contract was 
 subsequently entered into between the vendors 
 and tlie company by which the company agreed to 
 purchase the property for a much higher con- 
 sideration, including a larger number of fully paid- 
 up shares, but it was arranged between the parties 
 that the vendors should receive only the considera- 
 tion mentioned in the original agreement, and that 
 the excess should be received by T. Accordingly 
 the vendors received only the original considera- 
 tion, and the directors passed a resolution that 
 the additional shares should be allotted to T. The 
 contract was afterwards registered at the ofBce of 
 Joint Stock Companies. Subsequently T. trans- 
 ferred twenty of his shares to B. for value. It 
 did not appear when these shares were actually 
 allotted to T., but the certificates of them were 
 dated after the registration of the contract: — 
 Held, that the contract registered was sufficient 
 to satisfy the 25th section of the Companies Act, 
 1867. Held also, that there was no evidence that 
 these shares became the property of T. xmtil the 
 certificates were issued, and that accordingly they 
 must be taken to be fully paid-up shares, and that 
 the purchaser was not liable as a contributory in 
 respect of them. In re the Imperial Bubber Com- 
 pany (Lim.); Stish's cose, 43 Law J. Eep. (n.s.) 
 Chanc. 772 ; Law Eep. 9 Chanc. 655. 
 
 36. — The persons engaged in working a mine 
 as shareholders in an unlimited company formed 
 themselves into a limited company, for the pur- 
 pose of acquiring the interests and property of the 
 shareholders in the old company and working the 
 mine, and they subscribed for the whole number 
 of the shares in the new company. By a clause 
 in the articles of association of the new company, 
 it was agreed that each of the shares of the new 
 company (which were of the nominal value of lOl. 
 per share) should be credited with 71. per share 
 as paid up thereon; and that in consideration 
 thereof, the interest of the parties engaged in 
 working the mine should by the articles be trans- 
 ferred to the new company. No other contract as 
 
COMPANY (G). 
 
 159 
 
 to the transfer of tlae property was entered into. 
 The articles were signed by all the shareholders 
 and duly registered, and the new company took 
 possession of the property of the old company. 
 The shares were duly allotted in accordance with 
 the agreement, and in the register of shareholders 
 and hooks of the company, each share was credited 
 with the sum of Tl. as paid up thereon : — Held, in 
 the winding-up of the new company, that this 
 clause in the articles of association constituted a 
 sufficient contract in writing within the meaning of 
 the 25th section of the Companies Act, 1870, to ex- 
 onerate the shareholders in the new company from 
 any further payment in respect of the tl. per share 
 credited as paid up on each share. In re the 
 Appletreemok Lead Mining Company (Lim.), 43 
 Law J. Rep. (n.s.) Chano. 793; Law Eep. 18 
 Eq. 95. 
 
 [And see supra D 41, 44.] 
 
 (4) Transferee of bomis shares, with notice. 
 
 37. — A second transferee of fully paid-up bonus 
 shares for which no consideration has been given 
 or paid, with notice, stands in no better position 
 than the original allottee of them, and will, in the 
 absence of any contract in writing under the 26th 
 section of the Companies Act, 1867, be liable in 
 the winding-up of the company for any caUs that 
 may be made on the shares. M re the Carribean 
 Company (lAm.') ; Crickmer's case, 44 Law J. Rep. 
 (n.s.) Chanc. 695 ; Law Eep. 10 Chanc. 614. 
 
 (5) Bectifieation of register where contract not 
 
 3 8. — Where fully paid-up shares had been issued 
 in pursuance of a contract which had through in- 
 advertence not been registered, the Court, with 
 the consent of the company, made an order for 
 rectification of the register, and re-issue of the 
 shares after registration of the contract. In re 
 the Denton Colliery Company ; Ex parte Shaw, and 
 In re the New Zealand Kapanga Gold Company ; 
 Ex parte Thomas, Law Eep. 18 Eq. 16. 
 
 [And see D 62.] 
 
 {d) Contribtitories entitled to set-off. 
 
 39. — The Companies Act, 1862, does not give 
 the Court of Chancery jurisdiction to decide what 
 defence may or may not be set up to an action at 
 law brought by the official liquidator with the 
 leave of the Court against a debtor to the com- 
 pany, who is himself a creditor of the company on 
 a separate claim, and has been admitted to prove 
 as such in the winding-up. In re the Albert In- 
 surance Company ; Parlhfs case, 40 Law J, Eep. 
 (n.s.) Chanc. 340. 
 
 40. — In a compulsory winding-up a share- 
 holder cannot set off against calls debts due to 
 him upon a contract with the company, notwith- 
 standing his right to do so may have been specially 
 stipulated for by the contract, and notwithstand- 
 ing his application for shares may have been in 
 consideration and in pursuance of such contract. 
 Whether, under a voluntary winding up, such a 
 
 set-off can be allowed, quaere. In re the Para- 
 guassu Steam Tramroad Company; Ex parte 
 Black, Hawthorn ^ Company, 42 Law J. Rep. 
 (n.s.) Chanc. 404 ; Law Rep. 8 Chanc. 254. 
 
 The Brighton Arcade Company v. Bowling (37 
 Law J. Rep. (n.s.) C. P. 125; Law Rep. 3 
 C. P. 175) doubted. Ibid. 
 
 41. — A shareholder in a limited liability com- 
 pany cannot set off a debt due from the company 
 to him against calls due on his shares previously 
 to the winding-up, and the true reason for this is 
 to be found in the language of section 38 of the 
 Companies Act, 1862, and not in any implication 
 to be drawn from the words of section 101 of the 
 Act. Remarks on Calisher's case (37 Law J. Rep. 
 (n.s.) Chanc. 208 ; Law Eep. 5 Eq. 214). In re 
 the Stranton Iron and Steel Company {lAm.) ; Ex 
 parte Barnett, 44 Law J. Eep. (n.s.) Chanc. 233 ; 
 Law Eep. 19 Eq. 449. 
 
 42. — A limited company — which was being 
 wound up for insolvency under the Companies 
 Act, 1862, at first by a resolution to wind up 
 voluntarily, and afterwards by an order of the 
 Court of Chancery that the winding-up should 
 continue subject to its supervision — sued a share- 
 holder for a debt contracted after the order was 
 made. The defendant pleaded as a set-off a debt 
 from the company due before the resolution was 
 passed : — Held, that the plea was bad : first, be- 
 cause the debts are not "mutual" within the 
 meaning of the statutes of set-off, 2 Geo. 2. u. 22, 
 B. 13, and 8 Geo. 4. c. 24, ss. 4, 6 ; secondly, be- 
 cause (on the authority of the dicta in The Brighton 
 Arcade Company (Lim.) v. Bowling {57 Law J. Rep. 
 (n.s.) C. p. 125 ; s. c. Law Rep. 3 C. P. 175), such a 
 set-off is excluded by the Companies Act, 1862 ; 
 thirdly (per Bramwell, B.), because no debt can 
 be set off, unless it can be sued for in a cross- 
 action, and by the effect of the Companies Act, 
 1862, after such an order has been made, no ac- 
 tion can be brought against the company without 
 the leave of the Court of Chancery. The Sankey 
 Brook Coed Company {Lim.) v. Marsh, 40 Law J. 
 Rep. (n.s.) Exch. 125 ; Law Rep.. 6 Exch. 185. 
 
 [And see supra G 30.] 
 
 (e) Transfer of shares. 
 
 (1) Liability of person taking transfer in name of 
 infant. 
 
 43. — A father bought shares and took transfers 
 executed by himself, in the name of his infant son : 
 — Held, that these were transfers to the father in 
 a wrong name, and his name was placed on the 
 list of contributories. The Imperial Mercantile 
 Credit Association ; Eichardson's case, 44 Law J. 
 Rep. (N.s.) Chanc. 252; Law Rep. 19 Eq. 588. 
 
 (2) Bight of transferee to indemnity. 
 
 (i) Implied contract by transferee. 
 
 44.— On the ISth of April, 1856, the defend- 
 ant, through his brokers, C. & Co., purchased 100 
 shares in a company, registered under the Com- 
 panies Act, 1862, of a jobber, for the account or ■ 
 
160 
 
 COMPANY (G). 
 
 settling-day, the 26th of April. Before the day 
 arrived, he requested his brokers to carry over the 
 contract to the next account-day, the 1 6th of May. 
 On the 14th of May, the brokers passed a ticket 
 with the defendant's name as purchaser of the 
 shares. This ticket was split or divided accord- 
 ing to the practice of the Stock Exchange, and a 
 part or split for fifteen shares was handed to the 
 brokers of the plaintiff, who was the ultimate 
 seller of that number of shares. The plaintiff 
 thereupon, on the 16th of May, executed a deed of 
 transfer to the defendant in the proper form, and 
 delivered the transfer and the share certificates 
 to the defendant's brokers, who accepted them 
 on behalf of the defendant, paid the plaintiff's 
 brokers the price of the shares, and forwarded the 
 transfer and the certificates to the defendant. 
 The defendant refused to accept the shares, and 
 the company having stopped payment the plaintift 
 was made a contributory and compelled to pay 
 calls ; — Held, that the transactions above stated 
 were evidence of a contract by which the defend- 
 ant, as the acceptor of a transfer of the fifteen 
 shares, was bound to indemnify the plaintiff against 
 the calls made in respect of them. Bowring v. 
 Shepherd (Exoh. Ch.), 40 Law J. Eep. (n.s.) Q. B. 
 129; Law Rep. 6 Q.B. 309. 
 
 45. — On the 4th of September, 1866, the plain- 
 tiff sold to the defendant twenty shares in a 
 joint-stock company. On the 8th he executed a 
 transfer to the defendant, who paid the purchase- 
 money and caused the transfer to be registered 
 by the company on the 4th of December. On the 
 20th of March, 1866, the defendant transferred 
 the shares to M. On the 18th of April, 1866, the 
 company stopped' payment, and on the 8th of 
 May, 1866, was ordered to be wound up. On 
 the 24th of July, 1866, M. was placed on the 
 A list of contributories, being the list of existing 
 members. On the 30th of October, 1866, M. exe- 
 cuted a deed of inspectorship. An order was 
 made upon M. to pay a call of iOl. a share, but he 
 did not pay, and the liquidators failed to get any 
 payment out of his estate. On the 6th of Decem- 
 ber, 1867, the plaintiff and the defendant were 
 placed, in respect of the same shares, on the B 
 list of contributories, being the list of past mem- 
 bers. On the 27th of December, 1866, the de- 
 fendant executed a deed of inspectorship under 
 section 192 of the Bankruptcy Act, 1861, which 
 was registered on the 29th of December, 1867. 
 On the 20th of March, 1869, the Court ordered 
 the defendant to pay a call of iOl. a share, which 
 he did not do, and on the 10th of May the plaintiff 
 in pursuance of an agreement of compromise made 
 between himself and the official liquidator, paid 
 the sum of 151. per share in respect of the twenty 
 shares sold by him to the defendant. The official 
 liquidator proved under both deeds of inspector- 
 ship : — Held, affirming the judgment of the Court 
 below (42 Law J. Eep. (n.s.) Q.B. 174; Law 
 Eep. 8 Q. B. 458), that the plaintiff was entitled 
 to sue the defendant for the amount which he had 
 paid to the official liquidator, and that the deed 
 which the defendant had executed formed no de- 
 fence to the action. KellocJc v. Enthoven (Exch. 
 
 Ch.), 43 Law J. Eep. (n.s.) Q. B. 9a; Law Eep. 9 
 a.B. 241. 
 
 (ii) Eight against real pwchaser where 
 transferee an infwnt. 
 
 46. — E. through his brokers sold shares on the 
 Stock Exchange to a jobber, who passed a name 
 into which E. executed a transfer and the sale was 
 settled. The transfer was never registered, the 
 company was wound up, and the name proved to 
 be that of a minor. The jobber gave E. all the 
 information in his power, informing him to whom 
 he resold the shares, and by what brokers the 
 name was originally passed. On bill by E. against 
 the jobber for indemnity against past and future 
 calls, — Held, that the defendant was exonerated 
 from all liability. Sennie v. Morris, 41 Law J. 
 Eep. (n.s.) Chanc. 321 ; Law Eep. 13 Eq. 203. 
 
 Semble — the proper course for a vendor to pur- 
 sue is, to make inquiries of all intermediate pur- 
 chasers and brokers, and to sue the last principal 
 or any intermediate person who refuses informa- 
 tion. Ibid. 
 
 47. — M. sold fifty shares in a company (upon 
 which there remained a liability of 9001.), through 
 his broker, a member of the Stock Exchange, to 
 N., a stockjobber, also a member. On the settling- 
 day N. passed the name of L., which he had re- 
 ceived from some other broker, to M.'s broker, 
 who prepared a transfer to L., which M. executed. 
 The price was paid, and the transfer banded over 
 in the usual way. The transfer was never regis- 
 tered. Two years later the company being ordered 
 to be wound up, M.'s name was put upon the list 
 of contributories, and calls upon him were made. 
 He then, for the first time, discovered that L. was 
 an infant: — Held, that the jobber had not per- 
 formed his contract, and that he was bound to 
 indemnify M. against the calls. Merry v. Hickalh 
 41 Law J. Eep. (n.s.) Chanc. 767 ; Law Eep. 
 7 Chanc. 733 : affirmed, on appeal, to the House of 
 Lords, mb nom. Nickalls v. Merry, Law Eep. 7 E. 
 & I. App. 530. 
 
 Bennie v. Morris (41 Law J. Eep. (n.s.) Chanc. 
 321) overruled. Ibid. 
 
 48. — ^Fifteen shares in a limited company 
 partly paid up, belonging to the plaintiff, were, 
 with 115 other like shares, sold on the Lon- 
 don Stock Exchange, and were purchstsed by a 
 London broker for B. & S., country brokers, who 
 had been instructed by D., J., S., and E., to buy 
 several lots of shares. B. & S. gave the name of 
 K., an infant, and a clerk in their office, as the 
 purchaser of the shares, which were accordingly 
 transferred to K. Forty of these shares belong 
 ing to E. were subsequently sold ; the other ninety, 
 including those sold by the plaintiff, and of which 
 three lots of thirty each had been really purchased 
 on behalf of D., J. & S. respectively, remained in 
 K.'s name, unappropriated to the real purchasers, 
 until the company was wound up. The plaintiff 
 was settled upon the list of contributories in 
 respect of the fifteen shares sold by him : — Held, 
 varying the decision of the Court below (42 Law 
 J. Eep. (n.s.) Chanc. 397 ; Law Eep. 16 Eq. 363), 
 that the plaintiff was entitled to be indemnified 
 
COMPANY (G). 
 
 161 
 
 by D,, J. & S. rateably, in respect of these fifteen 
 shares. Brown v. Black, 42 Law J. Eep. (n.s.) 
 Chano. 814; Law Eep. 8 Ohano. 939. 
 
 49. — E. E. instructed his brokers to purchase 
 100 shares in a joint-stock company to be trans- 
 ferred into the name of his son G. E. The shares 
 were accordingly piu-chaaed from M., and trans- 
 ferred by E. E.'s direction into the name of his 
 son, G. E., who was an infant, but not known by 
 M. or his brokers to be so. The company was 
 shortly afterwards wound np, and G. E., who had 
 been placed on the list of contributories, com- 
 menced an action at law against M., who was an 
 auditor of the company, for repayment of the 
 purchase-money, charging fraud and failure of 
 consideration. The action was compromised by 
 M, repaying the purchase-money and taking back 
 the shares, the charge of fraud being withdrawn, 
 and M.'s name was substituted for that of G. E. 
 as a contributory. Two and a half years after- 
 wards M., who had paid several calls under the 
 winding-up, filed his bill against E. E. for repay- 
 ment and indemnity, alleging that E. E. was the 
 real purchaser for his own benefit, and had passed 
 the name of G. E. as the purchaser in order to 
 evade liability, and also stating that the plaintiff 
 did not know at the time of the' compromise of 
 the action that E. E. was the real purchaser : — 
 Held, reversing the decision of one of the Vice- 
 Chancellors, that the compromise of the action 
 was a bar to the suit. Maynard v. Eaton, 43 Law 
 J. Eep. (N.s.) Chanc. 641 ; Law Eep. 9 Chano. 414. 
 
 (3) Effect of guarantie hy transferor. 
 
 50. — H. transferred by deed to J. for a nominal 
 consideration 650 shares in a, company of WOl. 
 each, on which 26Z. per share had been paid up, 
 and which were at the time quoted in the market 
 at from \l. to 3?. The transfer was bond fide, and 
 H. retained no interest in the shares. The di- 
 rectors of the company at first refused to register 
 the transfer, but ultimately accepted it on H. en- 
 tering into a verbal agreement with them with 
 regard to guaranteeing the payment of future calls. 
 Under this agreement H. paid one call of Zl. per 
 share which was then pending. The company was 
 then wound up, and J. was unable to pay the 
 calls : — Held, reversing the decision of Stuart, 
 V.C, that whatever remedy the liquidator might 
 have against H. by virtue of the guarantie, J. was 
 the only proper person to remain on the list as 
 contributory in class A, in respect of the 640 
 shares. In re the Bank of Hindmstan, China 
 and Japan (Lim.) ; Harrison's case, 40 Law J. Eep. 
 (n.s.) Chane. 333 ; Law Eep. 6 Chanc. 286. 
 
 (4) Purchase of shares m name of trustee. 
 
 51. — K. and C, officers of an unregistered com- 
 pany, purchased shares, and caused them to be 
 registered in the name of V., agreeing to indemnify 
 him from calls, the object of using the name of 
 the trustee being stated to be the concealment of 
 the fact that K. and C. were dealing in the com- 
 pany's shares. The beneficial interest in the 
 shares afterwards became K.'s alone. Three 
 Digest, 1870-1875. 
 
 years after the purchase the company was ordered 
 to be wound up: — Held, that K. could not be 
 placed upon the list of contributories. In re the 
 Great Wheal Busy Mining Company ; King's case, 
 40 Law J. Eep. (n.s.') Chanc. 361 ; Law Eep. 6 
 Chanc. 196. 
 
 52. — H. & P., who were directors of the de- 
 fendants' railway company, were the registered 
 holders of shares. They held the shares as 
 trustees for the company. After the death of P., H. 
 became the registered holder of stock into which 
 the shares had been converted, and which he held 
 as trustee. The coupons or certificates for the 
 stock were obtained by H., and he deposited them 
 in a bank as a security for an advance of money. 
 The money was advanced by R. at the request of 
 H., who asserted that he was the real proprietor. 
 E. received the certificates from the bank. No 
 deed of transfer was executed in the lifetime of 
 E., but after his death his widow required H. to 
 execute a transfer, which he did. Neither the 
 bank nor E. had given any notice to the defen- 
 dants that they had any claim on the stock, and the 
 defendants had regularly received the dividends. 
 As soon as the defendants discovered the fraud 
 committed by H., they gave notice to the widow 
 of E. that H. had no right to mortgage the stock, 
 as it stood in his name merely as trustee, and 
 they refused to enter her name upon the register 
 as proprietor of the stock : — ^Held, that H., as a 
 trustee, had no right to hold the certificates ; that 
 the defendants by allowing him to hold them had 
 enabled him to hold himself out as the proprietor 
 of the stock ; and that the prosecutrix was entitled 
 to a mandamus commanding the defendants to 
 enter her name as proprietor of the stock. Bob- 
 son V. The Shropshire Union Railways and Canal 
 Company, 42 Law J. Eep. (n.s.) Q.B. 193 ; Law 
 Eep. 8 ft. B. 420, nom. The Queen v. Shropshire, 
 
 53. — Shares in a company were, to escape lia- 
 bility, transferred by the direction of a mortgagee 
 into the name of the mortgagee's servant. The 
 servant afterwards claimed the shares, and con- 
 tended that as the transaction was fraudulent as 
 against the company, the Court would not assist 
 the mortgagee by declaring that she was a trustee 
 of the shares for him ; — Held, that the mortgagee, 
 not being under any liability to the company, or 
 to the creditors of the company, had a right to 
 direct this transfer to be made, and was entitled 
 to a declaration that the servant held the shares 
 in trust for him. Colguhoun v. Courtenay, 43 
 Law J. Eep. (n.s.) Chanc. 338. 
 
 [And see supra D 15.] 
 
 (5) Shares held in joint names. 
 
 54. — Shares registered in the joint names of 
 two persons are their joint property, and on the 
 death of one of them the whole liability in respect 
 of the shares accrues to the survivor, and the 
 executors of the deceased joint tenant are dis- 
 charged. In re the Maria Anna and Steinbank 
 Coal and Coke Company {Lim.), 44 Law J. Eep. 
 (n.s.) Chano. 423 ; Law Eep. 20 Eq. 585. 
 Y 
 
162 
 
 COMPAKY (G). 
 
 (6) Begistration and validity nf transfers. 
 
 (i) Transfer or registration after winding up or 
 calls being dite. 
 
 55. — A winding up petition, after several ad- 
 journments, was dismissed on payment of costs, 
 but a small balance of the costs was left unpaid. 
 Some months afterwards another petition was 
 presented, and an ordei' was made on both peti- 
 tions, that the company should be wound up and 
 dissolved as from the diy on which the order was 
 made. These proceedings took place before the 
 "Winding-up Act of 1862: — -Held, that a share- 
 holder who had transferred his shares after the 
 presentation of the first petition and before that 
 of the second, was liable as a contributory. In 
 re the Consols Insurance Company; Glanville's 
 case, 40 Law J. Eep. (n.s.) Chanc. 35 ; Law Eep. 
 lOEq. 479. 
 
 56,— A transfer of shares in a company sub- 
 ject to the provisions of the Companies Act, 1845, 
 which is made whilst calls are diie and is duly re- 
 gistered, is not invalid under the 1 6th section of 
 the Act, and the transferor is not liable as a con- 
 tributary. The restriction placed by the 16th 
 section upon the transfer of shares on which calls 
 are due was enacted for the protection of the com 
 pany, and may be waived by them. In re the Hoy- 
 lake Bailway Company ; Littledale's case, 43 Law J. 
 Eep. (n.s.) Ohane. 629 ; Law Eep. 9 Chanc. 257. 
 
 Transfer of shares after amalgamation of 
 company. [See supra E 20, 21.] 
 
 (ii) Misdescription and mistake. 
 
 57. — A transfer of shares when the transferor 
 has shares of the same number as, or a greater 
 number than those expressed to he transferred, is 
 not necessarily void because in the transfer the 
 distinguishing numbers do not correspond with 
 those of any of the transferor's shares. The Inter- 
 national Contract Company ; Ind!s case, 41 Law J. 
 Eep. (n.s.) Chane. 564 ; Law Eep. 7 Chanc. 485. 
 
 I. agreed to accept as trustee fifty shares, to be 
 transferred by K. A transfer in blank was exe- 
 cuted, which was afterwards filled up with num- 
 bers not corresponding to any of K.'s shares. K. 
 had, however, fifty shares whose numbers differed 
 only as to one digit from those described in the 
 transfer. The transfer was, with I.'s consent, 
 registered before the mistake was discovered. 
 Upon the company being subsequently ordered to 
 be wound up, — ^Held, that I. was properly placed 
 on the list of contributories for fifty shares. 
 Ibid. 
 
 68. — The holder of shares in a banking com- 
 pany, not fully paid up, made a transfer of them 
 (by way of absolute gift, according to the evidence 
 of himself and the transferee) to his son-in-law, a 
 journeyman butcher. The transfer was prepared 
 by a stockbroker in the ordinary way, the trans- 
 feree was described as a gentleman, and the con- 
 sideration stated to be 5s. At the date of the 
 transfer the shares were saleable in the market at 
 a substantial price. The company had, by its arti- 
 cles, the power of declining to register transfers. 
 
 The transfer was registered. Twelve days later the 
 company stopped payment. Five years afterwards 
 the official liquidator sought to place the transferor 
 on the list of contributories, upon the grounds, 
 first, that the transfer was not a bond, fide out- 
 and-out transfer, and, secondly, that the misde- 
 scription of the transferee rendered it invalid : — 
 Held, reversing the decision of one of the Vice- 
 Chancellors, that the transfer must be held valid. 
 In re the Eu/ropean Bank ; Masters' case, 41 Law 
 J. Eep. (n.s.) Chanc. 501 ; Law Eep. 7 Chanc. 
 292. And see In re the Financial Inswrancc 
 Oompamy ; Bishop's case (Law Eep. 7 Chanc. 
 296m); and In re Smith, Knight ^ Company; 
 Hockin's case (Ibid.). 
 
 (iii) Irregularity : directors interested. 
 
 59. — In 1859, B , who was a director of a 
 comp3,ny formed under 7 & 8 Vict. c. 110, sold 
 all his shares to M., the purchase-money not to be 
 paid if the. company was wound up within two 
 years. The company's deed of settlement pro- 
 vided, that if eighty per cent, of the subscribed 
 capital should be lost, the company should ipso 
 facto be dissolved, and it required, on a transfer of 
 shares, a previous notice to the directors ; a certi- 
 ficate of approval by them of the transfer; also 
 that the transferee should execute within a 
 month, at the office of the company or at such 
 other place as the directors should reasonably 
 require, a deed of covenant to abide by the rules 
 of the company. The shares could be transferred 
 only by deed of transfer executed by the trans- 
 feror. Shortly before the sale of B.'s shares the 
 directors had received an accountant's report of 
 the state of the company's affairs, from which it 
 appeared that eighty per cent, of the gross capital 
 had been lost, but it appeared also that the good- 
 will and connection of the company was of con- 
 siderable value, either as a basis for further 
 operations or on a transfer to another company. 
 This report was not communicated to the share- 
 holders. But there was a change of directors, B. 
 and his co-directors transferring their shares to 
 and retiring in favour of M. and others, who were 
 also directors of a banking company. No formal 
 notice of the intended transfer by B. was ever 
 given, nor was any deed of covenant ever exe- 
 cuted by or demanded of M. But B. executed a 
 deed of transfer, and the transfer was subse- 
 quently approved by the new board of directors, 
 M. himself being present, and notice of the 
 transfer was sent to the registrar of joint stock 
 companies : — Held (by the House of Lords, 
 affirming the decision of the Court of Appeal in 
 Chancery, 40 Law J. Rep. (n.s.) Chanc. 205 ; Law 
 Eep. 6 Chanc. 246, nom. Agriculturists' Cattle In- 
 surance Company, Btish's case), that the transfer 
 was valid, though irregular, that as M. and the 
 other new directors had taken upon themselves to 
 act, and were at various meetings recognised by 
 the company as directors, their consent to the 
 transfer was, by 7 & 8 Vict. o. 110. b. 30, ren- 
 dered a valid consent, although their qualification 
 had been irregularly obtained, and that it was a 
 matter for the directors and no concern of B.'s 
 
COMPANY (6). 
 
 163 
 
 whether the deed of covenant was or was not de- 
 manded of M. Murray v. Hush (HX.). i2 Law 
 J. Eep. (n.s.) Chanc. 686 ; Law Eep. 6 E. & I. 
 App. 37. 
 
 Held, also, that the transaction was not affected 
 by the loss of capital, as the value of the good- 
 will might have turned the balance, if a proper 
 estimate had been put upon it, and the goodwill 
 was an asset of the company. And whether the 
 directors ought or not to have wound up the com- 
 pany at that time, the transfer was not invali- 
 dated, since the company was carried on for 
 nearly two years afterward^. Ibid. 
 
 Lords Chelmsford and Colonsay dissented from 
 this decision, and the appeal was dismissed with- 
 out costs, though fraud had been imputed and not 
 sustained. Ibid. 
 
 (iv) Enforcement of equitable right to he 
 registered as shareholder. 
 
 60. — The Court has no jurisdiction under the 
 3oth section of the Companies Act of 1862, to 
 grant specific performance of an agreement to 
 tonsfer shares or to enforce against the com- 
 pany an equitable claim to be registered as a 
 shareholder, but where an applicant has a legal 
 title, the Court will compel the company to enter 
 his name on the register, although his title is dis- 
 puted by the person registered as holder. In 
 such case the Court has no jurisdiction to make 
 such person disputing the title pay the costs of 
 the summons rendered necessary by his opposi- 
 tion. In re the Tahiti Cotton and Coffee Planta- 
 tion Compam/ (Lim.) ; Ex parte Sargent, 43 Law 
 J. Eep. (n.s.) Chanc. 425; Law Eep. 17 Eq. 273. 
 
 The pledgee of shares with transfers executed 
 by the pledgor with the date and name of the 
 transferee in blank has, and also his transferee has, 
 implied power to fill up the blanks. Such trans- 
 ferss although executed as deeds by the original 
 pledgor, will not operate as deeds, and if the regu- 
 lations of the company require a deed wUl only 
 confer an equitable interest and operate as con- 
 tracts to transfer, but when the articles of asso- 
 ciation did not require a deed and the blanks had 
 been filled up by the transferee of the pledgor : — 
 Held, that they operated as valid transfers and 
 conferred on him a right to be registered as a 
 shareholder, which the Court would enforce on 
 summons under the 35th section. Ibid. 
 
 (v) Rides of Stock Exchange. 
 
 [And see Stock Exchange.] 
 
 61. — The plaintiffs, brokers on the Stock Ex- 
 change, who had at the request of the defendant 
 contracted for the purchase of shares for him, 
 were, on the 13th of July, the " carrying over 
 day" for the 15th, instructed by him to carry 
 over the contract from the 15th till the 29th of 
 July, the next account day. On the 15th they 
 paid for him the difference on the shares at the 
 price of the 13th, amounting to 1,688Z. To have 
 closed the account on the 1 5th he would have had 
 to pay 4,037/. On the 18th of July the plaintiffs 
 Ibecame defaulters on the Stock Exchange, where- 
 
 upon, in accordance with the rules of the house, 
 all their bargains were closed and made up by the 
 official assignees at the prices of that day. The 
 price of the shares purchased for the defendant 
 having fallen, the amount due from him in respect 
 thereof was 6,01 3/., which the plaintiffs became 
 liable to pay to the official assignees. The defendant 
 might have had the shares at any time before the 
 29th by paying the price he contracted for, but 
 he did not pay: — Held, that the rules of the 
 Stock Exchange with regard to defaulting brokers 
 are imported into a contract for the purchase of 
 shares made through a broker, it being reason- 
 able that the principal should be identified with 
 the broker, and liable as the broker is to all the 
 incidents of the contract ; and that the defendant 
 nut having completed his purchase by paying the 
 agreed price for the shares on or before the 29th, 
 the plaintiffs were entitled to recover the 6,0132. 
 from him. Duncan v. Hill, 40 Law J. Eep. (n.s.) 
 Exch. 137 ; Law Eep. 6 Exch. 255. 
 
 Hpld, also, that if he had paid the plaintiffs the 
 l,688i. difference at the time of carrying over, 
 they would have been none the less entitled to 
 recover the sum they were liable to pay under 
 the rules of the Stock Exchange in respect of the 
 contract they had entered into for him. Ibid. 
 
 (/) Bankrupt contriimtory. 
 
 62. — Whenever any shareholder, who is liable 
 to be put on the list as a contributory in class B, 
 becomes a bankrupt after the commencement of 
 the winding-up, the liquidator is entitled to prove 
 the amount of his liability against his estate, and 
 the assignees or trustees of the estate are to be 
 placed on the list of contributories in lieu of the 
 bankrupt, notwithstanding that the shareholder 
 has obtained his order of discharge before the B 
 list is made out. In re the Land Credit Company of 
 Ireland; M'Ewen's case, 40 Law J. Eep. (n.s.) 
 Chanc. 341 ; Law Eep. 6 Chanc. 582 : affirming 
 the decision of the Master of the EoUs, 40 Law J. 
 Bep. (n.s.) Chanc. 184. 
 
 63. — A contributory in a mining company 
 having become bankrupt and obtained his dis- 
 charge : — Held, that he was not liable in respect 
 of a call subsequently made in the winding-up of 
 the company. Ex parte Marshall ; In re Wad- 
 dington, Law Eep. 7 Chanc. 324. 
 
 64. — Where a contributory in the winding-up 
 of an vmregistered company becomes bankrupt, 
 the official liquidator may prove against his estate 
 for the estimated amount of calls as for a separate 
 debt, in the same way as in the case of a regis- 
 tered company. Ex parte Ball; In re Adams, 
 Law Eep. 10 Chanc. 48. 
 
 (g) Forfeittire of shares. 
 
 65. — The directors of a company were em- 
 powered by the articles to forfeit shares of any 
 member whose calls were in arrear, and also to 
 remit forfeiture within six months on such terms 
 as they thought fit. On November 11th, 1870, 
 the directors declared the shares of C. forfeited. 
 They subsequently sent to him notice that the for- 
 s2 
 
164 
 
 COMPANY (&). 
 
 feitvire would be remitted if the amount of call, 
 with 101, per cent, interest, were paid before the 
 evening of May 10th. The notice contained a 
 postscript to the effect that the directors had not 
 power to remit forfeitures after the 11th. The 
 agent of a mortgagee of C. tendered a cheque for 
 the amount of call and interest at the company's 
 office on the afternoon of the 10th, and was di- 
 rected by a clerk to pay it to the company's 
 account at the bank. He arrived at the bank 
 five minutes after closing hours, and was told to 
 pay in the money next morning, which he did : — 
 Held, on application by V., the trustee in bank- 
 ruptcy of C, and by the trustee of C.'s mortgagee, 
 that the tender at the company's of&ce was good, 
 that it might have been made at any time before 
 sunset of the 10th, and that if it had not been 
 made on the 10th, the payment on the llth was 
 in time ; and that the register must be rectified 
 by the insertion of V.'s name as holder of the 
 seventy-five shares. In re, the Quebrada Company 
 (Lim.) ; ClarMs case, 42 Law J. Eep. (ij-s.) 
 Chanc. 277. 
 
 {h) Liability limited by contract. 
 
 66. — Wherever under a policy of assurance 
 there is a contract that the assured are to look 
 to the assets and property of the company only, each 
 shareholder is (except as to the expenses of a 
 winding-up) liable only to the extent of the 
 amount unpaid upon his shares. Lethbridge v. 
 Adams ; Ex parte the National Life Assurance So- 
 ciety, 41 Law J. Bep. (n.s.) Chanc. 710; Law 
 Bep. 13 Eq. 547. 
 
 An unregistered company, the deed of settle- 
 ment whereof provided for a dissolution when a 
 fourth of the capital was lost, granted policies 
 under which the property of the company alone 
 was liable. The company continued business after 
 a fourth of the capital was lost, became insol- 
 vent, was registered as an unlimited company, and 
 was ordered to be wound up. Upon a claim car- 
 ried in by the liquidator in a suit to administer 
 the estate of a deceased shareholder, it being ad- 
 mitted that the shareholders were liable to contri- 
 bute beyond the amount iinpaid on their shares 
 towards the expenses of the winding-up, — Held, 
 that as regarded the policy holders the liability of 
 each shareholder was nevertheless limited to the 
 amount unpaid upon his shares. 
 
 (i) Shares subject to lien by company. 
 
 67. — The articles of a bank provided that the 
 bank should have a permanent lien upon shares of 
 members for money due from them to the com- 
 pany. The bank being in liquidation, an agree- 
 ment was entered into with another company for 
 the sale and transfer to it of the business and assets 
 of the bank. The agreement provided that the 
 purchasing company shoxdd pay to each share- 
 holder of the bank who did not wish to take 
 shares in the new company, 21. for each share he 
 held in the bank. L., who held 606 shares in the 
 bank, and was at the time largely indebted to it, 
 did not subscribe for sliaree in the new company. 
 
 having shortly before executed an inspectorship 
 deed under the Bankruptcy Act of 1861 : — Held, 
 that the lien given by the articles on L.'s shares 
 extended to the money which the new company 
 was to pay him for them under the agreement. 
 In re the General Exchange Bank ; Claim of the 
 London, Hamburg, and Continental Exchange Bank, 
 40 Law J. Eep. (n.s.) Chanc. 429 ; Law Eep. 6 
 Chanc. 618. 
 
 (Jc) Preference shares. 
 
 68. — In order that a company may have power 
 to issue preference shares, it is not indispensable 
 that the power should be stated in the memoran- 
 dum of association ; it is sufficient if it is given by 
 the articles of association, according to their true 
 construction. Harrison v. The Mexican Railway 
 Company, 44 Law J. Eep. (n.s.) Chanc. 403 ; Law 
 Eep. 19 Eq. 358. 
 
 69. — A company, registered under the Com- 
 panies Act, 1862, duly authorised the issue of 
 25,000 first preference shares on the following 
 termsj: — " The preference capital authorised is 
 250,000?., carrying dividend at \0l. per cent, per 
 annum, payable half yearly, and entitled to a pro 
 ratd. participation in surplus dividends, after 10?. 
 per cent, has been paid on the ordinary share capi- 
 tal of 650,000?." : — Held, that the owners of these 
 preference shares were entitled to have the arrears 
 of such preferential dividend made good out of the 
 profits of subsequent years. Webb v. Earle, 44 
 Law J. Eep. (n.s.) Chanc. 608 ; Law Eep. 20 Eq. 
 556. 
 
 (?) Fast members. 
 (1) Extent of their liability. 
 
 70. — A past member of a company, limited by 
 shares under the Companies Act, 1862, who has 
 transferred his shares within a year of the wind- 
 ing up, is liable (if his transferee has not paid 
 the unpaid capital on his shares, and if the pre- 
 sent members' contributions are insufficient) to 
 contribute, together with other past members, to 
 the assets of the company to the full amount of 
 the debts which were due at the date of the 
 transfer, and which were still unpaid at the date 
 of the winding-up ; but from that amount must 
 be deducted the dividends already received in 
 respect thereof from the present members. In re 
 the Oriental Commercial Bank (Lim.); Morris's 
 case, 41 Law J. Eep. (n.s.) Chanc. 1 1 ; Law Eep. 
 7 Ciianc. 200 (reported in Court below 40 Law .T. 
 Eep. (n.s.) Chanc. 520). 
 
 Each past shareholder is liable to contribute to 
 such unpaid debts, to the extent of the amount 
 unpaid on the shares by his tiansferee, pari passti, 
 with all the other past shareholders who are liable 
 for the same debts, and cannot require that the 
 past members who transferred their shares after 
 his transfer was registered Jshould be exhausted 
 before any call is made on him. Ibid. 
 
 71, — A past member of a company in course of 
 winding-up is only liable to contribute in respect 
 of debts contracted before he ceased to be a mem- 
 ber lo the extent to which those debts remain 
 
COMPANY (G). 
 
 165 
 
 unsatisfied after the application, pari passu, of the 
 contributions of the present members to the pay- 
 ment of the general liabilities of the company ; 
 and he is at liberty to make any arrangement 
 ■with the creditors in respect of those debts ; and 
 if the result of such arrangement be that the com- 
 pany is released from those debts, he will escape 
 all liability as a contributory. In re the BlakeUy 
 Ordiiance Company (JAm.) ; Brett s case ; In re 
 the Oriental Commercial Bank {lAm.), Merries 
 case, 43 Law J. Rep. (n.s.) Chanc. 47 ; Law 
 Eep. 8 Chanc. 800. 
 
 But the contributions of past members are part 
 of the general assets of the company, and are not 
 applicable exclusively to the discharge of those 
 debts in respect of which they are paid. Wehb v. 
 Whiffin, 42 Law J. Rep. (n..s.) Chanc. 161 ; Law 
 Rep. 5 E. & I. App. 751. No. 76 infra examined 
 and explained. Ibid. 
 
 72. — A past member of a company having been 
 fixed upon the list of contributories in respect of 
 debts contracted before he ceased to be a member, 
 is at liberty to make any arrangement with the 
 creditors in respect of those debts ; and if the 
 result of such arrangement be that the company is 
 released from those debts, he will escape all lia- 
 bility as a contributory : aflfirming the judgment of 
 the Master of the Rolls, 40 Law J. Rep. (n.s.) 
 Chanc. 222, and dissenting from In re the Acci- 
 dendal and Marine Inswrance Corporation, 39 
 Law J. Rep. (n.s.) Chanc. 585 ; Law Rep. 5 
 Chanc. 428. In re the BlakeUy Ordnance Com- 
 pany {Lim.) ; Brett s case, 40 Law J. Rep. (n.s.) 
 Chanc. 497 ; Law Rep. 6 Chanc. 800. 
 
 amount of it. In the winding-up of the company, 
 the liquidator placed on the list of contributories 
 the name of one who had had shares allotted to 
 him, but had parted with them by a transfer re- 
 gistered more than a year before the winding-up, 
 on the ground that he had never paid one-fifth of 
 the amount of them, and that he consequently 
 could not transfer them : — Held, that in such a 
 case the pretended transfer would operate as a 
 new agreement, whereby the company released the 
 transferor from his engagement to take shares, and 
 accepted the transferee in his place. In re the 
 Towns Drainage and Sewage Utilization Com- 
 pany ; Morton's case, 42 Law J. Rep. (n.s.) Chanc. 
 786; Law Rep. 16 Eq. 104. 
 
 (5) Application of contributions of past members. 
 
 [See supra, Nos. 70, 71.] 
 
 7g, Although past members of a company in 
 
 liquidation are only liable to contribute in respect 
 of debts existing at the time of their retirement 
 their contributions when made become part of the 
 general assets of the company and must be applied 
 in discharge of the general liabilities of the com- 
 pany. Creditors in respect of debts contracted 
 before the 'retirement of such members are not 
 entitled to" have such contributions applied or 
 appropriated exclusively, or in priority, to the 
 payment of their debts. Morris's case (41 Law J. 
 Rep. (n.s.) Chanc. 11 ; Law Rep. 7 Chanc. 200 ; 
 No. 70 supra) discussed, and not approved. Webb 
 V. Whiffin (H.L.), 42 Law J. Rep. (n.s.) Chanc. 
 161 ; Law Rep. 5 E. & I. App. 711. 
 
 (2) Debt to bank: appropriation of payments. ^g^ Eelative rights of past and present members. 
 
 73. — The principle of appropriation of pay- 
 ments laid down in Clayton's Case (1 Mer. 572) 
 applies to dealings between a company and its 
 bankers, so that a former shareholder who has 
 transferred his shares is exonerated from contri- 
 buting to the company's debt to its bankers if 
 before the winding-up sufficient money had been 
 paid to the bank to cancel what was due to the 
 bank when such shareholder ceased to be a mem- 
 ber. In re the Devonport, %c.. Mill Company ; 
 Bateman's case, 42 Law J. Eep. (n.s.) Chanc. 
 577. 
 
 (3) Transfer to infant. 
 
 74. — More than twelve months before the 
 winding-up of a company, G. transfei red shares to 
 an infant, who within the twelve months trans- 
 ferred them to an adult. Both transfers were 
 duly registered : — Held, reversing the decision of 
 the Master of the Rolls, that G. was not liable as 
 a past shareholder. In re the Contract Corpora- 
 tion; Gooch's case, 42 Law J. Rep. (n.s.) Chanc. 
 381 ; Law Eep. 8 Chanc. 266. 
 
 (4) Shares transferred more than a year before 
 winding-np. 
 
 75. — An Act of Parliament incorporating a 
 company enacted that no share should vest in 
 any person until he should have paid one-fifth Ihe 
 
 77, — A past member of a company does not 
 stand in the relation of a surety for his transferee 
 who is fixed on the list of contributories as a pre- 
 sent member, and if the liquidator release or com- 
 promise his claim against the latter, the former 
 will not be thereby discharged. In re the Contract 
 Corporation ; Hudson's case, 40 Law J. Rep. (n.s.) 
 Chanc. 444 ; Law Rep. 12 Eq. 1. 
 
 78. — The plaintiff sold partly paid-up shares 
 in a limited company to the defendant, subject to 
 the conditions on which he held them ; within a 
 year the company became insolvent and was wound 
 up ; the defendant was put in Class A and the 
 plaintiff in Class B with respect to these shares : 
 and the liquidators, under 25 & 26 Vict. c. 89, s. 
 160, entered into a compromise with the defendant, 
 and afterwards into one with the plaintiff. The 
 plaintiff having paid under the compromise made 
 with him, — Held, that he could recover what he 
 had paid from the defendant. Roberts v. Crowe, 
 41 Law J. Rep. (n.s.) C. P. 198; Law Rep. 7 
 C. P. 629. 
 
 79. — A liquidator of a company entered into a 
 compromise with a contributory on the A list 
 (which was afterwards sanctioned by the Court), 
 whereby in consideration of 100^. and a surrender 
 of his shares to the company, the liquidator gave 
 the contributory a full discharge from all calls 
 and liabilities in respect of them. The agreement 
 
166 
 
 COlvrPANY (G). 
 
 further contained a proviso reserving tlie rights 
 of the company against all other contributories 
 whether past or present. It was not commnni- 
 cated to X., who had sold the shares within a year 
 from the commencement of the winding-np : — 
 Held (affirming the decision of the Master of the 
 Eolls), that X. was properly placed on the B list of 
 contributories in respect of the same shares. In 
 re the Natal Inventment Company (Lim.); NeviU's 
 case, 40 Law J. Rep. (n.s.) Chanc. 1 ; Law Eep. 6 
 Chano. 43. 
 
 Semble — X. being in the position of a surety, 
 would have his remedy over against his principal 
 either in the winding-up or at law. Ibid. 
 [And see next case.] 
 
 (7) Affidavit bt/ official liquidator : compromises. 
 
 80.— By the Companies Act, 1862, 2,') & 26 
 Vict. c. 89, sec. 38, sub-sees. 3 and 4, it is pro- 
 vided that no past member shall be liable to con- 
 tribute to the assets of the company unless it 
 appears to the Court that the existing members 
 are unable to satisfy the contributions required to 
 be made by them in pursuance of the Act — nor for 
 an amount exceeding the amount, if any, unpaid 
 on the shares in respect of which he is liable. 
 The official liquidators of a company being wound 
 up, after stating in their affidavit the estimated 
 unpaid debts of the company at about 1,600,000/., 
 set forth the assets of the company as consisting 
 of " first, real estate which we estimate will pro- 
 duce 60,000i. ; secondly, of amounts due from 
 debtors and upon guaranteed bills, from which 
 we estimate that we shall recover 33,000Z. ; 
 thirdly, calls unpaid by present members, from 
 which we estimate that we shall recover 85,000/." 
 In consequence of this affidavit a call of S6l. per 
 share was mad« upon a past member. There was 
 at that time due from existing members in respect 
 of unpaid caUs upwards of 1,225,000?. The past 
 member had not cross-examined the official liqui- 
 dator before the Court of first instance by which 
 the call was directed : — Held, on appeal, that the 
 affidavit of the official liquidator was reasonable 
 evidence, from which it might appear to the Court 
 of first instance that the existing shareholders 
 were unable to satisfy the contributions to be made 
 by them under the above section, and that, as the 
 past member had abstained from soliciting in 
 that Court any more satisfactory testimony as 
 to the assets of the company, including therein 
 the liability of existing shareholders, or as to 
 the fact of his, the past member, beiag a con- 
 tributory, he was precluded from raising objec- 
 tions ou either of those points before the Court of 
 Appeal. Sfelbert v. Banner (H.L.), 40 Law J. Eep. 
 (n.s.) Chanc. 410 ; Law Eep. 5 E. & I. App. 28. 
 
 Compromises effected, under the 1 60th section, 
 by the liquidator with existing shareholders do 
 not operate to release or discharge past members 
 from their liability to contribute, and it is not 
 necessary that on such compromises the rights of 
 past members against other members past or pre- 
 sent should be reserved. The past and present 
 members are not to be regarded with respect to 
 one another as sureties and principals. Ibid. 
 
 (m) Shareholder in foreign company. 
 
 81. — Should the law of a foreign country be 
 that shareholders of a company there established 
 are subject to the provisions in the articles of 
 association, then, by taking shares in such a com- 
 pany, the articles of association of which provide 
 that all disputes shall be submitted to the juris- 
 diction of a tribunal in siich country, and that a 
 shareholder shall, in certain events, elect a domi- 
 cile within the jurisdiction whereat process shall 
 be served, or, in default, that such election shall 
 be made for him, an English subject, neither resi- 
 dent, nor domiciled in the foreign country, becomes 
 bound by legal proceedings there in a suit against 
 him for calls, if process has been duly served at a. 
 domicile elected for him under the provision afore- 
 said, although he may have had no notice or know- 
 ledge of such proceedings ; for he has contracted 
 to be bound thereby, and an action may be main- 
 tained in this country upon a judgment recovered 
 against him in- such suit. Copinr, Adamson, 
 Copin V. Strahan, 43 Law J. Eep. (n.s.) Exch. 
 161 ; Law Eep. 9 Exch. 345 : (afirrmed on appeal, 
 45 Law J. Eep. (n.s.) Exch. 16; s. c. Law Eep. 
 1 Exch. 17. 
 
 But (Kelly, C.B., dissentiente) his mere member- 
 ship in such company does not render him subject 
 to the general law of the foreign country so as to 
 be bound by similar provisions for the election of 
 a domicile upon his defaidt which are contained 
 in that law, and thereby liable to an action here 
 upon a foreign judgment recovered under the 
 above-mentioned circumstances. 
 
 (m) Distribution of surplus. 
 
 82. — A company having spent its capital, 
 raised additional capital by the issue of new shares, 
 providing that if the company were wound up be- 
 fore the new shares should be fully paid up no 
 call should be made on them, except for payment 
 of debts remaining after realization of all the 
 assets, and no call should be made on them for re- 
 payment to the old shareholders. In the winding- 
 up of the company more was called up from and 
 paid by the new shareholders than was necessary 
 to pay the debts, but the new shares were still 
 not fully paid up : — Held, first, that though the 
 surplus had arisen from the payments of the new 
 shareholders, yet that, in the absence of any con- 
 tract to that, effect, they were not entitled to have 
 it returned to them, but that it must be divided 
 rateably among all the shareholders, old as weU as 
 new. Secondly, that the old shareholders were 
 not, under the circumstances, entitled to have 
 the amount which they had paid up on their 
 shares equalised with the amount paid by the new 
 shareholders on theirs by the return of the ex- 
 cess before division of the surplus, but that the 
 surplus was divisible according to the amounts 
 paid on each set of shares. In re the Eclipse 
 Gold Mining Company, 43 Law J. Bep. (n.s.) 
 Chanc. 637 ; Law Eep. 17 Eq. 490. 
 
 83, — In winding up a company limited by 
 shares under the Companies Act, 1862, losses are 
 to be borne by the shares equally. And a com- 
 
COMPANY (G), (H). 
 
 167 
 
 pany forms no exception to this rule, in -wliich 
 some of the shareholders have by special agree- 
 ment taken shares fully paid up, and have, in 
 accordance with the articles, received dividends in 
 proportion to the amount paid up by them on 
 their shares. In re Hodges' Distillery Company 
 {Lim.); Maude's case, 40 Law J. Eep. (n.s.) Chanc. 
 21 ; Law Eep. 6 Chanc. 61. 
 
 Where, therefore, in such a company, M. took 
 20 fully paid-up shares of 251. each, and received 
 two dividends thereon at the rate of 7 per cent, 
 on the whole amount, and the company was 
 then wound up at a time when the other share- 
 holders had paid 20Z. on their shares, and in 
 the winding-up, after payment of all debts, 
 there was a surplus to be divided amongst the 
 shareholders : — Held, that M. was entitled to be 
 paid 51. per share in full before a, distribution 
 of the surplus was made to the shareholders. 
 Ibid. 
 
 (o) Scire facias against shareholder. 
 
 84. — The discretion which the Court exercises 
 in granting a writ of scire facias, under section 
 36 of the Companies Clauses Consolidation Act, 
 1845, to a judgment creditor of a company 
 against any of its shareholders, is only a judi- 
 cial discretion, and therefore, if such, creditor 
 makes out a primA facie legal claim to such writ, 
 and it cannot be shewn that there is a suiRcient 
 answer to it in equity, or that the creditor is 
 himself indebted as a shareholder to the company, 
 or that the writ is applied for vexatiously or 
 oppressively, the Court is bound, in the exercise 
 of its discretion, to allow the writ to issue. And 
 it is no answer to the application for such writ 
 that the judgment was obtained fraudulently or 
 coUusively, as this may be pleaded in defence. 
 Neither is it any reason for refusing the writ 
 that the creditor induced Parliament, by false 
 representations, to pass the Act by which the 
 company was constituted, and to enact that his 
 claim should be a debt payable by the com- 
 pany. Lee r. the Bade and Torrington Junction 
 BaUviay Company ; In re Stevens, 40 Law J. Rep. 
 (N.S.) C.P. 285 ; Law Eep. 6 C. P. 576. 
 
 (H) Creditors. 
 (a) Proof of debts. 
 
 (1) Secured creditors, 
 (i) Right of proof . 
 
 1. — The articles of association of an assurance 
 company ' provided that all securities made on 
 behalf of the company should be sealed with the 
 company's seal, signed by two of the directors 
 and countersigned by the secretary, and when so 
 sealed, signed and countersigned, should be valid 
 and enforceable against the company. The com- 
 pany requiring accommodation from their bankers, 
 the directors passed a resolution, that certain title 
 deeds should be deposited with the bankers as 
 collateral security for bills under discount, and 
 the deeds were deposited accordingly. The 
 bankers then discounted bills directly for the 
 company, and also bills for third persons on which 
 
 tlie company were liable, and the company being 
 afterwards wound up, the bankers sold the pro- 
 perty comprised in the title deeds for a sum 
 greater than would cover the amount due on the 
 bills directly discounted, but less than their 
 general debt ; — Held, first, that the deposit was 
 only intended as a security for bills discounted 
 directly for the company ; Secondly, that the 
 bankers not being officers of the company, had 
 not imposed upon them the duty of seeing that 
 the formalities required by the articles of associa- 
 tion were complied with ; and that the equitable 
 mortgage by deposit was valid although these 
 formalities were not complied with, and although 
 it was not registered under section 43 of the 
 Companies Act, 1862 ; Thirdly, that by analogy to 
 Haselfoot's case (41 Law J. Eep. (n.s.) Chanc. 286 ; 
 Law Eep. 13 Eq. 327), the bankers liad, as mort- 
 gagees, a right to retain as against the liquidators 
 of the company the balance which would remain 
 in their hands after paying the amount due on 
 the bills directly discounted for the compiny, in 
 satisfaction of their general debt. In re the 
 General Provident Assurance Company ; Ex parte 
 the National Bank, 41 Law J. Eep. (n.s.) Chanc. 
 823 ; Law Rep. 14 Eq. 607. 
 
 2. — The certified rules of a permanent benefit 
 building society stated that the society's objects 
 were " to raise a fund for the purpose of enabling 
 its members to purchase land ; to erect buildings 
 thereon ; to provide means for the profitable in- 
 vestment of small savings ; and in cases of acci- 
 dental death to relieve the widows and families 
 of deceased shareholders by adding the interest 
 and estimated profits of the current year on the 
 withdrawal of their shares at the time of death," 
 The original rules contained no powers of borrow- 
 ing. Subsequently the rules were altered, so as 
 to empower the directors, " from time to time to 
 borrow for the purposes of the society such sums, 
 and at such rates of interest, and under such terms 
 and conditions, as they might think proper and 
 expedient." This rule was duly certified by the 
 barrister : — Held, that under this power the 
 directors could only borrow for the purposes 
 expressly mentioned in the original rules of the 
 society, and that money lent to the society by 
 way of deposit at interest, and used for an un- 
 authorised purpose, could not be recovered by the 
 depositor. 
 
 But where the loan had been secured by a 
 deposit of mortgage deeds executed in usual course 
 by the members to the society to secure the 
 advances made to them, — Held, that the official 
 liquidator of the society was not entitled without 
 payment of the loan to deprive the lender of his 
 securities. In re the Durham County Permanent 
 Benefit Building Society; Davis's case; Wilson's 
 case, 41 Law J. Eep. (n.s.) Chanc. 124 ; Law Rep. 
 12 Eq. 516. 
 
 (ii) Amount of proof : deductions. 
 
 3. — A banking company at the request of A., 
 a speculator in cotton, issued a letter of credit, 
 authorising J., a merchant at Pernambuco, to 
 draw upon them to the amount of 10,000?., the 
 
168 
 
 COMPANY (H). 
 
 drafts to be covered by bills of lading of cotton, 
 to be addressed to the company by the same mail 
 •which should bring the acceptances ; on receipt of 
 which bills the company engaged to honour the 
 draft. A similar letter of credit for 17,000^. was 
 issued to J. at the request of B,, another specula- 
 tor in cotton. J. accordingly drew drafts under 
 the first letter of credit to the amount of 9,6901. 
 Os. 9d., and under the second letter of credit to 
 the amount of 13,062Z. 15s. Id. The first set 
 were accepted by the banking company, which 
 received the corresponding bills of lading. The 
 second set were not presented till after the banking 
 company had stopped payment, and were therefore 
 not accepted. The first set were dishonoured : — 
 Held, affirming Coupland's case (39 Law J. Eep. 
 (n s.) Chanc. 287), that the cotton represented by 
 the bills of lading was the property of the banking 
 company, and that J. could only prove against 
 the company for the amount of the several bills 
 after deducting the value of the cotton which was 
 sold, and the proceeds received by J. Banner v. 
 Johnston; In re Barned's Banking Company, 40 
 Law J. Eep. (n.s.) Chanc. 730 ; Law Eep. 5 E. 
 & L App. 157. 
 
 4. — A bank at Liverpool, at the request of L., 
 authorised H. in New Orleans, to draw upon them 
 at sixty days' sight against cotton, the bills of 
 exchange to be accompanied by the corresponding 
 bills of lading, which were to be delivered to the 
 bank on their accepting the bills of exchange. A 
 bill of exchange for 7,798Z. was accordingly drawn 
 and accepted by the bank, and the bills of lading 
 handed to them. Subsequently, with the consent 
 of the bank, L. obtained 6,000?. from his brokers 
 on deposit of the bills of lading, which sum was 
 paid into his account at the bank. Before the bill 
 of exchange became payable, the bank was wound 
 up. The cotton was sold by the brokers, who, 
 after repaying themselves the 6,000Z., paid the 
 balance of 5Til. to the holders of the bill of 
 exchange. The Master of the Rolls allowed the 
 holders of the bill to prove for the whole amount, 
 but directed that the 574Z. should be deducted 
 from the dividends payable to them on that 
 amount: — Held (reversing the decision of the 
 Master of the Eolls), that the 674?. must not be 
 deducted from the dividends. But, semble, the 
 proof ought to be reduced by 574?. In re Barned's 
 Banking Company ; Leech's claim, 40 Law J. Eep. 
 (n.s.) Chanc. 590 ; Law Eep. 6 Chanc. 388. 
 
 5. — A bank, carrying on business in Bombay 
 and London, sold to " 0. & Sons," of Bombay, 
 their acceptances for 25,000Z., payable in London 
 three and four months after sight. In payment, 
 " C. & Sons " gave the bank bills for 20,000?., 
 drawn on C. & Co., payable six months after sight, 
 and 5,000?. in cash, together with a further sum, 
 by way of discount, in respect of the difference 
 of times when the bills became due. " C. & Co." 
 accepted the bills drawn on them, and " C. & 
 Sons " indorsed to " C. & Co." the bank's accept- 
 ances for 25,000?. The bank being unable to 
 meet some of their acceptances, gave " C. & Co." 
 a security for payment thereof. Subsequently the 
 bank became insolvent, and was ordered to be 
 
 wound up. Both " 0. & Co." and " C. & Sons" 
 executed assignments for benefit of their credi- 
 tors. All the acceptances of " C. & Co." had 
 been dealt with by the bank, and were in the 
 hands of third parties, but " 0. & Co." were the 
 holders of the bank's acceptances to the extent 
 of 19,000?. The representatives of " C. & Co.," 
 acting on the erroneous assumption that the bank 
 held their acceptances for 20,000?., sent in a claim 
 in the winding-up of the bank for 5,000?. only. 
 Subsequently, upon discovering the fact that the 
 bank had parted with all their acceptances, they 
 claimed to be admitted to prove to the full 
 amount of 19,000?. They had in the meantime 
 realised their security :— Held, that the represen- 
 tatives of " C. & Co.," as indorsees for value, 
 were entitled to prove against the bank in respect 
 of the acceptances held by them ; and that since 
 the claim for 6,000?. had been made on an assump- 
 tion of facts shewn to be erroneous by the affi- 
 davit made in support of it, the case should be 
 treated as if the claim for the whole 19,000?. had 
 been made at the time when the original claim for 
 6,000?. was carried in, and that being before " C. 
 & Co." had realised their security, they were 
 entitled to retain the amount so realised as well 
 as to prove for the whole amount in the winding- 
 up. In re the London, Bombay and Mediterranean 
 Bank, 43 Law J. Eep. (n.s.) Chanc. 683 ; Law 
 Eep. 9 Chanc, 686 nom.. Ex parte Cama. 
 
 6. — ^A company which had indorsed certain bills 
 was ordered to be wound up, and all the other 
 parties to the bills became bankrupt. In the 
 winding-up the billholders were admitted to prove 
 the amounts due upon the bills in full, vrithout 
 reference to the value of certain securities for the 
 payment thereof. These securities were subse- 
 quently realised, and the proceeds distributed 
 among the billholders, upon the principle of the 
 doctrine in Ex parte Waring (19 Ves. 345) : — Held 
 (affirming the decision of the Master of the Eolls, 
 43 Law J. Eep. (n.s.) Chanc. 97 ; Law Rep. 19 
 Eq. 1), that notwithstanding the securities were 
 not realised until after proof of the debts, the 
 value of them was applicable, ab initio, to the 
 reduction of the debts, and the proof must be 
 reduced accordingly, and any dividends paid on 
 the original proof, in excess of the dividends 
 payable on the reduced proof, must be refunded 
 by the billholders. In re Barned's Banking Cmn- 
 pany {lAm.) ; Ex parte Joint Stock Discount 
 Company {Lim.), 44 Law J. Rep. (n.s.) Chanc. 
 494 ; Law Eep. 10 Chanc. 198. 
 
 7. — A railway company, in order to enable 
 a hotel company to complete a hotel at the 
 terminus of the railway, lent the hotel com- 
 pany money upon the security of unissued 
 shares, which were placed in the name of 
 trustees with power to sell the shares and reduce 
 the debt. The hotel having been afterwards sold 
 to the railway company, and the hotel company 
 wound up, — Held, that the railway company were 
 not shareholders in the hotel company, but credi- 
 tors, and entitled to deduct from the purchase- 
 money the sums advanced upon the security of the 
 shares. In re the City Termimis Hotel Company ; 
 
COMPANY (H). 
 
 169 
 
 Company's Claim, Law 
 
 South-Easterii Eailway 
 Rep. 14 Eq. 10. 
 
 (2) Bill holders. 
 
 (i) Acceptance hy director pending winding-up. 
 
 8. — A resolution to wind up a banking com- 
 pany Toluntarily was confirmed on the 22nd, and 
 advertised in the London Gazette on the 26th of 
 November. On the 24th of the sjime month one 
 of the directors, who had been appointed one of 
 the liquidators, accepted, as director, a bill of 
 exchange on the bank. This biU was afterwards 
 indorsed for value to a person who had no notice 
 that the bank was in liquidation : — Held, affirming 
 the decision of Stuart, V.C, that the hill was 
 not a bill of the company, and therefore that the 
 holder could not prove against the company for 
 the amount. In re the Lo^idon and Mediterranean 
 Bank; Bolognests case, 40 Law J. Eep. (n.s.) Chanc. 
 26 ; Law Eep. 6 Chanc. 206, nom. Ex parte Agra 
 and Masterman's Bank. 
 
 (ii) Double proof. 
 
 [And see supra H 6.] 
 
 9. — The 0. Company indorsed bills of ex- 
 change which they had induced the E. Company 
 to accept for their accommodation, upon an agree- 
 ment to provide fands to meet the bills when due. 
 Both companies were in liquidation when the bills 
 matured, and no funds being provided they were 
 dishonoured. The holders of the bills proved 
 against both companies, and received dividends 
 from both. The E. Company then sought to 
 prove against the 0. Company for the amount of 
 the dividend paid by them as damages, in respect 
 of the breach of the agreement to provide funds : — 
 Held, overruling the decision of Vice-Chaneellor 
 Bacon (Law Eep. 12 Eq. 501), that the proof 
 could not be allowed, as it would constitute a 
 double proof against the estate for the same debt, 
 as to which the rule in bankruptcy ought to be 
 adopted in winding-up oases. In re the Oriental 
 Comme/rciai Bank ; Ex parte the European Bank, 
 41 Law J. Eep. (n.s.) Chanc. 217; Law Eep. 7 
 Chane. 99. 
 
 (iii) Authority to accept bills. 
 
 10. — ^Four mercantile firms, each of whom car- 
 ried on a, separate trading business of its own, 
 agreed to carry on jointly a particular trade which 
 had been theretofore carried on by F., one of the 
 four firms, alone. The agreement between the 
 four firms provided that the business should be 
 carried on under the style of F., who were to keep 
 separate books for the purpose, and that each 
 party to the agreement should be liable in respect 
 of the business in proportion to his share in the 
 undertaking, and in the event of being under cash 
 advance he should receive interest for the same ; 
 but it was " understood and agreed, that the 
 finance of the business be carried on by accept- 
 ances of the several parties interested as may, 
 from time to time, be arranged." In re the Adan- 
 sonia Fibre Company ; Miles' s Claim, 43 Law J. 
 Eep. (N.s.) Chanc. 732; Law Eep. 9 Chanc. 635. 
 Digest, 1870-1875. 
 
 The association was known to the members as 
 the A. Company, but its name and existence wore 
 kept secret. Ibid. 
 
 In order to raise money for the purposes of the 
 business a number of bills of exchange were drawn 
 by M., one of the firms, upon each of the other 
 three, were accepted by them respectively, and 
 were discounted by bankers, the money thus ob- 
 tained being applied to the purposes of the joint 
 business. The bankers were ignorant of the exist- 
 ence of the association. An order was afterwards 
 made to wind up the asssociation, as an unregis- 
 tered partnership consisting of more than seven 
 members : — 
 
 Held, reversing a decision of Malins, V.C, that 
 only those of the firms whose names appeared 
 upon the bills of exchange were liable in respect 
 of them, and that consequently the holders of the 
 bills could not prove upon them in the winding-up. 
 Ibid. 
 
 (3) Bond holders : notice : equities. 
 
 11. — Bonds of a company which are void in the 
 hands of the person to whom they were originally 
 given may be valid in the hands of an innocent 
 holder for value. In re the South Essex Estuary and 
 Reclamation Company ; Ex parte Chorley, 40 Law 
 J. Eep. (N.s.) Clianc. 153 ; Law Eep. 11 Eq. 157. 
 
 A company gave bonds to H., who transferred 
 to an innocent purchaser for value, the transfer 
 being registered in the books of the company. 
 The purchaser brought an action against the com- 
 pany upon the bonds. It was arranged between 
 the plaintiff and the company that judgment should 
 be signed, but not until the expiration of three 
 months. In the meantime a petition was pre- 
 sented to wind up the company, upon which an 
 order was subsequently made. The bonds were 
 alleged to be ultra vires, and void as between the 
 company and H. : — Held, that without entering 
 into the question of the validity of the bonds as 
 between the company and H., they were, under 
 the circumstances, good in the hands of the pur- 
 chaser. Ibid. 
 
 12. — A bond issued by an insurance company 
 to S., the condition of which was that it should be 
 void on payment to S., his executors, administra- 
 tors, and assigns, of a sum of money on a future 
 day, was assigned for value by S. to B. B. made 
 no enquiry as to the validity of the bond before 
 taking the assignment, but gave notice of the 
 assignment to the company. The company ac- 
 cepted notice of the assignment but did not re- 
 gister it. Before the money secured by the bond 
 became payable, the company was ordered to be 
 wound up : — Held, upon the application of the 
 representatives of B. for leave to prove in the 
 winding-up against the company, that the com- 
 pany, and not persons dealing with it, were an- 
 swerable for the neglect of its officers to register 
 the assignment of the bond, and that whatever 
 equities might have existed between the company 
 and the original obligee of the bond, the company, 
 by accepting notice of the assignment, had pre- 
 cluded themselves from setting up those equities 
 as against the assignee for value. The Athenmim 
 Z 
 
170 
 
 OOMPAKY (H). 
 
 Assiiranoe Company v. Pooley (1 Giff. 102; B. u. 
 28 Law J. Rep. (n.s.) Chane. 119) commented on. 
 In re the Hercules Inmrance Company ; Brunton's 
 Claim, a Law J. Eop. (n.s.) Chano. 450; Law 
 Eep. 19 Eq. 302. 
 
 (i) Debenture holders. 
 
 13. — Instruments were issued by a company 
 (whose directors were empowered to draw, accept 
 or endorse negotiable instruments) which were in 
 the form of debenture bonds, but which bound 
 the company to "pay to the bearer": — Held, 
 that such instruments were promissory notes 
 wliich passed to the bearer free from any equities 
 which might have attached to them as between 
 the company and the original holders. In re the 
 Imperial Land Company of Marseilles ; Ex parte 
 Dehentitre Holders, 40 Law J. Rep. (n.s.) Chanc. 
 93; Law Rep. 11 Eq. 479, nom. Ex parte Col- 
 home and Strawbridge. 
 
 (5) "Policy holders. 
 
 14. — An assurance company having been or- 
 dered to be wound up, — Held, that a policy-holder 
 was entitled to prove for the sum which a solvent 
 assurance office, having the same rate of pre- 
 miums and the same extent of proprietary capital 
 as the company in liquidation woidd require him 
 to pay, in order to obtain a policy of the same 
 amount and under the same conditions at the 
 same premium. Bell's case (Law Rep. 9 Eq. 
 706) followed. Lancaster's case (Albert Arbitra- 
 tion, Solicitors' Jour^ial, December 9, 1871, vol. xvi. 
 p. 1 03) disapproved of. In re the English Assurance 
 Company, Eoldich's case, 42 Law J. Rep. (n.s.) 
 Chanc. 612 ; Law Rep. 14 Eq. 72. 
 
 15. — A ship was insured in 1863 by M. in a 
 Mutual Marine Insurance Association. The policy, 
 which was unstamped, was renewed up to 1868, 
 when the ship, with M. on board, was lost at sea. 
 The money due in respect of the insurance was 
 collected bj the order of the association, according 
 to their usual practice, from the members liable 
 to contribute the same, but was retained by the 
 secretary until a personal representative to M. 
 should have been appointed. Before any such 
 appointment was made the association was, ordered 
 to be wound up. Subsequently M.'s widow took 
 out administration to him, and brought in a claim 
 in the winding-up under the policy. A portion of 
 the amount due under the policy had already been 
 paid to persons having a lien thereon : — Held, 
 that the relation of debtor and creditor had been 
 sufficiently established between the parties, and 
 the widow was entitled to recover the amount, 
 notwithstanding the want of a stamp on the policy. 
 In re the Teignnwuth and General Mutual Shipping 
 Association, 41 Law J. Rep. (n.s.) Chanc. 679; 
 Law Rep. 14 Eq. 148. 
 
 (6) Judgment creditors. 
 
 16. — A company registered in England under 
 the Companies Act, 1862, with an office in London, 
 but carrying on business and having property in 
 India, was ordered to be wound up compulsorily 
 
 by an order of the Court in England. Another 
 English company, also carrying on business in 
 India, had, prior to the winding-up order, ob- 
 tained in India a judgment against the first- 
 mentioned company in respect of a debt, and 
 subsequently to the winding-up order issued exe- 
 cution upon the judgment against the property in 
 India of the debtor company. The property was 
 subsequently sold under an order of the Court 
 here, and a portion of the proceeds was paid to 
 the creditor company on account of their debt, on 
 their undertaking to refund the same if they were 
 not entitled thereto : — Held, that the creditor 
 company were not entitled to retain the proceeds, 
 but must hand over the same to the official li- 
 quidator of the debtor company, for equal dis- 
 tribution among the creditors. In re the Oriental 
 Inland Steam Company (Lim.), 43 Law J. Rep. 
 (n.s.) Chanc. 699 ; Law Rep. 9 Chanc. 557. 
 
 17. — Where a judgment creditor of a company 
 is told by the company's solicitor that they have 
 no assets on which he can levy, that is evidence 
 of their inability to pay, and relieves him from 
 the necessity of actually levying. In re the Flagstaff 
 Silver Mining Company of Utah, Law Rep. 20 Eq. 
 268. 
 
 (7) Improper loan. 
 
 [And see supra HI.] 
 
 18. — The M. Company being in want of money 
 for a particular purpose, and having large bor- 
 rowing powers, applied to the C. Company for a 
 loan. The negotiations for the loan were con- 
 ducted by a director of the M. Company, who was 
 also director of the C. Company. The object for 
 which the loan was required by the M. Company 
 was not fully disclosed'by the negotiating director 
 to the board of the C. Company. It was alleged 
 that this object was an illegal one : — Held, re- 
 versing the decision of Malins, V.C., that even if 
 the object of the loan was an improper one (as to 
 which their Lordships were not satisfied by the 
 evidence), still the C. Company were not affected 
 by notice of the impropriety, and a claim by the 
 C. Company in the winding-up of the M. Company 
 founded upon the loan, was allowed. In re the 
 Marseilles Extension Railway Company ; Ex parte 
 the Credit Fonder and Mobilier of England, 41 
 Law J. Rep. (n.s.) Chanc. 345 ; Law Rep. 7 
 Chanc. 161. 
 
 (8) Prospective claims and claims for damages. 
 
 19. — An agreement was executed between L., a 
 banker at Paris, and the directors of a company 
 formed to take over his business. No day was 
 fixed for the completion of the transfer of the 
 business and offices. In fact, the transfer was 
 never carried out ; but the company was started, 
 and it transacted business, and L. admitted a 
 committee of its directors to his offices, which he 
 vacated, removing his clerks to a higher storey in 
 the same building, where he continued to transact 
 his business pending the completion of the con- 
 tract, which he was always anxious and willing to 
 effect by handing over books and executing legal 
 transfers. The contract never was completed by 
 
COMPANY (H). 
 
 the default of the company. The company came 
 to a winding-up. L. claimed the full amount of 
 the purchase money for which he had contracted : 
 — Held, that the contract was in fieri, and, as it 
 was owing to the fault of the company that it 
 never became fully executed, an inquiry was di- 
 rected before the chief clerk as to the damages 
 sustained by L. through the breach of the con- 
 tract, — L. to be allowed to prove for the amount 
 of the damages so ascertained. Charles Laffitte ^ 
 Co. (Lim.) V. Laffitte {H..L.), 42 Law J. Rep. (m.s.) 
 Chanc. 716. 
 
 20.— A company engaged D. & G. to act as 
 their commercial travellers for three years in a 
 certain district^ at a commission upon goods or- 
 dered. The company was wound up before the 
 termination of the three years : — Held, that D. & 
 G. were entitled to compensation in respect of 
 commission for the unexpired portion of the terra, 
 the amount to be ascertained by the chief clerk in 
 chambers. In re the Patent Floor Cloth Company ; 
 Dean and Gilbert's Claim, 41 Law J. Rep. (n.s.) 
 Chanc. 476. 
 
 Claim for commission. [See supra D 18.] 
 Claim for estimated value of indemnity. 
 [See infra H 22.] 
 
 (9) Proof hy officer of com'pany. 
 
 21. — S. agreed with the promoters to take cer- 
 tain shares in a proposed company on condition 
 that he should be appointed manager at a salary, 
 and that in case of his dismissal from the ofiice he 
 should be repaid the amount paid on his shares. 
 The agreement was confirmed by the articles of 
 association. The company was subsequently 
 wound up, and S. was appointed liquidator at a 
 salary : — Held, that the winding-up was ipso facto 
 a dismissal of S. from the office of manager, and 
 that he was entitled to prove in the winding-up 
 for the amount paid up by him on the shares taken 
 under the agreement, less any sums received by 
 him as liquidator since the winding-up. In re 
 the Imperial Wine Company (Lim.); Shirrefs 
 Claim, 42 Law J. Rep. (n.s.) Chanc. 5 ; Law Rep. 
 14 Eq. 417. 
 
 (10) Claim for professional services. 
 
 22. — Certain persons signed the subscription 
 contract of a railway company, and agreed to act 
 as provisional directors on the representation of 
 S., a solicitor, that they woiild not incur any re- 
 sponsibility or be called upon in respect of their 
 shares for expenses or otherwise if the undertaking 
 were not carried out. The company obtained their 
 Act of Parliament, but the works were never com- 
 menced, the undertaking was abandoned and the 
 company was ordered to be wound up. S. carried in 
 a claim for professional services performed by him 
 in respect of the passing of the Act, and it was 
 held, afiirming the decision of one of the Vice- 
 Chancellors, that the claim must be allowed, the 
 representations made amounting at most to a con- 
 tract of indemnity with the persons to whom they 
 were made, and not enuring for the benefit of the 
 company. In re the Bramyton and Longtotim 
 
 171 
 
 Railway Company ; Shaw's Claim, 44 Law J. Rep. 
 (n.s.) Chanc. 670 ; Law Rep. 10 Chanc. 177. 
 
 (11) Statute of Limitations. 
 23. — After an order to wind up a company has 
 been made the Statute of Limitations does not 
 run so as to bar a creditor's claim, but he will be 
 allowed to prove his debt at anytime not disturb- 
 ing former dividends. In re the General Eolling 
 Stock Company ; Ex parte the Joint Stock Dis- 
 count Company's Claim, 41 Law J. Rep. (n.s.) 
 Chanc. 732 ; Law Rep. 7 Chanc. 646. 
 
 (12) Interest. 
 
 24. — H. held twenty shares in the W. Com- 
 pany, as a nominee for the C. Company. In June, 
 1866, a call of 21, 10s. per share was made on the 
 twenty shares by the W. Company. In July, 
 1866, the C. Company was ordered to bo wound 
 up. In November, 1866, a further call of 11. 10s. 
 per share was made by the liquidator of the W. 
 Company on the twenty shares. Interest was 
 payable on the calls in case of default. In May, 
 
 1871, the liquidator of the W. Company sued H. 
 at law for the unpaid call j on the twenty shares, 
 and recovered judgment for them, viz., WOl. prin- 
 cipal, 23Z. Ts. 6d. interest, and 61. is. 2d. costs. H. 
 paid the 1291. lis. Sd., and then carried a proof into 
 chambers in the winding-up of the C. Company 
 for that amount. An order was made in January, 
 
 1872, allowing him to prove for the principal and 
 interest, but not for the costs. The liquidator of 
 the C. Company moved to vary that order by 
 disallowing the interest as well as the costs : — 
 Held, that the rights of creditors (ititer se) of a 
 company in liquidation are definitely fixed when 
 the winding-up order is made ; that the order 
 nullifies as between them all contracts for interest ; 
 that the interest which had accrued after the order 
 to wind up the C. Company could not be allowed, 
 but that if H. had claimed to prove for it against 
 the surplus assets only of the company, such a 
 proof might have been allowed ; that he might 
 carry in a claim for the estimated value of his in- 
 demnity by the C. Company when the order was 
 made to wind it up ; and that the order of January, 
 1872, must be varied, as asked. In re the Inter- 
 national Contract Company {Lim.); Hughes's Claim, 
 41 Law J. Bep. (n.s.) Chanc. 373 ; Law Rep. 13 
 Eq. 623. 
 
 25. — A trustee for a company, who advanced 
 money on behalf of the company, which he had 
 bound himself by contract to pay : — Held, entitled 
 in the winding-up, to interest at bl. per cent. In 
 re the Beulah Park Estate ; Sargood's Claim, Law 
 Eep. 15 Eq. 43. 
 
 26. — Where a voluntary winding-up had been 
 ordered to be continned under supervision, deben- 
 ture holders were held entitled to prove for in- 
 terest only up to the date of the confirmatory 
 resolution to wind up the company voluntarily, 
 without prejudice to their right to prove for fur- 
 ther interest, if there should be found to be sur- 
 plus assets. Payments of interest made since the 
 above date to be brought into account by the 
 z2 
 
172 
 
 debenture holders. In re the Imperial Land 
 Company/ of Marseilles ; Ex parte the Debenture 
 Holders, 40 La-w J. Eep. (n.s.) Ohanc. 343 ; Law 
 Eep. 11 Eq. 478, nom. Ex parte Colhorne and 
 Strawbridge. 
 
 (13) Froof by nominee of company. 
 
 27. — Calls were made upon M, in respect of 
 shares in the W. Company -which M. held as the 
 nominee of, and aa quasi trustee for the J. Com- 
 pany. Both companies came to a winding-up 
 under the supervision of the Court. Thereupon 
 the W. Company executed a deed with M., whereby 
 M. consented that the "W. Company should use his 
 name in suing the I, Company for the calls then 
 due upon the shares, and the W. Company agreed 
 not to sue M. in respect of these calls. TJpon the 
 joint application of M. and of the W. Company : 
 — Held, first, that the deed executed between M. 
 and the W. Company was a nullity, the sanction 
 of the Court not having been obtained for it, and 
 that the claim of M. was in no way aifected by it ; 
 secondly, that M. was entitled to be indemnified 
 by the I. Company against any liability in respect 
 of the shares in the W. Company so held by him, 
 and to rank as creditor of the I. Company for the 
 amount of calls made or to be made on the shares, 
 with interest to the date of the order to wind up 
 the I. Company, and the liquidator of the I. Com- 
 pany was ordered to pay to the liquidator of the 
 W. Company the dividends which in the course of 
 the winding-up should become payable in respect 
 of their liability, thus declared, on the amount of 
 such calls and interest. James v. May (H.L.), 42 
 Law J. Eep. (n.s.) Chanc. 802 ; Law Eep. 6 E. 
 & I. App. 328. 
 
 (6) Effect of winding-up order or amalgamation 
 on rights of creditors. 
 
 Effect of mnding up order. [See supra 
 
 H23.] 
 Effect of amalgamation. [See supra E 5.1 
 
 (I) Winding up. 
 
 (rt) On petition. 
 
 (1) Bight to order ex debito justitim. 
 
 (i) Creditors. 
 
 1. — The Court will not make an order to wind 
 up a benefit building society coripulsorily, on the 
 petition of advanced member.*, contrary to the 
 wishes of the majority of the creditors and contri- 
 butories, unless a plain injustice will be done to 
 the petitioners by refusing the order. A contri- 
 butory is not entitled to a winding-up order against 
 an insolvent company ex debito justitice. In re the 
 Trofessional, Commercial and Industrial Benefit 
 Building Society, Law Eep. 6 Chanc. 856. 
 
 2. — The Court is not necessarily bound ej? (Zeiiio 
 justitia to make an order to wind up a company 
 upon the petition of an unpaid creditor. In con- 
 sidering the advisability of making such an order, 
 regard will be had to the wishes of the majority 
 of the creditors and shareholders, as well as to 
 the amount of the debt due to the petitioner. In 
 
 COMPANY (&), (1). 
 
 re the Langley Mills Steel and Ironworks Com- 
 pany (Lim.), 40 Law J. Eep. (n.s.) Chanc. 313 ; 
 Law Eep. 12 Eq. 26. 
 
 A winding-up petition was presented by an un- 
 paid creditor who-e debt was 801. Meetings both 
 of creditors and shareholders had been held, which 
 had pronounced against liquidation through the 
 medium of the Court and in favour of a voluntary 
 wiuding-up. It was believed that the assets re- 
 coTerable under a compulsory winding-up would 
 not pay the expenses : — Held, that no order should 
 be made on the petition. Ibid. 
 
 Shortly after the presentation of the petition 
 the company offered to call meetings of creditors 
 and shareholders, to proceed to a voluntary wind- 
 ing-up, and to pay the petitioner's cost; up to that 
 day, if he would stop proceedings. This offer 
 having been declined, — Held, that the company 
 would not be ordered to pay the costs incurred 
 after the date of the offer. Ibid. 
 
 3. — A creditor of a company who cannot get 
 paid without a winding-up, is entitled ex debito 
 jmstiticB to an order for winding-up. In re the 
 Western of Canada Oil, Lands and Works Com- 
 pany, 43 Law J. Eep. (n.s.) Chanc. 184; Law Eep. 
 17Eq. 1. 
 
 The 91st section of the Companies Act, 1862, is 
 applicable when a petition for winding-up is before 
 the Court, and does not necessarily presuppose a 
 winding-up order. Ibid. 
 
 Where it appears that there is a reasonable 
 chance of a creditor getting paid without a wind- 
 ing-up order sooner than if an order was made, 
 the Court may order a creditor's petition to stand 
 over, although the creditor has, under section 80 
 of the Companies Act, served on the company a 
 formal demand for payment, and not been paid 
 within the three weeks. Ibid, 
 
 4. — A creditor of an insolvent company is not 
 entitled to a compulsory winding-up ordei ex debito 
 justitice, where resolutions have been passed for 
 a voluntary winding-up. In re the West Hartle- 
 pool Iron Company {No. 2), 44 Law J. Eep. (n.s.) 
 Chanc. 668 ; Law Eep. 10 Chanc. 618. 
 
 The wishes of creditors as to the mode of wind- 
 ing up an insolvent company may be sufficiently 
 shewn under sections 91 and 149 of the Companies 
 Act, 1862, by the appearance of a majority of 
 them by counsel at the bar, although no general 
 meeting of creditors has been held. Ibid. 
 
 [And see infra I 12.] 
 
 (ii) Shareholders. 
 
 5. — The Court Las, under the 70th section of 
 the Companies Act, 1862, power to refase an order 
 for a compulsory winding-up of a limited company 
 where the petition is presented by a shareholder, 
 and founded on an allegation that the company is 
 unable to pay its debts, and the Court will exer- 
 cise such power where it appears that the liability 
 of the shareholder is of very small amount, and 
 the result of making the order will be to swallow 
 up in costs the assets of the company. In re the 
 London Suburban Bank, 40 Law J. Eep. (n.s.) 
 Chanc. 174; Law Eep. .6 Chanc. 641. 
 
COMPANY (I). 
 
 173 
 
 (2) Liability to winding-up order. 
 (i) Number of members. 
 
 6. — A company registered under the Act of 
 1862, consisting of only seren members, was or- 
 dered to be wound up on a petition. In re Sander- 
 son's Patents Association (iim.), 40 Law J. Eep. 
 (n.s.) Chanc. 519 ; Law Eep. 12 Eq. 188. 
 
 In re the Sea and JSiver Marine Insurance 
 Company (35 Law J. Eep. (n.s.) Chanc. 820 ; Law 
 Eep. 2 Eq. 545, and In re the Natal Company, 1 
 Hem. & M. 639) not followed. Ibid. 
 
 7. — A company which had been registered as a 
 limited company carried on business for a short 
 time with more than seven shareholders. On its 
 being wound up under a supervision order it was 
 discovered that one of the subscribers of the 
 memorandum was an infant, thereupon a petition 
 for winding up the company under the 199th sec- 
 tion was presented by a creditor and an order made. 
 In re the Hertfordshire Brewery Company, 43 Law 
 J. Eep. (n.s.) Chanc. 358. 
 
 (ii) Company unable to pay debts. 
 
 8. — The dishonour of a bill of exchange, accepted 
 by a limited company in part payment of goods 
 sold and delivered to the company, held, on a 
 winding-up petition by the creditors, to be proof 
 to the satisfection of the Court, under section 80, 
 sub-section 4, of the Companies Act, 186?, of the 
 company being unable to pay its debts, although 
 no demand of payment had been made under sub- 
 section 1. In re the Globe New Patent Iron and 
 Steel Company, 44 Law J. Eep. (n.s.) Chanc. 680 ; 
 Law Eep. 20 Eq. 337. 
 
 (iii) Disputed debt. 
 
 8. — "Where the debt of a creditor petitioning 
 for a winding-up order is disputed by the company, 
 the Court will not order the petition to stand over 
 with leave to bring an action unless it sees that 
 the debt is disputed on some substantial ground. 
 In re the King's Cross Industrial Swellings Comr 
 pany. Law Eep. 11 Eq. 149. 
 
 10. — ^B. contracted with a company to complete 
 certain works for the sum of 290,0002., of which 
 200,000/. was to be paid in cash, and the re- 
 mainder in fully paid up shares of the company. 
 B. having received 250,000/. in cash and shares, 
 and being unable to complete the works, the com- 
 pany took possession. B. claimed 30,000/. more 
 to be due to him under the contract. The com- 
 pany disputed the claim, alleging that B. had been, 
 if anytHng, overpaid, whereupon B. threatened 
 to present a petition to wind up the company, 
 and served upon them particulars of demand 
 under the 80th section of the Companies Act, 
 1862 : — Held, that there being a bond fide dispute 
 as to the debt and no proof that the company was 
 insolvent, B. must be restrained from presenting 
 any petition to wind up the company, and an in- 
 junction was accordingly granted. The Cadiz 
 Waterworks Company v. Barnett, 44 Law J. Eep. 
 (n.s.) Chanc. 529 ; Law Eep. 19 Eq. 182. 
 
 11. — The mere omission (unless without reason- 
 able cause) to comply with a statutory notice for 
 
 payment of a debt is not " neglect " to pay. Where, 
 therefore, such a debt is bond fide disputed, and 
 there is no evidence of the company's insolvency, 
 the creditor is not entitled to a winding-up order. 
 In such a case where it appeared that a creditor's 
 petition was presented solely with the view of 
 putting pressure on the company, the petition was 
 dismissed with costs. In re thi London, and Paris 
 Banking Corporation, Law Eep. 19 Eq. 444. 
 
 (3) Benefit building society. 
 
 12. — By one of the rules of a building society, 
 members who held investment shares were entitled, 
 on giving one month's notice, to withdraw their 
 investments ; it being provided that if several 
 members should give notice to withdraw at one 
 time they should be paid in rotation according to 
 the priority of notice. Another rule provided for 
 the reference of disputes to arbitration. On the 
 26th of April the petitioner, a holder of five invest- 
 ing shares, gave notice to withdraw her invest- 
 ment. Sixteen hundred investing members had 
 previously given notice to withdraw investments 
 to the amount of 350,000/. On the 28th of May 
 the altered rules were duly certified, and it was 
 thereby provided that dividends should be paid to 
 all the members in part repayment of the prin- 
 cipal of their investments, and that any member 
 holding investment shares might give one month's 
 noti ce of his desire to withdraw, and that at the 
 expiration of such notice he should cease to be a 
 member of the society, but should be entitled to 
 receive the same dividends as continuing members, 
 and to be paid the balance of the principal of his 
 investment shares, when the funds of the society 
 would admit of it, in such instalments as the 
 directors might determine. The petitioner not 
 being paid at the expiration of the month gave the 
 statutory notice under the 199th section of the 
 Companies Act, 1862, and subsequently filed a 
 petition for winding up the society. It appeared 
 that the society had sufficient assets to meet all 
 claims, but that these would take a long time to 
 realise, and that it had not money in hand to pay 
 all members who had given notice of withdrawal 
 previously to the petitioner; — Held, that the 199th 
 section did not entitle the petitioner to a winding- 
 up order. In re the Planet Benefit Building and 
 Investment Society, 41 Law J. Eep. (n.s.) Chanc. 
 738; Law Eep. 14 Eq. 441. 
 
 Held, also, that the petitioner as an investing 
 member stood on a difi'erent footing from outside 
 creditors, and was not entitled ex debito jvtstitiis 
 to an order for winding-up under the 199th clause 
 of the Companies Act, and that the Court had a 
 discretion to order or refuse a winding-up. Ibid. 
 
 Semble — the rules as altered were not illegal. 
 Ibid. 
 
 [And see supra II.] 
 
 (4) Unregistered company. 
 
 13. — A petition was granted to wind up an un- 
 incorporated company, upon which an order was 
 subsequently made. Between the presentation of 
 the petition and the date of the order, the com- 
 pany was registered with the registrar of joint 
 
174 
 
 COMPANY (I). 
 
 stock companies. During the winding-up an 
 arrangement was concluded for the transfer of the 
 bxisiness and the assets of the company to another 
 company, and in order to carry out this transac- 
 tion a petition was presented on the footing that 
 the company in liquidation was an unregistered 
 company, praying for an order vesting in the liqui- 
 dator certain securities held by trustees for the 
 company in liquidation, in order that they might 
 be assigned by him to the purchasing company. 
 The Court being of opinion that the company in 
 liquidation was to be considered as an unregis- 
 tered company, made the order, hi re the Hercules 
 Insurcmce Company {JAm.), and In re the Interna,- 
 tional Life Assurance Society, 40 Law J. Rep. (n.s.) 
 Chanc. 379 ; Law Eep. 11 Eq. 321. 
 
 [And see supra C 1, 3, 4.] 
 
 (5) Bailway company. 
 
 14. — A "dock company'' incorporated by a 
 special Act, with power to construct a short sub- 
 sidiary "branch railway," is not a "railway 
 company " within the exception in section 199 of 
 the Companies Act, 1862. In re the Exmouth 
 Docks Company, 43 Law J. Eep. (n.s.) Chanc. 
 110; Law Eep. 17 Eq. 181. 
 
 (6) Question of advantage. 
 
 15. — A company had been in existence for four 
 years without carrying on any business ; all its 
 shares were registered as fully paid up, and there 
 were no creditors. An agreement having been 
 entered into for the sale of its property, a share- 
 holder presented a petition for winding up the com- 
 pany with a view to the property being sold under 
 the direction of the Court, other shareholders, 
 however, opposing the petition on the ground that 
 the sale could be better effected without the 
 intervention of the Court, and that there being no 
 creditors or contributories a winding-up order 
 would be useless. Winding-up order granted on 
 two grounds. First, that the company being re- 
 gistered under the Companies Act, 1862, the lia- 
 bility to a winding-up order existed, indepen- 
 dently of the que.stiou whether any advantage 
 might result from such an order. Secondly, that 
 as the property appeared to be of some value, and 
 the shareholders were unable to agree as to the 
 mode of sale, the sale could be more advan- 
 tageously effected under the direction of the 
 Court. In re the Tumacacori Mining and Land 
 Company, 43 Law J. Eep. (n.s.) Chanc. 417; 
 Law Eep. 17 Eq. 534. 
 
 The Court will not direct meetings of creditors 
 or contributories to be called under section 91 of 
 the Companies Act, 1862, except where the com- 
 pany is a going concern. Ibid. 
 
 (7) Demurrahle petition: petitioner in arrear of 
 
 16. — A contributory who is in arrear for calls 
 will not be allowed to petition to wind up a com- 
 pany. In re the European Life Assurance Society ; 
 Ex parte Crowe, 40 Law J. Eep. (n.s.) Chanc. 87 ; 
 Law Eep. 10 Kq. 403, 
 
 17. — A petition for the winding-up of a com- 
 pany must allege such a case as will justify the 
 making of a winding-up order, otherwise it is de- 
 murrable, and must be dismissed. The petitioner 
 will not be permitted to prove a case which he 
 has not alleged. In re the Wear Engine WorJcs 
 Company (Lim.), 44 Law J. Eep. (n.s.) Chanc. 
 256 ; Law Rep. 10 Chanc. 188. 
 
 18. — A petition for winding-up by a share- 
 holder in arrear of calls alleged the calls were in 
 danger of waste by the company, and offered pay- 
 ment into Court. The petition was dismissed as 
 demurrable. Costs of evidence were not allowed 
 the respondents. In re the Steam Stoker Com- 
 pany, 44 Law J. Eep. (n.s.) Chanc. 386; Law 
 Rep. 19 Eq. 416. 
 
 [And see infra I 22.] 
 
 (8) Petition of debenture holder. 
 
 19. — A company cannot, on a winding-up 
 petition presented by a debenture-holder, plead 
 informality on the part of their directors in issuing 
 the debentures as a valid objection to a winding- 
 up order. In re the Exmouth Docks Company, 
 43 Law J. Eep. (n.s.) Chanc. 110; Law Eep. 17 
 Eq. 781. 
 
 Where a company is empowered by its special 
 Act to raise money by debentures, and the Act 
 provides that the debenture-holders may enforce 
 payment of their debts by the appointment of a 
 receiver, the Court will not make a winding-up 
 order on a petition by a debenture-holder who 
 has not first tried the remedy provided by the 
 special Act. Ibid. 
 
 Observations as to costs of opposing winding-up 
 petitions. Ibid. 
 
 (9) Eight to have petition dismissed. 
 
 20. — A creditor who has presented a petition 
 to wind up a company is entitled to have it dis- 
 missed with costs at the hearing. In re the 
 Home Assurance Association, 40 Law J. Rep. (n.s.) 
 Chanc. 110; Law Eep. 12 Eq. 59. 
 
 21. — In a winding-up petition the petitioning 
 creditor is dominus litis, and may dismiss his 
 petition at the hearing on being paid his debt, but 
 creditors who have appeared are entitled to their 
 costs. In re the Hereford and South Wales Engi- 
 neering Company, Law Rep. 17 Eq. 423. 
 
 (6) Jurisdiction. 
 
 (1) In voluntary winding-up. 
 
 22. — A contributory of a company in voluntary 
 liquidation presented a petition for a compulsory 
 winding-up or supervision order, and for the re- 
 moval of the liquidators, on the ground (chiefly) 
 that the liquidators, who had been directors, had 
 immediately before the winding-up taken a vote, 
 allowing the solicitors of the company, who were 
 also directors, but not liquidators, 1,500^. for 
 their bill of 1,650Z., 960^. being payable only by 
 the promoters of the company, and that the vote 
 was improperly carried. The petition also con- 
 tained various allegations tending to shew that 
 
COMPAKY (I). 
 
 175 
 
 the solicitors had a preponderating influence in 
 tlie company. Affidavits were filed opposing the 
 petition, and denying the charges of improper 
 conduct. The debts of the company had been 
 all paid, and nothing remained but to divide a 
 small balance amongst the eontributories, who 
 were less than twenty in number : — Held, that any 
 powers the Court had in a compulsory winding-up 
 could he exercised under section 138 of the Com- 
 panies Act, 1862, -in the voluntary winding-up, 
 and that the petition must therefore be dismissed 
 with costs. Held, also, that as the petition was 
 in effect demurrable, evidence to oppose it was 
 unnecessary, and the respondents were disallowed 
 the costs of such evidence. In re the Star and 
 Garter Company (Lim.), 42 Law J. Eep. (n.s.) 
 Chanc. 374. 
 
 23. — An order may be made under section 165 
 of the Companies Act, 1862, in a pure voluntary 
 winding-up. That section applies to a case where 
 all the shareholders were parties to the trans- 
 action under which the directors obtained the 
 money, the refunding of which is in question. In 
 re the County Marine Insurance Compaivy ; Bancs' s 
 case, 40 Law J. Eep. (n.s.) Chanc. 277 ; Law 
 Eep. 6 Chanc. 104. 
 
 "Where a dividend was declared by a general 
 meeting of an insurance company upon a mere 
 statement of receipts and payments, without any 
 statement of the amount of the liabilities of the 
 company, or estimation of the risks, or of any 
 profit and loss account, and where the statement 
 of receipts included items which were mere debts 
 and had not been actually received, it was held 
 that the dividend was improperly made, and one 
 of the directors was ordered to pay to the liqui- 
 dator the amount of the dividend on his shares. 
 Ibid. 
 
 (2) Winding up imder supervision: rights of single 
 shareholdcfr. 
 
 24. — The opposition of a single shareholder, 
 who had a large stake in a company, was not 
 allowed to prevent the Court from sanctioning a 
 scheme for reconstruction. In re the Imperial 
 Mercantile Credit Association, 41 Law J. Eep. 
 (n.s.) Chanc. 116 ; Law Eep. 12 Eq. 604. 
 
 Section 161 of the Companies Act, 1861, ap- 
 plies to a voluntary winding-up under super- 
 vision. Ibid. 
 
 A meeting of eontributories had passed reso- 
 lutions for a reconstruction. The Court refused 
 to make the liquidator pass his accounts on motion 
 of a dissentient shareholder. Ibid. 
 
 (e) Practice. 
 (1) Branch of Court : concurrent proceedings. 
 
 25. — ^Where a winding-up petition has been 
 presented in any one branch of the Court, any 
 other petition for the same purpose should be 
 presented in the same branch of the Court. In re 
 the West Hartlepool Iron Company, 44 Law J. 
 Eep. (n.s.) Chanc. 529 ; Law Eep. 10 Chanc. 629. 
 
 26. — Where on the petition of W. for the 
 winding-up of a company, whose directors had 
 
 power to accept surrenders of shares, a consent 
 order was made rectifying the register by re- 
 moving the names of W. and others, and on the 
 same day • other petitions were presented for a 
 winding-up in another branch of the Court, upon 
 which a winding-up order was subsequently 
 made ; a summons by the liquidator to settle the 
 name of W. on the list of eontributories was dis- 
 missed in consequence of the consent order in the 
 first-mentioned branch of the Court. In re the 
 London Suburban Bank, Law Eep. 15 Eq. 274. 
 
 (2) Advertisement of petition. 
 
 27. — The advertisements of a winding-up 
 petition must be strictly in accordance with the 
 first rule of the General Orders of 21st of March, 
 1868. In re the Marezzo Marble Company {Lim.), 
 43 Law J. Eep. (n.s.) Chanc. 544. 
 
 28. — It is no objection to a shareholder's peti- 
 tion for winding-up that the petition does not 
 on the face of it state that the petitioner has 
 held his shares for the period required by the 
 40th section of the Companies Act, 1867. In re the 
 City and County Bank (Lim.), 44 Law J. Eep. 
 (n.s.) Chanc. 716; Law Eep. 10 Chanc. 470. 
 
 The advertisement of a winding-up petition is 
 absolutely void if any error occurs in the name of 
 the company. Ibid. 
 
 Where all classes interested are represented at 
 the hearing of a petition, the Court has a discre- 
 tion to hear it, notwithstanding the seven clear 
 days required by rule 2 of the 11th of February, 
 1862, have not elapsed since the appearance of 
 the advertisement in the " Gazette." Ibid. 
 
 (3) Service. 
 
 29. — Where all the petitioners presenting a 
 petition for winding up a company were abroad, 
 the Court, notwithstanding the 4th rule of the 
 General Order of the 11th of November, 1862, 
 made the winding-up order upon the petition 
 being verified by the affidavit of the petitioners' 
 solicitor. In re the Fortune Copper Mining Com- 
 pany of Western Australia, 40 Law J. Eep. (n.s.) 
 Chanc. 43; Law Eep. 10 Eq. 390. 
 
 Where there was no registered place of business 
 service at an unregistered office was held sufficient. 
 Ibid. 
 
 30. — A clause in the articles of association of 
 a joint-stock company providing that notices may 
 be served on members by leaving the same at 
 their registered place of abode will not extend to 
 legal proceedings, and an order for substituted 
 service of a debtor summons at such address, 
 that not being his last known place of abode, is 
 bad. Ex parte Chatteris ; In re Studer, 44 Law J. 
 Eep. (N.s.) Bankr. 77 ; Law Eep. 10 Chanc. 468. 
 
 (4) Production of documents. 
 
 31. — Where an official liquidator sought to 
 place a person on the list of eontributories as a 
 past member, upon the application of the latter 
 that the of&cial liquidator should make the usual 
 affidavit as to documents, — Held (reversing the 
 decision of the Master of the EoUs, 41 Law J. 
 
176 
 
 COMPANY (I). 
 
 Eep. (n.s.) Chano. 21), that the proper affidavit to 
 be made was an affidavit of documents relating to 
 the particular shares as to which it was sought to 
 make the alleged contributory liable. In re the 
 Contract Corporation (Lim.) ; Gooch's case, 41 Law 
 J. Eep. (n.s.) Chauc. 338 ; Law Eep. 7 Chanc. 207. 
 
 32. — A banker with whom a contributory has 
 formerly kept an account, maybe summoned under 
 s. 115 of the Companies Act, 1862, and compelled 
 to produce his books relating to the contributory's 
 account, and to give all information in his power 
 touching his affairs. In re the Contract Corporation; 
 Forbes' case, 41 Law J. Eep. (n.s.) Chanc. 467 ; 
 Law Eep. 14 Eq. 6, nom. Druiit's case. 
 
 33. — "Where the secretary of a company has 
 made an affidavit on behalf of the company in 
 opposition to a petition for winding it up, the 
 company must, for the purposes of his cross-exami- 
 nation on his affidavit, produce the books of the 
 company at the instance of the petitioner. In re 
 the Emma Silver Mining Company, 44 Law J. 
 Eep. (n.s.) Chanc. 456 ; Law Eep. 10 Chanc. 194. 
 
 The power of the Court of Chancery to make 
 an order for the production of documents, for the 
 purpose of their being put into the hands of a 
 witness who is being cross-examined in order to 
 test his evidence, is the same as that of a Common 
 Law Court at a trial at Nisi Prius. Ibid. 
 
 (5) Examination of witnesses. 
 
 34. — A stockbroker, who was the attesting 
 witness to transfers of shares to an infant, and 
 suspected of having an interest in the shares, was 
 held liable to be summoned as a witness under 
 section 115 of the Companies Act, 1862. In re 
 the Contract Corporation ; Ex parte Carter, 40 
 Law J. Eep. (n.s.) Chano. 15. 
 
 35. — Parties attending the proceedings in the 
 winding-up of a company imder the 60th rule of - 
 the General Orders of the 11th of November, 
 1862, under the Companies Act, 1862, are entitled 
 to cross-examine witnesses attending before the 
 examiner at the instance of the official liquidator 
 for the purpose of being cross-examined by him. 
 But the cross-examination by such parties must 
 be strictly confined to the matter in the affidavits 
 upon which the cross-examination is founded. In 
 re the Brampton and Longtown Eailway Company, 
 40 Law J. Eep. (n.s.) Chanc. 234; Law Eep. 11 
 Eq. 428. 
 
 36. — The C. Company in course of being wound 
 up by the Court, was a judgment creditor of the 
 T. Eailway Company. The shares in the T. Com- 
 pany were largely lield by the G-. & M. Eailway 
 Companies, which companies were working the 
 line of the T. Company, but as alleged without 
 profit to the T. Company. The official liquidator 
 of the C. Company, who was promoting a bill in 
 Parliament to compel the G. & M. Companies to 
 take over the T. Eailway and pay the debts of the 
 T. Company, having reason to suspect that the 
 shareholders of the T. Comp^iny were mere nomi- 
 nees of the G. & M". Companies, which fact he 
 considered material for his bill, desired to examine 
 them. The Court allowed a summons under 
 
 s. 115 of j the Companies Act, 1862, to issue, but 
 without prejudice to the right of the shareholders 
 to object to the examination. In re the Contract 
 Corporation, 40 Law J. Eep. (n.s.) Chanfi. 351 ; 
 Law Eep. 6 Chanc. 145. 
 
 37. — The mother-in-law of a contributory was 
 ordered to be summoned, under this Act, to give 
 evidence with respect to her son-in-law. Swan's 
 case (Law Eep. 10 Eq. 675) followed. In re the 
 Bank of Hindustaii, China and Japan ; FrioJcer's 
 ease, 41 Law J. Eep. (n.s.) Chanc. 278 ; Law Eep. 
 
 13 Eq. 178. 
 
 38, — A contributory, on being examined under 
 section 115 of the Companies Act, 1862, objected 
 to answer some questions aimed at impeaching a 
 composition deed executed by him, on the ground 
 that the Court of Bankruptcy was the proper 
 forum in which proceedings of tha.t nature should 
 be taken : — Held, that he must answer the ques- 
 tions, one of the objects of section 115 being to 
 enable a liquidator to ascertain whether he ought 
 or ought not to take proceedings elsewhere. 7» re 
 the London Gas Meter Company ; Ex parte Webber, 
 41 Law J. Eep. (n.s.) Chanc. 145. 
 
 39. — Any person indebted to a contributory in 
 a company may be summoned under section 116 of 
 the Companies Act, 1862, and compelled to pro- 
 duce his books relating to his dealings with the 
 contributory, and give information respecting the 
 means of the contributory. In re the Land 
 Credit Company of Ireland; Trower and Lawson's 
 case, 41 Law J. Eep. (n.s.) Chanc. 468 ; Law Eep. 
 
 14 Eq. 8. 
 
 40. — When a witness in Scotland, summoned 
 under section 127 of the Companies Act, 1862, 
 objects to be examined, the proper course is to 
 move the Court of Chancery in England that he 
 be ordered to attend for examination before the 
 sheriff of his county, at his own expense. In re 
 the Tyne Cltemical Company (Lim.), 43 Law J. Eep. 
 (n.s.) Chanc. 354. 
 
 A creditor of a company may be summoned to 
 ascertain whether the company has an alleged 
 counter-claim against him. Ibid. 
 
 (6) Evidence on hearing of summons. 
 
 41. — Evidence taken under the Companies Act, 
 1862, may be used on the hearing of a summons 
 against the person giving the evidence. In re the 
 Hercules Insurance Company [Lim.); Ptigh's ease 
 and Sharman's case, 41 Law J. Eep. (n.s.) Chanc. 
 580 ; Law Eep. 13 Eq. 566. 
 
 (7) Enrolment of order. 
 
 42. — On an application for the enrolment of 
 an order to place B. on the list of contributories 
 of the above-named company, which was inade 
 by B.'s mother after his decease, and not by his 
 personal representative, and which was made more 
 than six months but less than five years from the 
 date of the order, - Held, that the matter was in 
 the discretion of the Court, and that having regard 
 to the "Winding-up Acts, to the time when the 
 application was made, and the position of the 
 applicant, it was not one which the Court could 
 
COMPANY (1). 
 
 1?7 
 
 accede to. In re the United Ports mid General 
 Insurance Company ; Browne's case, 44 Law J. Eep. 
 (n.s.) Chanc. 745 ; Law Eep. 20 Eq. 639. 
 
 Time for application to vary chief clerk's 
 certificate. [See supra C 3.] 
 
 (<^ Liquidator. 
 
 (1) Appointment and removal. 
 
 43. — A notice of the intention to wind up a 
 company voluntarily is sufficient notice of an in- 
 tention to appoint liquidators. In re the Welsh 
 Flannel and Tweed Company {I/im.), 44 Law J. 
 Eep. (n.s.) Chanc. 391 ; Law Eep. 20 Eq. 360. 
 
 A company's articles of association provided 
 that caJls should be made at the discretion of the 
 directors, and should not exceed 21. per share, and 
 that unpaid calls should bear interest at ten per 
 cent. A notice having been issued'to the share- 
 holders of the intention to wind up the company, 
 a meeting was held at which a resolution was 
 passed for a voluntary winding up, and at a sub- 
 sequent meeting, without any express notice, 
 liquidators were appointed. The liquidators then 
 made a call of 31. per share, without providing for 
 interest on unpaid calls. An order having been 
 made some time afterwards continuing the winding- 
 up under supervision, the liquidators took out a 
 summons to enforce payment of the unpaid calls 
 with interest at ten per cent.: — Held, that the 
 appointment of liquidators was valid ; that they 
 had power to make the call of 31. per share, the 
 articles referring to calls by directors only ; and 
 that the unpaid calls were chargeable with interest 
 at five per cent, only, under 3 & 4 Will. 4. c. 42, 
 B. 28. Ibid. 
 
 44. — "Due cause" for the removal of a liqui- 
 dator under the above section is shewn when it 
 appears to the Court desirable that the removal 
 should take place. The Court has jurisdiction to 
 remove a liquidator at the instance of one share- 
 holder, but will be cautions in doing so against the 
 wishes of the great majority of the shareholders. 
 In re the British Nation lAfe Assurance Association, 
 liaw Eep. 14 Eq. 492. 
 
 (2) Powers. 
 [See fnfra Nos. 49-55, and supra E 9.] 
 
 (3) Liability to action by creditor. 
 
 45. — A company passed a resolution to wind 
 up voluntarily, and appointed the plaintiff liqui- 
 dator. In pursuance of the resolution a sum of 
 money was paid to the directors out of the assets, 
 to be applied as they might think proper, in com- 
 pensation to officers of the coinpany. The directors 
 accordingly awarded the defendant, who had been 
 their secretary, 500Z. ; and the plaintiff, as " liqui- 
 dator," then wrote a letter to the defendant inform- 
 ing him of the award, but stating that the. 6 00 ?. 
 would be retained by the company as a set-off 
 against a larger sum due from the defendant to the 
 company, and requesting him to arrange for pay- 
 ment of the balance. No part of the balance was 
 paid, and on the day before the expiration of six 
 DiOBST, 1870-1875. 
 
 years from the date of the letter the defendant 
 commenced an action against the plaintiff per- 
 sonally, and not as liquidator, to recover the 6002. 
 Subsequently the company presented a petition to 
 continue the winding-up under supervision, which 
 petition was still pending. A demurrer by the 
 defendant, for want of equity, to a bill filed by the 
 liquidator to restrain the action was over-ruled 
 with costs. Kemp v. Tucker, 42 Law J. Eep. (n.s.) 
 Chanc. 222 ; Law Eep. 8 Chanc. 372 ». : reversed, 
 on appeal, 42 Law J. Eep. (n.s.) Chanc. 532 ; Law 
 Eep. 8 Chanc. 369. 
 
 (4) Costs of liquidator. 
 
 46. — The respondent's costs of an unsuccessful 
 appeal by the official liquidator ordered to be paid 
 by the liquidator. In re the Hoylake Railway 
 Company ; Littledale's case, 43 Law J. Eep. (n.s.) 
 Chanc. 529 ; Law Eep. 9 Chanc. 257. 
 
 47. — When a liquidator is brought before the 
 Court of Appeal as a neutral pax-ty, his costs should 
 as a rule be allowed out of the estate, but the 
 Court of Appeal will make no order on the subject, 
 but will leave the matter to the discretion of the 
 Court below. In re the Wheal Vyvyan Mining 
 Company, 43 Law J. Eep. (n.s.) Chanc. 599 ; Law 
 Eep. 9 Chanc. 553. 
 
 48. — The appeal of an offici;d liquidator of a 
 company seeking to settle a respondent upon the 
 list of contributories being dismissed with costs, 
 the respondent's costs will, as a rule, be ordered 
 to be paid by the official liquidator and not out of 
 the estate. In re the United Ports Company; 
 Beck's case, 43 Law J. Eep. (n.s.) Chanc. 631 ; 
 Law Eep. 9 Chanc. 392. 
 
 (e) Compromises and arrangements. 
 (1) Deed purporting to release debts. 
 
 49. — A deed purporting to release debts, if 
 executed on behalf of a company in course of 
 winding up under the supervision of the Court, 
 and without the sanction of the Court, is ultra 
 ■vires, and may be treated as a nullity. James v. 
 May (H. L.), 42 Law J. Eep. (n.s.) Chanc. 802 ; 
 Law Eep. 6 E. & I. App. 328. 
 
 Calls were made upon M. in respect of shares 
 in the W. Company which M. held as the nominee 
 of, and as quasi trustee for the I. Company. Both 
 companies came to a winding-up under the super- 
 vision of the Court. Thereupon the W. Company 
 executed a deed with M., whereby M. consented 
 that the W. Company should use his name in 
 suing the I. Company for the calls then due upon 
 the shares, and the W. Company agreed not to 
 sue M. in respect of these calls. Upon the joint 
 application of M., and of the W. Company, — Held, 
 firstly, that the deed executed between M. and 
 the W. Company was a nullity, the sanction of 
 the Court not having been obtained for it, and 
 that the claim of M. was in no way affected by it ; 
 secondly, that M. was entitled to be indemnified 
 by the I. Company against any liability in rt-spect 
 of the shares in the W. Company so held by him, 
 and to rank as creditor of the I. Company for the 
 amount of calls made or to be made on the shares, 
 A A 
 
178 
 
 COMPANY (I). 
 
 ■with iutei'est to the date of the oi-der to wind up 
 the I. Company, and the liquidator of the I. 
 Company -was ordered to pay to the liquidator of 
 the W. Company the dividends which in the course 
 of the winding-up should become payable in 
 respect of their liability, thus declared, on the 
 amount of such calls and interest. Ibid. 
 
 (2) Compromises under sections 160-163. 
 
 50. — An arrangement under section 161 of the 
 Companies Act, 1862, that leaves no assets or 
 uncalled capital out of which dissentients can be 
 paid the value of their shares, cannot be carried 
 out against their wishes. In re Hester ^ Co. {lAm.), 
 44 Law J. Eep. (n.s.) Chanc. 747. 
 
 In such a case the Court would find means to 
 protect the dissentients by some order on a wind- 
 ing-up petition, without driving them to file a bill, 
 Semble. Ibid. 
 
 Upon an undertaking by the liquidator in such 
 a ease, not to part with the assets until the dis- 
 sentients were paid, a winding-up order made by 
 Bacon, V.O., was discharged. Ibid. 
 
 Bird V. Bird's Patent Sewage Company (43 Law 
 J. Eep. (n.s.) Chanc. 399 ; Law Eep. 9 Chanc. 
 368) explained. Ibid. 
 
 51. — A compromise with a contributory under 
 section 160 must be initiated by the liquidator and 
 cannot be made by the Court without his consent. 
 In re the East of England Banking Company ; 
 Pearson's case, 41 Law J. Eep. (n.s.) Chanc. 624 ; 
 Law Eep. 7 Chanc. 302. 
 
 52. — The Court will not compel a liquidator 
 against his judgment to sanction a compromise of 
 debts. In re the International Contract Company ; 
 Hankeifs case, 41 Law J. Eep. (n.s.) Chanc. 385. 
 
 53. — The M. Company was wound up and 
 reconstructed by the formation of the M. Corpora- 
 tion, the shareholders taking shares in the cor- 
 poration in exchange for their shares in the com- 
 pany, and the corporation taking over the com- 
 pany's assets and liabilities. The corporation 
 failed to indemnify the company, and was itself 
 wound up. Its capital was fully called up in the 
 liquidation, and it still owed large debts, besides 
 the claim of the company against it for indemnity. 
 The company's capital had not been fully called 
 up. It owed no debts, and had a balance of cash 
 in hand. Under these circumstances an agree- 
 ment was entered into between the liquidators, 
 that the company should take the assets of the 
 corporation, paying the creditors of the corpora- 
 tion 4s. in the pound, and retaining what else they 
 might make of them. There was evidence that 
 the assets, if realised carefully, might more than 
 pay the company's claim in full. If sold immedi- 
 ately, the assets would probably pay about 3s. in 
 the pound to all. Malins, V.C., having sanctioned 
 this arrangement, giving dissentients the option 
 of taking the present estimated value of their 
 shares, certain executors holding shares in tlie 
 company appealed from the order. Their appeal 
 was dismissed with costs. In re the Marine In- 
 vestment Company ; Ex parte PooUs executors, 42 
 Law J, Eep, (n.s.) Chanc. 620 ; Law Eep. 8 Chanc, 
 702. 
 
 Though a transfer of shares to the liquidator in 
 a voluntary winding-up, under an arrangement 
 whereby the shareholder retires from the com- 
 pany, will not absolve him from liability to exist- 
 ing creditors, it will relieve him from any 
 liabilities incurred under an arrangement of which 
 his retirement forms part, and from the costs of 
 the liquidation. Ibid. 
 
 (3) 8ale of assets abroad and release of a class of 
 contributories. 
 
 54. — In the compulsory winding-up of a limited 
 company formed to construct a railway in Brazil, 
 the Court sanctioned the sale by the official liqui- 
 dator of all the company's assets in Brazil, and 
 the release of all rights against contributories 
 there, in consideration of the payment of a lump 
 sum, it being shewn that there would be great 
 difficulty in releasing the property, and that it 
 would be practically impossible to recover any 
 calls. In re the ParagvJism, Steam Tramroad 
 Company (JAm.), 42 Law J. Eep. (n.s.) Chanc. 442. 
 
 (4) lAen on shares. 
 
 55. — A bank, under its articles of association, 
 had a lien on the shares of a shareholder, for all 
 moneys due by him to the bank. In the winding- 
 up of the bank, on sale of the assets, an arrange- 
 ment was made that certain shareholders should 
 be paid 2^ a share : — Held, that the lien extended 
 to the moneys so paid. Order of the Master of 
 the EoUs reversed. In re the General Exchange 
 Bank ; Ex parte Lewis, 40 Law J. Eep. (n.s.) 
 Chanc. 429 ; Law Eep. 6 Chanc. 818. 
 
 (/) Costs. 
 
 (1) Priorities. 
 
 56. — A second equitable mortgagee of, and a 
 debenture holder in, a company which was being 
 wound up voluntarily under supervision, filed a bill 
 against the company to realise his securities, and 
 obtained an order under which the liquidator of 
 the company was appointed the receiver in the 
 cause. The liquidator was ordered to carry on the 
 business of the company ; and a sale by him of a 
 portion of his property was confirmed by the 
 Court with costs. The plaintiff obtained an order 
 for the payment or satisfaction of his claims out 
 of the purchase-money in the hands of the re- 
 ceiver. The liquidator, however, insisted that his 
 costs of preserving and selling the property, and 
 his general costs of the liquidation, ought to be 
 paid or provided for in priority to all other charges 
 on the balance of the purchase-money : — Held, 
 that the liquidator's costs of realising the property 
 were payable in priority to any claim of the 
 plaintiff, or the debenture holders of the com- 
 pany; that the plaintiff's claims as mortgagee 
 and the debenture holder's claims had priority 
 over the general costs of the liquidation ; that as 
 between the plaintiff and the company, the costs 
 of preserving the property were payable by the 
 latter, but that the liquidator must be indemni- 
 fied out of the purchase-money against such of 
 those costs as he might not be paid out of the 
 
COMPANY (I). 
 
 179 
 
 company's assets ; that the costs of realisation 
 must be taxed ; and that the balance of the pur- 
 chase-money, after making the deductions ordered, 
 must be duly paid into Court, and not dealt with, 
 ■without notice to the plaintiif. Perry v. tlie 
 Oriental Hotels Company (lAm.), and In re the 
 Oriental Hotels Company {Lim.), 40 Law J. Eep. 
 (n.s.) Chane. 420 ; Law Eep. 12 Eq. 126. 
 
 (2) Howpayaile. 
 
 57. — Past members were settled on the list of 
 contributories, and a call made on them, partly to 
 pay the costs of winding-up ; the past members 
 subsequently satisfied the debts in respect of which 
 they were liable : — Held, that the past members 
 were liable to pay the costs of settling them on 
 the list, but nothing further. In re Greening ^ 
 Co. ; Ex parte Marsh, 41 Law J. Eep. (n.s.) 
 Chanc. Ill ; Law Eep. 13 Eq. 388. 
 
 58. — An insurance company incorporated'under 
 7 & 8 Vict. c. 110, with unlimited liability, stipu- 
 lated with each of their policy holders that the 
 funds, securities and property of the company at 
 the time of enforcing any claim under his policy 
 remaining unapplied and undisposed of, and inap- 
 plicable to prior claims, should alone be liable to 
 answer and make good all claims and demands 
 upon the company. The company was ordered to 
 be wound up, and the amounts unpaid upon the 
 shares had to be enforced by calls, the fund so 
 formed being the only fund applicable to the pay- 
 ment of the claims of the policy holders : — Held 
 (affirming the decision of, the Master of the Eolls), 
 that no part of the costs of realising the fund or 
 of the winding-up ought to be paid out of the 
 fund so realised, but must be raised entirely by 
 further calls upon the shareholders. In re the 
 Agrioidtwal Cattle Insv/rance Company, 44 Law J. 
 Eep. (n.s.) Chanc. 108; Law Eep. 10 Chanc. 1. 
 
 Offer to pay petitioner's costs, [See supra 
 
 13.1 
 Costs of opposing winding-up petitions. 
 
 [See supra I 19.] 
 Costs of evidence in opposition to demmrahle 
 
 petition disallowed. [See supra I 22.] 
 
 (3) Security for costs. 
 
 59. — ^Where a creditor out of the jurisdiction 
 presented a petition to wind up a company, and 
 the company, having filed affidavits in answer to 
 the petition, asked at the hearing that the peti- 
 tioner might be ordered to give security for costs 
 to the amount of 100/., — Held, that filing the 
 affidavits was no waiver of the company's rights, 
 and that theywere entitled to the order. In re 
 the Home Assurance Association (No. 2), Law 
 Eep. 12 Eq. 113. 
 
 {g) Effect of winding-up order. 
 (1) Staying execution or other proceedings. 
 60. — A petition for the winding-up of a com- 
 pany was presented at one o'clock in the day. At 
 four o'clock in the same day execution was levied 
 on part of the company's property, in pursuance 
 
 of a writ issued before the time when the petition 
 was presented: — Held, that the execution was 
 void. In re the London and Devon Biscuit Com/- 
 pany (lAm.), 40 Law J. Eep. (n.s.) Chanc. 574 ; 
 Law Eep. 12 Eq. 190. 
 
 61. — A creditor made a claim in a voluntary 
 winding-up, but the liquidator refused to take out 
 a summons to consider it. The creditor then 
 brought an action, and, the company not appear- 
 ing, he recovered judgment for the full amount. 
 On motion by the company, — Held, that the Court 
 would restrain execution on the terms of the cre- 
 ditor being allowed to prove for his judgment, 
 costs at law, and costs of motion. In re the Poole 
 Fire Brick and Blue Clay Company, 43 Law J. 
 Eep. (n.s.) Chanc. 447; Law Eep. 17 Eq. 268. 
 
 62. — The local manager of a company accepted 
 its drafts in order to pay for goods supplied to the 
 company. Being unable to obtain payment from the 
 company of the debt so incurred by him, he brought 
 an action which the company defended. In con- 
 sequence of its being defended he was unable to 
 obtain judgment for four months. Three months 
 after the action was commenced a winding-up 
 petition was presented, and an order was made on 
 the petition the day after execution was issued 
 on the judgment. On an application for leave to 
 enforce execution, — Held, that, although the ap- 
 plicant had been unfairly treated by the company, 
 there was not such a combination of circumstances 
 as rendered it right that he should proceed with 
 his execution. Costs of the application and of 
 the action at law allowed to the applicant. In 
 re Simeon's Estate, Fire Clay Company, Law Eep. 
 19 Eq. 202. 
 
 63. — On an application in a winding-up to stay 
 a suit for specific performance by a vendor against 
 the company, the bill having been filed six months, 
 the Court gave the plaintiff leave to enforce an 
 answer, but not to proceed further without the 
 leave of the Court. The Thames Plate Glass 
 Company v. The Land and Water Telegraph Con- 
 struction Company, 40 Law J. Eep. (n.s.) Chanc, 
 165; Law Eep. 11 Eq. 248. 
 
 (2) Leave to proceed. 
 
 64. — Where the Judge in whose Court a com- 
 pany is being wound up has given leave under the 
 above section for the plaintiff to proceed with a 
 suit against the company, the Court of Appeal 
 will not interfere with the discretion of the Judge. 
 The Thames Plate Glass Company y. The Land and 
 Sea Telegraph Construction Company, Law Eep. 
 6 Chane. 643. 
 
 65. — A limited company having obtained leave 
 to defend an action on a dishonoured bill of ex- 
 change, after the action was set down for trial, 
 gave judgment on terms of payment, which they 
 did not fulfil, and eight days afterwards presented 
 a winding-up petition. After the winding-up order 
 the plaintiff moved for leave to issue execution, on 
 the ground of the deceptive conduct of the com- 
 pany: — Held, that leave ought not to be given. 
 In re the Universal Dismfector Company, 44 Law 
 J. Eep. (n.s.) Chanc. 478; Law Eep. 20 Eq. 162. 
 
 Qucere — whether, under any circumstances, leave 
 
180 
 
 COMPANY (I)— COMPENSATION. 
 
 ought to be given to a judgment creditor to issue 
 execution after a winding-up order, liaving regard 
 to the fact of winding-up being in the nature 
 of a bankruptcy for the equitable distribution of 
 the assets among the persons entitled. Ibid. 
 
 (3) Distress for rent. 
 
 66.— Section 163 of the Companies Act, 1862, 
 has no application where the distress is against a 
 tenant other than the company, although the 
 company's goods may be taken in distress. In re 
 the Imndy Granite Company ; Ex parte Heaven, 
 40 Law J. Eep. (n.s.) Chanc. 688 ; Law Eep. 6 
 Chano. 462. 
 
 Semble — where the liqtiidator of a company 
 continues, for the purposes of the winding-up, in 
 occupation of land of which the company was 
 lessee, the landlord ought to be permitted to en- 
 force, by distress or otherwise, his right to the 
 full amount of rent, in respect to the time during 
 which the liquidator so continues in possession 
 and enjoyment. Ibid. 
 
 67.— Section 163 of the Companies Act, 1862, 
 does not apply to the case of a landlord distrain- 
 ing goods of a company on his tenant's land after 
 the commencement of the winding-up ; but does 
 apply to the case of a distress on the goods of 
 a company where the party distraining is a credi- 
 tor of the company. The instances in which the 
 Court has allowed distresses put in force after 
 the commencement of the winding-up to proceed, 
 whatever grounds the decisions may have gone 
 upon, have been instances in which the landlord 
 was a stranger to the company. In re the Trader^ 
 North Staffordshire Carrying Company {Lim.) ; Ex 
 parte the North Staffordshire Bailway Company, 
 44 Law J. Eep. (n.s.) Chanc. 172 ; Law Eep. 19 
 Eq. 60. 
 
 A railway company, being owners of a canal, 
 with a special Act enabling them to take tolls on 
 bai'ges using the canal, and to recover such tolls by 
 action or distress, distrained on the barges of a 
 carrying company after a resolution had been 
 passed for voluntarily winding up the latter com- 
 pany. The voluntary winding-up was continued 
 under the supervision of the Court : — Held, that 
 the proceeds of the distress belonged to the official 
 liquidator of the cEirrying company. Ibid. 
 
 In re the Exhall Mining Company {Lim.), (4 
 D. J. & S. 31 1 ; 33 Law J. Eep. (n.s.) Chanc. 595) ; 
 and In re the Lundy Granite Company ; Ex parte 
 Heaven (40 Law J. Eep. (n.s.) Chanc. 588 ; Law 
 Eep. 6 Chano. 462, see last case), commented on. 
 Ibid. 
 
 (4) Protected transaction. 
 
 68. — A creditor filed a petition to wind up a 
 , limited company, but delayed his proceedings on 
 payment of part of his debt with a promise of 
 payment of the remainder. No further payment 
 was made, and ultimately a winding-up was 
 ordered on his and other petitions : — Held, that 
 the payment to him was not a transaction that 
 ought to be protected by the Court under section 
 
 153 of the Companies Act, 1862 (which avoids 
 all payments after the petition, unless the CoTU-t 
 otherwise directs), and that the money must be 
 refunded. In re the Liverpool Civil Service Asso- 
 ciation ; Ex parte Greenwood, 43 Law J. Eep. (n.s.) 
 Chano. 609; Law Eep. 9 Chanc. 511. 
 
 (5) Sequestration. 
 
 69. — The arrest of a ship in a cause of wages, 
 after the company to which the ship belonged 
 was ordered to be wound up, — Held, a sequestra- 
 tion within the meaning of the 163rd section 
 of the Companies Act, 1862, and consequently void. 
 In re the Australia Direct Steam Navigation Com- 
 pany ; Ex parte Balcer, 44 Law J. Eep. (n.s.) Chanc. 
 676 ; Law Eep. 20 Eq. 526. 
 
 (6) Lie>i under previous agreement. 
 
 70. — Where a joint-stock company has been 
 wound up under the Companies Act, 1862 (25 & 
 26 Vict. c. 89), and the business is duly carried on 
 by the official liquidator, a creditor who has con- 
 tinued l^is dealings with the company cannot 
 exercise a general lien on its goods for the whole 
 amount due to him by virtue of an agreement 
 made between him and the company previous to 
 the winding-up. The Wiltshire Iron Company 
 (Lim,.) V. The Great Western Railway Company, 
 40 Law J. Eep. (n.s.) Q. B. 43 ; Law Eep. 6 Q. B. 
 101 : affirmed on error, 40 Law J. Eep. (n.s.) 
 Q. B. 308 ; Law Eep. 6 Q,. B. 776. 
 
 A joint-stock company was wound up under the 
 Companies Act, 1862 (25 & 26 Vict. c. 89), and 
 the business carried on by the official liquidator 
 according to the Act. Previous to the winding- 
 up the company had made an agreement with a 
 railway company for the carriage of goods on a 
 credit account, upon the terms that goods belong- 
 ing to or sent by them should be subject to a 
 general lien in favour of the railway company, to 
 take effect, at their option, at any time after 
 failure of any sum due on the credit account, or 
 in case of bankruptcy, insolvency or stoppage of 
 payment ; — Held (affirming the judgment below), 
 that the railway company could not enforce this 
 lien upon goods which they had received after the 
 winding up, to be carried on account of the new 
 business. Ibid. 
 
 COMPENSATION. 
 
 To landownerfor land taken, ^c. under Lands 
 Clauses Consolidation Act. [See Lands 
 CiAusES Consolidation Act, 10-24.] 
 
 Assessment of. [Ibid. 18-29.] 
 
 Application of. [Ibid. 30-46.] 
 
 To officer for deprivation of office. [See 
 PooK, 4, 5.] 
 
 Bridge toll : injury to bridge by statutory 
 [See Toll, 1.] 
 
COMPOSITION DEED (A), (D). 
 
 181 
 
 COMPOSITTOK DEED. 
 
 (A) "What Pbopeety passes to Trustees. 
 
 (B) EiQHTS OF Cbbditoes. 
 
 (a) Rights against surety and against trus- 
 tee as stakeholder. 
 (J) Proof. 
 
 il ) Creditor not executing. 
 2) 'lime of proof. 
 
 (C) JimisiiicTioN OF Court of Equity. 
 
 (D) Pleading Deed. 
 
 (E) Inspectorship Deed. 
 
 (A) What Property passes to Trustees. 
 
 1. — -A. (by deed executed after the repeal of 
 the Bankruptcy Act, 1861) assigned to B. for 
 the oenefit of his creditors "all his goods and 
 chattels, personal estate, suhstanee and effects 
 whatsoever, and all his right, title, property, her- 
 nefit, claim and demand ■whatever therein " : — 
 Held, that these words were sufficient to pass a 
 term of years in certain premises ; and that B., 
 having executed the deed of assignment and put 
 a man in possession of the premises, and never 
 having disclaimed the lease (though he had not 
 expressly accepted it), was liable to the lessor as 
 assignee of the term. White v. Hunt, 40 Law J. 
 Eep. (n.s.) Exch. 23 ; Law Rep. 6 Exch. 32. 
 
 The ruling of Lord Tenterden, C.J., in Carter 
 V. Wame (1 Moo. & M. 479) impugned. 
 
 2. — By a partition deed of real estate, of which 
 a married woman was joint tenant, land was con- 
 veyed to such uses as she and her husband should 
 appoint, and in default to her separate use during 
 their joint lives, with remainder to the survivor 
 for life, and ultimate remainder to her in fee. 
 She joined in mortgages under the power to secure 
 repayment of advances to her husband, and he 
 afterwards executed a composition deed under the 
 Bankruptcy Act of 1861, assigning all his pro- 
 perty to trustees for the benefit of creditors. He 
 afterwards sold the estate, and requested the 
 trustees to release it on the ground that only his 
 life estate passed to the trustees, and that his 
 wife was entitled to throw on his life estate the 
 debt, which far exceeded it in value : — Held, that 
 she was so entitled, and that the trustees ought 
 therefore to release the property. Ex 'pa/rte Jfue- 
 man; In re Trueman, 42 La-w J. Eep. (N.s.)Bankr. 1. 
 
 (B) Eights of Creditors. 
 
 (a) Eights against surety and against trustee as 
 stakeholder. 
 
 3. — Detinue does not lie against the maker of 
 a promissory note after he has delivered it to a 
 properly constituted stakeholder, though he may 
 have forbidden the stakeholder to hand it over to 
 theperson claiming it, and in whose favour it was 
 drawn. Latter v. White, (H. L.), 41 Law J. Eep. 
 (n.s.) Q. B. 342 ; Law Eep. 5 E. & I. App. 878. 
 
 The trustee of a composition deed holding the 
 bills or notes of the debtor or of his surety for 
 the benefit of creditors is such a stakeholder. 
 Ibid. 
 
 Semble, by Lord Cairns— a creditor who has 
 
 as between himself and the debtor, successfully 
 contested in a Court of law the validity of a cre- 
 ditors' or composition deed executed by his debtor, 
 is not thereby precluded from afterwards coming 
 in under the deed, and obtaining the benefits he 
 would only be entitled to on the footing that the 
 deed was valid. Ibid. 
 
 The judgment of the Court of Exchequer Cham- 
 ber (40 Law J. Eep. (n.s.)Q. B. 162; Law Eep. 
 6 Q,. B. 474), reversing the previous judgment of 
 the Court of Exchequer (40 Law J. Eep. (n.s.) 
 Q. B. 9 ; Law Eep. 5 Q. B. 622), afSrmed. Ibid. 
 
 (J) Proof. 
 
 ( 1 ) Creditor not executing. 
 
 4. — A debtor executed a deed of assignment 
 of property for the benefit of creditors, which 
 provided that creditors not executing within a 
 certain time were to be excluded : — Held, that a 
 creditor who, in ignorance of this provision, had 
 not executed the deed within the specified time, 
 but had forborne to sue, was entitled to partici- 
 pate in dividends. In re Babel's Trust, 40 Law 
 J. Eep. (n.s.) Chanc. 144; .Law Eep. 10 Eq. 554. 
 
 (2) Time of proof . 
 
 5. — For the purpose of ascertaining the divi- 
 dend to which creditors are entitled under a com- 
 position deed, they are not to be treated as having 
 proved at the time of the registration of the deed, 
 but at the time when they go in to make their 
 claims against the estate. Ex parte the Joint 
 Stock Discount Company; In re Daunt, Law 
 Eep. 6 Chanc. 455. 
 
 (C) Jurisdiction of Court op Equity. 
 
 6. — A Court of Eqxiity will, at the suit of the 
 debtor, entertain a suit to open an account settled 
 between n debtor and creditor, although the 
 debtor has registered a composition deed under 
 the Bankruptcy Act of 1861, and entered the cre- 
 ditor for the amount settied, and the composition - 
 has been paid, if it be shewn that the creditor was 
 guilty of fraud. Pike v. Dickinson, 40 Law J. 
 Eep. (n.s.) Chanc. 450 ; Law Eep. 12 Eq. 64. 
 
 Affirmed on appeal, 41 Law J. Eep. (n.s.) 
 Chanc. 171 ; Law Eep. 7 Ohanc. 61. 
 
 (D) Pleading Deed. 
 
 7. — ^An English composition and inspectorship 
 deed, made under» 24 & 25 Vict. c. 134, may be 
 set up as an answer to an English action on a 
 contract made and to be performed in Upper 
 Canada ; but it cannot be set up as an answer to 
 an English action on a judgment given in Upper 
 Canada in an action there on such a contract, if it 
 could have been used as a defence in such Cana- 
 dian action. Ellis v. M'Heiiry, 40 Law J. Eep. 
 (n.s.) C. p. 109 ; Law Eep. 6 C. P. 228. 
 
 The effect of a provision in a composition and 
 inspectorship deed that creditors shall not sue, 
 &c., for their debts, and that if they do the deed 
 may be pleaded as an accord and satisfaction, is 
 
182 
 
 COMPOSITION DEED (D)— CONDITION (D). 
 
 not that they are to forfeit their debts and divi- 
 dends on action brought, but simply to prevent 
 actions for the debts leaving the dividends un- 
 touched, and therefore such a provision does not 
 make the deed void. Ibid. 
 
 Deed of composition or arrangement ; juris- 
 diction of Court of Chancery in ques- 
 tions as to. [See Jtjeisdiction m 
 Equity, 10, 11.] 
 
 (E) Inspeotoeship Deed. 
 [See that title.] 
 
 COMPROMISE. 
 
 1. — The general principle is that where a person 
 has had full notice, and has had the opportunity of 
 taking part in the suit, he ■vrill be bound by its 
 decision ; but he will not be bound by a compro- 
 mise into which the parties to the suit may enter. 
 Wvtcherley v. Andrews, 40 Law J. Rep. (n.s.) 
 P.'& M. 57 ; Law Rep. 2 P. & D. 327. 
 
 A., one of the next-of-kin, was aware that the 
 validity of the will was contested in a suit be- 
 tween the executor and her sister. The suit was 
 compromised at the trial, and the will pronounced 
 for: — Held, that A. was not precluded by the 
 compromise from calling in the probate and 
 putting the executor again on proof of the will. 
 Ibid. 
 
 2. — Where a person complaining of injury has 
 a choice of remedies by proceeding either civilly 
 or criminally and elects to take criminal proceed- 
 ings, it is not against public policy to compromise 
 such proceedings. Fisher v. the ApoUinaris Com- 
 pany, 44 Law J. Rep. (k.s.) Chanc. 500 ; Law 
 Rep. 10 Chanc. 297. 
 
 3. — Parties to a suit in the Court of Probate 
 entered into and signed an agreement drawn up 
 by their counsel in these terms : — " In considera- 
 tion of the defendant withdrawing from opposition 
 to proof of the will and codicils, the plaintiffs 
 undertake to pay to the defendant within fourteen 
 days the sum of 6,850Z., and a further sum of 750?. 
 for costs, and thereupon the defendant and the 
 other residuary legatees will, if so required, re- 
 lease by deed all claim to the residue ; probate not 
 to issue till after payment of the above sums, and 
 the case to be adjourned for that purpose. In 
 default of payment of the above sums within the 
 time specified, the defendant to be entitled to 
 have the case called on for hearing, and to take a 
 verdict by consent upon all the issues : " — Held, 
 that upon non-payment of the stipulated sums an 
 action at law could be maintained to recover them, 
 and that this remedy for breach of the agreement 
 was not limited by the final proviso for taking a 
 verdict in the probate suit. Smith v. Shirley, 44 
 Law J. Rep. (n.s.) Exch. 29. 
 
 Effect of compromise with one of two Joint 
 tort feasors. [See Nesliqence, 27.] 
 
 CONDITION. 
 
 (A) CONDTTION IN RESTRAINT OP ALIENATION. 
 
 (B) Condition in Rebteaint of Trade. 
 
 (C) Impossible Condition. 
 
 (D) FoRFEiTtiBE : Conditional Limitation. 
 
 (E) Condition Precedent. 
 
 (A) Condition in Restraint of Alienation. 
 
 1. — Devise in fee to a brother of the testatrix, 
 " on the condition that he never sells it out of the 
 family : "' — Held, that " the family " meant the 
 blood relations of the devisee, and that the con- 
 dition was valid in law as a partial restraint on 
 alienation. In re Macleay, 44 Law J. Rep. (n.s.) 
 Chanc. 441 ; Law Rep. 20 Eq. 186. 
 
 Observations on Attwater v. Attwater (18 Beav. 
 330 ; 23 Law J. Rep: (n.s.) Chanc. 692). Ibid. 
 
 2. — Conveyance on sale of land, with stipula- 
 tion by the vendor, that an adjoining plot of land 
 " should never be hereafter sold, but left for the 
 common benefit of both parties : " — Held, that 
 this was merely an agreement that the plot should 
 be left open in the state it then was in, and as 
 such contravened no rule of law. Although not a 
 covenant running with the land, such agreement 
 was held to create an equity, binding all who came 
 into possession with notice of it. McLean v. 
 McKay, Law Rep. 6 P. C. 327. 
 
 (B) Condition in Restraint op Trade. 
 [See Covenant, 1-4 ; Bond, 3 ; Attornet, 9.] 
 
 (C) Impossible Condition. 
 
 3. — A testator directed that in the division of 
 his property an estate belonging to one of his 
 children should be brought into hotchpot. After 
 the date of his will he acquiesced in the sale of 
 this estate, and the settlement of the proceeds on 
 the child for life, with remainder to her children : 
 — Held, that the condition was not thereby 
 waived, and that in the division of the testator's 
 property the estate must be brought into hotch- 
 pot. Middleton v. Windross, 42 Law J. Rep. (n.s.) 
 Chanc. 555 ; Law Rep. 16 Eq. 212. 
 
 [And see Leoacy, 24.] 
 
 Conditional legacy : non-compliance with 
 condition through ignorance. [See 
 Leoacy, 22, 23.] 
 
 (D) Forfeiture: CoNDrrioNAx Limitation. 
 
 4.— Section 4 of 3 & 4 Will. 4. o. 27, extends 
 to forfeitures which operate to accelerate an estate 
 under a conditional limitation as well as to for- 
 feitures, of which the heir-at-law only can take 
 advantage. Astley v. the Earl of Essex, 43 Law 
 J. Rep. (n.s.) Chanc. 817 ; Law Rep. 18 Eq. 290. 
 
 A devisee under a conditional limitation is not 
 protected from forfeiture by ignorance of the con- 
 dition. Ibid. 
 
CONDITION (E)-CONrLICT OV LAWS (D). 
 
 IS 
 
 (E) ComjiTioN Pbeoedent. 
 [See CoNTKACT, 21, 22 ; Shippinq Law, E 5.] 
 
 Condition in bond by defendant to pay sum 
 recovered, if action "determined in 
 favour " of plaintiff. [See Bond, 2.] 
 
 Condition founded on, mistake. [See Wili,, 
 
 CoNSTKXrCTION, 1.] 
 
 Condition as to residence. [See Will, Oon- 
 
 STKtrCTION, 6, 6.] 
 Condition in restraint of alienaiion. [See 
 
 WtLL, CONSTBTJCTION, 7, 8.] 
 
 Condition in restraint of marriage. [See 
 Will, Construction, 9, 10.] 
 
 CONFIRIVIATION OF SALES ACT. 
 
 1. — Mortgagees with power of sale may sell 
 minerals and surface distinct. Subsequent mort- 
 gagees need not be served with the petition. In re 
 Beaumonts Trusts, 40 Law J. Eep. (n.s.) Chane. 
 400 ; Law Eep. 12 Eq. 86. 
 
 2. — ^Mortgagees of real property, except the 
 minerals, were allowed upon petition to exercise 
 their power of sale by selling apart from the 
 minerals, although a bill for foreclosure had been 
 filed by them, and subsequent incumbrancers and 
 persons interested in the equity of redemption 
 opposed the petition. In re Wilkinson's Mortgaged 
 Estates, 41 Law J. Eep. (n.s.) Chanc. 392 ; Law 
 Eep. 13 Eq. 634. 
 
 3. — When trustees petition for sale of land 
 apart from minerals, the beneficiaries should either 
 join in the petition or be sufficiently represented. 
 In re Palmer, 41 Law J. Eep. (n.s.) Chanc. 511 ; 
 Law Eep. 13 Eq. 408. 
 
 4. — The trustees of a will devising real estate 
 in strict settlement had mere general powers of 
 sale and exchange. Upon a petition presented by 
 the trustees and the tenant for life under the 
 Confirmation of Sales Act (25 & 26 Viet. c. 108), 
 for authority to exercise the powers by selling 
 the minerals and surface separately, the Court 
 gave a general direction that the powers might be 
 so exercised. In re Wynois Devised Estates, 43 
 Law J. Eep. (n.s.) Chanc. 96; Law Eep. 16 Eq. 
 237. 
 
 CONFLICT OF LAWS. 
 
 (A) Succession to Pbopebtt. 
 
 (B) Administeation. 
 
 (C) Execution of Trusts of Sbttubmbnt. 
 
 (D) Deposit of Title Deeds. 
 
 (E) Bankkuptot and Insolvewct. 
 
 (F) Probate of Wni. 
 
 (A) Succession to Pbopebtt. 
 
 1, — The succession to personal property in 
 England of a person domiciled abroad, is governed 
 by the law of the domicil at the time of the death 
 
 of the deceased. A retrospective change in that 
 law made after the death of the deceased by the 
 legislative authority of the foreign country {e.g. a 
 decree confiscating the property of the deceased), 
 will not be recognised by the English Courts as 
 affecting the distribution of personal property in 
 England. lynch, v. the provisional Government 
 of Paraguay, 40 Law J. Eep, (N.s.) P. & M. 81 ; 
 Law Eep. 2 P. & D. 268. 
 
 (B) ADMnriSTBATION. 
 
 2. — ^Eeal estate in Scotland of a testator domi- 
 ciled in England must be administered according 
 to Scotch law ; and the personal estate being by 
 the law of Scotland primarily liable for the per- 
 sonal debts, it follows that in respect of those 
 debts pecuniary legatees are not entitled to a 
 marshalling of assets against the heir-at-law. 
 Harrison v. Harrison, 42 Law J. Eep. (n.s.) 
 Chanc. 496 ; Law Eep. 8 Chanc. 342. 
 
 3. — The widow of a domiciled Scotchman filed 
 a bill in this Court for the administration of her 
 husband's estate, under an English will ; and 
 prayed (inter alia) that her infant children should 
 elect and collate, in order to enable her to ascer- 
 tain her rights and remedies according to the 
 Scotch law ; and insisted on a Scotch domicil. 
 The residuary legatee under the English will filed 
 a cross-bill, to establish an English domicil, and 
 for the administration of the estate accordingly : 
 — Held, that the questions raised by the widow 
 were well raised, and could be disposed of by this 
 Court. Douglas v. Douglas ; Douglas v. W Aster, 
 41 Law J. Eep. (n.s.) Chanc. 74 ; Law Eep. 12 
 Eq. 617. 
 
 (C) Execution op Trusts of Settlement. 
 
 4, — A woman domiciled in England married a 
 man having a foreign domicil on the faith that he 
 would adopt an English domicil. A settlement, 
 void by the law of the foreign domicil, but valid 
 by English law, was executed previously to the 
 marriage ; the husband did not adopt the English 
 domicil, and obtained a decree in his own country 
 for a divorce in a suit in which the wife was not 
 represented : — Held, that the settlement was 
 binding; and that the decree of the foreign 
 country, though not shewn to be invalid by the 
 foreign law, would not be taken notice of in the 
 English Courts. The trusts of the settlement 
 were therefore directed to be carried into execu- 
 tion. Collis T. 'Hector, 44 Law J. Eep. (n.s.) 
 Chanc. 267; Law Eep. 19 Eq. 334. 
 
 (D) Deposit op Title Deeds. 
 
 5. — S. & Co., German merchants, carrying on 
 business in London and Shanghai, being in 
 Prussia, entered into verbal negotiations with 
 H. & Co., merchants in Prussia, for opening «, 
 credit with H. & Co., against which S. & Co. 
 were to draw bills to a certain amount. As a 
 security S. & Co. proposed to deposit with H. & 
 Co. the title deeds of real estate at Shanghai. 
 These negotiations were subsequently carried on 
 by letters, written by S, & Co. fi-om London and 
 
184 
 
 CONFLICT OF LAWS (D)- CONSTRUCTIVE NOTICE. 
 
 H. & Co. from Prussia. A final contract was 
 completed by a letter written ty S. & Co. from 
 London, transmitting the title deeds to H. & Co., 
 and undertaking to register the mortgage at 
 Shanghai, as required by the law there. S. & Co. 
 liquidated their affairs by arrangement in the 
 London Bankruptcy Court. They were indebted 
 in a large amount to H. & Co., under the above- 
 mentioned contract. H. & Co. applied . for an 
 order that the trustee in liquidation should convey 
 the real estate to them ; the mortgage had not 
 been registered in Shanghai, and without such 
 registration was incomplete according to the law 
 of Shanghai : — Held, that by whatever law the 
 contract was governed it was personally binding 
 on S. & Co., and the real estate was ordered to be 
 sold, and the proceeds paid to H. & Co. : — Held, 
 by Mellish, L. J., that looking to the nature of the 
 security, and the letter by which the deposit was 
 completed, and which was written and posted in 
 London, the contract must be construed according 
 to the law of England. Ex parte Holthausen ; In 
 re Scheibler, 44 Law J. Rep. (if.s.)Baukr. 26 ; Law 
 Rep. 9 Chanc. 722. 
 
 (E) Bankruptcy and L^solvekot. 
 
 6. — An Englishman, domiciled in Batavia, in 
 contemplation of marriage, executed, according to 
 the forms of the Dutch Indian Civil Law which 
 prevails there, a notarial deed, whereby he in 
 effect settled a sum of money on his wife to her 
 separate use. The deed was not registered in 
 Batavia ; it was pi^oved in the evidence that such 
 a contract was valid by the law of Batavia as 
 between the husband and wife, but that it would 
 not have any effect with regard to third parties 
 but from the day on which it was registered. The 
 husband afterwards became bankrupt in England, 
 and the wife claimed to prove against his estate : 
 — Held, that the non-registration in Batavia did 
 not affect the validity of the contract there, but 
 only postponed any claim the wife might have 
 against her husband's estate, to the claims of all 
 other creditors ; that the question of the priorities 
 of creditors inter se was governed by the law of 
 the country where the bankruptcy took place ; 
 and, therefore, that the wife was entitled to prove 
 pari passu vrith the other creditors against her 
 husband's estate. Ex parte Melhoum; In re 
 Melhowm, 40 Law J. Rep. (n.s.) Bankr. 25 ; Law 
 Rep. 6 Chanc. 64. 
 
 7. — A person died in England, having been ad- 
 judicated insolvent in ATistralia, and debts to a 
 large amount having been proved in the insol- 
 vency and not satisfied, — Held, that even if the 
 domicil of the deceased was English, a sum of 
 money paid into the Court of Chancery in England 
 to his credit must be applied towards payment of 
 the debts proved in the insolvency in Australia, 
 in priority to any claim Ly an English adminis- 
 trator. In re Davidson's Settlement, 42 Law J. Rep. 
 (n.s.) Chanc. 347 ; Law Rep. 15 Eq. 383. 
 
 Act of bankrupts/ ; a foreigner not domi- 
 ciled or trading in England cannot be 
 
 made bankrupt upon an act of bank- 
 rvptoy committed out of England. 
 [See Bankeuptcy, A 2.] 
 
 8. — "Where probate of the will of a testator 
 who dies domiciled abroad has been granted by a 
 competent Court of the domicil, the validity of 
 the will cannotbe disputed in this Court, although 
 it was proved abroad in common form only. Miller 
 V. James, 42 Law J. Rep. (n.s.) P. & M. 21 ; Law 
 Rep. 3 P. & D. 4. 
 
 The executor propounded a wiU alleging that 
 the deceased died domiciled in Jersey, and that 
 probate had been granted by a competent Court 
 of Jersey. The next-of-kin pleaded 1, undue exe- 
 cution; 2, incapacity; 3, undue influence. The 
 Court ordered the 2nd and 3rd pleas to be struck 
 out, on the ground that it was bound by the 
 foreign probate. 
 
 (F) Pbobatb of "Will. 
 
 [See Colonial Law, 1 ; Legacy and Succession 
 Duty, 2.] 
 
 CONSPIRACY. 
 
 [Amendment of the law relating to conspiracy 
 and protection of property. Penalties for neglect 
 by master, and for intimidation or annoyance of 
 servants. 38 & 39 Vict. a. 86.] 
 
 A partnership consisting of the prisoner and 
 L. carried on business abroad. The prisoner gave 
 notice imder the articles of partnership to dissolve 
 the partnership. An account of the partnership 
 property had to be taken on the dissolution, and 
 upon such account after payment of partnership 
 liabilities the partnership assets were to be di- 
 vided between the prisoner and L. The prisoner 
 agreed with "W. and P. to forge documents and to 
 make false entries in the partnership books and 
 accounts, so as to make it appear that debts 
 existed and were owing which did not exist, so 
 as to reduce the amount divisible between the 
 partners on the dissolution with intent to cheat 
 and defraud L. : — Held, that the prisoner was 
 rightly convicted of conspiring with W. and P. to 
 defraud L. The Queen v. Warburton, 40 Law J. 
 Rep. (n.s.) M. C. 22; Law Rep. 1 C. C. R. 274. 
 
 CONSTABLE. 
 
 Supplying liquor to comtable on duty. [See 
 Alehouse, 17.] 
 
 CONSTRUCTIVE NOTICE. 
 
 [See Vendor and Purchaser, 22, 23 ; Moeigaqe 
 19, 20; Partnership, 6.] 
 
CONSTEUCTlVE TittTST— CONTRACT. 
 
 185 
 
 CONSTEUCTlVE TRUST. 
 [See Trust, A 19, E.] 
 
 CONTAGIOUS DISEASES ACT. 
 
 1. — The object of the Contagious Diseases Act 
 is the prevention of disease, not the protection of 
 owners of animals ; and an action by an owner for 
 damage arising froiS a breach of the statutory 
 duty will not lie. Gorris v. Scott, 43 Law J. Rep. 
 (n.s.) Exeh. 92; Law Rep. 9 Exch. 125. 
 
 2. — By the 19th rule, part II. of the Animals' 
 Order of 1871, made under the Contagious Dis- 
 eases (Animals) Act, 1869, sec. 76, every person 
 having in his possession, or under his charge, an 
 animal affected with a contagious disease, is re- 
 quired, with all practicable speed, to give notice 
 to a police constable of the fact of the animal 
 being so affected ; and by the 103rd section of the 
 Act, if any person acts in conti-avention of any 
 Order of Council, he shall be liable to a penalty 
 not exceeding 202., or when such offence is com- 
 mitted in respect of more than four animals, a 
 penalty not exceeding 51. for each animal. A 
 person was convicted of neglecting to give the 
 notice, required by the above Order, that animals 
 in his possession were affected with the foot and 
 mouth disease, upon a complaint whereon no evi- 
 dence was given to prove that the defendant knew 
 the animals were so affected : — Held, that evidence 
 was necessary to shew that the defendant knew 
 that the anima.ls were so affected, and that the 
 conviction must be quashed. Mcholls v. Hall, 42 
 Law J. Rep. (n.s.) M. C. 195 ; Law Rep. 8 C. P. 
 322. 
 
 The complaint was preferred by the Inspector 
 of Police against a cattle dealer : — Held, that the 
 appellant having been convicted of an offence, and 
 having shewn that he ought not to have been, the 
 conviction should be -quashed with costs to the 
 appellant. Ibid. 
 
 3. — By the Contagious Diseases (Animals) Act, 
 1869 (32 & 33 Vict. c. 70), s. 67, " If any person 
 exposes in a market, or fau', or other public place 
 where horses or animals are commonly exposed 
 for sale .... any horse or animal affected 
 with a contagious or infectious disease, he shall be 
 deemed guilty of an offence against this Act, 
 unless he shews, to the satisfaction of the justices 
 before whom he is charged, that he did not know 
 of the same being so affected," &c. By section 103, 
 "If any person is guilty of any offence against 
 this Act .... he shall be liable to a penalty 
 not exceeding 201." By section 108, " If any party 
 feels aggrieved by the dismissal of his complaint 
 by justices, or by any determination or adjudica- 
 tion of justices with respect to any penalty under 
 the Act, he may appeal therefrom to any quarter 
 sessions for the county or place in which the 
 cause of appeal has arisen. The appellant shall, 
 within three days after the cause of appeal, give 
 notice to the clerk of the petty sessional division 
 for which the justices act whose decision is ap- 
 pealed from " : — Held, that althoiigh there were 
 DiGKST, 1870-1875. 
 
 no express words making the penalties recoverable 
 by summary procedure, yet that a jurisdiction was 
 impliedly conferred upon justices to deal sum- 
 marily with offences under the Act. Cullen v. 
 Tnmbk, 41 Law J. Rep. (n.s.) M. C. 132; Law 
 Rep. 7 Q. B. 416. 
 
 4. — By the Contagious Diseases (Animals) Act, 
 1869 (32 & 33 Vict. c. 70), s. 57, the local autho- 
 rity constituted by the Act may exercise compul- 
 sory powers with regard to horses and other ani- 
 mals, "and the local authority may recover the 
 expenses of the execution by them of this section 
 from the owner of the horse or animal " : — Held, 
 that section 57 enabled the local authority to sue 
 for the expenses under that description, although 
 they were not a corporation. Mills v. Scott, 42 
 Law J. Rep. (n.s.) Q,. B. 234 ; Law Rep. 8 a. B. 
 496. 
 
 5. — The onus of shewing that the owner of 
 diseased animals did not give notice to a police 
 constable lies on the owner. The production of a 
 copy of an Order in Council under the above Act, 
 purporting to be printed by the Queen's printers, 
 is primd facie evidence of the Order under the 
 Documentary Evidence Act, 1868, whether publi- 
 cation in the London Gazette be or be not neces- 
 sary to the validity of such order. 
 Ward, Law Rep. 8 Q. B. 521. 
 
 CONTEMPT OF COURT. 
 
 1. — If, on a motion by a pauper defendant for 
 his discharge from prison, on purging his contempt, 
 he does not ask for the plaintiff's costs of the con- 
 tempt, the Court has no jurisdiction, under 32 & 
 33 Vict. c. 91, to make an order for their payment 
 on the application of the plaintiff. Hall v. Hall, 
 40 Law J. Rep. (n.s.) Chanc. 236 ; Law Rep. 1 1 Eq. 
 290. 
 
 2. — In cases of defiant contempt a judge may 
 commit the offender to prison instantly ; and in 
 such a case a process caption may issue without 
 notice. Watt v. Ligertwood, Law Rep. 2 Sc. App. 
 361. 
 
 Proceedings against person in contempt, 
 [See Peactice at Law, 27, 28 ; Prac- 
 tice IN Equity, 50, 51.] 
 Authority of Countg Court Judge. [Sea 
 BANXBtrpTCY, N 9 ; Cottnty Coubt, 5.] 
 Authority of legislatv/re of Victoria, [See 
 Colonial Law, 38.] 
 
 CONTRACT. 
 
 [See Feauds, Statute of; Damages; Sale op 
 Goods ; Pkincipal and Agent ; Pbincipai, and 
 Surety.] 
 
 (A) Consideeation. 
 («) Mutuality. 
 (i) Forbearance to site. 
 {d) Public policy, 
 (d) Bepresititation by donor, 
 BB 
 
186 
 
 CONTEACT (A). 
 
 (B) When complete. 
 
 (a) Acceptance of offer by letter. 
 
 (b) Transmission by post. 
 
 (c) By telegram, : mistake of telegraph clerk. 
 
 (C) Eatification. 
 
 (D) Construction. 
 
 (ffl) Words ejwsdem generis. 
 (6) Words of expectancy. 
 
 (c) Alternative contract. 
 
 (d) Description of{ subject-matter : penalty 
 
 (e) Condition precedent. 
 
 (f) Work and labour. 
 
 (g) Contract to teach apprentice. 
 Qi) Implied warranty. 
 
 (j) Implied indemnity. 
 
 {k) Implied negative clause. 
 
 (l) Implied condition : personal skill. 
 
 (m) Interest, right to. 
 
 (n) Lex loci. 
 
 (E) Evidence. 
 
 (a) Parol evidence to vary. 
 
 (4) Evidence of custom of trade, 
 
 (c) Contemporaneous verbal promise. 
 
 (d) Partial spoliation of mritten contract. 
 
 (F) Eescission and Eectification. 
 
 (G) Statutoey Liability. 
 
 (H) Assignment of Cohteaot. 
 
 (A) Consideeation. 
 (a) Mutuality. 
 1. — The defendant, by tender, offered to supply 
 the plaintiffs, at certain prices, -with siieh quanti- 
 ties of iron as they might order from time to time 
 during a limited period. The defendant's tender 
 was accepted by the plaintiffs, but he failed to 
 supply all the iron ordered by them during the 
 period specified. An action having been brought 
 for breach of the contract to supply iron, — Held, 
 that the contract was not void for want of mutu- 
 ality, and was founded upon a good consideration, 
 and that the plaintiffs were entitled to the ver- 
 dict. The Great Northern Bailway Company v. 
 WUham, 43 Law J. Eep. (n.s.) C. P. 1 ; Law Eep. 
 9 C. P. 16. . . 
 
 2. — The plaintiffs, a corporation empowered to 
 maintain a market and take tolls in respect thereof, 
 passed a resolution under their seal authorising 
 certain auctioneers to let the premises by auction. 
 The market and tolls were accordingly put up by 
 the auctioneers on the 18th of July, under con- 
 ditions stipulating that on the fall of the hammer 
 one month's rent in advance should be paid by the 
 lessee, to be forfeited on breach of the conditions, 
 and he should produce two sureties who shoidd 
 forthwith sign the conditions and a draft lease. 
 The defendant being the highest bidder, the pre- 
 mises were knocked down to him on lease for a. 
 year, with the option of extending the term for 
 two years. He was then neither ready to pay the 
 deposit of a month's rent nor to produce sureties, 
 but, after half-an-hour allowed him to get the 
 money, he brought a guarantee for payment, which 
 was accepted by an officer of the corporation, who 
 thereupon, without authority under seal from 
 
 the plaintiffs, signed the conditions, which were 
 also signed by the defendant, but not by the auc- 
 tioneers. The deposit was paid next day, and the 
 keys of the market were handed to the defendant 
 by the retiring collector of tolls, who was not, 
 however, authorised to deliver them. Being un- 
 prepared with his siu'eties, the defendant was 
 given a week to obtain them. At the end of that 
 period he was still in default, and some further 
 indulgence of a short time was gi'anted. On the 
 7th of August the plaintiflfe passed another resolu- 
 tion under seal adopting a report which stated 
 that the premises had been let to the defendant. 
 He never had actual possession of the market, nor 
 did he receive any tolls. The plaintiffs pressed 
 the defendant to produce the sureties ; he finally 
 failed to do so, and an action was brought against 
 him for that breach of the conditions : — ^Held, 
 that the action could not be maintained, for that . 
 as the agreement", being within section 4 of the 
 Statute of Frauds, was, at the time of the breach, 
 neither under seal nor signed by an agent " law- 
 fully authorised by the plaintiffi," the defendant 
 could not have sued upon it at law, and as there 
 had not then been any part performance of it 
 entitling him to a decree in equity for specific 
 performance, the contract was void for want of 
 mutuality. The Mayor, Sfc, of Kidderminster v. 
 Hardwicke, 43 Law J. Eep. (n.s.) Exch. 9 ; Law 
 Eep. 9 Exch. 13. 
 
 [And see Bankruptcy, E 6.] 
 
 (6) Forbearance to su^e. 
 
 3. — The plaintiff, a widow, during her husband's 
 lifetime lent the defendant 20Z., derived from 
 funds belonging to her in her own right. Two 
 days after her husband's death the defendant gave 
 her an I tJ for that amount, and subsequently 
 promised that if she would let the matter remain 
 over, he would pay the debt and interest ; the 
 plaintiff did not inform the defendant that his offer 
 was accepted but waited more than three years and 
 then brought the present action for the debt and 
 interest : — Held, that the plaintiff was entitled to 
 succeed ; for though it might be doubtful whether 
 in point of law the money lent was her's or her 
 husband's, yet the giving of the I TJ after his 
 death by the defendant was evidence that she was 
 entitled to sue in her own right, and that the for- 
 bearance to prosecute a doubtful claim was a good 
 consideration for a promise, and that by not suing 
 for more than three years the plaintiff had, in 
 effect, communicated to the defendant her accept- 
 ance of his offer. Wilby v. Elgee, 44 Law J. Eep. 
 (n.s.) G. p. 254 ; Law Eep. 10 C.P. 497. 
 
 Consideration : gtiarantee : forbearance to 
 siie. [See Principal and Surety, 1.] 
 
 (c) Public policy. 
 
 4. — An agreement to withdraw from a prosecu- 
 tion for felony, provided the person accused will 
 promise to bring no action for trespass and false 
 imprisonment or malicious prosecution, is void, 
 and cannot be enforced ; and if the person accused 
 subsequently sues the prosecutor, the action will 
 
CONTRACT (A), (B). 
 
 187 
 
 not be stayed upon the gi-ound that it is brought 
 against good faith. Rawlvngs v. The Coed Con- 
 sutneri Association (Lim.), 43 Law J. Rep. (n.s.) 
 M. C. 111. 
 
 5. — The plaintiff and the defendant were both 
 subscribers to a charitable society, and were en- 
 titled to votes in proportion to the amount of their 
 subscriptions. They agreed together that if the 
 plaintiff would give the defendant twenty-eight 
 votes, the defendant would at the next election 
 return twenty-eight votes to the plaintiff for such 
 child as the plaintiff should then favour. The 
 plaintiff performed his part of the bargain, but 
 the defendant made default. The plaintiff in con- 
 sequence subscribed 71. 7s. to purchase twenty- 
 eight votes at the next election in lieu of those 
 which the defendant failed to deliver : — Held, that 
 he could recover the amount subscribed from the 
 defendant. Bolton v. Maddan, 43 Law J. Rep. 
 (n.s.) Q. B. 35 ; Law Rep. 9 Q. B. 55. 
 
 6.— An agreement between four quarry owners 
 for three of them not to tender for the supply of 
 stone to a corporation, with a view that the other 
 should tender and buy part of the stone of the 
 three at a fixed price : — Held, not void, and a 
 party who tendered in defiance of the contract 
 was restrained by injunction. The corporation 
 need not be made parties. Jones v. North, 44 
 Law J. Rep. (n s.) Chanc. 368 ; Law Rep. 19 
 Eq. 426. 
 
 7. — It is not against public policy for the ven- 
 dor of a patent to agree to assign to the purchaser 
 all future patent rights which he might after- 
 wards acquire with respect to the inventions sold or 
 any of a like nature. The Frinting and numerical 
 Begistering Company v. Sampson, 44 Law J. Rep. 
 (n.s.) Chanc. 705 ; Law Rep. 19 Eq. 462. 
 
 [And see infra No. 17.] 
 
 {d) Eepreseatation by donor. 
 
 8. — A., the owner of a leasehold house, verbaUy 
 agreed to allow B. to occupy the house during her 
 life, that she might maintain herself by letting 
 lodgings, B. paying the ground-rent and rates and 
 taxes. B. accordingly broke off certain negotia- 
 tions for a business she was then contemplating, 
 and entered into possession of the house, and 
 there remained until A.'s death, maintaining her- 
 self by letting lodgings, and duly paying the 
 ground-rent and rates and taxes. A.'s residuary 
 legatee having brought an action of ejectment 
 against B., and pleaded the Statute of Frauds, — 
 Held, that there was a good gift of the house to 
 B. for life, she having on the faith of A.'s repre- 
 sentations, not only altered her mode of life, but 
 also entered into possession. Loffus v. Maw (3 
 Giff. 692 ; 32 Law J. Rep. (n.s.) Chanc. 49) ap- 
 proved of. Coles V. PilMngton, 44 Law J. Rep. 
 (N.s.) Chanc. 381 ; Law Rep. 19 Eq. 175. 
 
 (B) When complete. 
 
 (fl) Acceptance of offer by letter. 
 9. — The owners of land in answer to a written 
 offer to buy it, wrote saying they had received the 
 offer, and added, " which offer we accept, and now 
 
 hand you two copies of conditions of sale which 
 we have signed ; we will thank you to sign same, 
 and return one of the copies to us " : — Held, that 
 this was not an unqualified acceptance, and did 
 not make a contract. Crossley v. Maycook, 43 
 Law J. Rep. (n.s.) Chauo. 379; Law Rep. 18 
 Eq. 180. 
 
 10, — Where an offer is made by letter sent 
 through the post, and is accepted by letter, also 
 sent through the post, the contract is made at the 
 moment that the letter of acceptance is put into 
 the post. In re the Imperial Land Company of 
 Marseilles; Harris's case, 41 Law J. Rep. (n.s.) 
 Chanc. 621 ; Law Rep. 7 Chanc. 587. 
 
 A letter allotting shares stated that the allot- 
 ment money must be paid on the 21st of March, 
 and punctual payment Was requisite, and that the 
 bankers were instructed not to receive payment 
 after that day without interest at 10 per cent. : — 
 Held, that this addition relative to interest was 
 not an introduction of a new term. Ibid. 
 
 The provisions of articles of association under 
 which directors were at Uberty to delegate their 
 authority to a committee considered. Ibid. 
 
 11. — Where a municipal company issued de- 
 bentures which the holders were entitled to ex- 
 change for allotments to be selected by them out 
 of the company's lands, and a certain holder gave 
 notice that he had made his selection, but asked 
 permission to retain his debentiu'es for a time, set- 
 ting the interest off against the rent, to which the 
 company assented, at the same time stating that the 
 land selected exceeded the amount of his deben- 
 tures, and that he must pay the difference : — Held, 
 that this last statement did not introduce a new 
 term into the contract, but merely pointed out 
 the mode of performance of it. A correspondence 
 amounting to a contract for purchase of a future 
 interest in land does not require registration under 
 the Indian Registration Act, 1845. The Port 
 Canning Land Company v. Smith, Law Rep. S 
 P. C. li4. 
 
 12.— Where a contract is composed of an offer 
 by letter and an acceptance of the offer also by 
 letter, if the offer be clear and unambiguous, the 
 party who answers it and who purports in his 
 answer to accept it, if he wish to add any condi- 
 tion or qualification, is bound to state such condi- 
 tion, &c., clearly and precisely ; if this be not done, 
 or if the answer, though ambiguous, be capable of 
 being construed as an acceptance pure and simple, 
 of the offer, the party making the offer is justified 
 in treating the answer in that sense and in acting 
 upon it. The English and Foreign Credit Company 
 V. Arduin (H.L.), 40 Law J. Rep. (n.s.) Exch. 108 ; 
 Law Rep. 5 E. & I. App. 64. 
 
 13. — Letter by house agents to the defendant as 
 follows : " We have been requested by Mrs. D. to 
 find her a lodging house in this neighbourhood, 
 and we forward for your approval particulars of 
 two which we think will suit." Enclosed were 
 particulars, inter alia, of a house. No. 22, Belgrave 
 Square, with statement of the terms on which the 
 house might be had. Letter in reply from B. : 
 " I have decided on taking No. 22, Belgrave Road, 
 and have spoken to my private agent, Mr. C, who 
 BE 2 
 
188 
 
 CONTEACT (B), (D). 
 
 will arrange nintters with you, if you will kindly 
 put yourselves in communication with him. I 
 leave town this afternoon, so if you have occasion 
 to write to me, please address to Cirencester " : — 
 Held, that the two letters did not constitute a 
 complete contract. Stanley v. Dowdeswell, Law 
 Eep. 10 C. P. 102. 
 
 Offer to take shares in a company : revoca- 
 tion of offer. [See Company, G 15.] 
 
 (h) Transmission by post. 
 
 14. — A. proposed contract is not binding on the 
 proposer until its acceptance by the other party 
 has been communicated to him, and posting a 
 letter communicating the acceptance to him, is not 
 sufficient to make it binding on him if he does not 
 in fact receive the letter — Dunlop v. Higgins(l H. 
 L. Gas. 381) discussed. The British and American 
 Telegraph Company (Lim.) v. Colson, 40 Law J. 
 Eep. (n.s.) Exch. 97 ; Law Eep. 6 Exch. 108. 
 
 (c) By telegram : mistake of telegraph clerk. 
 
 [And see Company, G 14-16.] 
 
 15. — ^The defendant wrote to the plaintiffs en- 
 quiring upon what terms they could supply him 
 irith fifty rifles. The plaintiffs having answered, 
 stating terms, they received a telegram from the 
 defendant directing them to forward " the rifles." 
 They accordingly forwarded fifty rifles. It turned 
 out that the message as directed to be sent by the 
 defendant was for " three " rifles, but the telegraph 
 clerk had mistaken the word "three" for "the." 
 The defendant refused to accept more than three 
 rifles : — Held, in an action for the price of the 
 remaining forty-seven rifles, that the defendant 
 was not bound by the mistake of the telegraph 
 clerk, and the plaintiffs therefore could not recover. 
 Henkel v. Pape, 40 Law J. Eep. (n.s.) Exch. 15 ; 
 Law Eep. 6 Exch. 7. 
 
 (C) Eatifioation. 
 
 16. — A contract made when one of the parties 
 to it is so drunk as to be incapable of transacting 
 business or knowing what he is about is not void 
 but voidable only, and may be enforced against 
 him, if ratified after he becomes sober ; and this, 
 though his condition was known to the other party 
 to the contract at the time of making it. Mat- 
 thews V. Baxter, 42 Law J. Eep. (n.s.) Exch. 73 ; 
 Law Eep. 8 Exch. 132. 
 
 17. — J. indorsed to the plaintiff a promissory 
 note, bearing a signature which he stated to be the 
 defendant's, but which was a forgery. Shortly 
 before the note became due, the plaintiff, hearing 
 from the defendant that the signature was a for- 
 gery, threatened to prosecute J. ; whereupon the 
 defendant, to prevent his doing «o, said that he 
 would pay the money, and signed a memorandum 
 to the effect that he held himself responsible for 
 the note, describing it as bearing his signature, 
 and of a certain date. The plaintiff having sued 
 the defendant upon the note, the Judge ruled that 
 the defendant had ratified the forged signature, 
 and directed a verdict for the plaintiff: — Held 
 (per Kelly, C.B., Channell, B., and Pigott, B., dis- 
 
 seniiente Martin, B.), that this ruling was wrong, 
 because the defendant's arrangement was not a 
 ratification of a signature, written by an agent 
 claiming to have authority from the defendant in 
 that behalf, but an agreement upon the defendant's 
 part to become liable on the bill in consideration 
 of the plaintiff's forbearing to prosecute J., which 
 agreement was void as against public policy ; and 
 further, because no act in its inception illegal and 
 void, such as a forgery, can be ratified by matter 
 subsequent ; and that the defendant was not 
 estopped from setting up the forgery as a defence 
 to the action. Brook v. Sook, 40 Law J. Eep. 
 (n.s.) Exch. 50 ; Law Eep. 6 Exch. 89. 
 
 Ultra vires contract by directors : whether 
 capable of ratification by shareholders. 
 [See Company, D, 56, 67.] 
 
 ^ (D) Construction. 
 
 (ff) Words ejusdem generis. 
 
 Construction of words ejusdem generis, [See 
 Company, D 1.] 
 
 (J) Words of expectancy. 
 
 18. — Contract to purchase a lot of spars," say 
 about 600," averaging a certain length: — Held, 
 that these- were words of expectancy, and that 
 the purchasers were bound to take 603 spars, of 
 which only 496 averaged the stipulated length. 
 M'Connell v. Mmphy, Law Eep. P. C. 203. 
 [And see SHrppiNG Law, E 5 ; Sale, 4.] 
 
 (c) Alternative contract. 
 
 19. — A declaration alleged that the defendant 
 received certain bills of lading and drafts on the 
 terms that on the acceptance of the latter by one 
 B., the former should be delivered to him, that 
 the defendant should present such accepted drafts 
 to B. for payment, and remit to the plaintiff the 
 proceeds if the same should be paid, and if the 
 said drafts should not be paid, either return the 
 same to the plaintiff, or pay him the amount for 
 reward to the defendant ; that everything hap- 
 pene_d to entitle the plaintiff to have the drafts 
 returned or the amount thereof paid by the de- 
 fendant, yet the defendant did not return the 
 said drafts, nor did he pay the plaintiff their 
 amount. Judgment went by default, and it ap- 
 peared that the drafts were of no value : — Held, 
 by the majority of the Court (Keating, J., Brett, 
 J., and Grove, J.), that the true construction of 
 the declaration was that the defendant promised 
 if he did not return the drafts, to pay their amount, 
 which was therefore recoverable ; but per Bovill, 
 C.J., the conti'act alleged was only alternative, 
 to return the di'afts or pay their amount, and that 
 only the nominal damages arising from the least ' 
 burthensome alternative were recoverable. Beveril 
 V. Burnell, 42 Law J. Eep. (n.s.) C.P. 214; Law 
 Eep. 8 C. P. 475. 
 
 (d) Description of subject-matter : penalty or 
 
 20. — By an agreement for the disposal to the 
 defendant of the plaintiff's interest and goodwill 
 
CONTRACT (D). 
 
 189 
 
 in a public-house, the premises -were described as 
 " the house and premises he now occupies, known 
 by the sign of the White Hart, with stabling 
 and garden, situate and being at," &c. The agree- 
 ment contained a stipulation that the plaintiff 
 was not, during the defendant's tenancy of the 
 premises, to be concerned in the trade of a licensed 
 ■victualling house within the distance of two miles 
 from the said premises, under a penalty of \00l. 
 It also contained stipulations by the defendant 
 to purchase certain effects and stock by valua- 
 tion, and it stated that if the defendant was not 
 accepted by the landlord as tenant at a certain 
 rent or under, a deposit money of 501. should be 
 returned, and the agreement should be void, and 
 concluded thus : " If either party shall refuse or 
 neglect to perform all and every part of this 
 agreement, they hereby promise and agree to pay 
 to the other who shall be willing to complete the 
 same the sum of 1001. as damages, and recover- 
 able in aiiy of her Majesty's Courts of law " : — 
 Held, that the words, " he now occupies," could 
 not be rejected, and therefore a coach-house 
 which belonged to the premises, but which was 
 shewn by extrinsic evidence to be at the time of 
 the agreement not in the occupation of the plain- 
 tiff but of a person to whom the plaintiff had let 
 it for a term then unexpired, was not included in 
 the agreement. Held also, that the 100^. men- 
 tioned at the end of the agreement as damages, 
 was a penalty and not liquidated damages. Magee 
 V. Lavel, 43 Law J. Eep. (n.s.) C. P. 131 ; Law 
 Eep. 9 C. P. 107. 
 
 (e) Condition precedent. 
 
 21. — Agreement by the defendant to purchase 
 a business in the event of the profits being proved 
 to be ^l. per week, and to pay by instalments. 
 The defendant having entered on the premises 
 and business, and sold them to a third person, — 
 Held, that he could not, in an action for the in- 
 stalments, set up as a defence by way of condi- 
 tion precedent, that the profits had not been 
 proved to be 71. per week. Carter v. Scargitl, 
 Law Eep. 10 Q. B. 564. 
 
 22. — By an agreement in which C. was de- 
 scribed as a vendor, and P. as a purchaser, C. 
 agreed to ship a cargo of ice, and on the same 
 being shipped, to forward to P. bills of lading, on 
 receipt of which P. was to " take upon himself all 
 risks and dangers of the sea, &c.," P. agreeing 
 also " to buy and receive the ice on its arrival," 
 taking the ice from alongside the ship, and pay- 
 ing for it in cash on delivery at the rate of 20s. 
 per ton, weighed on board during delivery : — 
 Held (reversing the judgment of the Coui't of 
 Exchequer, 39 Law J. Eep, (n.s.) Exch. 150), that 
 upon the true construction of the agreement, the 
 effect of the clause as to risks and dangers of the 
 seas was not merely to save C. from liability for 
 non-delivery, but to bind P. to insui-e the cargo 
 on receiving the bill of lading ; and that the ship 
 and cargo having been lost on the voyage through 
 perils of the seas, P. was liable to pay C. the 
 price of the value of the cargo. Castle v. Playford 
 
 (Exch. Ch.), 41 Law J. Eep. (n.s.) Exch. 44 ; 
 Law Eep. 7 Exch. 98. 
 
 Arbitration clause; indivisible ag 
 
 reference a condition precedent. [See 
 Arbitration, 9.] 
 
 Shipping contract : refusal to load cargo, 
 [See Shipping Law, E 5.] 
 
 (/) Woric and labour. 
 
 23. — By a contract between the plaintiffs, the 
 owners of a steam-ship, and the defendants, en- 
 gineers, the defendants were to supply new boilers 
 and various parts of machinery for the ship, and 
 to alter the engines according to a specification, 
 and the engines and boilers and connections were 
 to be completed ready for sea and tried under 
 steam previous to being handed over to the plain- 
 tiffs. Due notice was to be given by the plain- 
 tiffs to the defendants of the date at which the 
 ship was to be placed in the hands of the defend- 
 ants, after the work was ready, to have the en- 
 gines completed. The price to be 5,8002., pay- 
 able as the work progressed, as follows : viz., when 
 boilers were plated, 2,000/. ; when the whole of 
 the work was ready for fixing on board, 2,0002. ; 
 and when the ship was fully completed and tried 
 under steam, 1,800/. These payments were to be 
 made only on the certificate of the plaintiffs' in- 
 spector, that the conditions entitling the defend- 
 ants to receive such payments had been fulfilled. 
 The whole of the old materials necessarily taken 
 from the vessel by reason of the execution of the 
 contract was to become the property of the de- 
 fendants, and the value of such old materials was 
 353/. 
 
 The plaintiffs gave the defendants due notice 
 that the vessel was ready to be placed in their 
 hands on a certain date, but on hearing that the 
 defendants could not promise to be ready by that 
 date, the plaintiffs sent her on a voyage, on which 
 she was lost by perils of the sea. The boilers 
 were plated by a certain day, and afterwards, on 
 a certain other day,' the whole of the work was 
 ready for fixing on board the vessel, and the 
 plaintiffs' inspector having, on each occasion, given 
 the necessary certificate, the plaintiffs paid the 
 first and second 2,000/., according to the contract. 
 At the time of the payment of such second 
 2,000/., the plaintiffs knew but the defendants 
 did not know of the loss of the vessel : — Held, 
 that the contract was substantially one for work 
 and labour to be done by the defendants, and that 
 the two payments of 2,000/. each were intended 
 only to be paid on account of a contract to be 
 performed as a whole, and that therefore as the 
 full performance of the contract had been ren 
 dered impossible by the loss of the vessel, no 
 property in any portion of the work certified by 
 the inspector to have been properly done, and in 
 respect of which the two sums were so respectively 
 paid, had passed to the plaintiffs, so as to entitle 
 them to recover in detinue for its detention 
 ITie Anglo-Egyptian Navigation Company {Lm.) 
 V. Bennie, 44 Law J. Eep. (n.s.) C. P. 130; Law 
 Eep. 10 0. P. 271. 
 
190 
 
 CONTRACT (D). 
 
 Held also, that the plaintiffs could not recover 
 back the two sums of 2,000/., or either of 
 them, in an action for money had and received. 
 Ibid. 
 
 24, — The plaintiff had been employed by a 
 Local Board of Health to construct certain main 
 sewer works. On the 19th of March, 1866, the 
 Local Board gave notice to the owners of cer- 
 tain houses to connect their house drains with the 
 main sewer within twenty-one days. Before the 
 expiration of the said twenty-one days, and during 
 the construction of the main sewer, the surveyor 
 of the board proposed to the plaintiff that he, the 
 plaintiff, should construct the connection between 
 the house drains and the main sewer. The plain- 
 tiff said he was willing to do the work if the 
 board would see him paid. The owners of the 
 houses did not proceed in any way to do the 
 work required of them, and before the expiration 
 of the twenty-one days the construction of the 
 connections was commenced by the plaintiff under 
 the following circumstances. Having completed 
 the main sewer, the plaintiff was leaving the 
 work, when the surveyor stopped him and re- 
 quested him not to go away, as there was more 
 work to be done. The plaintiff asked him who 
 was to be responsible for the payment, to which 
 the surveyor answered that the defendant, who was 
 the chairman of the Local Board, was waiting to 
 see the plaintiff about it. The plaintiff then had 
 an interview with the defendant, at which the 
 defendant said, "What objection have you to 
 making the connections ? " The plaintiff said, 
 " I have none, if you or the board will order the 
 work, or become responsible for the payment." 
 The defendant said, " Go on and do the work, and 
 I wiU see you paid." Accordingly the plaintiff 
 constructed and completed the connections. He 
 afterwards applied to the Local Board for pay- 
 ment, but the said Local Board disclaimed all re- 
 sponsibility, on the ground that the board had 
 never entered into any agreement with the plain- 
 tiff, nor by any resolution or order authorised any 
 ofiicer of the board to agree with him for the 
 performance of the work. The plaintiff then 
 eemmenced an action against the defendant : — 
 Held, that whether or not the parties or either of 
 them intended only a contract of suretyship, there 
 was a personal contract by the chairman, on which 
 he was personally liable, and not merely a pro- 
 mise to answer for the debt, default or miscar- 
 riage of another, such as would require a memo- 
 randum thereof in writing under 29 Car. 2. c. 3, 
 s. 4. Lakemwn v. Mcmntstepken (H. L.), 43 Law 
 J. Eep. (n.s.) Q. B. 188 ; Law Rep. 7 E. & I. App. 
 17 : affirming the Court of Exchequer Chamber 
 {nom. Mountstephen v. Lakeman), 41 Law J. Eep, 
 (n.s.) Q. B. 67 ; Law Rep. 7 Q. B. 196, overruling 
 a previous decision of the Queen's Bench, 39 Law 
 J. Rep. (n.s.) Q. B. 188. 
 
 Contract of service : term of service. [See 
 Masteb and Servant, 2.] 
 
 Contract of sermoe : concealment of mate- 
 rial fact. [See Master and Ser- 
 vant, 1.] 
 
 (g) Contract to teach apprentice. 
 
 25. — To a declaration setting out ati agree- 
 ment by the defendant to teach the plaintiff's 
 son a trade, and containing the following proviso 
 — " Provided always that he obeys all commands, 
 and gives his service entirely to the business 
 during office hours," and alleging a wrongful dis- 
 missal, the defendant pleaded justifying the dis 
 missal on the ground that the son had habitually 
 neglected his duties, &c. : — Held, a good plea. 
 Westwiok v. Theodor, 44 Law J. Rep. (n.s.) Q,. B. 
 110; Law Eep. 10 Q. B. 224. 
 
 {h) Implied warranty. 
 
 26. — The plaintiff having inspected certain 
 plans and specifications which had been prepared 
 by an engineer for the defendants, contracted vnth 
 the latter to build a bridge according thereto. 
 The work was begun, but the mode of erection 
 prescribed by the plans and- specifications proved 
 defective, and an alteration was necessarily made 
 under the direction of the engineer, whereby the 
 plaintiff incurred a loss of valuable time in com- 
 pleting the bridge. He brought an action for 
 compensation : —Held (affirming the judgment of 
 the Court of Exchequer, 43 Law J. Rep. (n.s.) 
 Exch. 115; Law Eep. 9 Exch. 163),' that there 
 was no implied warranty on the part of the de- 
 fendants that the work could be done in the mode 
 prescribed by the plans and specifications, and 
 that the plaintiff was therefoi-e not entitled to 
 recover. Thorn v. The Mayor, §-c., of London, 
 (Exch. Ch.), 44 Law J. Eep. (n.s.) Exch. 62 ; Law 
 Eep. 10 Exch. 112: affirmed, on appeal to the 
 House of Lords, 45 Law J. Eep. (n.s.) Exch. 487 ; 
 Law Rep. 1 App. Cas. 120. 
 
 Unless, in ascertaining the existence of an im- 
 plied covenant where there is an express one, it is 
 obvious that the covenant sought to be implied 
 must have been present either palpably or latently 
 in the minds of the contracting parties when the 
 contract was made, so that if they had been 
 called upon to express it everybody of ordinary 
 intelligence and knowledge of business must con- 
 clude that both would have expressed it in the 
 desired form, the Court has no right to imply 
 such a covenant. Per Brett, J. Ibid. 
 
 27. — An agreement between an author and a 
 publisher for the latter to publish the author's 
 book at the publisher's expense and pay the author 
 a royalty on the copies sold, does not imply an 
 agreement on the part of the author not to bring 
 out a second edition until the first is sold off. 
 Warne v. BoutUdge, 43 Law J. Rep. (n.s.) Chano. 
 604 ; Law Rep. 18 Eq. 497. 
 
 28. — By a building contract between the 
 plaintiffs and the defendants, it was agreed that 
 the plaintiffs should, in the most workmanlike, 
 &c., manner, and with the best materials, before 
 the 1st of December, 1867, roof in, and before the 
 15th of May, 1868, competely finish according to 
 certain specifications, a farm-house and buildings, 
 but subject to certain extras, alterations, or addi- 
 tions, which might be made as in the agreement 
 mentioned ; and that the time mentioned in the 
 
CONTfiACT (D). 
 
 191 
 
 agreement for the completion of the works should 
 be of the essence of the contract, so that if the 
 plaintiffs should not, on the said 1st of December, 
 1867, roof in, and on the said 15th of May, 1868, 
 complete and make fit and ready for occupation, 
 respectively, the said works, the plaintiffs 
 should pay to the defendants as and for liqui- 
 dated damages the sum of SI. for every day 
 from and after the said 1st of December, 1867, 
 and 15th of May, 1868, respectively, until such 
 day as the said works should be roofed in and 
 completed, respectively, and the defendants might 
 deduct such sum of 31. per day from any moneys 
 which might be due at any time from the de- 
 fendants to the plaintiffs, or obtain payment of 
 the same in any way they might think fit : — Held, 
 that the plaintiffs undertook to execute not only 
 the works specified, but also aU alterations within 
 the time prescribed in the contract, and that it 
 was no implied condition of the contract that 
 the alterations should be such as could reasonably 
 be completed within this time. Jones v. St. John's 
 College, Oxford, 40 Law J. Eep. (n.s.) Q. B. 80 ; 
 LawEep. 6 Q. B. 115. 
 
 Westwood V. TJie Secretary of State for India (7 
 Law Times, N.S. 736) explained. Ibid. 
 
 29. — The plaintiff lent money to a building 
 society, established under 6 & 7 Will. 4. c. 32, 
 and i-eceived the following certificate: — "I. P. 
 Benefit Building Society. This is to certify that 
 B. has this day deposited the sum of 701. with 
 the I. P. Benefit Building Society, for a period of 
 three months certain, upon which interest at the 
 rate of 61. per cent, per annum will be allowed." 
 This certificate was signed " W., L.(the defend- 
 ants), directors." The plaintiff afterwards dis- 
 covered that the rules of the society did not 
 empower it to borrow money, and sued the de- 
 fendants: — Held, the Court having power to draw 
 inferences of fact, that the defendants were per- 
 sonally liable, as the certificate amounted to a 
 warranty on their part that the society had power 
 to borrow money. Bichardson v. Williamson, 40 
 Law J. Eep. (n.s.) Q. B. 145 ; Law Eep. 6 Q. B. 
 276. 
 [And see Bankeuptct, E 1 ; Mihe, 10 ; Saus, 3, 4.] 
 
 (j) Implied indemnity. 
 
 30. — The declaration was upon a promise to 
 indemnify. The plaintiffs were in possession of 
 certain waggons, which were claimed by a coal 
 company. They were also claimed by the defend- 
 ant, and the plaintiffs therefore requested an 
 indemnity from him. This the defendant did not 
 expressly give, but at a subsequent time requested 
 that the waggons should be given up to him. The 
 plaintiffs thereupon sent the waggons to the de- 
 fendant. The coal company afterwards sued the 
 plaintiffs, and obtained compensation from them on 
 the ground, as the fact was, that the waggons be- 
 longed to the company. At the trial the jury 
 found a verdict for the plaintiffs :— Held, that the 
 present action was maintainable, for upon the 
 above facts the jury were entitled to find that 
 the defendant had by implication promised to in- 
 
 demnify the plaintiffs against the consequences 
 of delivering the waggons to him. Dugdale v. 
 hovering, 44 Law J. Eep. (n.s.) C. P. 197 ; Law 
 Eep. 10 C. P. 196. 
 
 Implied contract of indemnity: advertise- 
 ment of goods for sale by auction. [See 
 Auction, 3.] 
 
 Transfer of shares : implied contract by 
 transferee to indemnify transferor. 
 [See Company, Q- 44, 45.] 
 
 Implied indemnity by assignment of lease. 
 [See Lease, 30.] 
 
 (A) Implied negative clause. 
 
 31. — Where an actor enters into a contract to 
 perform at a particular theatre during a particular 
 period, a negative stipulation to the effect that 
 he will not perform elsewhere during that period, 
 though not expressed, will be implied. Montague 
 V. Flockton, 42 Law J. Eep. (n.s.) Chanc. 677 ; 
 LawEep. 16 Eq. 189. 
 
 Implied negative clause: right to iry unc- 
 tion. [See Injunction, 5.] 
 
 (l) Implied condition : personal skill. 
 
 32. — A contract by a musician to play at a, 
 concert at a specified time, being a contract de- 
 pendent on the personal skill of the artist, is, 
 though no condition be expressed in words, based 
 on the assumption of suficient health, and is sub- 
 ject to an implied condition that if the musician 
 be, without his own default, disabled by illness to 
 perform, he shall be excused. Robinson v. Davi- 
 son, 40 Law J. Eep. (n.s.) Exch. 172 ; Law Eep. 
 6 Exch. 269. 
 
 Quaere — whether it is also an implied term of 
 the contract, that if disabled by illness he shall 
 give the other party to the contract notice 
 thereof within a reasonable time after he knows 
 of the disability. Ibid. 
 
 (m) Interest ; right to. 
 
 33. — A contract between a railway company 
 and their contractor, which contemplated that 
 from time to time certain sums, ascertainable at 
 the end of each month, would be paid over, and 
 provided for monthly payments, was not consi- 
 dered to be one to pay sums at certain specified 
 times, so as to carry interest. For payment of 
 interest, there must be an express agreement 
 except in mercantile contracts, such as bills of 
 exchange, and promissory notes, and some cases 
 which are subject to special usage in trade. And 
 interest can only be recovered imder the 3 & 4 
 Will. 4. c. 42, s. 28, where there is a demand in 
 writing of a sum certain payable at a certain time 
 Hill V. TTic South Staffordshire Railway Company, 
 43 Law J. Eep, (n.s.) Chanc. 556 ; Law Eep. 18 
 Eq. 154. 
 
 Mildmay v. Methuen (3 Drew. 91) and Mac- 
 kintosh V. The Great Western Railway Company 
 (4 Giff. 683) not followed. Ibid. 
 
 Costs were allowed to the plaintiffs, though they 
 failed in great part of their claim. Ibid, 
 
92 
 
 CONTRACT (D), (F). 
 
 (n) Lex loci. 
 [See Lex Loci ; Shipping Law, K.] 
 
 (E) EVIDBNOE, 
 
 (a) Parol evidence to vary. 
 
 34. — An agreement in writing as follows, 
 " I hereby agree to accept the situation as fore- 
 man of the Works of E. & Co., Flock and Shoddy 
 Manufacturers, &o., and to do all in my power to 
 serve them faithfully, and promote the welfare of 
 their firm, on receiving a salary of 11. per week, 
 and house to live in, from the 19th of April, 
 1871:" — Held, a weekly hiring, and that oral 
 evidence tending to shew that a hiring for a year 
 was intended was inadmissible. Evans v. Boe, Law 
 Eep. 7 C. P. 138. 
 
 (b) Evidence of 
 
 of trade. 
 
 35. — When letters contain certain terms which 
 may form the basis of a contract, it is necessary 
 to ascertain from the letters whether the terms 
 are finally arrived at, and if they are not, verbal 
 evidence is admissible to shew that a different 
 contract has been entered into. Johnson v. Ap- 
 pleby, 43 Law J. Eep. (n.s.) C. P. 146 ; Law Eep. 
 9 C. P. 168. 
 
 The plaintiff proposed by letter to enter into 
 the defendant's service as salesman ; the term of 
 service was to be for one year, and a list of cus- 
 tomers was to be drawn up. The defendant 
 replied by letter stating that the terms of the 
 plaintiff's letter required further definition, but 
 requesting him to come on an appointed day. The 
 plaintiff entered upon the defendant's service, but 
 was dismissed before the expiration of the year 
 with a month's notice. The plaintiff having sued 
 for a wrongful dismissal, at the trial, evidence was 
 tendered of a custom to dismiss salesmen at a 
 month's notice ; the Judge rejected the evidence, 
 on the ground that the letters contained a com- 
 plete contract in writing: — Held, that the evi- 
 dence was admissible, as the contract in the 
 letters was incomplete. Ibid. 
 
 (c) Contemporaneous verbal promise. 
 
 86. — The defendant demised to the plaintiff a 
 messuage in an unfinished state by a written 
 ageement. Before and at the time of the plain- 
 tiff's signing the agreement, the defendant ver- 
 bally promised the plaintiff to put the messuage 
 into a condition fit for habitation. Amongst the 
 things which the defendant undertook to do upon 
 the messuage was the construction of a water- 
 closet. In an action for the breach of the de- 
 fendant's promise to put the messuage into a 
 condition fit for habitation, — Held, that the de- 
 fendant's verbal promise to finish the messuage 
 was collateral to the written lease ; that evidence 
 of the promise was admissible at the trial ; aud 
 that the defendant's undertaking to build a water- 
 closet in the messuage was not a contract for an 
 interest in land within the fourth section. of the 
 Statute of Frauds, and therefore need not be in 
 writing. Mann v. Nmm, 43 Law J. Eep. (n.s.) 
 0. P. 241. 
 
 (d) Partial spoliation of written contract. 
 
 37.— The plaintiff built a house on land of the 
 defendant under a vraitten agreement vrith him con- 
 taining provisions for payment, on certificates of 
 the defendant's architect, and stipulations as to 
 orders for extras. The contract, while in the cus- 
 tody of the architect, was altered in a material 
 particular relating to such orders. The main work 
 only having been certified and paid for, the plain- 
 tiff sued the defendant upon a quantum meruit to 
 obtain payment for certain extra work done, and 
 he put the written agreement in evidence : — Held, 
 that the alteration by the architect must be 
 treated as if made by the defendant himself, but, 
 nevertheless, that the plaintiff could not recover 
 because the work having been done on land, no 
 contract could be implied by law from the mere 
 retention of that which could not be returned, and 
 it appeared that a special written bargain had 
 been made, the terms of which, however, could 
 not be proved by the plaintiff, as the agreement 
 containing them having been vitiated by a material 
 alteration, was inadmissible, although sufficiently 
 existing in specie to be capable of shewing that 
 an express contract had been entered into under 
 which the work was done. Pattison t. Luckley, 
 44 Law J. Eep. (n.s.) Exch. 180 ; Law Eep. 10 
 Exch. 330. 
 
 (F) Eescission and Ebctefication. 
 
 38. — The defendant contracted for sale and de- 
 livery to the plaintiffs of 250 tons of pig iron at a 
 certain price per ton ; the iron to be delivered in 
 two parcels of 125 tons each, and payment to be 
 made fourteen days after the delivery of each par- 
 cel. The whole of the first parcel was delivered, 
 but only by instalments, and after repeated appli- 
 cations for it by the plaintiffs. As the price of 
 iron was rising in the market, the plaintiffs re- 
 fused to pay for the price of the first parcel until 
 the rest contracted for was delivered, but there 
 was no inability on their part to pay for the 
 same : —Held, that such refusal to pay, though it 
 rendered the plaintiffs liable to an action, did 
 not, under the circumstances, amount to a refusal 
 to perform the contract, so as to free the defen- 
 dant from his obligation to deliver the rest of the 
 iron. Freeth v. Burr, 43 Law J. Eep. (n.s.) C. P. 
 91; Law Eep. 9 C.P. 208. 
 
 39. — A builder made a tender, undertaking to 
 sign a contract to execute for a certain sum cer- 
 tain works described in some rough sketches and 
 verbal explanations of an architect. The architect 
 subsequently sent by special messenger to the 
 builder a contract to perform for the sum named 
 the works delineated and described in certain 
 plans and specifications thereto annexed. These 
 differed materially from the works described in 
 the rough sketches and verbal explanations on 
 which the builder had made his tender. The 
 builder, however, signed the contract without any 
 examination, and completed the works according 
 to the plans annexed to it. . He then filed a 
 bill, claiming to have an account taken of the 
 works executed by him on the basis on which he 
 
CONTRACT (F)-COPyHOLDS (B). 
 
 193 
 
 had made his tender: — Held, that as the mis- 
 take under which he signed the contract was 
 due to his own negligence, and he had not taken 
 proceedings for rectifying the contract as soon as 
 he discovered it, he was not entitled to any relief 
 in this respect. Kimherley v Dick, 41 Law J. 
 Eep. (n.s.) Chano. 38 ; LawKep. 18 Eq. 1. 
 
 40. — ^Arrangement between A. and B., who 
 together owned certain land supposed to contain 
 petroleum, and C, by which B. assumed to be the 
 sole owner, and was to sell to C. for a certain sum 
 if C. could form a company to buy the land for a 
 larger sum, C. keeping the difference for himself. 
 A. wrote a letter to members of the company, 
 which was proved to have influenced them, ad- 
 vising the purchase, but not disclosing his interest ; 
 the company having purchased, and afterwards 
 discovered the facts, — Held, that they were enti- 
 tled to a rescission of their contract. Where 
 laches is set up as «■ defence by a party proved 
 guilty of fraud, the onus lies on him to shew when 
 the other party became aware of the facts. The 
 lAndsay Petroleum Company v, Hurd, Law Eep. 
 5 P.O. 221. 
 
 Bescission of contract of sale of goods. [See 
 
 Saub, 17-19.] 
 Mistake. [See supra No. 15.] 
 
 (Gr) Stattitokt Liability, 
 41. — By the Civil Code of Lower Canada, Ar- 
 ticle 1,688, it is provided that, " If a building 
 perish in whole or part within ten years, from a 
 defect in construction, or even from the unfavour- 
 able nature of the ground, the architect superin- 
 tending the work and the builder are jointly and 
 severally liable for the loss." The appellant, a 
 builder, entered into an agreement with the 
 respondent, the rector of the cathedral of Mont- 
 real, to build a new cathedral on foundations 
 which had already been constructed by another 
 builder. Shortly before the completion of the 
 work the tower sank, and other damage occurred, 
 owing to the insufficiency of the foundations : — 
 Held, that inasmuch as the contract did not limit 
 the appellant's UabUity to his own work he was 
 liable for the damage caused by the insufficiency 
 of the foundations. Wardle v. Bethune, 41 Law 
 J. Eep. (N.s.) P. 0. 1 ; Law Eep. 4 P. C. 33. 
 
 Contract hy Colonial Government with 
 allottees of land, [See Colonial 
 Law, 36.] 
 
 (h) assiqnmbnt op conteact. 
 42. — An agreement to assign a contract only 
 places the assignee in the position of the assignor, 
 subject to, not freed from his obligations under 
 the contract. Shaw v. Foster (H. L.), 42 Law J. 
 Eep. (n.s.) Chanc. 40 ; Law Eep. 5 E. & I. App. 
 821. 
 
 Ccmtract by corporation: what contracts 
 ought to be under common seal, [See 
 
 COEPOBATION, 1, 2.] 
 
 CONVEESION. 
 
 Apportionment of income of unconverted in- 
 vestments. [See Tenant fob Life, 
 12-17.] 
 
 Conversion of lunatic's estate by order of 
 Court of Chancery. [See Lunatic, 9.] 
 
 Effect of decree in partition suit. [See 
 Pabtition, 21, 22.] 
 
 Conversion of land of partnership. [See 
 Pabtneeship, 8.] 
 
 Discretion of trustees as to conversion. [See 
 Tbitst, B 6, 7.] 
 
 What amounts to conversion of property in 
 goods. [See Tbovee, 5-7-] 
 
 CONVICTION. 
 Second conviction. [See Auteefois Con-- 
 
 VICT.] 
 
 CONTEIBUTOEY NEGLIGENCE. 
 [See Negligence.] 
 Digest, 1870—1 875. 
 
 COPYHOLDS. 
 
 (A) CtrsTOM. 
 
 (a) Heriot custom. 
 
 (i) Grant for lives in reversion. 
 
 (B) Admission. 
 (a) Heir. 
 
 (4) Semmnder-man. 
 
 (C) Pines: Infant's Copyhold. 
 
 (D) Enfbanchisejient. 
 
 (A) Custom. 
 
 (a) Heriot cjistom. 
 
 1. — To an action for trespass by seizing two 
 beasts of the plaintiff, the defendant pleaded that 
 they were taken as customary heriots, and the 
 plaintiff replied a discontinuance of taking heriots 
 for more than twenty years, and that the right to 
 heriots then accrued to the lord within the 
 meaning of the Statute of Limitations, 3 & 4 
 Will. 4. c. 42 : — Held, on demurrer, that the re- 
 plication was bad. Zouche v. Dalbiac, 44 Law J. 
 Eep. (n.s.) Exch. 109 ; Law Eep. 10 Exch. 172. 
 
 (J) Grant for lives in reversioit. 
 
 2. — A custom in a manor that the lord may 
 grant three lives, one in possession and two in re- 
 version, but that if the lives in reversion do not 
 come into possession before his death, the suc- 
 ceeding lord may treat the grants of such lives as 
 a nullity, and grant again, is a good custom. The 
 Queen v. Venn, 44 Law J. Eep, (n.s.) Q. B, 158; 
 Law Eep. 10 Q. B. 310. 
 
 (B) Admission. 
 (a) Heir. 
 
 3. — A devise of copyhold estate under the Wills 
 Act (7 Will. 4 & 1 Vict. c. 26), s. 3, conveys no 
 estate to the devisee before admission, and where 
 CC 
 
194 
 
 COPYHOLDS (B)-COPyBIGHT (A). 
 
 the devisee does not intervene, ,the heir has a 
 right to be admitted. Garland v. Mead, 40 Law 
 J. Eep. (n.s.) Q. B. 179 ; Law Eep. 6 Q. B. 441. 
 
 A copyholder de\'ised his estate to trustees, who 
 proved the will, but did not claim admittance. 
 The heir then claimed admittance, which was re- 
 fused by the lord, who proceeded to seize the pre- 
 mises for want of a tenant : — Held (by Coclcburn, 
 C.J., and Blackburn, J., upon the construction of 
 the statute, by Lush, J., solely in deference to the 
 authorities), that the seizure could not be justified, 
 as the devise without admission conveyed no estate 
 to the devisee, and that in the absence of any 
 claim by him, the heir retained his common law 
 right to be admitted. Ibid. 
 
 (J) Bemainderman. 
 
 4. — The uncle of 0. E. I., who was tenant in 
 fee of lands in the manor of E., according to the 
 custom of the manor devised his estate for, a term 
 of 300 years upon certain trusts, and, subject to 
 the term, to C. E. 1. in fee. Upon the death of 
 the uncle, the lord admitted C. E. I., who was an 
 infant, and received a full fine in respect of the 
 admittance. The lord further insisted that the 
 trustees, the termors for 500 years, should also 
 be admitted, and should pay a fine in respect of 
 that term. They refused to do so, whereupon, 
 after proclamation, he seized qtiousq'ue and brought 
 ejectment to try his right to the additional fine : — 
 Held, affirming the judgment of the Court of 
 Queen's Bench (41 Law J. Eep. (n.s.) Q. B. 263 ; 
 Law Eep. 7 Q. B. 683), that he was not entitled 
 to the fine, and could not maintain the action. 
 Everingham v. Ivatt (Exch. Ch.), 42 Law J. Eep. 
 (N.S,) Q. B. 203 ; Law Eep. 8 Q. B. 388. 
 
 (C) Fines : Infant's Copthold. 
 
 5, — The Court has no jurisdiction to direct a 
 fine in respect of copyholds to which an infant has 
 become entitled as customary heir of an intestate 
 to be raised by a mortgage of the copyholds. Har- 
 broe v. Combes, 43 Law J. Eep. (n.s.) Chanc. 336. 
 
 (D) Enfeanchisbment. 
 
 6. — Where the lord of a manor requires the 
 enfranchisement of copyhold lands under the 15 
 & 16 Vict. c. 51, and the consideration to be paid 
 to the lord for the enfranchisement is to be ascer- 
 tained by valuation under the Act, it is enacted, 
 by section 16, that "in making any valuation 
 under this Act the valuers shall take into account 
 the facilities for improvement .... and all 
 other circumstances affecting or relating to the 
 land which shall be included in such enfranchise- 
 ment, and all advantages to arise therefrom, and 
 shall make due allowance for the same." Part of 
 certain land required to be enfranchised by the 
 lord of the manor was the subject of ah unexpired 
 lease granted with the license of the lord for a 
 term of twenty-one years, and with another part 
 of the same land was included in a testamentary 
 settlement, and was subject to the trusts thereof. 
 The settlement contained a power of leasing in the 
 trustees. The land was building land, valuable 
 
 as such by reason of its situation and aptitude for 
 building, except that a portion of the land had no 
 communication with a highway but through the 
 said other lands or through lands belonging to 
 third parties : — Held, that in assessing the com- 
 pensation or consideration payable to the lord on 
 the enfranchisement, such lease and settlement 
 were to be taken into consideration by the valuers 
 as obstacles in the way of the facilities for im- 
 provement, and in reduction of any compensation 
 payable to the lord in respect of such facilities. 
 Ardm v. Wilson, 41 Law J. Eep. (n.s.) C. P. 273 ; 
 Law Eep. 7 0. P. 535. 
 
 7. — Where a lord of a manor, who takes pro- 
 ceedings under the Copyhold Acts to compel a 
 tenant to enfranchise, sets up a special custom 
 entitling him to one-third of the timber, if there 
 be evidence, it is the exclusive province of the 
 Copyhold Commissioners to determine whether 
 the custom is proved, and the Court will not 
 interfere with their decision ; the valuers acting 
 under the second part of section 8 of 21 & 22 Vict, 
 c. 94, are not bound to state in their award what 
 proportion of the rent-charge should be deferred, 
 or such particulars as might enable the Commis- 
 sioners to defer payment of the whole rent-charge 
 or any part thereof; and though the pecuniary 
 circumstances of the tenant ought not to be taken 
 into account in determiningwhether there is special 
 hardship under 15 & 16 Vict. c. 51, s. 35, and the 
 Commissioners inquire into them, and though the 
 Court think, looking to the particular interest, 
 &c., of the tenant, that there is hardship, yet the 
 Court are not at liberty to interfere with the 
 decision of the Commissioners that there is no 
 such hardship. Reyriolds v. The Lord of the 
 Manor of Woodham Walter, 41 Law J. Eep. (n.s.) 
 C. P. 281 ; Law Eep. 7 C. P. 639, 
 
 COPYEIGHT. 
 
 (A) Eeqisthation. 
 
 (B) License to publish. 
 
 (C) COPYEIQHT OF DESIGNS. 
 
 (D) Dramatic Copibioht. 
 
 (E) Infeinsement and Piracy. 
 
 (F) Extension ov Teem. 
 
 [International Copyright. — 15 & 16 Vict. c. 12, 
 amended as to dramatic pieces. 38 & 39 Vict, 
 c. 12.] 
 
 (A) Eegisteation. 
 [And see infra Nos. 4-6.] 
 
 1. — A bird's-eye view of a seat of war is a book 
 within the meaning of 5 & 6 Vict. c. 45, s. 2, 
 and no copyright can be acquired in it unless it be 
 registered at Stationers' Hall under the provisions 
 of that Act. Stannard v. Lee, 40 Law J. Eep. 
 (n.s.) Chauc. 489 ; Law Eep. 6 Chanc. 346. 
 
 2. — A print or engraving which is the property 
 of a partnership firm need not bear the name of 
 every member of the firnl, under the statute 
 8 Geo: 2, c, 13. The name of the firm alone is a 
 
COPYEiaHT (A), (D). 
 
 I9S 
 
 sufficient eomplianco with the statute. Soo^ v. 
 Lazarm, 42 Law J, Eep. (n.s.) Chano. 106; Law 
 Rep. 15 Eq. 104. 
 
 (B) License to ptjbhsh. 
 
 3. — A married woman agreed with some pub- 
 lishers that they should publish a book she had 
 written at their own expense, and sell it at a 
 shilling a copy, paying her a royalty of a penny 
 for every copy sold, reckoning thirteen copies as 
 twelve. She afterwards gave notice to terminate 
 this agreement and made a fresh arrangement with 
 other publishers for the bringing out of a revised 
 edition. The first publishers sought to restrain 
 the farther publication of the book until the 
 copies printed by them under their agreement 
 with the authoress were sold: — Held, that they 
 were not entitled to any such relief, as they were 
 endeavouring to import into the contract a term 
 which it did not contain. Warne v. Soutledge, 
 43 Law J. Eep. (n.s.) Chano. 604; Law Eep. 18 
 Eq. 497. 
 
 Semble^f the married woman had expressly 
 entered into a contract restricting her right to 
 publish the book, such contract might have been 
 enforced by injunction against her, or any person 
 claiming imder her with notice. Ibid. 
 
 (C) OopTRiGHT 01" Designs. 
 
 [The Copyright of Designs Acts amended. 
 Powers and duties of the Board of Trade trans- 
 ferred to Commissioners of Patents. 38 & 39 
 Viet. c. 93.] 
 
 4.-^Where a pattern of an article has been re- 
 gistered imder the above Acts the design will be 
 infringed by the sale of an article to all appear- 
 ance the same though not actually identical. 
 M'Crea v. Soldsworik, Law Eep. 6 Chanc. 418. 
 
 5. — The plaintiffs were registered, under the 
 Copyright of Designs Act (5 & 6 Vict. c. 100), as 
 proprietors of a double card-basket, made in the 
 form of a single basket placed on the bottom of 
 another, the lower one forming the stand or base 
 of the article. They admitted that the form of 
 the single basket had long been known to the 
 public, but contended that the combination of 
 two single baskets in the form of a double basket 
 was a "new and original design," and as such 
 entitled to the protection of the Act. They 
 also admitted after the filing of the bill, but 
 without amending it, that they had first seen the 
 design in a shop in Germany, and had imported it 
 into England under an arrangement with the 
 actual designer : — Held, first, that the article was 
 not a "new and original design" so as to entitle 
 it to protection within the meaning of the Act ; 
 and secondly, that even if it were so, the plaintiffs 
 were not the persons entitled to the protection of 
 the Act. Laxarus v. Charles, 42 Law J. Eep. 
 (n.s.) Chanc. 507; Law Eep. 16 Eq. 117. 
 
 e. — The plaintiff employed W. to compile a 
 work for him, called "Monumental Designs," being 
 illustrations of tombstones, and intended as an 
 " advertisement " in his business. W. registered the 
 work as the plaintiff's property, under 5 & 6 Vict. 
 0, 45. The defendant printed several sheets of de- 
 
 signs identical with those of the plaintiff, but only 
 sold one of the sheets, and that; sale was made to the 
 plaintiff himself. The defendant, when remon- 
 strated with, offered, after notice of motion for an 
 iigunction, to cancel the unsold sheets, and destroy 
 the stones from which they were taken, but claimed 
 to be paid his costs. The plaintiff refused such 
 payment ; and on the hearing of the cause, an in- 
 junction, previously granted, was made perpetual, 
 with costs. Grace v. Newman, 44 Law J. Eep. 
 (n.s.) Chanc. 298 ; Law Eep. 19 Eq. 623. 
 
 (D) Dbamatio Coptbibht. 
 
 7. — H. wrote a story which he printed and pub- 
 lished. He afterwards wrote a drama, being the 
 same as the story with slight alterations. He 
 sold the copyright to the plaintiff. After this was 
 done, and after the story was published, Q-. wrote 
 a drama founded upon the story. The defendant 
 produced G-.'s drama upon the stage : — Held, that 
 the plaintiff had no copyright, for the infringement 
 of which he could maintain an action against the 
 defendant. Toole v. Young, 43 Law J. Eep. (n.s.) 
 Q. B. 170 ; Law Eep. 9 Q. B. 623. 
 
 8. — In an action for infringing the right to the 
 exclusive representation of a drama if it be only 
 proved that part of the drama has been repre- 
 sented by the defendant, it is necessary for the 
 plaintiff to establish as a matter of fact that the 
 part represented is a material and substantial 
 portion of the drama. Chatterton v. Cave, 44 Law 
 J. Eep. (n.s.) 0. P. 386 ; Law Eep. 10 C. P. 572. 
 
 The law relating to dramatic literary property 
 is governed by the same principles as the law re- 
 lating to ordinary copyright (per Lord • Coleridge, 
 C.J., and Lindley, J.). Ibid. 
 
 A theatrical situation is dramatic property 
 within 3 & 4 WiU. 4. c. 15, and the author thereof, 
 or his assignee, is entitled to be protected against 
 any one representing the same without his con- 
 sent (per Brett, J.). The right to represent a 
 dramatic piece or entertainment may be assigned 
 separately from the words in the text thereof 
 (per Brett, J., and Grove, J.). Ibid. 
 
 L. prepared from a French original a dramatic 
 piece, and assigned the sole right to represent it 
 to the plaintiffs. P. adapted a version from the 
 same French original, but in preparing it borrowed 
 two theatrical situations from L.'s dramatic piece : 
 the two theatrical situations were not either mate- 
 rial or substantial portions of the dramatic piece 
 assigned to the plaintiffs. The defendant caused 
 to be represented on the stage the version pre- 
 pared by P., including the two theatrical situa- 
 tions : — Held, that the plaintiffs could not main- 
 tain an action against the defendant pursuant to 
 3 & 4 Will. 4. c. 15 "for the infringement of their 
 sole right of representing the dramatic piece pre- 
 pared by L. and assigned to them by him. Ibid. 
 
 9. — In order to be joint authors of a dramatic 
 piece, within the meaning of the Dramatic Copy- 
 right Act, 3 & 4 Will. 4. c. 15, there must be a 
 co-operation by the authors in the prosecution of 
 a common design. And therefore, where A., the 
 lessee of a theatre, engaged B. to virite a dramatic 
 piece for his theatre, and after B. had written it, 
 oc 2 
 
196 
 
 COPYEIGHT (D)— COEONEE. 
 
 A., without B.'s co-opei'ation, made alterations in 
 it, •which, though not materially affecting it as 
 originally designed, introduced new incidents, and 
 made the piece more attractive on the stage, it 
 was held, that A. did not thereby hecome a joint 
 author of such piece with B. Levy v. Rutley, 40 
 Law J. Eep. <n.s.) C. P. 244; Law Eep. 6 0. P. 
 523. 
 
 (E) Infbingembnt and Pieact. 
 
 10. — Between 1849 and 1867 there appeared in 
 the weekly numbers of 'Punch many woodcuts 
 caricaturing Napokon IIL In 1 871 the defendant 
 published a book, of which Part I. consisted of a 
 letter-press history of Napoleon's life. Part II. 
 was called, "The same story as told by popular 
 caricatures of the last thirty years," and consisted 
 of woodcuts copied from many English and foreign 
 publications. Nine of these were exact copies in 
 reduced size of the whole or part of the nine wood- 
 cuts which had appeared in nine separate numbers 
 of Fimch during the above period, and were in- 
 serted without any acknowledgment that they 
 had appeared in Funch. The registered proprie- 
 tors of Punch brought an action for this infringe- 
 ment of their copyright in the above nine numbers 
 of Pimch, each of which was described in the 
 declaration as a " book or sheet of letter- press." 
 The Court having found as a fact that the defend- 
 ant's book was. published with the same object as 
 Funch, namely, to amuse the public and to make a 
 profit by the sale, — Held, therefore, that there 
 had been an infringement. Bradbury v. Sotteii, 
 42 Law J. Eep. (n.s.) Exch. 28; Law Eep. 8 
 Exch. 1. 
 
 11. — The defendant having sold to the plaintiff 
 the copyright of 5eefo»'s Christmas Annual together 
 with the right to use the defendant's name, and 
 having also agreed to give his whole time to the 
 plaintiffs and engage in no other business : — Held, 
 that he must be restrained from issuing advertise- 
 ments of a rival work. Ward v. Beeton, Law 
 Eep. 19 Eq. 207. 
 
 12. — C. published a book, which he registered 
 at Stationers' Hall, entitled The Illustrated Fur- 
 nishing Guide, containing illustrations of articles 
 of furniture made by him, with estimates and 
 remarks on furnishing. AV. shortly afterwards 
 published a similar book entitled F. W. ^ Co.'s 
 Illustrated Furnishing Guide, in which many of the 
 drawings of furniture had been copied direct from 
 those in O.'s book, and certain portions of the 
 lettei'press of O.'s book were reproduced verbatim : 
 — Held, on suit by C. to restrain the publication 
 of W.'s book, that the plaintiff was entitled to an 
 injunction as to the pirated letterpress, but not 
 as regarded the illustrations, as they were but 
 illustrated advertisements of articles sold by W., 
 which he had a perfect right to sell, and there 
 could be no copyright in an advertisement. Coh- 
 beit V. Woodward, 41 Law J. Eep. (w.s.) Chanc. 
 656 ; Law Eep. 14 Eq. 407. 
 
 13. — The "offence" mentioned in the 15th 
 eection of 8 & 6 Vict. c. 45, which gives to the 
 proprietor of a copyright a special action on the 
 case, is not co-extensive with the "offence" 
 
 referred to in section 26 of the same Act, with 
 respect to which all actions, suits, bills, indict- 
 ments or informations must be brought, sued, and 
 commenced within twelve calendar months next 
 after such offence committed. Therefore, a plain- 
 tiff who allowed a defendant to publish one edition 
 of a work containing piracies from his works, and 
 then, after the lapse of more than twelve months, 
 filed a bill in equity to restrain the publication of 
 a second edition of the defendant's work, with the 
 same and other piracies in it, was neither compelled 
 to proceed at law under the 15th section, nor pre- 
 vented from suing in equity, by the 26th section 
 of the statute. Hogg v. Scott, 43 Law J. Eep. 
 (n.s.) Chanc. 705 ; Law Eep. 18 Eq. 444. 
 
 Special facts constituting the piracy complained 
 of by the plaintiff, and circumstances under which 
 he was held not to have acquiesced in the de- 
 fendant's act; but to be entitled to an injunc- 
 tion with costs. Ibid. 
 
 [And see supra Nos. 5, 6.] 
 
 (F) Extension op Teem. 
 
 14. — ^A committee of seven pelsons on behalf 
 of a religious body compiled a hymn-book, which 
 was registered under 64 (Jeo. 3. c. 156, as the 
 property of the compilers, but was published by 
 and sold for the benefit of the religious body. 
 No minute of consent having been registered 
 under the Act of 6 & 6 Vict. c. 45, — Held,: that 
 the term of the copyright had not been extended 
 under that Act, but ceased on the death of the 
 last survivor of the seven compilers. Marzials 
 V. Gibbons, 43 Law J. Eep. (n.s.) Chanc. 774; 
 Law Eep. 9 Chanc. 518. 
 
 COEONEE. 
 
 Perjury was alleged to have been committed 
 in taking a false oath on a material issue at 
 the hearing of a County Coroner's inquisition 
 held before a, deputy coroner in the absence of 
 the coroner. The 6 & 7 Vict. c. 83, s. 1, gave a 
 county coroner power to appoint a deputy, provided 
 that no such deputy should act for any coroner 
 except during the illness of the said coroner, or 
 during his absence from any lawful or reasonable 
 cause. On the trial of the indictment for perjury 
 the prosecution gave evidence that the coroner, 
 who was an attorney in practice, and registrar of 
 the County Court, and held other offices, was 
 absent from his home and place. of business in 
 order to take ><■ vacation, such absence and vaca 
 tion, and air and exercise having been recom- 
 mended to him by his medical advisers as neces- 
 sary for his health, which had become permanently 
 impaired from an operation which he had under- 
 gone. He spent three or four days in every week 
 shooting. The vacation for registrars was 
 appointed at that period of the year, and that 
 was the only time of the year during which he 
 obtained a vacation. The Judge held at the trial 
 that there was lawful or reasonable cause for the 
 absence of the coroner, , and the prisoner was 
 
CORONEE-OOSTS AT LAW (A). 
 
 197 
 
 found guilty : — Held, that the question of lawful 
 or reasonable cause was to he decided by the Judge 
 and not by the jury, that there was some evidence 
 upon which the Judge could so decide, and that 
 the conviction was right. The Queen v. Johnson, 
 42 Law J. Eep. (n.s.) M. C. 41 ; Law Eep. 2 C. C. B. 
 IS. 
 
 Sdaty of. [See County Coeonbr.] 
 
 The defendants, who were a corporate body 
 under 6 & 6 "Will. 4. c. 69, s. 7, appointed the 
 plaintiff clerk to the master of a workhouse ; 
 during his tenure of office he was discharged ; his 
 appointment was not by deed. He then sued for 
 a wrongful dismissal, and the jury found in his 
 favour : — Held, that the action would not lie, and 
 that the defendants were entitled to have the 
 verdict entered for them on the groimd that the 
 plaintiff's appointment was not under seal. Ibid. 
 
 COEPOEATIOK 
 Grant oj annuity by resolution not under seal. 
 
 1. — Certain trustees were created by 13 & 14 
 Vict. c. cix. a body coi-porate, for the manage- 
 ment of the navigation of a river, with a common 
 seal and perpetual succession. The statute em- 
 powered them to levy tolls, and enacted, s. 76, 
 " that it shall be lawful for the trustees, from time 
 to time, to pay and allow to any officer or servant 
 of the trustees whose services may, from any other 
 cause than that of misconduct, be no longer 
 required by the trustees, such annuity or other 
 allowance as, having regard to length of service 
 and all the other circumstances of the case, may, 
 in the judgment of the trustees, be reasonable 
 and proper ; and the trustees may, from time to 
 time, pay and allow such annuity or allowance out 
 of the moneys which may come to their hands by 
 virtue of the powers and provisions " of certain 
 Acts. 
 
 The plaintiff, who had been their clerk, remova- 
 ble at their will and pleasure, for forty years, 
 having in 1865 resigned, owing to ill-health, the 
 trustees duly passed a resolution (not sealed), that 
 his resignation " be accepted, and that a retiring 
 pension of 3001. per annum, free of income tax, 
 be granted to him during the remainder of his 
 life." The pension was duly paid quarterly for 
 some years, until the defendants, — who had mean- 
 while been substituted by statute for the trustees, 
 with all their powers, and subject to all their 
 liabilities, — duly passed a resolution to reduce the 
 pension to 1501, per annum, to be paid during 
 their pleasure, and made the first quarterly pay- 
 ment on the reduced scale. 
 
 The plaintiff having brought an action to recover 
 the difference for that quarter, — Held (reversing 
 the decision of the Court below, 42 Law J. Eep. 
 (n.s.) Exch. 141 ; Law Eep. 8 Exch. 290), that the 
 resolution of 1865 was revocable, and that the 
 plaintiff could not recover. Marchant v. The Lee 
 Conservancy Board, (Exch. Ch.), 43 Law J. Eep. 
 (n.s.) Exch. 44 ; Law Eep. 9 Exch. 60. 
 
 Appointment of clerk to viorMouse. 
 
 2. — :The clerk to the master of a workhouse is 
 not an inferior servant, nor is his nomination a 
 matter of immediate necessity, and therefore his 
 appointment by a board of guardians being a cor- 
 poration by 6 & 6 Will. 4. c. 69, s. 7, ought to be 
 under their common seal. Austin v. The Guar- 
 dians of St. Matthew, Bethnal Green, 43 Law J. 
 Eep. (n.s.) 0. P. 100 ; Law Eep. 9 C.P. 91. 
 
 COSTS AT LAW. 
 [And see Mandamus, Production, 13.] 
 
 (A) Costs of Plaintiff. 
 
 (a) Eule as to plaintiff's costs under County 
 Court Act, 1867, 30 ^ 31 Vict. c. 142. 
 (A) Arbitration. 
 
 (c) Judgment by consent in gectment. 
 
 (d) Admiralty jurisdiction of County Court. 
 
 (B) Costs of Pkosecution. 
 
 (C) Costs of Appeal. 
 
 (D) Jurisdiction to award. 
 
 (a) Interest on costs of appeal. 
 (6) Costs out of money taken from person 
 convicted at time of apprehension. 
 
 (c) Discretion of Judge. 
 
 (d) Bmle to enter nonsuit. 
 
 (E) Sboubity fok Costs. 
 
 (F) Taxation. 
 
 (a) Counsd's fees. 
 
 (6) Parliamentary election petition. 
 
 (c) Costs to abide event. 
 
 {d) Scale of taxation. 
 
 (G) Action to recover. 
 
 (A) Costs of Plaintiff. 
 
 (a) Eule as to plaintiff's costs under County Court 
 Act, 1867, 30 # 31 Tic*, c. 142. 
 
 1, — A declaration alleged that the defendant at 
 the time of the promise and negligence therein 
 alleged, was the owner of a hackney cab at the 
 time of the promise conducted by his servant ; 
 that the plaintiff at his request hired it of him, 
 and the defendant promised to convey the plaintiffs 
 luggage safely, but not regarding his duty or 
 promise negligently lost the same :^Held, that 
 the action was founded on contract, and that as a 
 sum not exceeding 201. was recovered, the plaintiff 
 was deprived of costs under 30 & 31 Vict. c. 142, 
 s. 5. Baylis v. Lintott, 42 Law J. Eep. (n.s.) C. P. 
 119 ; Law Eep. 8 C. P. 345. 
 
 2. — Where an action commenced in a superior 
 Court has been remitted to a County Court, under 
 the 10th section of the County Courts Act, 1867, 
 the superior Court has no longer any jurisdiction 
 to make an order for costs under the 5th section. 
 Moodie v. Steward, 40 Law J. Eep. (n.s.) Exch. 
 25 ; Law Eep. 6 Exch. 35. 
 
 3. — The plaintiff sued L. for S651. for goods 
 sold and delivered. On the day after the writ 
 
198 
 
 COSTS AT LAW (A). 
 
 was issued L. paid the plaintiff 3191., which ho 
 accepted on account of his claim. After declara- 
 tion L. pleaded in abatement the non-joinder of 
 H., whereupon the plaintiff amended the writ and 
 declaration under section 38 of the Common Law 
 Procedure Act, 1852, by adding the name of H. 
 as joint contractor. Both defendants pleaded 
 never indebted, and also a plea that after the writ 
 in the action had been issued against the defendant 
 L. and before the action was commenced against 
 the other defendant by amendment pursuant to 
 the said 38th section, the defendants satisfied the 
 plaintiff's claim by payment. The cause having 
 been referred to an arbitrator, costs to abide the 
 event, with power to the arbitrator to certify as 
 a Judge at Nisi Prius, the arbitrator by his award 
 found that the defendants were indebted to the 
 plaintiff in 322?., and that the defendants did, as in 
 their plea alleged, satisfy 319?., part of such debt, 
 by payment, and the arbitrator directed that the 
 verdict should therefore be entered for the plaintiff 
 for SI., being the difference between the two sums 
 of 322?. and 319?., and he gave no certificate as to 
 costs : — Held, that the only action in which the 
 plaintiff recovered, being the action against both 
 the defendants, he was deprived of his costs by 
 section 5 of the County Courts Act, 1867, inasmuch 
 as he recovered in that action less than 20?., and 
 he was not allowed to tax his costs of the cause 
 against the defendant L. alone. Salmain v. Lici- 
 fold, 44 Law J. Eep. (h.s.) C. P. 94 ; Law Rep. 10 
 C. P. 203. 
 
 4. — The plaintiff commenced an action in 
 detinue in the Lord Mayor's Court. At the in- 
 stance of the defendant, it was removed by certi- 
 orari into the Court of Queen's Bench, where 
 the plaintiff recovered 3?. 'The Judge who tried 
 the cause refused to certify Under the 5th section, 
 to give the plaintiff his costs : — Held, that he was 
 not entitled to his costs of the action. Fellas v. 
 Sreslauer, 40 Law J. Eep. (n.s.) Q. B. 161 ; Law 
 Eep. 6 a.B. 438. 
 
 6. — In an action of trespass quare clausumfrept 
 where the defendant pleaded several pleas foreign 
 to the real question in issue, the plaintiff obtained 
 a verdict for forty shillings ; and the Judge refused 
 to certify that there was sufficient reason for 
 bringing the action in a superior Court. The 
 Court afterwards, being of opinion that there was 
 sufficient reason for bringing the action in the 
 superior Court, and that if it had been commenced 
 in the County Court it might undoubtedly have 
 been removed to the superior Court, allowed the 
 plaintiff his costs by rule, notwithstanding that 
 the Judge who tried the cause had, on the same 
 materials, refused to certify. — Hatch v. Lewis (31 
 Law J. Eep. (n.s.) Exch. 26) distinguished. Hinde 
 V. Sheppard, 41 Law J, Eep. (n.s.) Exch. 25 ; Law 
 Eep. 7 Exch. 21. 
 
 6. — An action founded both on contract and on 
 tort having been referred to arbitration by con- 
 sent of the parties, the costs of the reference to be 
 in the discretion of the arbitrator, the arbitrator 
 awarded the plaintiff less than 201. in respect of 
 the contract, and less than 10?. in respect of the 
 tort, and directed that the defendant should pay 
 
 the plaintiff's costs of the reference: — Held, 
 that there was nothing in the 5th section of the" 
 County Courts Act, 1867, to prevent the parties 
 agreeing that the costs of the reference should be 
 in the arbitrator's discretion, and that the plaintiff 
 ought therefore (even without obtaining the certi- 
 ficate in that section mentioned) to have his costs 
 of the reference. Forskaw v. De Witt, 40 Law J. 
 Eep. (n.s.) Exch. 153 ; Law Eep. 6 Exch. 200. 
 
 7. — Eefereuce of a cause and other matters in 
 difference, the costs of the cause to abide the costs 
 of the reference. The arbitrator awarded the 
 plaintiff 259?. Is. in the cause, and the defendant 
 242?. 10s. as to the other matters, and directed the 
 latter sum to be deducted from the damages and 
 costs recoverable by the plaintiff in the action, 
 and the balance to be paid to the plaintiff: — ^Held, 
 that the event of the reference was in favour of 
 the plaintiff, and that section 6 of the County 
 Courts Act, 1867, had no application to the case 
 so as to deprive him of his costs. Stevens v. Chap- 
 man, 40 Law J. Eep. (n.s.) Exch. 123;, Law Eep. 
 6 Exch. 213. 
 
 8. — A case on appeal as to whether a defendant 
 was entitled in law to a verdict, stated, "if the 
 Court shall be of opinion in the affirmative, the 
 verdict is to be entered for the defendant, with 
 costs of defence." The defendant having succeeded 
 on appeal, — Held, that the plaintiff was not pre- 
 cluded from applying for a certificate, that he had 
 reasonable ground for making the defendant a 
 party. " Eeasonable ground " is a mixed question 
 of law and facts. Swift v. Jewshury, Law Eep. 
 9 Q. B. 660. 
 
 (5) Arbitration, 
 
 9. — On a reference of a cause involving an en- 
 quiry into a mass of accounts, an order was made 
 by a Judge, on the application of the plaintiff, 
 that an accountant, to be named by the arbitrator, 
 should inspect the defendant's books, and take 
 copies or extracts from them relating to the 
 matters in question in them. This was done, and. 
 the charges of the accountant were paid by the 
 plaintiff. The result of the investigation and re- 
 port of the accountant to the arbitrator was that 
 much expense in the inquiry was saved : — Held, 
 that the plaintiff, in whose favour the award was 
 made, was not entitled to have the costs of the 
 accountant taxed against the defendant. Nolan 
 V. Copeman, 42 Law J. Eep. (n.s.) Q. B. 44 ; Law 
 Eep. 8 Q. B. 84. 
 
 [And see supra Nos. 3, 6, 7, 8, and Aebitea- 
 TION, 29, 30.] 
 
 (c) Judgment by consent in ejectment. 
 
 10. — In an action of ejectment two persons 
 obtained leave to appear and defend for part. 
 They then took out a summons upon which the 
 Judge, by consent, made an order that the plain- 
 tiffs be at liberty to sign judgment ; execution to 
 be stayed for six weeks : — Held, that the plain- 
 tiffs were entitled to their costs on signing judg- 
 ment. Dalbiac v. JDe la Comrt, 44 Law J. Eep. 
 (n.s.) Exch, 129; Law Eep. 10 Exch. 210. 
 
COSTS AT LAW (A), (D). 
 
 19 
 
 («Z) Admralty jmisdietionef County Court. 
 
 11. — ^A County Court, to which Admiralty 
 jurisdiction is given by 31 & 32 Viet. e. 71. has 
 Admiralty jurisdiction over a claim not exceeding 
 300?., for damages for negligence causing a colli- 
 sion between a barge of the defendant and a ship 
 of the plaintiff in a river within the body of a 
 county forming part of its district. Therefore, 
 where an action was brought in respect of such a 
 claim for a collision in the Thames, in which, 
 after judgment in defeult of a plea, the damages 
 were assessed on a writ of enquiry at \bl., and no 
 certificate was given that the cause was a proper 
 one to be brought in the superior Co\irt, the plain- 
 tiff was held not entitled to the costs of the 
 action under 31 & 32 Vict. c. 71. s. 9. PurMs v. 
 Flower, 43 Law J. Eep. (n.s.) Q. B. 33 ; Law Bep. 
 9Q.B. 114. 
 
 (B) Costs of Peosecution. 
 
 12— By 16 & 17 Vict. c. 30, s. 6, after reciting 
 that " it is expedient to make further provision 
 for preventing the vexatious removal of indict- 
 ments into the Court of Queen's Bench," it is 
 enacted, " whenever any writ of certiorari to re- 
 move an indictment into the said Court shall be 
 awarded at the instance of a defendant or defen- 
 dants, the recognisance now by law required to be 
 entered into before the allowance of such writ 
 shall contain the further provision following, that 
 is to say that the defendant or defendants, in case 
 he or they shall be convicted, shall pay to the pro- 
 secutor his costs incurred subsequent to the re- 
 moval of such indictment," &c.: — Held, that the 
 prosecutor is entitled to his costs in the case of an 
 indictment removed by certiorari under this sec- 
 tion, though he is not " the party grieved or 
 injured " to whom costs are limited by the pre- 
 vious Act, 5 & 6 W. & M. c. 11, s. 3. The Queen 
 V. Oaatler, 43 Law J. Eep. (n.s.) Q. B. 42 ; Law 
 Eep. 9Q.B. 132. 
 
 (C) Costs op Appbai. 
 
 13. — The House of Lords having reversed, with- 
 out saying anything as to costs, a judgment of the 
 Exchequer Chamber which affirmed a decision of 
 the Coiirt of Common Pleas in favour of the de- 
 fendants, that Court refused an application by the 
 plaintiff to have his costs in the Exchequer 
 Chamber granted him. Feek v. The North Staf- 
 fordshire EaiVway Company (4 B. & S. 627) 
 commented on. 6ann v. Johnson,' iO Law J. Eep. 
 (n.s.) C.P. 227 ; Law Eep. 6 C. P. 461. 
 
 (D) Jtieisdiction to awaed. 
 (a) Interest on costs of appeal. 
 
 14. — Where on appeal a judgment of one of 
 the superior Courts is affirmed, such Court has no 
 power to allow interest upon the costs of the 
 appeal. The Lancashire and Yorkshire Sailway 
 Company v. Gidlow, 43 Law J. Eep. (n.s.) Exch. 
 1 ; Law Eep. 9 Exch. 35. 
 
 A verdict for the plaintiffb was set aside and a 
 verdict; entered for the defendant by a judgment 
 of this Court. The defendant thereupon signed 
 
 judgment for his costs, and the plaintiffs appealed 
 to the Exchequer Chamber, and afterwards to the 
 House of Lords. Both Courts affirmed the judg- 
 ment below with costs : — Held, that this Court 
 had no power, either by statute 1 & 2 Vict. c. 110, 
 s. 17, or Eeg. Gen. Trinity Term, 1867, to allow 
 to the defendant interest on the costs of the 
 appeal to the Exchequer Chamber or House of 
 Lords. Ibid. 
 
 (6) Coats out of money taken from person 
 convicted at time of apprehension. 
 
 15.— By 33 & 34 Vict. o. 23_, s. 3, power is 
 given to any Court, by which judgment is pro- 
 nounced, upon the conviction of any person for 
 treason or felony, in addition to such sentence as 
 may otherwise by law be passed, to condemn such 
 person to the payment of the whole or any part 
 of the costs or expenses of the prosecution ; and 
 the payment of such costs and expenses, or any 
 part thereof, may be ordered by the Court to be 
 made out of any moneys taken from such person 
 on his apprehension. By the Bankruptcy Act, 
 1869, 32 & 33 Vict. c. 71, s. 17, until a trustee is 
 appointed, the registrar shall be the trustee for 
 the purposes of that Act, and immediately upon 
 the order of adjudication being made, the property 
 of the bankrupt shall vest in the registrar, and 
 on the appointment of a trustee shall pass to him. 
 E. was convicted of felony at the May Sessions 
 of the Central Criminal Court; and the Court, 
 after passing sentence, made an order, under 33 & 
 34 Vict. c. 23, B. 3, for the payment of the costs 
 of the prosecution out of money taken from him at 
 the time of his apprehension. He had been 
 arrested on the 4th of the previous April, and on 
 the 24th of April he was adjudged bankrupt : — 
 Held, — without deciding what would have been 
 the case if the money in question, though in the 
 possession of, had not really belonged to the bank- 
 rupt, or if the act of bankruptcy had been previous 
 to his arrest, — that the order was valid, as the 
 subsequent bankruptcy could not affect the right 
 of the Criminal Court, which had vested at the 
 time of the arrest. The Queen v. Boberts, 43 Law 
 J. Eep. (n.s.) M. C. 17 ; Law Eep. Q. B. 77. 
 
 (c) Discretion of Judge. 
 
 16. — It is in the discretion of the Judge at the 
 trial to certify, under 30 & 31 Vict. c. 142, g. 5, 
 that there was sufficient cause for bringing such 
 action in the superior Court, so as to enable the 
 plaintiff to have his costs, where the sum recovered 
 is less than the amount required by that statute 
 to entitle him to costs, and the Judge is not de- 
 prived of such discretion and bound to certify, 
 because a right to land may be in issue in the 
 cause ; nor will the Court afterwards overrule such 
 discretion, unless there be strong grounds &r shew- 
 ing that it was wrongly^ exercised. Strachey v. 
 Osborne, 44 Law J. Eep. (n.s.) C. P. 6 ; Law Eep. 
 10 C.P. 92. 
 
 (d) Bute to enter nonsuit. 
 
 17. — ^Where a rule is obtained to enter a nonsuit 
 in the Mayor's Court, London, coats of the appli- 
 
200 
 
 COSTS AT LAW (D), (G). 
 
 cation cannot be allowed unless asked by the rule. 
 Phillips V. Bridge, Law E6p. C. P. 324. 
 
 (E) SBOxiiEiTy FOE Costs. 
 
 18. — Where the plaintiff in an action of trover 
 filed a petition for liquidation and a receiver was 
 appointed : — Held, that as being an insolvent per- 
 son suing as trustee for another, he was rightly 
 ordered to give security for costs. Malcolm v. 
 HodgJcinson, Law Eep. 8 Q. B. 209. 
 
 19.— By section 2, of 31 & 32 Vict. c. 54, a 
 certiiicate of a judgilient obtained or entered up 
 in any of the Courts of Queen's Bench, Common 
 Pleas, or Exchequer, may be registered in Edin- 
 burgh, and from the date of the registration shall 
 be of the same force and effect as a decreet of the 
 Court of Session, and all proceedings shall and 
 may be had and taken on an extract of such certi- 
 ficate, as if the judgment of which it is a certifi- 
 cate had been a decreet originally pronounced in 
 the Court of Session, &c. : — Held, that the effect 
 of this enactment is that the reason for the old prac- 
 tice of staying proceedings unless a plaintiff per- 
 manently resident in Scotland gives security for 
 costs, has now ceased, and that proceedings will 
 not be now stayed on such grounds. Baeburn v. 
 Andrew, 43 Law J. Eep. (n.s.) Q. B. 73 ; Law Eep. 
 9Q.B. 118. 
 
 20. — ^Wheu an order has been properly made 
 for a plaintiff to give security for costs, on the 
 ground that he is a foreigner living abroad, he is 
 not entitled to have the order rescinded, when he 
 afterwards comes to reside within the jurisdiction 
 of the Court. . Westenberq Vt MortiTnore, 44 Law 
 J. Eep. (n.s.) OrS. 289 ; La* Eep. 10 0. P. 438. 
 
 (F) Taxation. 
 (n) Counsel's fees. 
 
 21. — Upon taxation of costs between party and 
 party in a cause, the trial of which lasts more 
 than one day, refreshers to. counsel maybe allowed 
 if the Master in the exercise of his discretion 
 thinks that the circumstances of the case render 
 it- proper to allow them. Lawrie v. Wilson, 44 
 Law J. Eep. (n.s.) C. P. 87 ; Law Eep. 10 C. P. 
 152. 
 
 22. — There is no rule which on the taxation 
 of costs as between party and party forbids the 
 allowance of a further fee to counsel on the occa- 
 sion- of delivering a further brief, although such 
 further brief contain no new matter, but only a 
 new arrangement in a more compendious form of 
 matter which was in the first brief. Where, 
 therefore, after briefs had been delivered, the 
 plaintiffs' counsel desired to be furnished with a 
 tabulated statement of some of the facts, and the 
 Master on taxing the plaintiffs' costs as between 
 party and party, in the exercise of his discretion 
 having allowed additional fees to counsel on the 
 delivery of such tabulated statement, a, Judge at 
 chambers ordered the Master to review the taxa- 
 tion, and to disallow such additional fees, on the 
 ground that it was not competent to the Master 
 to -allow such fees where no new matter had 
 
 been furnished, the Court held that the Judge had 
 acted on an erroneous principle, and set aside such 
 order. WaTcefield v. Brovm, 43 Law J. Eep. (n.s.) 
 C. P. 222 ; Law Eep. 9 C. P'. 410. 
 
 Qusere — if the Court will reyerse the decision 
 of a Judge at chambers, where such 'Judge has 
 only reviewed the discretion of the Master in the 
 taxation of costs. Ibid. 
 
 (i) Parliamentary eleotion petition, 
 
 23. — Upon the taxation of the costs of a par- 
 liamentary election petition, it is within the dis- 
 cretion of the Master to allow a lump sum for 
 "Instructions for Brief," provided the items 
 making up the litmp sum have been brought be- 
 fore him,.so as to enable him to determine whether 
 it represents reasonable and proper charges. Barn- 
 staple Election Petition ; Fleming v. Cave, 44 Law 
 J. Eep. (n.s.) C. P. 200. 
 
 (c) Costs to abide event. 
 
 24. — By a rule for a new trial the costs were 
 to abide the event. On the first trial the plaintiff 
 had obtained a verdict for 66Z. odd ; as to 51. there 
 was no dispute, and the defendant had leave to 
 move for a new trial, on the ground that the ver- 
 dict was against the weight of evidence and the 
 damages excessive, unless the plaintiff would con- 
 sent to reduce the damages to 61. The defendant 
 obtained a rule nisi for a new trial on such ground, 
 which was subsequently made absolute, the costs 
 to abide the event, and afterwards and before the 
 second trial, the defsndant paid into Court 
 bl. 2s. Wd., under an order by consent. At the 
 second trial the defendant had a verdict : — Held, 
 that the plaintiff was not entitled to the costs of 
 the first trial, and that the " event " referred to 
 in the rule meant the dispute as to the balance 
 between the 66J. 19s. 6d. and the 51. Jones v. 
 Williams, 42 Law J. Eep. (n.s.) Q.B. 48; Law 
 Eep. 8 Q.B. 280. 
 
 {d) r Scale of taxation. 
 
 25. — If in an action of debt where the writ is 
 endorsed with more than 501. the plaintiff recovers 
 less than 201., and the Judge certifies under 30 & 
 31 Vict. c. 142, K. 5, that there was sufficient 
 reason for bringing the action in the superior 
 Court, the effect of the seventh direction to the 
 Masters, Hilary Term, 1853, is that the plaintiff's 
 costs must be taxed on the lower scale. Smith v. 
 Bailey, 42 Law J. Eep. (n.s.) Exch. 5 ; Law Eep. 
 8 Exch. 16. 
 
 (G) Action to keooveb. 
 
 26. — An action lies to recover the costs on an 
 indictment for libel given by 6 & 7 Vict. c. 96 
 B. 8. Biohardson v. Willis, 42 Law J. Eep. (n.s, 
 Exch. 68. 
 
 [And see Snippma Law, 1 12.] 
 
COSTS IN EQUITY (A), (D). 
 
 201 
 
 ' COSTS IN EQUITY. 
 [And see Intbbplbabbe ; Lands Clauses Act.] 
 
 (A) Ineohmation and Bnx. 
 
 (B) Improper At.t.eoations m PLEADmas. 
 (a) Irrelevant charges. 
 
 (J) Charges of fraud withdrawn. 
 
 (C) Deiturbeb. 
 (a) Ore tenus. 
 
 (i) Neglect to raise defence by demurrer. 
 
 (D) Accounts and ENauiBiBS. 
 
 (E) Plubamty op Suits. 
 
 (F) Appbai. 
 
 (Gr) Administration Suits. 
 
 FORECIOSTJRE SUITS. 
 
 (I) Suit to eesteajn Infringement of Trade 
 
 Makk. 
 (K) Spectpic Peepormance. 
 (L) Petitions. 
 
 (fl) Two petitions. 
 
 (i) Stop order. 
 
 lo) Eespondent appearing unnecessarily, 
 
 (d) Payment out and reinvestment. 
 (M) Motions. 
 
 (N) D1SCI.AIMINQ Defendant. 
 (0) Trustees and Executors. 
 (P) Apportionment of Costs. 
 (Q) Costs. 
 
 (a) Of the day. 
 
 (A) As between solicitor and client. 
 (E) County Court Scale. 
 (S) Secubity poe Costs. 
 (T) Taxation. 
 
 (a) Bight to tax, 
 
 (6) Summons in matter of charity. 
 
 (c) Order to tax : name of partnership. 
 
 {d) Discretion of Taxing Master. 
 
 (e) Scale of taxation. 
 
 (1) Higher or lower. 
 
 (2) Chancery or Parliamentary. 
 
 (3) Issues tried by Court. 
 
 (/) Briefs to counsel : third counsel, 
 (g) Evidence a/nd witnesses. 
 (A) Costs partially awarded. 
 
 (A) Infobmation and Bnx. 
 
 1. — A decree in a suit and infonnation directed 
 the plaintiff's costs thereof to be paid by the 
 defendants: — Held, that the plaintiffs costs of 
 obtaining the Attomey-peneral's fiat before filing 
 the infonnation, and in respect of proceedings 
 entitled in the suit, -which had been taken before 
 the Attorney-General, Tvith reference to the with- 
 drawal of his fiat pending an appeal, were costs in 
 the cause, payable by the defendants. The Attor- 
 ney-General V. The Corporation of Halifax, 41 
 Law J. Eep. (n.s.) Chanc. 100 ; Law Eep. 12 Eq. 
 263. 
 
 (B) Improper Allegations in Pleadings. 
 
 (a) Irrelevant charges. 
 
 2. — A plaintiff, who had introduced into his bill 
 irrelevant charges of fraud against the defendant, 
 PiGEST, 1870—1875. 
 
 upon his bill being dismissed with costs, was 
 ordered to pay the defendant's costs, so far as 
 they had been increased by such charges, as be- 
 tween solicitor and client. Forester v. Bead, Law 
 Eep. 6 Ghanc. 40. 
 
 (b) Charges of fraud withdrawn. 
 
 3. — The Court will at the hearing of a cause, 
 and without any special application, order the 
 plaintiff to pay the additional costs occasioned by 
 a case made and allegations inserted in an amended 
 bill, which have been struck out and abandoned 
 by re-amesdment. Mounsey t. Bmnham (1 Hare, 
 22) not followed. Finch v. Westrope, 40 Law J, 
 Eep. (n.s.) Chanc. 441 ; Law Eep. 12 Eq. 24. 
 
 [And see Principal and Agent, 21.] 
 
 (C) Demubbee. 
 
 (a) Ore tenus. 
 
 4. — Demurrer being sustained only on a ground 
 alleged ore tenus, the plaintiff -bus allowed his 
 costs under Cons. Ord. XIV. rule 1. Ward t. The 
 Sittingbourna Bailway Company, 43 Law J. Eep, 
 (n.s.) Chanc. 633 ; Law Eep. 9 Chanc. 488. 
 
 (i) Neglect to raise defence by demurrer. 
 
 5; — In a suit by a purchaser for specific per- 
 formance a vendor was allowed full costs, not- 
 withstanding that he had not raised by demurrer 
 the defence of uncertainty of contract, on the. 
 ground of which the bill was dismissed. Pearce v. 
 Watts, 44 Law J. Eep. (n.s.) Chanc. 492 ; Law 
 Eep. 20 Eq. 492. 
 
 6. — The practice of the Court in allowing to a 
 successful defendant, who might have raised his 
 defence by demurrer, such costs only as he would 
 have been entitled to if he had demurred will only 
 prevail where upon the bill the plaintiff is entitled 
 to no relief, and not where, having a right to some 
 relief, he seeks other. Bush v. The Trowbridge 
 Water Compamy, 44 Law J. Eep. (n.s.) Chanc. 
 645; Law Eep. 10 Chanc. 459. 
 
 (D) Accounts and ENQunuus. 
 
 7. — Where by a decree the costs of the suit are 
 given to one party, but further consideration is 
 not reserved, the costs of all subsequent accounts 
 and enquiries necessary to the working out of the 
 decree are included, whatever may be the result 
 of the accounts and enquiries. But if the party to 
 whom the costs are given by the decree brings in 
 under an enquiry irrelevant matters not coming 
 within its terms, he will be ordered to pay his 
 opponent's costs of the enquiry, so far as it relates 
 to the irrelevant matters. Krehl v. Parh, 44 Law 
 J. Eep. (n.s.) Chanc. 286 ; Law Eep. 10 Chanc. 
 334. 
 
 An application for such an order may be made 
 by motion under the liberty to apply to the Court 
 reserved by the decree. Ibid. 
 
 8. — Where a plaintiff who had been deprived 
 of the conduct of an administration suit attended 
 the taking of accounts in chambers, he was held 
 not entitled to his costs. ArmMrong v. Arm- 
 strong, Law Eep. 12 Eq. 614. 
 PD 
 
202 
 
 COSTS IN EQUITY (B), (G). 
 
 (E) Pl.UBA.LITT OF StJITS. 
 
 9. — Where a party claims his costs out of a- 
 fund paid into Court in an old suit, and a second 
 suit is instituted with respect to the fund, which 
 latter suit afterwards abates, the proper course 
 for the claimant to adopt is to present a petition, 
 entitled in both suits, stating the special facts of 
 the case, and praying relief accordingly. Harris 
 T. Rich, and De Rozas t. Eioli, 43 Law J. Eep. 
 (n.s.) Chanc. 440. 
 
 Concurrent suits : transfer. [See Peactice 
 IN Equity, 47.] 
 
 (F) Appkal. 
 
 10. — It is the common rule of the Court of 
 Appeal not to give the costs of the appeal to a 
 successful appellant, though such costs may be 
 given under exceptional circumstances. Defnny t. 
 Hancock, 40 Law J. Eep. (n.s.) Chanc. 193 ; Law 
 Eep. 6 Chanc. 138. 
 
 11. — The rule that the Court of Appeal does 
 not give to the successful appellant the costs of 
 the appeal is not altered, although it has power 
 to give such costs in special cases. Alexander v. 
 MiUs, 40 Law J. Eep. (n.s.) Chanc. 73 ; Law Eep. 
 6 Chanc. 124. 
 
 12. — The right of a mortgagee in a suit for re- 
 demption or foreclosure to his general costs of 
 suit, imless he has forfeited it by some improper 
 defence or other misconduct, is well established, 
 and does not rest upon any exercise of that dis- 
 cretion of the Court which in litigious causes is 
 generally not siibject to review. Therefore, where 
 the Court below has disallowed the mortgagee his 
 costs of such a suit, an appeal will lie for them, 
 Cotterell v. Stratton, 42 Law J. Eep. (n.s.) Chanc. 
 417 ; Law Eep. 8 Chanc. 295. 
 
 The appellant in such a case, if successful, wiU 
 be entitled to add his costs of appeal to his secu- 
 rity. Ibid. 
 
 A mortgagee in possession will not be refused 
 his costs on the ground merely that the demand 
 which he made before suit has been found, after 
 charging him with an occupation rent and rents 
 not received, and disallowing certain parts of hii 
 expenditure, to be more than the sum actually 
 due at the filing of the bill. Ibid. 
 
 13. — The costs of a motion to stay proceedings 
 under a decree, pending an alppeal to the House of 
 Lords, must, in the absence of special circum- 
 stances, be paid by the party making the applica- 
 tion. Burdick v. G-arrick (39 Law J. Eep. (n.s.) 
 Chanc. 661; Law Eep. 5 Chanc. 643) not fol- 
 lowed. Merry v. Nickalls, 42 Law J. Eep. (n.s.) 
 Chanc. 479 ; Law Eep. 8 Chanc. 206. 
 
 14. — A successful appellant from the County 
 Court is entitled to the costs of the appeal as well 
 as of the proceedings in the Court below. Ashby 
 V. Sedgwick, 42 Law J. Eep. (n.s.) Chanc. 356 ; 
 Law Eep. 15 Eq. 245. 
 
 15. — Where exceptions for scandal had been 
 overruled in the Court below, but allowed on 
 appeal, the Court gave the successful appellant 
 his costs both of the appeal and in the Court 
 below as between solicitor and client, Christie v. 
 
 Christie, 42 Law J, Eep. (n.s.) Chanc. 544 ; Law 
 Eep, 8 Chanc. 499. 
 
 (Q-) Administbation Suits. 
 
 16. — The bill in an administration suit raised 
 a question regarding a testatrix's will, upon the 
 decision of which depended the plaintiff's title to 
 any interest in her estate. The decision being 
 against the plaintiff taking any interest, his bill 
 was dismissed with costs. Andersmi v. Anderson, 
 41 Law J. Eep. (n.s.) Chanc. 247. 
 
 17 i — Specific and residuary devises and specific 
 bequests must contribute rateably to the payment 
 of such part of the costs of an administration suit 
 as the personal estate is insufS-cient to satisfy. 
 Bagot V. Legge (2 Dr. & Sm. 259) considered. 
 Jackson v. Pearse, Law Eep. 19 Eq. 96. 
 
 18, — A direction that legatees should eon- 
 tribute rateably to testamentary expenses in 
 exoneration of the residue : — Held, not to apply 
 to the costs of an administration suit. ' In re 
 BieVs Estate; Grai/ v. Warner, 42 Law J. Eep. 
 (n.s.) Chanc. 656; Law Eep. 16 Eq. 577. 
 
 19. — In a suit to administer specifically devised 
 real estate a question was raised as to whether 
 certain land was comprised in the devise or passed 
 to the heir-at-law. It was held to be comprised 
 in the devise, but there were other lands which 
 descended : — Held, that the costs of the suit could 
 not be thrown on the descended estates in exoner- 
 ation of the devised estates, since the descended 
 estates were not being administered in the suit ; 
 but the heir-at-law might be ordered to pay a 
 proportional amount of the costs of the suit, corre- 
 sponding to the value of the descended estates. 
 Hardwick v. Hardwick, 42 Law J. Eep. (n.s.) 
 Chanc. 636; Law Eep. 16 Eq. 168. 
 
 20. — The legal estate of a deceased testator 
 being outstanding in a lessee who was one of the 
 two executors, the heir-at-law filed a bill against 
 the devisee and executors, to set aside the will. 
 An issue was directed and the will established as 
 valid : — Held, that the biU must be dismissed 
 without costs as against the devisee. Banks v. 
 Goodfellow, 40 Law J. Eep. (n.s.) Chanc. 511 ; 
 Law Eep. 11 Eq. 472. 
 
 21. — In a suit by legal mortgagees of real 
 estate for sale of the mortgaged property, and for 
 the general administration of the mortgagor's 
 estate, the proceeds of the mortgaged property 
 ■svill be applied in payment to the mortgagees of 
 their principal, interest and costs, in priority to 
 the payment to devisees or executors, who have 
 been made parties, of their costs of the suit. 
 Pinchard v. Fellows, 43 Law J. Eep. (n.s.) Chanc. 
 227 ; Law Eep. 17 Eq. 421. 
 
 22. — In a simple administration suit instituted 
 by a legal mortgagee, the balance of the proceeds 
 of the mortgaged property will be applied in pay- 
 ment of the costs of the suit of the personal re- 
 presentative in priority to the mortgagee's costs 
 of realising the security. In re Spensley's Estate ; 
 Harrison v. Spensley, 42 Law J. Eep. (n.s.) Chanc. 
 21 ; Law Eep. 16 Eq. 16. 
 
 2 3. ^Next-of-kin who unsuccessfully opposed 
 charitable legacies allowed costs only as between 
 
COSTS IN EQUITY (G), (L). 
 
 203 
 
 party and party, notwithstanding Carter v. Gnen, 
 3 Kay & J. 691. Wilkinson v. Barber, 41 Law J. 
 Eep. (n.s.) Ohano. 721 ; Law Eep. 14 Eq. 96. 
 
 Administration suit bv mortgagee : costs of 
 mortgagee paid off in summary manner. 
 [See MoETGAGE, 52.] 
 
 (H) FOBECLOSUEE SuiTS. 
 
 24. — ^Mortgagees in possession filed a bill for 
 foreclosure. The bill was amended, and a sale 
 made with consent of the defendants, the owners 
 of the equity of redemption: — Held, that the 
 plaintifis were entitled to be paid their costs 
 before any costs were allowed the defendants. 
 Cooh V. Hart, 41 Law J. Rep. (n.s.) Chanc. 143 ; 
 Law Eep. 12 Eq. 459. 
 
 [And see supra No. 12.] 
 
 (I) Suit to eestbain Infeinsement of 
 Tbade Maek. 
 
 25. — ^BiU by the plaintiff, a merchant, to re- 
 strain the defendant, an agent, who received 
 goods from the Continent, and forwarded them to 
 parties in England for a commission, from for- 
 warding goods bearing a forged imitation of the 
 plaintiff's trade mark. On a first application, the 
 defendant readily gave the names of the persons 
 from whom and to whom the goods were sent, but ■ 
 declined to give an undertaking not to take them 
 out of the dock : — Held, that mider the circiim- 
 stances the defendant should neither pay nor re- 
 ceive costs. UpmannY. Elkan; Allones y . EXkan, 
 40 Law J. Eep. (n.s.) Chanc. 475 ; Law Eep. 12 
 Eq. 140. 
 
 Semble — if he had refused to give his prin- 
 cipal's name, he would have had to pay costs, and 
 if he had undertaken without suit in the terms 
 prayed, he would have been entitled to his costs. 
 A person to whom the goods were sent, and who 
 was innocent of fraud, was made a party : — Held, 
 that he was entitled to his costs. Ibid. 
 
 The persons by whom the goods were sent were 
 in communication with their agents during the 
 proceedings, and having no property within the 
 jurisdiction, except the goods, were not made 
 parties to the suit : — Held, that the plaintiff's 
 costs should be charged on the goods, with liberty 
 for tho owners to intervene. Ibid. 
 
 26. — Bill by the plaintiff, a merchant, to re- 
 strain the defendant, an agent, who received goods 
 from the Continent, and forwarded them to parties 
 in England for a commission, from forwarding 
 goods bearing a forged imitation of the plaintiff's 
 trade mark. On a first application, the defendant, 
 who was innocent of the fraud, readily gave the 
 names of the persons by whom the goods were 
 sent, and offered to erase the forged marks : — ■ 
 Held, affirming the decision of the Master of the 
 Eolls, that costs ought not to be given against the 
 defendant. Upmann v. Elkan, 41 Law J, Eep. 
 (n.s.) Chanc. 246 ; Law Eep. 7 Chanc. 130. 
 
 27. — ^Where the plaintiffs and the defendants 
 in a suit to restrain infringement of a trade mark 
 were alike engaged in "the manufacture and sale 
 of an article which was intended to deceive the 
 
 public the Court, on dismissing the bill, declined 
 to give costs. Estcowrt v. The Estcourt Hope 
 Essence Company (Lim,), 44 Law J. Eep. (n.s.) 
 Chanc. 223 ; Law Eep. 10 Chanc, 276. 
 
 (K) Specific Peefoemanoe. 
 
 28. — A decree for specific performance of a 
 contract having been made as against two defen- 
 dants in a suit which had been rendered necessary 
 by the misconduct of one of them, ordered, that as 
 between the two defendants, the costs ordered to 
 be paid by both of them to the plaintiff ought to 
 be borne by the one whose misconduct caused the 
 suit. Wilson v. Thomson, 44 Law J. Eep. (n.s.) 
 Chanc. 527 ; Law Eep. 20 Eq. 469, 
 
 (L) Petitions. 
 
 (a) Two petitions. 
 
 2 9. —-When two petitions are presented on the 
 same day in the same matter, the Court will order 
 the costs of the more perfect petition only to be 
 paid out of the fund, notwithstanding that the less 
 perfect petition was presented first. In re Fring's 
 Tmsts, 42 Law J. Eep. (n.s.) Chanc. 473. 
 
 (4) Stop order. 
 
 30. — An incumbrancer presented a petition for 
 a stop order on a fund in Court, he had not applied 
 to the mortgagor to consent to one being granted 
 on summons : — Held, that the petitioner must pay 
 the difference between the costs of obtaining a 
 stop order on a summons at chambers, and the 
 costs of the petition. Wellesley v. Mornington, 
 41 Law J. Eep. (n.s.) Chanc. 77. 
 
 (o) Bespondent appearing unnecessarily. 
 
 31. — Where a petitioner does not, on serving 
 a respondent who has no interest, tender him a 
 sufficient sum to enable him to consult a solicitor, 
 the petitioner must pay his costs of appearing. 
 Wood V. Boucher, 40 Law J. Eep. (n.s.) Chanc. 
 112; Law Eep. 6 Chanc. 77. 
 
 {d) Payment out and reinvestment. 
 
 32. — Where a special Act giving compulsory 
 powers of taking land only, provides that the 
 company shall pay the costs of reinvestment, the 
 company is not liable to pay the costs of payment 
 out to parties entitled, even where the money was 
 originally paid into the Court of Exchequer. In re 
 Harrison's Estate, 40 Law J. Eep. (n.s.) Chanc. 77. 
 
 33. — A fund was paid into Court under the 
 Trustee Eelief Act ; and a petition was presented 
 by the tenant for life for payment of the dividends 
 to her. If the fund had not been paid into Court 
 it would have been necessary to appoint new 
 trustees : —Held, that the costs of the appearance 
 of the trustees should be paid out of the corpus. 
 In re Woods Trusts, 40 Law J. Eep. (n.s.) Chanc. 
 179; Law Eep. 11 Eq. 165. 
 
 34. — Costs not allowed on a petition for pay- 
 ment out of money towards pa.ying off incum- 
 brances, under a local Act, which provided only 
 for the payment by the parties taking the land of 
 dd2 
 
204 
 
 COSTS IN EQUITY (L), (P). 
 
 tlie costs of a reinrestment in land. In re 
 Lord Stanley of MderUy's Estate, Law Eep. 14 
 Eq. 227. 
 
 35. — Where the private Act of a railway com- 
 pany provided that moneys paid in for the pur- 
 chase of land should be re-invested in land, and 
 gave the Court power to order the " costs of all 
 purchases," together with the " necessary costs of 
 obtaining such order " to be paid by the company : 
 — ^Held, that the Court had no power to order 
 costs to be paid by the company upon a petition 
 for the absolute transfer of the fund in Court. In 
 re Williams' Estate, Law Rep. 12 Eq. 488. 
 
 36. — A proceeding under a statute is not a 
 proceeding in equity, and the Court will only 
 allow such costs as are authorised by the statute. 
 In re the Spitalfields Schools (Law Eep. 10 Eq. 
 671) not followed. In re the Charity Schools of 
 St. Swistan-in-the-West, Law Eep. 12 Eq. 637. 
 
 37. — ^Money owed by a company was paid into 
 Court. On petition for payment out, the liquidator 
 was allowed costs of appearance, but not costs in- 
 curred previously to payment in investigating the 
 title of rival claimants. Bonelli's Electric Tele- 
 graph Company ; Cook's Claim, 44 Law J. Eep. 
 (n.s.) Chanc. 207 ; Law Eep. 18 Eq. 656. 
 
 Costs under Lands Clauses Act. [See Lairds 
 Clauses Act.] 
 
 (M) Motions. 
 
 38. — Where a motion for an injunction involv- 
 ing the merits of the cause was ordered to stand 
 over to the hearing, and afterwards the bill was 
 changed into an information and bill, and at the 
 hearing a decree for a perpetual injunction was 
 made with costs, the plaintiff's costs of the motion, 
 though not specifically mentioned, are costs in the 
 cause, and will be allowed him on taxation. The 
 Attorney- General v. Lonsdale, 40 Law J. Eep. (n.s.) 
 Chanc. 198; Law Eep. 6 Chanc. 141. 
 
 39. — A motion for a receiver made by the 
 plaintiff in a partnership 'suit was ordered to stand 
 over till the hearing of the cause, and no order 
 was made as to the costs of the motion. After- 
 wards the common order was made for dismissing 
 the bill for want of prosecution : — Held, that the 
 defendant's costs of the motion must be allowed 
 him as costs in the cause. Corcoran v. Witt, 41 
 Law J. Eep. (n.s.) Chanc. 67 ; Law Eep. 13 Eq. 
 63. 
 
 Motion to dismiss : continuing suit, [See 
 Pkacticb in EauiTT, 54.] 
 
 (N) Disclaiming Defendant. 
 
 40. — The defendant to a foreclosure suit who 
 disclaims will not be entitled to his costs of ap- 
 pearing on subsequent proceedings, even though 
 served with notice of them. Bavi^ v. Whitmore 
 (28 Beav. 617) overruled; -Ford r. The Earl of 
 Chesterfield (22 Law J. Eep. (n.s.) Chanc. 630) 
 approved of. Clarke v. Tolman, 42 Law J. Eep. 
 (n.s.) Chanc. 23. 
 
 (0) Teusiees and Exeoutoes. 
 
 41. — A trustee refused to join his co-trustee in 
 euing to recover trust property, and put in an 
 
 answer. He was disallowed costs. Gompertz v. 
 Kensit, 41 Law J. ^Eep. (n.s.) Chanc. 382 ; Law 
 Eep. 13 Eq. 869. 
 
 42. — After the institution of a suit by creditors 
 to set aside a voluntary settlement, the settlor 
 became bankrupt, and the settlement was set 
 aside by the Court of Bankruptcy. The plaintiffs, 
 whose claim under the bankruptcy had been 
 allowed, although opposed by the trustees of the 
 settlement, wrote to the latter offering to dismiss 
 the bill as against them without costs, the plain- 
 tiffs to have their costs out of the estate. The 
 trustees having declined this proposal : — Held, 
 that they must pay the plaintiffs' costs since the 
 date of that offer ; that the plaintiffs were enti- 
 tled to their costs down to that date out of the 
 estate realised in bankruptcy, and that the trus- 
 tee in bankruptcy ought to have applied to the 
 Court to stop the suit, and was entitled only to 
 the costs of realising the estate. Tangueray v. 
 Bowles, Law Eep. 14 Eq. 161. 
 
 43. — An executor died insolvent, having mis - 
 applied the assets. An administration suit hav- 
 ing been instituted against his executors, who had 
 received part of the testator's estate, they duly 
 accounted for what they had received: — Held, 
 that they were entitled to the costs of aecoimts 
 against themselves, but not to costs of aecoimts 
 against the estate of the insolvent executor, and 
 that as to other costs of suit, being parties in both 
 capacities, they should have half the costs. 
 Falmer v. Jones, 43 Law J. Eep. (n.s.) Chanc. 
 349. 
 
 44. — Though a solicitor who accidentally (or 
 upon separate retainers) represents two or more 
 parties ought to distinguish the charges incurred 
 for each separate party, yet where there is a joint 
 retainer (as by trustees not severing in their de- 
 fence) he can enforce the whole bill of costs in- 
 curred against either of the parties. Watson v. 
 Bow, 43 Law J. Eep. (n.s.) Chanc. 664 ; Law 
 Eep. 18 Eq. 680. 
 
 In re Colquhmm (5 De Gex, M. & G. 35; 1 Sm. 
 & Giff. App. i. ; 22 Law J. Eep. (n.s.) Chanc. 484 ; 
 23 Ibid. 615); and Harmer v. ifajris (1 Euss. 
 165) considered. Ibid. 
 
 Two trustees gave a joint retainer in a suit to 
 administer the trust estate. One became insol- 
 vent and was indebted to the estate : — Held, 
 that the surviving trustee should have the whole 
 costs of himself and his co-trustee allowed out of 
 the estate without any set-off in respect of the 
 estate. Ibid. 
 
 Trustee having constructive notice refused 
 costs, although not held liable for neg- 
 ligence. [See Teust, B 19.] 
 
 Trustee's costs of payment into Court. [See 
 Trustee, D 7.] 
 
 (P) Appoetionment op Costs. 
 
 [And see infra Nos. 79, 80.] 
 
 45. — In the absence- of special circumstances 
 the entire costs of a partition suit ought to be 
 borne by the parties in proportion to the value of 
 their respective shares. Cannon v. Johnson, 40 
 
COSTS IN EQUITY (P), (T). 
 
 205 
 
 La-w J. Kep. (n.s.) Chauc. 46 ; Law Rep. H Eq. 
 90. 
 
 46.— In a partnership suit where the mat- 
 ters in dispute were referred to arbitration, instead 
 of accounts being taken in chambers :— Held, that 
 the costs of the suit and of the reference and 
 award ought to be borne by the plaintiff and the 
 defendant in proportion to their shares in the 
 partnership. Newton v. Taylor, Law Hep. 19 
 Eq. 14. 
 
 (Q) Costs. 
 
 (a) Of the day. 
 
 47. — Where it appears on the biU that the 
 suit is defective for want of parties, a defendant 
 who takes the objection at the hearing is entitled 
 to the costs of the day, though he has not taken 
 the objection by his answer. Eowsell v. Morris, 
 43 Law J. Eep. (n.s.) Ohanc. 97 ; Law Eep. 17 
 Eq. 20. 
 
 (6) As between solicitor and client, 
 
 48. — ^An arbitrator had power in a reference 
 in a suit in Chancery to award costs: — Held 
 (affirming the decision of Bacon, V.C.), that he 
 might give costs as between solicitor and client. 
 Mordtie v. Palmer, 40 Law J. Eep. (n.s.) Chanc. 
 8 ; Law Eep. 6 Chanc. 22. 
 
 49. — The Court has no jurisdiction to give 
 costs as between solicitor and client, except in 
 cases of scandal, or where the defendant fills a 
 fiduciary position. Tuner v. Collins, 40 Law J. 
 Eep. (n.s.) Chanc. 614; Law Eep. 12 Eq. 438. 
 
 (E) County Cotjet Scale. 
 
 50. — A plaintiff who sues in Chancery for a 
 sum within the County Court limit, and obtains a 
 decree, is entitled to the usual costs, and not 
 merely to those which he would have been allowed 
 in the County Court. Brown v. Rye, 43 Law J, 
 Eep. (n.s.) Chanc. 228 ; Law Eep. 17 Eq. 343. 
 
 (S) Secueitt foe Costs. 
 
 51. — A bill was filed by a limited company in 
 liquidation to set aside a mortgage which the de- 
 fendants were foreclosing, or to have the accounts 
 taken on a footing totally different from that sug- 
 gested in the foreclosure suit, and was expressed 
 to be a cross-bill to the foreclosure suit : — Held, 
 affirming the decision below, 41 Law J. Eep. 
 (n.s.) Chanc. 151, that the bill was not a mere 
 cross-biU, and that the plaintiff company must 
 give security for costs. The City of Moscow Gas 
 Company (Lim.) v. The International Financial 
 Society {Lim.), 41 Law J. Eep. (n.s.) Chanc. 350 ; 
 Law Eep. 7 Chanc. 255. 
 
 Semble^-that even if it had been a mere cross- 
 bill, the plaintiff company being in liquidation 
 must give security for costs. Ibid. 
 
 52. — ^Tho bond of an officer in Her Majesty's 
 service, whose regiment is stationed out of the 
 jurisdiction of the Court, is a sufficient security 
 for the costs of a plaintiff in a Chancery suit, re- 
 sident out of the jurisdiction. Miller v. Hales, 
 43 Law J. Eep. (n.s.) Chanc. 446 ; Law Eep. 17 
 Eq. 430. 
 
 63. — Upon appeal by a defendant, it having 
 been proved that he was a man without property, 
 and had no substantial interest in the suit, but 
 was defending it on behalf of another person, he 
 was ordered to give security for costs. The Mayor, 
 S[C., of Hastings v. Ivall, 43 Law J. Eep, (n.s.) 
 Chanc. 728 ; Law Eep. 9 Chanc. 758. 
 
 (T) Taxation. 
 (a) Bight to tax. 
 
 54. — "Where a solicitor has obtained a charg 
 ing order on money recovered by his means, and 
 such money is paid into the Court of Chancery for 
 distribution amongst the parties entitled within a 
 year from the delivery of the solicitor's bill, the 
 solicitor is not entitled to have his costs paid 
 without taxation out of the fund in Court, 
 although more than a year may have subsequently 
 elapsed from the delivery of the bill. De Bay v. 
 Griflin, Law Eep. 10 Chanc. 291. 
 
 55. — Where a solicitor, during the continuance 
 of a suit sent in biUs of costs from time to time 
 to his client and received acceptances from him 
 with which he credited his client in certain cash 
 accounts which were kept during the suit, but 
 none of which accounts were ever settled, and the 
 greater part of the bills were delivered more than 
 twelve months before a summons for taxation of 
 costs was taken out, but within that period the 
 solicitor wrote to his client a letter stating that 
 he intended to increase some of his charges in the 
 earlier bills, — Held, that the effect of the letter 
 was to bring down all the bills as one, and to 
 render them aU liable to taxation. In re Cart- 
 wrighi, 42 Law J. Eep. (n.s.) Chanc. 736 ; Law 
 Eep. 16 Eq. 469. 
 
 What are " special circumstances " within 6 & 
 7 Vict. c. 73, s. 37. Ibid. 
 
 56. — The continuance of the relationship of soli- 
 citor and client is not of itself such a specialcir- 
 cumstance that the Court will on account of it 
 order the taxation of a bill of costs twelve months 
 after it has been delivered. The Court will not 
 after a lapse of twelve months go into questions 
 of excessive charge, unless it can be proved that 
 there are items of gross overcharge amounting to 
 fraud. In re Elmslie ^ Company ; Ex parte the 
 Tower Subway Company, 42 Law J, Eep. (n.s.) 
 Chanc. 570 ; Law Eep. 16 Eq. 326. 
 
 57. — The solicitor of a company delivered his 
 bill of costs three months before the winding-up. 
 After the winding-up, he delivered to the liqui- 
 dator a second bill, comprising the period inter- 
 vening between the delivery of the first bill and 
 the date of the winding-up. No step was taken 
 until more than twelve months had elapsed since 
 the delivery of either bill : — Held, that notwith- 
 standing the lapse of time, both bills were still 
 subject to taxation. In re the Marseilles Exten- 
 sion Railway and Land Company {lAm.) ; Evans's 
 case, 40 Law J. Eep. (n.s.) Chanc. 197 ; Law Eep. 
 11 Eq. 151. 
 
 58. — ^When a client has paid his solicitor's bill 
 under pressure before delivery of the bill he is 
 entitled to have it taxed, at any time before the 
 
206 
 
 COSTS IN EQUITY (T). 
 
 expiration of a year. In re Fielder; Ex parte 
 Bailey, 40 Law J. Eep. (n.s.) Chano. 615. 
 
 69. — When one solicitor asks another to look 
 up some old deeds in his possession, and offers to 
 pay his costs, the hill for these costs is taxahle 
 in the usual way. In re Bowen, 41 Law J. Rep. 
 (n.s.) Chanc. 327. 
 
 60. — Though it is not necessary that the per- 
 son employed as returning officer at the first 
 election of a school hoard should be a solicitor, 
 nevertheless if he is so, the board, who are di- 
 rected to pay his expenses, may have his bill 
 taxed in the usual way. In re Jones, 41 Law J. 
 Eep. (n.s.) Chanc. 367; Law Eep. 13 Eq. 336. 
 
 (b) Summons in matter of charity. 
 
 61. — On an application by the Attorney-Gene- 
 ral in the matter of a charity, asking for the tax- 
 ation of costs, &c., not costs in the matter, the 
 summons should state the matters in respect of 
 which such costs are asked for. In re iulwich 
 College, Law Eep. 16 Eq. 294. 
 
 (c) Order, to tax: nam^ of partnership. 
 
 62. — C. had acted as solicitor for X., and be 
 fore his bill was paid he took P. into partnership. 
 X. then paid the hill by cheque to the order of 
 C. and P., and received an acknowledgment in 
 their joint names, but in P.'s handwriting. He 
 then took out an order to tax the bill as against 
 C. and P. They then wrote to him informing 
 him that C. alone was interested in the bill, and 
 requested him to get the order altered so as to he 
 against C. alone, hut this he declined to do : — 
 Held, that the order must be discharged, C. con- 
 senting to an order against himself alone. In re 
 Curtwt, 40 Law J. Eep. (n.s-) Chanc. 608. 
 
 (d) Discretion of Taxing Master. 
 
 63. — The Court refused to entertain the ques- 
 tion whether the Taxing Master had properly dis- 
 allowed costs of separate answers. Beattie v. 
 Mury, 43 Law J. Eep. (n.s.) Chanc. 80. 
 
 (e) Scale of taxation. 
 (1) Higher or lower. 
 
 64. — In a suit to enforce a charge or lien for 
 an amount under 1,0002. against purchasers of real 
 estate for an account of the amount due, and for a 
 receiver and sale, the costs ought to be taxad 
 upon the lower scale. Faddon v. Winch, 44 Law 
 J. Eep. (n.s.) Chanc. 568 ; Law Eep. 20 Eq. 449. 
 
 65. — In estimating the valae of an estate of a 
 testator for the purpose of ascertaining whether 
 costs are to be paid on the higher or lower scale, 
 the value of the estate at the death of the testator 
 is to be looked at, although the costs of a suit to 
 get in part of the assets may reduce that amount. 
 Steward v. Nurse, 43 Law J. Eep. (n.s.) Chanc. 384. 
 
 66. — A building society made an advance on 
 mortgage of 900^., to be repaid with interest by 
 120 monthly payments. These payments, as well 
 as the payment of certain fines, were, under the 
 rules of the society, secured by the mortgage 
 
 deed. A sum of 3002; became due to the society 
 for such fines beyond the .nmount due for princi- 
 pal. The sum due to the society was found on 
 taking the accounts to be about 5172. The Tax- 
 ing Master allowed costs on the lower scale only, 
 and Malins, V.C., refused to vary the certificate, 
 Law Eep. 17 Eq. 543. Upon appeal, — Held, that 
 the Taxing Master was right. CottereU v. Stratton, 
 43 Law J. Eep. (n s.) Chanc. 573 ; Law Eep. 9 
 Chanc. 514. 
 
 (2) Chancery or Parliamentary. 
 
 67. — The costs of applications under 33 & 34 
 Vict. c. 78 (the Tramways Act, 1870), to the 
 Board of Trade for provisional orders are to be 
 taxed, not on the Parliamentary but on the Chan- 
 cery scale. In re Morley, Law Eep. 20 Eq. 17. 
 
 (3) Issues tried by Court. 
 
 68. — The costs of the trial by the Court of ques- 
 tions of fact ordered to be taxed as at Common Law. 
 Hill V. Hibbit, 41 Law J. Eep. (n.s.) Chanc. 703 ; 
 Law Eep. 14 Eq. 221. 
 
 (4) County Court scale. 
 [See supra No. 50.] 
 
 (/) Briefs to counsel: third counsel. 
 
 69. — In a heavy suit, where all the pleadings 
 had been prepared by a junior who was, before the 
 hearing, called within the bar, and a brief had, on 
 the hearing, been delivered to a third counsel, 
 another junior, it was held, that though the fact 
 that a junior having been called within the bar, 
 was not sufficient to warrant the employment of a 
 third counsel, yet owing to the magnitude and 
 complication of the case, and the length of time 
 occupied in the hearing, the costs of a third coun- 
 sel ought to have been allowed on taxation. In re 
 Charles Lafitte ^ Company {JAm.), 44 Law J. Eep. 
 (n.s.) Chanc. 633 ; Law Eep. 20 Eq. 650. 
 
 70. — Neither the great length of proceedings, 
 nor the time the cause took to argue, nor the fact 
 that there was an arrangement between two co 
 defendants, that one should employ three counsel 
 and the other only one, will be considered suffi- 
 cient reason for the interference by the Judge, 
 with the discretion of the Taxing Master, in disal- 
 lowing the costs of the third counsel. The Mer- 
 chant Bank v. Maud, 44 Law J. Eep. (n.s.) Chanc, 
 581 ; Law Eep. 20 Eq. 452. 
 
 71. — Where the junior counsel who has pre- 
 pared the pleadings in the suit is called within the 
 bar before the hearing, and after a retainer, has 
 been given to a leader (the propriety of which re- 
 tainer is a question to be considered), the costs of 
 giving briefs to the leader so retained, the junior 
 who has been called within the bar, and a new 
 junior will be allowed on taxation between party 
 and party. Cousens v. Consent, 41 Law J. Eep. 
 (n.s.) Chanc. 166; Law Eep. 7 Chanc. 48. - 
 
 The Court of appeal will not interfere with the 
 discretion of the Taxing Master as to the amount 
 of counsel's fees. Ibid. 
 
 72,— During the progress of a suit the junior 
 
COSTS IN EdUITY (T)— COUNSEL. 
 
 207 
 
 counsel for the defendant, who had prepared the 
 pleadings, took silk. Prior to this a Queen's 
 Counsel had been engaged upon an interlocutory 
 application relative to the mode of taking evi- 
 dence. The defendant at the hearing employed 
 three counsel, viz., the leading counsel above re- 
 ferred to, the junior who had taken silk, and a new 
 junior:— Held, that under the above circum- 
 stances alone he was not entitled to charge in his 
 bill of costs against the plaintiff (whose bill was 
 dismissed with costs) the costs of the three coun- 
 sel. Cousens v. Cotiseiis (41 Law J. Eep. (n.s.) 
 Chanc. 166) observed upon. Betts t. Cleaver, 
 il Law J. Eep. (n.s.) Chanc. 663 ; Law Eep. 7 
 Chanc. 513. 
 
 73. — The circumstance that a junior counsel in 
 a cause has been appointed one of Her Majesty's 
 Counsel Jis not a sufiB.cient reason for allowing 
 costs of briefs to three counsel. Memorandum, 
 Law Eep. 10 Chanc. 640. 
 
 [And see infra No. 78. 
 
 {g) Evidence and witnesses. 
 
 74. — ^An accountant had been employed to ex- 
 amine books for the purpose of preparing an affi- 
 davit, and had also been employed in extracting 
 items of profit and loss and recording them in sup- 
 plemental books, and in setting up new journals 
 and ledgers : — Held, that the Taxing-Master was 
 right both in making an allowance of five guineas 
 a day to the accountant for such time as he had 
 been employed in preparing to give evidence, and 
 in refusing to make any allowance in respect of 
 work done by him as an accountant. In re Charles 
 Lafitte tf- Company (Lim.), 44 Law J. Eep. (n.s.) 
 Chanc."633; LawEep. 20 Eq. 650. 
 
 75. — In a patent suit in which the plaintiffs, 
 after the briefs were delivered, but before the 
 hearing, took the common order dismissing their 
 bill with costs, — Held, on taxation of the costs, 
 and notwithstanding the Judge had not certified 
 what particulars had been proved, that the de- 
 fendants were entitled to allowances in respect 
 of drawing and settling by counsel particulars of 
 breaches. Held also, that they were entitled to 
 an allowance in respect of the charges of scientific 
 witnesses and that such allowance was not limited 
 by the rules of taxation at common law, and also 
 that they were entitled to an allowance in respect 
 of the cost of a model ; but the Court followed the 
 Taxing Master's decision as to'amount. Batley v. 
 Kynoch (No. 2), 44 Law J. Eep. (n.s.) Chanc. 
 566 ; Law Eep. 20 Eq. 632. 
 
 .76. — Fifteen bills were filed by the same plain- 
 tiff against persons who, as he alleged, had in- 
 fringed his patent. The same solicitor acted for 
 the defendant in all the suits, and the questions 
 to be tried in all the suits were substantially the 
 same. The plaintiff being required to put in an 
 affidavit of documents in each suit filed fifteen 
 affidavits, which were precisely alike in all respects 
 except the names, being in fact lithographed co- 
 pies of the same draft. He gave notice to the 
 defendant's solicitor that they were all alike, and 
 offered him a lithographed copy. The defendant's 
 
 solicitor examined the affidavits at the office, and 
 took an office copy in one suit. AH the bills were 
 dismissed with costs : — Held, that the defendant's 
 solicitor was not entitled to charge in the bill of 
 costs for perusing the affidavit in each suit. Betts 
 V. Cleaver, 41 Law J. Eep. (n.s.) Chanc. 663 ; Law 
 Eep. 7 Chanc. 513. 
 
 Decision of Bacon, V.C, reversed on both points. 
 Ibid. 
 
 77. — ^Where a plaintiff produces a witness be- 
 fore the examiner for cross-examination he is 
 thereupon entitled ex debito justitwB to an order 
 for taxation and paymentof the costs, and he does 
 not lose his right by allowing the cross-examina- 
 tion to proceed. Sichards v. Goddard, Law Eep. 
 10 Chanc. 288. 
 
 78. — Costs of explanatory drawings by a de- 
 fendant in a patent suit in explanation of several 
 cases which he had set up in anticipation disal- 
 lowed as unnecessary. Costs of attendance on 
 cross-examination of a solicitor's clerk in addition 
 to the solicitor not allowed. The usual counsel's 
 fee for cross-examination of 61. 5s. a day after the 
 first day may te increased to '!l. 7s. in a heavy 
 case. 71. 7s. a day allowed to a scientific witness 
 to read up a case so as to give evidence. The rule 
 as to costs of more than two counsel being disal- 
 lowed is not inflexible, but will not be lightly 
 departed from. Eefreshers will be aEowed in heavy 
 Chancery cases after the first two days. Smith v. 
 Btdler, Law Eep. 19 Eq. 473. 
 
 (A) Costs partially awarded. 
 
 79. — A defendant was ordered to pay costs of 
 suit " so far as the same had been increased by his 
 answer impeaching the validity of plaintiff's secu- 
 rity :" — Held, first, that the costs must be appor- 
 tioned according to Seighington v. Grant (1 Beav. 
 228); second, that the plaintiff's extra costs of 
 employing a third counsel, allowed owing to the 
 complexity of the case, were costs within the order ; 
 third, that the order included the costs of those 
 parts of the bill which were in anticipation of the 
 objection taken by the answer. Begbiey. FenwicJc, 
 Fenwick v. Begbie, Law Eep. 6 Chanc. 869. 
 
 80. — ^Bill ifismissed with costs so far as it sought 
 to set aside B.'s security : — Held, that the costs 
 incurred by B. in proving the consideration 
 for his security, and consequent thereon, were the 
 increase of costs to be paid by the plaintiff, and 
 th.at the costs of the hearing were to be appor- 
 tioned according to the number of folios. Begbie 
 V. Fenwick; FenwicJcr. Begbie,'La,-w'Rep. 6 Chanc, 
 869. 
 
 COUNSEL. 
 
 Fees: allowance of, on taxation. [See 
 Costs in EQuiir, 69-73 ; Costs at 
 Law, 21-23.] 
 
 CounseVs opinions, privilege, [See Peoduc- 
 TION, 18.] 
 
208 
 
 COUNTY BUILDINGS LOANS— COUNTY COURT (A). 
 
 COUNTY BUILDINGS LOANS. 
 
 [The time for repayment of loans borrowed 
 under 7 Geo. 4. c. 63, extended to thirty years. 
 35 Vict. c. 7.] 
 
 COUNTY CORONER. 
 Where the salary of a coroner, in office at the 
 passing of 23 & 24 Vict. o. 116, s. 4, has been 
 fixed for the first time at an amount not less than 
 the average amount of the fees, mileage, and al- 
 lowances received during five years preceding the 
 31st of December, 1859, and is subsequently re- 
 vised after a period of five years, the salary may 
 be fixed at a less amount than the average amount 
 which the coroner would have received diiring the 
 preceding five years. Ex parte Driffield, Law Rep. 
 7 Q. B. 207. 
 
 COUNTY COURT. 
 
 (A) JimiSDioTioN op County Couet. 
 (a) Jurisdiotion at law. 
 
 (1) County Court district, 
 
 (2) Amendment, 
 
 (3) Contempt. 
 
 (4) Committal of debtor. 
 
 (5) Execution against high bailiff. 
 
 (6) Effect of warrant of possession. 
 
 (7) Costs of action remitted. 
 
 (5) Jurisdiction in Equity. 
 (c) Admiralty. 
 
 {d) 'Probate. 
 (e) Bankruptcy. 
 
 (B) Teansfee of Actiok oe Suit. 
 (a) To superior Court. 
 
 (i) To adjoining district, 
 
 (C) New Teial. 
 
 (D) Inteepleader. 
 
 (E) Appeal. 
 
 (a) Case on appeal. 
 
 (6) Notice of appeal. 
 
 (c) Time for giving security. 
 
 (d) Death of respondent, 
 
 (e) Costs. 
 
 (F) Ofpicees of the Couet. 
 
 [The County Court (Buildings) Act, 15 & 16 
 Vict. c. 28, amended. 33 & 34 Vict. c. 15.] 
 
 [Repeal of portions of previous Acts. Provi- 
 sions as to judgment by default, summonses to 
 witnesses, power of judges and appeal within 
 eight days without special case. 38 & 39 Vict. 
 c. 60.] 
 
 (A) JuEisDicTioN OP County Couet. 
 (a) Jurisdiction at law, 
 (1) County Cov/rt district. 
 1. — ^A verbal offer to buy goods for more than 
 lOi. having been made to the ven4or's agent with- 
 in the district of a County Coiu't, was communi- 
 
 cated to the vendor at his residence outside the 
 district, where he accepted it and signed a me- 
 morandum within section 17 of the Statute of 
 Prauds. This memorandum with a counterpart 
 he sent by post to the purchaser, who signed the 
 counterpart within the district. The vendor 
 having delivered the goods to the plaintiff's agent 
 outside the district, the purchaser issued a plaint 
 in the County Court against the vendor to re- 
 cover damages for deficiency in weight : — Held, 
 that the cause of action arose in part of the dis- 
 trict, so as to give the County Court jurisdiction 
 under 30 & 31 Vict. o. 142, s. 1. In re Green v. 
 Beach, 42 Law J. Rep. (n.s.) Exch. 151 ; Law 
 Rep. 8 Exch. 208. 
 
 2.— Under section 21 of 19 & 20 Vict. c. 108, 
 where an action is brought against the high 
 bailiff of a County Court, for not executing a war- 
 rant, a summons may issue in any adjoining dis- 
 trict, the Judge of which is not the Judge of a 
 Court of which the defendant is an officer, whether 
 or not such adjoining district is in the same 
 county in which the defendant neglected to exe- 
 cute the warrant. Partridge v. ElHngton, 40 Law 
 J. Rep. (n.s.) Q. B. 49 ; Law Rep. 6 Q. B. 82. 
 
 (2) Amendment. 
 
 3. — "When a cause after issue joined is ordered 
 to be tried in a County Court, under 19 & 20 
 Vict. c. 108, s. 26, the Judge of the County Court 
 has at the trial the same power of amending a 
 misjoinder of the defendants as a Judge of a 
 superior Court sitting at Nisi Prius has under 
 section 37 of the Common Law Procedure Act, 
 1852. Eenninson v. Walker, 41 Law J. Rep. 
 (n.s.) Exch. 43 ; Law Rep. 7 Exch. 143. 
 
 4.^By the Contagious Diseases (Animals) 
 Act, 1869 (32 & 33 Vict. c. 70), s. 57,J;he local 
 authority constituted by the Act may exercise 
 compulsory powers with regard to horses and 
 other animals, " and the local authorities may re- 
 cover the expenses of the execution by them of 
 this section from the owner of the horse or ani- 
 mal : " — Held, that in proceedings in the County 
 Court to recover such expenses, where the plain- 
 tiff was described as "J. M., the inspector ap- 
 pointed by the local authority for the county of 
 H. under the Contagious Diseases (Animals) Act, 
 1869," first, that the County Court Judge might, 
 without the defendant's consent, amend the plaint 
 by substituting the proper description of the party 
 suing; secondly, that the plaint was rightly 
 amended by describing the action as brought by 
 "the local authority for the county of H.," as 
 section 67 enabled the local authority to sue for 
 the expenses under that description, although 
 they were not a corporation. Mills v. Scott, 42 
 Law J. Rep. (n.s.) Q. B. 234 ; Law Rep. 8 Q. B, 
 496. 
 
 (3) Contempt. 
 
 [And see Deetoes Act, 2, 3 ; Bankeuptcy N 9.] 
 
 6, — A County Court Judge has no power to 
 commit anyone for contempt which has not oc- 
 curred in the face of the Court. Ex parte Jolliffe, 
 
COUNTY COUET (A). 
 
 209 
 
 42 Law J. Eep. (n.s.) Q.B. 121; Law Eep. 8 
 Q. B. 134, nom. The Queen y. Lefroy. 
 
 The fact tlmt the County Courts Act, 9 & 10 
 Vict. c. 95 (ss. 113, 114) gives a limited power of 
 summarily dealing -n-ith contempt committed in 
 face of the Court, but is silent as to contempt 
 committed out of Court, is a strong, if not con- 
 clusive, argument against the summary power of 
 a County Goxu't Judge to punish for such con- 
 tempt. Ibid. 
 
 (4) Committal of debtor. 
 
 6. — A judgment debtor having made default in 
 payment of the judgment debt which had been 
 recovered against him in the County Court, and 
 which he had been ordered to pay forthwith, the 
 County Court Judge made an order for his com- 
 mitment to prison for forty days. The debtor 
 was arrested thereon, but was subseqiiently dis- 
 charged on the ground of his being privileged at 
 the time of such arrest, as a witness returning 
 from the sessions. The debtor was again, and 
 whilst the order for committal was still in force, 
 summoned upon a judgment summons, and a second 
 order for his committal for the same default in 
 not paying the judgment debt was made by the 
 Coiinty Court Judge : — Held, that the Judge had 
 no power to make such second order, as the first 
 had not been executed. Horsnail v. Bruce, 42 
 Law J. Eep. (n.s.) C. P. 140; Law Eep. 8 C.P. 
 378. 
 
 Held also, by Bovill, C.J., and Brett, J., that 
 where a judgment debt is not payable by instal- 
 ments there is no power under section 5 of the 
 Debtors Act, 1869 (32 & 33 Vict. c. 62), to com- 
 mit the debtor more than once for default in not 
 paying such debt. Ibid. 
 
 [And see Debtors Act, 14-18.] 
 
 {b) ISxecuticm against high hailiff. 
 
 7. — The Judge of a County Court made an 
 order against the high bailiff for payment of cer- 
 tain sxims of money and costs, the costs to be 
 settled by the registrar. The amoimt of costs was 
 settled by the registrar, but not formally approved 
 by the Judge. Orders for payment were drawn 
 up under seal of the Court, and served on the 
 high bailiff. Default having been made in pay- 
 ment, the registrar issued a warrant of execution 
 for the sums and costs. The registrar, after con- 
 sulting the Judge, specially appointed one W. E., 
 who was not a bailiff of the Court, to act as 
 assistant bailiff in the execution of the warrant, 
 which was given under the seal of the Court, 
 directed to " W. E. and others, the bailiffs there- 
 of," and signed by the registrar. Acting under 
 this warrant, W. E. levied on the goods of the high 
 bailiff, who thereupon brought trespass against 
 the registrar : — Held, that although the Judge 
 had not personally exercised his discretion as to 
 the amount of costs, yet there was a valid order 
 in existence, and the Court had inherent power 
 to enforce its process, and the right mode of doing 
 so had been adopted, inasmuch as the analogy 
 afforded by the practice of the superior- Courts 
 Digest, 1870-1875. 
 
 which appoint coroners or elisors to execute judg- 
 ments against sheriffs, had been followed by ap- 
 pointing a special person to levy the distress; 
 that the registrar was therefore justified in 
 making that appointment, and consequently that 
 he was not liable in trespass for the acts of E. 
 done in pursuance thereof. Bellamy v. Hoyle, 
 a Law J. Eep. (n.s.) Exch. 169; Law Eep. 10 
 Exch. 220. 
 
 (6) Effect of warrant of possession. 
 
 8. — A warrant of possession obtained under 
 19 & 20 Vict. c. 108, s. 50, by a landlord pro- 
 ceeding in the County Court against his tenant, 
 but not against the person actually in possession, 
 is not conclusive against the latter, who may not- 
 withstanding the warrjint bring an action of tres- 
 pass against the landlord, if the landlord had not 
 in fact a right to the possession of the premises. 
 So held by Channell, B., and Pigott, B. ; contra 
 by Martin, B. Hudson v. Walker, 41 Law J. 
 Eep. (n.s.) Exch. 51 ; Law Eep. 7 Exch. 65, nom. 
 Bodson V. Walker. 
 
 (7) Costs of action remitted. 
 
 9. — Where an action commenced in a superior 
 Court has been remitted to a County Court, 
 under the 10th section of the County Courts Act, 
 1867, the superior Court has no longer any juris- 
 diction to make an order for costs under the 5th 
 section. 
 
 Semble — that there is jurisdiction in the County 
 Court. Moodie v. Steward, 40 Law J. Eep. (n.s.) 
 Exch. 25 ; Law Eep. 6 Exch. 35. 
 
 Master and servant : claim for wages : 
 summary jurisdiction: [See Masteb 
 AND Servant, 17.] 
 
 (b) Jurisdiction in Equity. 
 
 10.— A creditor of an intestate having brought 
 an action against the executor de son tort, for the 
 recovery of his debt, an injunction staying the 
 action was granted by the County Court Judge, 
 acting under the County Court Order XII. r. 1, 
 upon the ex parte application of the plaintiff in 
 an administration suit against the rightful ad- 
 ministrator of the intestate and the executor de 
 son tort, but before any decree had been made in 
 the suit :— Held, on appeal, that Order XII. r. 1, 
 gave no authority to the County Court Judge to 
 grant the injimction, and that he was wrong in 
 granting it on an ex parte application. Order of in- 
 junction accordingly discharged. Nokes v. Gandy, 
 43 Law J. Eep. (n.s.) Chanc. 276 ; Law Eep. 17 
 Eq. 297. 
 
 11. — The jurisdiction in equity conferred by 
 the County Courts Equitable Jurisdiction Act, 
 section 1, extends to the assignees, whether by 
 act of law or for value, of the various classes of 
 suitors specified therein. Turner y. Eennoldson, 
 42 Law J. Eep. (n.s.) Chanc. 510 ; Law Eep. 16 
 Eq. 37. 
 
 (c) Admiralty jurisdiction. 
 12. — A County Court, to which Admiralty 
 jurisdiction is given by 31 & 32 Vict. c. 71, has 
 EE 
 
210 
 
 COUNTY COURT (A), (B). 
 
 Admiralty jurisdiction over a claim not exceed- 
 ing 300^. for damages for negligence causing a 
 collision between a barge of the defendant and 
 a ship of the plaintiff in a river within the body 
 of a county forming part of its district. Pwrkis 
 V. Flower, 43 Law J. Eep. (n.s.) Q. B. 33 ; Law 
 Eep. 9 Q.B. 114. 
 
 13.— By the Admiralty Act, 1861 (24 & 25 
 Viet. c. 10), s. 5, the High Court of Admiralty 
 shall have jurisdiction over any claim for ne- 
 cessaries supplied to any ship elsewhere than 
 in the port to which the ship belongs, unless it 
 is shewn to the satisfaction of the Court that at 
 the time of the institution of the cause, any 
 owner or part owner of the ship is domiciled in 
 England or Wales. By 31 & 32 Vict. c. 71, =. 3, 
 sub-section 2, any County Court having Admiralty 
 jurisdiction shall have jui'isdiction over necessaries 
 up to 150Z. A suit for necessaries was instituted 
 in a County Court under the last section, and 
 the plaintiff obtained judgment. After judgment 
 an application was made for a new trial, on the 
 ground that at the time of the institution of the 
 suit the shipowner was domiciled in England. 
 The County Court Judge refused to interfere : — 
 Held, that a prohibition could not be granted, as 
 upon the construction of the Admiralty Act, 1861, 
 section 5, the objection to the jiirisdiction of the 
 County Coxirt ought to have been made before 
 judgment, and could not be taken afterwards. 
 Ex parte Michael, 41 Law J. Eep. (n.s.) Q. B. 
 349. 
 
 14.— The County Court Acts, 31 & 32 Vict, 
 c. 71, and 32 & 33 Vict. c. 51, do not give a 
 County Court appointed to have Admiralty jm-is- 
 diction under those statutes a jurisdiction which 
 the High Court of Admiralty never possessed ; 
 therefore such County Court has no jurisdiction 
 to entertain a suit for damages for breach of a 
 charter-party. In re the Madge Wildfire, Simpson 
 Y. Blues, 41 Law J. Eep. (n.s.) C. P. 121 ; Law 
 Eep. 7 C. P. 290. 
 
 15. — If, in an action in a superior Court on a 
 charter-party for freight or demui'rage, the plain- 
 tiff claims and recovers a sum greater than 201. 
 and less than 3002., he is entitled to costs ; for 
 over such causes, 31 & 32 Vict. c. 71, and 32 & 33 
 Vict. e. 51, s. 2, confer no jurisdiction on a County 
 Court appointed to have Admiralty jurisdiction. 
 The last case approved. Gimnested v. Trice, and 
 Fulmore v. Wait, 44 Law J. Eep. (n.s.) Exch. 44 ; 
 Law Eep. 10 Exch. 65. 
 
 [And see Admiealty, 7-1 1-] 
 
 (d) Jurisdiction in Probate. 
 
 16. — In estimating the value of the real estate 
 to which a deceased was entitled at the time of 
 his death for the pui'pose of deciding whether the 
 County Court has jurisdiction, charges upon such 
 estate cannot be taken into consideration, Davies 
 V. Brecknell, 40 Law ,1. Eep. (n.s.) P. & M. 15 ; 
 Law Eep. 2 P. & D. 177. 
 
 If the estate be of the value of 3002., but the 
 value of the deceased's interest in it is reduced by 
 mortgage to less than 3002., the County Court has 
 no jurisdiction. Ibid. 
 
 (fi) Jurisdiction in Bankruptcy. 
 
 17. — H., who was a debtor to the estate of C, 
 a bankrupt, seized in the Vice- Admiralty Court at 
 Sierra Leone, a vessel which formed part of the 
 bankrupt's estate, for a debt claimed to be due to 
 him for necessaries supplied to such ship, and 
 thereupon the trustee in bankruptcy of C. obtained 
 an interim injunction from the County Court of 
 Manchester, in which C.'s bankruptcy proceedings 
 had been instituted, to restrain H. from prosecut- 
 ing his suit in the Vice- Admiralty Court at Sierra 
 Leone, and pending the continuance of such injunc- 
 tion, issues were directed by the Judge of such 
 County Court to be tried before him, as to whether 
 H. had a lien on such ship for necessaries. Upon 
 an application by H. for a prohibition to prohibit 
 such County Court proceedings, — Held, that the 
 County Coui't Judge had jurisdiction under section 
 72 of the Bankruptcy Act, 1869 (32 & 33 Vict, 
 c. 71), to grant the injunction and to try such 
 issues, if he deemed it expedient to do so for the 
 purpose of doing complete justice or making a 
 complete distribution of the bankrupt's property, 
 and that if such Court was improperly exercising 
 its jurisdiction in the matter, the remedy of H. 
 was by appeal to the Court of Appeal in Bank- 
 ruptcy. Halliday v. Harris, 43 Law J. Eep. (n.s.) 
 C. P. 350 ; Law Eep. 9 C. P. 668. 
 
 Bankruptcy : composition : jurisdiction of 
 County Court Judge to declare securi- 
 ties forfeited. [See Banketjptct, M 9.] 
 
 (B) Transfer op Action or Suit. 
 (ffl) To superior Court. 
 
 18. — A plaint was instituted in the County 
 Court for the administration of the estate of a 
 testator, alleging (as the plaintiffs then believed 
 to be the fact) that the- estate was worth less 
 than 5002. Previous to the hearing, notice was 
 given by the defendant to the plaintiffs that the 
 estate was worth more than 6002., and at the 
 hearing this was proved to be the case. The 
 Judge made an order transferring the suit to the 
 Court of Chancery : — Held, that he was right in 
 so doing. Birks v. Silverwood, 41 Law J. Eep. 
 (n.s.) Chanc. 638 ; Law Eep. 14 Eq. 101. 
 
 A County Court plaint alleged that the subject 
 matter of the suit was less than 6002. in value, 
 but upon the suit coming on for hearing it was 
 proved that the value exceeded 5002., whereupon 
 the County Court Judge, acting under section 14 
 of the County Courts Act, 1867, dismissed the 
 plaint with costs. Upon appeal : — Held (revers- 
 ing the decision of the County Court Judge), that 
 he ought to have directed the suit to be trans- 
 ferred to the Court of Chancery, under section 9 
 of the County Courts Act, 1865. Section 14 of 
 the Act of 1867 applies only to actions and suits 
 relating to matters over which the County Courts 
 have no jurisdiction. Thomson v. Flinn (43 Law 
 J. Eep. (N.s.) Chanc. 256 ; Law Eep. 17 Eq. 416. 
 Birks V. Silverwood, 41 Law J. Eep. (n.s.) Chanc. 
 638; Law Eep. 14 Eq. 101) observed upon. Ibid, 
 
COUNTY COUET (B), (E). 
 
 2U 
 
 (b) To adjoining district. 
 
 19. — Where a redemption suit was commenced 
 in the Court of Chancery against the registrar of 
 the County Court, within the jurisdiction of 
 which the property dealt with by the suit lay, 
 — Held, that an order might properly be made 
 under 30 & 31 Vict. e. 142, s. 8, to transfer the 
 suit to the County Court of the adjoining district ; 
 the word " action " in section 21 of 19 & 20 Vict. 
 c. 108 includes suit. Linford v. Gudgeon, 40 Law 
 J. Kep. (n.s.) Chanc. 514 ; Law Eep. 6 Chanc. 369. 
 
 (C) New TEiAi. 
 
 20. — By the County Court rule 104, notice to 
 try a case by a jvu'y (under 9 & 10 Vict. c. 96, ss. 
 70, 71) is to be given "three clear days before 
 the day of hearing ; " and by rule 105, where the 
 notice has not been given in due time, or if at the 
 hearing both parties desire to try by jury, the 
 Judge may, on such terms as he shall think fit, 
 adjourn the cause, &c. A cause was ordered to 
 be tried in a County Court, and the 18th of Peb- 
 ruary was appointed for the hearing. The defend- 
 ant posted a demand for a jury which did not 
 arrive three days before the 1 8th, and on the 1 6th 
 made a fresh demand. On the 18th, the case, on 
 account of the non-attendance of the defendant's 
 counsel, was adjourned by consent till the 19th of 
 Maroh ; and on that day, no jivry having been 
 summoned, the case was tried without a, jury in 
 spite of the defendant's protest, and the plaintiff 
 obtained a verdict : — Held, that the defendant 
 was not entitled to a n6w trial, for " the day of 
 hearing " meant the day originally fixed for hear- 
 ing, so that the demand for a jury was too late, 
 and that the adjournment did not aid, as it was 
 not an adjournment ordered by the Judge in the 
 exercise of his discretion, for the purpose of al- 
 lowing a jiuy to be siunmoned. Fletcher v. Baker, 
 43 Law J. Rep. (n.s.) Q. B. 112; Law Rep. 9 
 Q. B. 370. 
 
 (D) Inteepleadee. 
 
 21. — The plaintiff having claimed goods, seized 
 under an execution from a County Court, an inter- 
 pleader summons issued under section 31 of the 
 County Court Act, 1867, and the plaintiff gave 
 particulars, but did not therein claim damages as 
 directed by Rule 175. His claim to the goods 
 was adjudicated upon by the County Court Judge, 
 who made an order which was in the plaintiff's 
 favour with respect to part of the goods. An 
 action being subsequently brought by the plaintiff 
 in the Court of Exchequer against the execution 
 creditor for special damages resulting from the 
 seizure of the goods, — Held, that the claim of 
 damages should have been made at the time and 
 in the manner prescribed by the above Act and 
 Rule, and that the order of the County Court 
 Judge being "final and conclusive," the action 
 could not be maintained. Death v. Harrison, 40 
 LawJ. Eep. (N.s.)Exch. 26; Law Eep. 6 Exch. 15. 
 
 22. — Judgment having been recovered in the 
 County Court by the plaintiff against the pro- 
 prietor of a large hotel for a debt of trifling 
 
 amount, execution was issued by warrant to the 
 bailiff, who levied at the hotel by a formal seizure 
 of the goods and money therein. A claim was 
 made by the defendant to the property seized, 
 whereupon an interpleader summons was taken 
 out, and he gave particulars claiming " the goods 
 and money seized by virtue of the warrant," upon 
 the ground that they were his property, having 
 been purchased by him from one M. on the 1st of 
 July, and at the time of the seizure being in pos- 
 session of the claimant, and never having been 
 the property of the debtor. The Judge deeming 
 these particulars to be insufficient to satisfy the re- 
 quirements of Eule 174 of the County Court Rules, 
 1867, whereby the claimant must, five clear days 
 before the hearing of the interpleader summons, 
 leave with the registrar a particular of the goods 
 alleged to be his property, and also the grounds of 
 his claim, refused to hear the claim. A rule 
 having been obtained to compel him to do so, — 
 Held (per Kelly, C.B., and Amphlett, B.), that the 
 particulars were all that could be given, and that 
 he was vn-ong. (Per Bramwell, B., and Cleasby, 
 B.), that they were insufficient, and that he was 
 right. Richardson v. Wright, 44 Law J. Eep. 
 (n.s.) Exch. 230; Law Eep. 10 Exch. 367. 
 
 (E) Appeal. 
 
 Practice on appeah in Equity. 
 
 TICE IS KaniTY, 34, 35.] 
 Practice on Admiralty appeals. 
 
 MIEAXTY, 6, 25, 26.] 
 
 (a) Case on appeal. 
 
 [See Peac- 
 [See Ad 
 
 23. — A County Court Judge having tried an 
 action for malicious prosecution, ruled that the 
 facts proved did not shew reasonable or probable 
 cause justifying the defendant. The defendant 
 having appealed on the ground that there was 
 reasonable or probable cause, the .Judge stated a 
 case, in which he epitomised the evidence, saying, 
 " the above statement gives the result of the evi- 
 dence so far as is material for the determination 
 of the questions raised for the Court of Appeal." 
 The defendant having obtained a rule under 19 & 
 20 Vict. i;. 108, s. 43, calling on the Judge to set 
 o\it the evidence so far as material to the question 
 of reasonable or probable cause, this Court made 
 the rule absolute without costs, holding that it was 
 not enough for the Judge to state the result of the 
 evidence, but that he ought to set out the evi- 
 dence itself, in the same manner as a Judge of a 
 superior Court would do in a case requiring the 
 like particularity. Thornewell v. Wigner, 40 Law 
 J. Eep. (n.s.) Exch. 48 ; Law Eep. 6 Exch. 87. 
 
 24. — At the hearing of a plaint before a 
 County Court Judge he nonsuited the plaintiff, 
 who gave due notice of appeal and deposited the 
 amount fixed by the registrar who gave a receipt 
 for it to the plaintiff, stating it to be received to 
 abide the event of the appeal. The parties could 
 not agree on a statement of facts, and the plain- 
 tiff applied to the Judge to settle and sign the 
 case, but the Judge refused on the ground that no 
 memorandum of the deposit with the conditions 
 BE 2 
 
212 
 
 COUNTY COUET (E)— COVlil^fANT (A). 
 
 on Tyhich it was deposited was approved by the 
 registrar, left with him and signed by the party 
 or his attorney in accordance with 19 & 20 Vict. 
 u. 208, s. 71 : — Held, that the statute had been 
 Bubstantially complied with, and upon the au- 
 thority of Qriffin v. Oolman (28 Law J. Eep. 
 (N.s.) Exch. 134), that the giving of such memo- 
 randum was not a condition precedent to the right 
 to appeal. Walters v. Coghlan, 42 Law J. Eep. 
 (n.s.) a. B. 20 ; Law Eep. 8 Q.B. 61. 
 
 (i) Notice of appeal. 
 
 25. — Semble, notice of appeal against the de- 
 termination of the Judge in a plaint in the County 
 Court is in time where a nonsuit was entered at 
 the trial, and an application to set aside the non- 
 suit afterwards refused, if it be given within ten 
 days after the refusal to set aside the nonsuit. 
 Hemming v. Blanton, 42 Law J. Eep. (k.s.) 
 C. P. 168. 
 
 (c) Tiim for giving security. 
 
 26. — Notice of appeal from the decision of a 
 County Court was duly given, and the registrar 
 fixed a day for the execution of the bond by the 
 appellants and the sureties. Upon the appointed 
 day two of the three appellants attended before 
 the registrar, but the sureties were not present, 
 nor had the bond been prepared. The bond was 
 subsequently prepared, and was executed by all 
 the necessary parties but one, six days after the 
 day originally fixed, and by that one seven days 
 after that day. Tiie respondent never waived the 
 delay in the execution ot the bond : — Held, that 
 the requisite security had not been given by the 
 appellants in due time, and that the appeal could 
 not be heard by this Court. Dowde.iwell v. Francis, 
 43 Law J. Eep. (n.s.) C. P. 248 ; Law Eep. 9 
 C. P. 423. 
 
 (d) Death of respondent. 
 
 27. — If, on an appeal from a County Court, the 
 respondent die before the appeal be heard, the ap- 
 pellant will be aUowed to proceed with his appeal 
 on giving notice thereof to tlie ruiresentatives of 
 the deceased respondent, or if no such notice can 
 be given, upon giving notice to the parties in- 
 terested. Hemming v. Williams, 40 Law J. Eep. 
 (n.s.) C. p. 270 ; Law Eep. 6 0. P. 480. 
 
 («) Costs. 
 
 Eule as to plaintiff's costs. [See Costs 
 
 AT Law, 1 — 8.] 
 Costs of appeal in Equity. [See Costs in 
 
 EauiTY, 14.] 
 Costs of party suing in Chancery for sum 
 
 within County Court limit. [See Costs 
 
 IN Equity, 50.] 
 
 (F) Officers of the Couet. 
 
 Suits against. [See supra Nos. 7, 19.] 
 
 COUNTY JUSTICES. 
 
 [Eepoal of the disqualification of attorneys, soli- 
 citors, and proctors from being Justices of the 
 peace. ?A & 35 Vict. c. 18.] 
 
 COUNTY PEOPEETTY. 
 
 [The above Act amended and applied to certain 
 lands acquired by county Justices. Directions as 
 to conveyance to the county clerk of the peace of 
 lands purchased under 16 & 17 Vict. c. 97 (Lunatic 
 Asylums). 34 & 35 Vict. c. 14.] 
 
 COUETS OP JUSTICE (SALAEIES AND 
 FUNDS) ACT, 1869. 
 
 [See Contempt.] 
 
 COUNTY DEBENTUEES. 
 [Amendment of the law relating to securities 
 for loans contracted by county authorities. 36 & 
 37 Viet. c. 35.] 
 
 COVENANT. 
 [See Landlord and Tenant.] 
 
 (A) Covenant in Eestraint of Trade. 
 
 (B) Covenant to settle Property, etc. 
 
 (C) Covenants for Title and Quiet Enjoy- 
 
 ment. 
 (j) Mine : damage by working : appointee, 
 {h) Lease for lives. 
 (c) Notice of restrictive covenant. 
 
 (D) Covenant to pay Premiums on Policy. 
 
 (E) Limitation of Covenant in Terms 
 
 GENERAL. 
 
 (A) Covenant in Eesteaint of Trade. 
 
 1, — The traveller for a porter, ale, and spirit 
 merchant bound himself by a bond not to " travel 
 for any porter, ale, or spirit merchant, as agent, 
 collector, or otherwise," within a certain distance 
 of the town where the merchant carried on his 
 business. The traveller travelled within the dis- 
 tance as agent and collector for a firm of brewers 
 in the same town, who brewed and sold only beer, 
 ale, and porter, and sold no liquor but of their 
 own manufacture : — Held, that the brewers were 
 not porter, ale, or spirit merchants within the 
 meaning of the bond. Josselyn v. Parson, 41 Law 
 J. Eep. (N.s.) Exch. 60; Law J{ep. 7 Exch. 127. 
 
 2. — In determining whether there has been a 
 branch of a covenant entered into by the assignor 
 of a lease of premises, used for a particular busi- 
 ness, " that he would not be concerned in that 
 business within a certain distance of the assigned 
 premises," the distance is not to be measureil 
 along the nearest practicable route between the 
 two places of business, but along the shortest 
 straight line that can be drawn from one to the 
 other as on a map, without regard to the curva- 
 ture or the inequalities of the sui'faoe of the earth, 
 — affirming the judgment below, 41 Law J, Eep. 
 
COVENANT (A), (C). 
 
 213 
 
 (n.s.) Exch. 28; Law Eep. 7 Exch. 127. Moufflet 
 y. Cole (Exoh. Ch.), 42 Law J. Eep. (n.s.) Exch. 
 8 ; Law Rep. 8 Exch. 32. 
 
 3. — The defendant entered into a covenant that 
 he should not, at any time within two years from 
 quitting Messrs. A. & Son's service, directly or 
 indirectly sell, procure orders for the sale, or re- 
 commend, or be in anywise concerned or engaged 
 in the sale or recommendation, either on his own 
 account or for any other person or persons or any 
 company, of any Biu-ton ale, or beer or porter, 
 or of any ale, beer or porter brewed at Burton, or 
 offered for sale as sxich, other than the ale or beer 
 or porter brewed by the firm: — Held, that the 
 covenant went beyond anything that could be rea- 
 sonably required for the plaintiffs' protection, and 
 was inoperative independently of any absolute rule 
 requiring a limitation of area. Allsopp v. Wheat- 
 croft, 42 Law J. Eep. (n.s.) Chanc. 12 ; Law Eep. 
 15 Eq. 59. 
 
 Semble — the want of such limitation would have 
 avoided the covenant. Ibid. 
 
 The defendant having broken his express con- 
 tract, was allowed no costs. Ibid. 
 
 4. — A covenant by an articled clerk that he 
 would not, at the expiration of the term of his 
 articles, or at any time thereafter, either solely 
 or jointly, directly or indirectly practise as a soli- 
 citor within the city of London or the counties of 
 Middlesex or Essex, or directly or indirectly act 
 for any client of the plaintiff or any partner of his, 
 or for any person who should have been a client of 
 the plaintiff or any partner of his at any time 
 during the term of the articles, — Held, not imrea- 
 sonable. Mai/ v. ONeill, 44 Law J. Eep. (k.s.) 
 Chanc. 660. 
 
 (B) Covenant to settle Peopeetv, etc. 
 
 Covenant to settle on marriage. [See Mak- 
 
 EiAGE Settlement, 1, 2.] 
 Covenants in settlements to setth after- 
 
 acguircd property. [See Makbiaqe 
 
 Settlement, 16 — 23.] 
 Covenant for payment of annuity. [See 
 
 Annuity, 13, 14.] 
 
 ' (C) Covenants foe Title and Quiet Enjoy- 
 ment. 
 
 {ayjiline : damage by worhing. 
 
 5. — The defendant being seised in fee of land 
 and coal beneath it, in 1844 let the coal, by a 
 written agreement, to lessees for a term of twenty- 
 five years, with power to enter and work and carry 
 away the coal across the land, and all other powers 
 fit and necessary for the working and carrying. 
 The lessees entered and worked and carried away 
 coal, and after they had ceased, the defendant, in 
 1845, conveyed by deed a portion of the land to 
 J., a purchaser, who had previously been through 
 the workings, but was not shewn to have any 
 knowledge of the agreement or its terms. By the 
 deed the defendant covenanted with J., his ap- 
 pointees, heirs and assigns for title, for quiet 
 enjoyment, and against incumbrances. In 1846 
 J. appointed the portion of land to the plaintiff, 
 
 a purchaser, who afterwards built houses thereon, 
 and who had no knowledge of the workings until 
 the laud and houses subsided, in 1865. The sub- 
 sidence was caused by the workings which had 
 been carried on before the conveyance to J. In 
 1848 the lessees entered the mine and took fire- 
 clay, which they had no right to take, and also 
 fragments of coal of nominal value, but these 
 acts did not contribute to cause the subsidence. In 
 1867 the plaintiff, as appointee of J., sued the de- 
 fendant on the covenants, the declaration alleging 
 as breaches of the covenants for title and quiet 
 enjoyment, that, after the plaintiff became seised, 
 the lessees entered and worked, whereby the 
 damage was caused : — Held, that the benefit of 
 the covenants passed to the plaintiff as appointee. 
 Held also, that the variance between the declara- 
 tion and the proof as to the time of working was 
 fatal. Spoor v. Green, 43 Law J. Eep. (n.s.) 
 Exch. 57 ; Law Eep. 9 Exch. 99. 
 
 Held also, per Bramwell, B., and Cleasby, B. 
 {dissentiente Kelly, C.B.), that, as to the coven- 
 ant for title, there was no breach, since J. had 
 bought with notice of the workings, and the plain- 
 tiff must be taken to have bought the land without 
 the coal; but that, even if the agreement con- 
 stituted a breach, the cause of action was complete 
 in J., and the plaintiff could not sue upon it; that 
 the subsistence of the agreement during the plain- 
 tiff's possession was not a breach of the covenant 
 against incumbrances, because, although the agree- 
 ment gave the lessees the privilege of doing certain 
 things upon the surface of the plaintiff's land ne- 
 cessary for the working the colliery, yet it did not 
 appear that any such thing was or could be neces- 
 sary to be done; that the covenant for quiet 
 enjoyment was not broken by the acts of the lessees 
 in 1848 ; and that the action was not maintainable. 
 Ibid. 
 
 Held also, per Bramwell, B., that, assuming the 
 agreement to be a breach of the covenant for title, 
 it was not a continuing breach, and that the action 
 was barred by the Statute of Limitations. Contra, 
 per Kelly, C.B., that the true cause of action was 
 the subsidence, and that the Statute of Limitations 
 was no bar, and that the plaintiff, therefore, 
 would, but for the variance, be entitled to the 
 damages caused by the subsidence ; also, that so 
 long as the agreement subsisted, there was a con- 
 tinuing breach, which rendered the land of less 
 value; and that the acts of the lessees in 1848 
 constituted a breach of the covenant for quiet en- 
 joyment ; and that the plaintiff was entitled to 
 nominal damages. Ibid. 
 
 (J) Lease for lives, 
 
 6. — The defendant assigned by deed a lease for 
 the lives of W., J., and H., to hold for the lives of 
 W., J., and H., and the survivors and survivor of 
 them, and covenanted that the lease " was a good, 
 valid, and subsisting lease in the law for the lives 
 of W., J., and H., and the survivors and survivor 
 of them, and was not forfeited, surrendered, or 
 become void or voidable." It was proved that J. 
 had died before the making of the deed : — Held, 
 by the Exchequer Chamber, affirming the decision 
 
214 
 
 COVENANT (0)— CROWN. 
 
 of the Queen's Bench (40 Law J. Eep. (n.s.) Q. B. 
 157; Law Eep. 6 Q. B. 469), that there was no 
 breach of the covenant, as the defendant only 
 undertook that the lease was subsisting, and not 
 that the three lives were in existence at the date 
 of the covenant. Coates v. Collins, 41 Law J. Eep. 
 (n.s.) Q. B. 90; Law Eep. 7 Q. B. 144. 
 
 (c) Notice of restrictive covenant. 
 
 7. — In a conveyance in fee of land to the de- 
 fendant he covenanted with the grantor not to 
 permit any part of the premises to be used for 
 selling beer. The defendant afterwards granted a 
 lease of part of the land, with covenants by the 
 lessee not to carry on certain trades, but not 
 mentioning that of a seller of beer, and with the 
 usual covenant by the lessor for quiet enjoyment. 
 The term was assigned to the plaintiff, who having 
 no notice of the defendant's restrictive covenant 
 used the premises as a beershop, and being 
 restrained by injunction in Chancery, at the suit 
 of the vendor of the fee, sued the defendant for 
 breach of the express covenant, for quiet enjoy- 
 ment, and also for breach of a covenant for title 
 alleged to be implied from the terms of the lease : 
 — Held (aflBrming the judgment of the Coiirt of 
 Queen's Bench), that the covenant for qviiet enjoy- 
 ment excluded any implication of such an implied 
 covenant, and that there had been no breach of 
 the former covenant, as it did not guarantee to 
 the tenant that he might lawfully use the land 
 for any purpose not included in the restrictions in 
 the lease. Spencer v. Marriott (1 B. & C. 457 ; 2 
 Dowl. & Ey. 665) afBrmed. Bennett v. Atherton, 
 41 Law J. Eep. (n.s.) Q. B. 165; Law Eep. 7 
 Q. B. 316. 
 
 Quiet enjoyment : lessee and sub-lessee of 
 theatre : trespass. [See Teesjpass, 1.] 
 
 Covenant for further assurance : specialty 
 debt. [See Administbation, 11.] 
 
 Implied covenant on sate of bvsiness. [See 
 Vendob and Pukchaser, 11.] 
 
 (D) Covenant to pay Pbemiums on Policy. 
 
 8. — Where there is a covenant to pay the pre- 
 miums on a policy of assurance in an assurance 
 company, and the company has been ordered to be 
 wound up since the date of the covenant, the 
 covenantee has no equity to sustain a bill praying 
 that the amount of the premiums may in futiire 
 be paid to him. Garniss v. Heinke, 40 Law J. 
 Eep. (n.s.) Chanc. 306. 
 
 their line, or any part or branch of it, for shipment, 
 to be shipped into vessels in the Bute Ship Canal 
 (West Bute Dock), or in some basin or cut thereto 
 belonging. Also, that when any minerals, &c., 
 which should have been conveyed along the Taff 
 Vale Eailway, or any part or branch thereof, 
 should be shipped into any vessel in any dock or 
 basin whatsoever other than the said Bute Ship 
 Canal (West Bute Dock), or in some dock, basin 
 or cut belonging thereto, the Taff Vale Eailway 
 Company should pay to the owners of the said 
 Bute Ship Canal for the time being the same 
 wharfage dues in respect of such minerals as would 
 have been payable for the same if such minerals 
 had been shipped at the said Bute Ship Canal. 
 After the line of railway had been constructed on 
 the land so leased to the Taff Vale Eailway Com- 
 pany, the company took a lease of another line 
 (tlie PenarthEailway) which terminated at Penarth 
 Docks on the south-west side of the river Ely, the 
 Bute Docks being on the north-east side of that 
 river. The Penarth Docks and the Penarth Eail- 
 way were one concern ; the whole was leased by 
 the Taff Vale Eailway Company. The two were 
 connected at a station on the Taff Vale Eailway: — 
 Held, that the Penarth Eailway was not a part or 
 branch of the Taff Vale Eailway ; that the words 
 in the covenant, " any dock or basin whatsoever," 
 must be controlled by some limitation, and so con- 
 trolled, the covenant must be confined to any dock 
 or basin in connection with the Taff Vale Eailway, 
 or some part or branch of it, terminating in or at 
 a dock or basin, and that as the Penarth Eailway 
 was not a part or branch of the Taff Vale Eailway, 
 the covenant did not apply to minerals shipped or 
 unshipped at Penarth Harbour, though they were 
 carried for a certain distance along the Taff Vale 
 Eailway. The Taff Vale Eailway Company v. 
 Macnabb (H. L.), 42 Law J. Eep. (n.s.) Q. B. 153 ; 
 Law Eep. 6 E. & I. App. 169. 
 
 Covenants as to working mines. [See Mines, 
 8, 10.] 
 
 Covenant in lease to use premises as a post 
 office. [See Lease, 18.] 
 
 Covenant by railway company to stop pas- 
 senger trains at refreshment roams. 
 [See Eailway Company, 11.] 
 
 CEHVUNAL INFOElVtATION. 
 [See Libel.] 
 
 (E) Limitation op Covenant in Teems general. 
 
 9. — The Taff Vale Eailway obtained a lease 
 from the trustees of the Bute Docks at Cardiff, of 
 land which they required for the piu'poses of their 
 railway. The lease was for 250 years. With a 
 view to securing that the proposed railway should 
 not be used so as to take custom from the docks 
 in which they were interested, the trustees inserted 
 a covenant in the lease, on the part of the railway, 
 that the company, so far as they were able, should 
 cause all minerals which should be conveyed upon 
 
 CRIMINAL LUNATIC. 
 [See Lunatic] 
 
 CEOWN. 
 
 A Crown lessee of minerals under a Crown manor 
 entered a farm within the manor and opened the 
 "' '' ' ' T A • , jj^^ occupier of 
 
 surface in search of minerals. 
 
OEOWN— CUSTOM. 
 
 215 
 
 the farm brought an action of trespass to the laud 
 in this Court against the lessee. The Crown 
 undertook to defend the action, and afterwards 
 filed an English information and bill in this Court 
 against the occupier and the copyhold tenant of 
 the farm. The bill alleged that the Queen in 
 right of her Crown was entitled as lady of the 
 manor to search for and win, and to gi-ant to others 
 the right to search for and win, minerals within 
 the manor, and had granted this right to the lessee ; 
 the bin then prayed that those rights might be 
 declared : — Held, that the Crown, by virtue of its 
 prerogative, was entitled to maintain this bill, and 
 that since the bill would determine all the ques- 
 tions raised in the action, the occupier of the farm 
 must be restrained from proceeding with the action 
 till the hearing of the bill. The Attorney- General 
 V. 'Barker, 41 Law J. Eep. (n.s.) Exch. 57 ; Law 
 Eep. 7 Exch. 177. 
 
 Power to make foreclosure decree against 
 Crown. [See Mohtgage, 43.] 
 
 CEOWN LANDS. 
 
 [10 Geo. 4. a. 50. extended to the granting of 
 mining leases. 36 & 37 Viet. o. 36.] 
 
 1. — The Crown Lands Alienation Act, 1861 
 (Colonial statute), by section 18 provides, " that at 
 expiration of three years from the date of con- 
 ditional purchase, &o., the balance of the purchase 
 money shall be tendered, together with a declara- 
 tion that such land has been from the date of 
 occupation the bona fide residence, either of the 
 original purchaser or of his alienee, &o., and a 
 grant of the fee simple, &c., shall be made to the 
 then rightful owner." The respondent entered into 
 an agreement with the appellant to purchase for the 
 appellant certain land under the above Act, and to 
 fulfil all the conditions required by the Act, and 
 to transfer the land to the appellant. The appel- 
 lant advanced all the moneys required, and the 
 respondent fulfilled all the conditions of the Act, 
 but refused to transfer the land to the appellant 
 on the ground that the agreement was contrary to 
 the policy of the Act : — Held, that the agreement 
 was not contrary to the policy of the Act, and that 
 the respondent must be decreed to be trustee of 
 the land for the appellant. Barton v. Muir, 44 
 Law J. Eep. (w.s.) B.C. 19; Law Eep. 6 P. C. 
 134. 
 
 2. — Lessees under the Victoria Land Acts, who 
 have obtained a certificate under the Transfer of 
 Land Act, 1866, and performed all obligations 
 under their leases, including the obligation to 
 improve under section 36 of the Land Act, 1862, 
 and have not incurred any penalty, are entitled to 
 grants in fee of their allotments without obtaining 
 a certificate from the Board of Land and Works 
 Act, under section 98 of the Land Act, 1869. The 
 last-named section applies only to cases where a 
 penalty has been incurred. Winter v. The Attorney- 
 General of Victoria, Law Eep. 6 P. C. 378. 
 
 3. — By section 36 of the Crown Lands Occupa- 
 tion Act of 1861 (25 Vict. No. 2, New South 
 
 Wales), " The Governor, with the advice of the 
 Executive Covincil, may make and proclaim regu- 
 lations for carrying this Act into full effect, so as 
 to provide for all proceedings, forms of leases and 
 other instruments." By regulation 28, made in 
 pursuance of this power, "Holders of Euns, of 
 which the leases have not issued, may have their 
 rights of lease transferred by an application 
 addressed to the Chief Commissioner of Crown 
 Lands," and " on such application being recorded, 
 the applicant will be debarred from all further 
 claim to the lease, the right to which will thence- 
 forth become vested in the transferee : " — Held, 
 that the Governor had authority under the above 
 statute to make the above regulation, and that 
 such regulation was reasonable and valid. Black- 
 wood V. The London Cha/rtered Bank of Australia, 
 43 Law J. Eep. (n.s.) P. C. 25 ; Law Eep. 5 P. C. 
 92. 
 
 G., the holder of a run of which the lease had 
 not been issued, being indebted to the appellants, 
 delivered to them an application for transfer of 
 their interest in the run. This application was 
 not recorded. G. afterwards being indebted to 
 the respondents, signed and delivered to them 
 an application for transfer of their interest in the 
 run. This application was recorded, and a lease 
 was granted to the respondents : — Held, that the 
 respondents had prior title to the lease. Ibid. 
 
 CEUELTY TO ANIMALS. 
 [See Animajls.] 
 
 CUSTOM. 
 [See Common.] 
 
 In order to establish a custom in a trade con- 
 trolling the meaning of words, it must be shewn 
 that the words are used in that trade, and are un- 
 derstood in a defined sense ; and a habit of afSxing 
 a special meaning to words when used in one class 
 of contracts, does not amount to a custom in the 
 trade. Abbott v. Bates, 43 Law J. Eep. (n.s.) C. P. 
 150: affirmed, on appeal, 46 Law J. Eep. (n.s.) 
 C.P. 117. 
 
 By articles of apprenticeship, which werein a com • 
 mon form, the defendant, who was a horse-trainer, 
 agreed during the term of five years to instruct 
 the plaintiff, to pay him wages, and to provide him 
 with meat, drink, lodging and all other necessaries. 
 The plaintiff having sued for wages, the defendant 
 alleged a set-off for clothing and washing supplied 
 to the plaintiff, and relied upon a supposed custom 
 in the trade of horse-trainers, whereby clothing 
 and washing were not considered necessaries for 
 apprentices. The evidence in support of the 
 alleged custom shewed that horse-trainers were in 
 the habit of deducting the costs of clothing and 
 washing supplied to the articled apprentices from 
 the wages payable to them. There was no evidence 
 of any other usage in the trade as to the mean- 
 ing of the word " necessaries : " — Held, that the 
 
216 
 
 CUSTOM— DAMAGES (B). 
 
 defendant bad not proved the existence of a custom 
 in the trade of horse-trainers as to the meaning of 
 the word "necessaries;" that the word in the 
 articles of apprenticeship was used in its ordinary 
 sense ; that the defendant was hound during the 
 term of apprenticeship to supply the plaintiff with 
 clothing and washing, and that the defence of 
 set-off failed. Ibid. 
 
 Evidence of. [See Conteaot, 35.] 
 
 Ottstom of wine trade: goods in bonded 
 warehouse. [See Banketiptcy, G 7, 8.] 
 
 Usage of trade or market, how far binding 
 on principal of broker or agent. [See 
 Beokeh, 2 ; Peincipai, A^rD Agent, 1.] 
 
 Evidence of custom of trade. [See Evidence, 
 
 5 ; CONTKACT, 35.] 
 
 Eoidence of custom making principal liable. 
 [See Peincipal and Agent, 2, 3.] 
 
 Custom to obstruct highway. [See High- 
 way, 11.] 
 
 CUSTOMS. 
 [See Eeyentje, A.] 
 
 CY-PEES. 
 [See PowEE, 11 ; Chaeity, 19-22.] 
 
 DAMAGES. 
 
 (A) WSEa EECOVEEABLB : LiaUIDATED DAMAGES 
 
 OR Penalty. 
 
 (B) Measuee and Ceiteeion of. 
 
 (a) Sale of realty : defect of title. 
 (6) Default in delivery of goods. 
 
 (c) Contract of indemnity against breaches 
 
 of covenant. 
 
 (d) Breach of covenant to repair. 
 
 (e) In other cases. 
 
 (/) Seduction of damages. 
 
 (C) Eemoteness of Damage. 
 
 (D) Special Damage. 
 
 (E) In Suit foe Injunction. 
 
 (A) When eeooveeable : Liquidated Damages 
 OE Penalty. 
 
 1. — Wliere under an agreement money is paid 
 to a stakeholder, and it is stipulated that on breach 
 of any part of the agreement by one party, the 
 sum deposited is to go to the other party, such 
 sum is liquidated damages and not a penalty. Lea 
 V. Whittaker, Law Eep. 8 G. P. 70. 
 
 2. — The plaintiff, having contracted to supply 
 iron rails to a foreign company, applied to the 
 defendants who wrote him — " We have this day 
 
 sold you about 5,-113 tons of iron rails 
 
 delivered f. o. b. at Newport. Payment to be 
 
 stated in the specification." By the specification 
 " the delivery of the rails is to commence by 
 the 15th of February, 1873, and to be completed 
 by the 15th of April, 1873. The makers to have 
 the option to begin delivery on the 16th of Decem- 
 .ber, 1872. In the event of the makers exceeding 
 the time of delivery above stipulated, they shall 
 pay by way of fine Is. %d,. per ton per week, this 
 amount to be deducted out of the payment for the 
 rails," The rails were to be stacked so that they 
 might be tested, and payment to be made by bills. 
 In the event of ships not being ready within four- 
 teen days' notice being given, then the payment 
 by the same bills was to be made against wharf 
 warrants and engineer's certificate for each 500 
 tons stacked, and being to buyer's orders. The 
 sellers undertaking to put f. o. b. when the vessel 
 is ready. The workmen in the employ of the 
 defendants struck work, and the defendants did 
 not deliver any rails xmtil the month of May. 
 They continued the delivery from time to time, 
 but the whole quantity was not delivered until the 
 month of September : — Held, that the sum of 7s. &d. 
 per ton per week was a liquidated sum which the 
 defendants were bound to pay to the plaintiff, but 
 that it was only to be calculated from the 15th of 
 May. Bergheim v. The Blaenavon, ^c, Company, 
 44 Law J. Eep. (n.s.) Q. B. 92 ; Law Eep. 10 Q. B. 
 319. 
 
 Proof for damages in bankruptcy. [See 
 
 Bankeuptoy, E 1-3.] 
 None recoverable for expulsion of member of 
 [See Action, 4.] 
 
 (B) Measuee and Ceiteeion of. 
 (a) Sale of realty : defect of title. 
 
 3. — If one contracts to sell real estate and is 
 unable to complete from want of title, whether he 
 be aware of the defect at the time of entering into 
 the contract and does not disclose it, or not, and 
 even if he never had title nor possession, nor any 
 right to possession, yet in the absence of fraud 
 the intending purchaser cannot, in an action for 
 breach of the contract, recover damages beyond 
 his deposit with interest and costs. Flureau v. 
 Thornhill (2 W. Bl. 1078) approved. Bain v. 
 Fothergill (H. L.), 43 Law J. Eep. (n.s.) Exch. 
 243 ; Law Eep. 7E. & I. App. 158 : afBrming the 
 Court below as reported, 40 Law J. Eep. (n.s.) 
 Exch. 34 ; Law Eep. 6 Exch. 59. 
 
 By Lord Chelmsford. — The rule is, without 
 exception, if a person enters into a contract for the 
 sale of real estate knowing that he has no title to 
 it, nor any means of acquiring it, the purchaser 
 cannot recover damages beyond the expenses he 
 has incurred, by an action for the breach of the 
 contract. He can only obtain other damages by 
 an action for deceit. Hopkins v. Grazebrook (6 
 B. & C. 31) overruled. Ibid. 
 
 4. — The plaintiff was entitled to the residue of 
 a lease of the Bell Inn, part of which had been 
 underlet. The defendants became the assignees of 
 the underlease and of a, term of 100 years, the 
 reversion of the lease. They had contracted for 
 the purchase of the freehold and other premises, 
 
DAMAGES (B), 
 
 217 
 
 all of which were shortly to be conveyed to them. 
 The plaintiff agreed to surrender part of the pre- 
 mises in his lease, and the defendants agreed to 
 grant to him a certain entrance which should be 
 made upon the premises which the defendants had 
 contracted to purchase, and which he was to enjoy 
 during the residue of the term for which he held 
 the Bell. The defendants also agreed within eight 
 months to execute a lease of the entrance with 
 a covenant for quiet enjoyment. The plaintiff 
 carried out his agreement to the substantial advan- 
 tage of the defendants, who also made the entrance 
 and put the plaintiff into possession of it. The 
 defendants bond fide believed that they had power 
 to do aU that they promised to do, but they were 
 unable to give possession of the entrance to the 
 plaintiff, inasmuch as part of the ground upon 
 which it was made, turned out to be the property 
 of other persons : — Held, that the plaintiff was 
 entitled to maintain an action against the defendant 
 for more than nominal damages, but that the rule 
 of law laid down in Flv/reau v. Thomhill (2 Wm. 
 Bl. 1078) did not apply to the case. Wall v. The 
 City of London Real Froperty Com/pany, 43 Law J. 
 Eep. (N.S.) a B. 75 ; Law Eep. 9 G. B. 249. 
 
 (J) Defavlt in delivery of goods. 
 
 6. — The defendant contracted with the plain- 
 tiff to deliver to him a certain quantity of goods 
 by instalments at several fixed times. Before the 
 time for delivering the first instalment the defen- 
 dant gave the plaintiff notice of repudiation. The 
 plaintiff waited till the period had arrived for 
 delivering the last instalment, and then bought in 
 the market the same quantity of goods, and 
 brought this action to recover the difference 
 between the contract price and the price he had 
 paid : — Held, that the plaintiff was not bound to 
 buy, or make a similar contract elsewhere, when 
 he received the notice, and that the true measure 
 of damages was the aggregate of the differences 
 between the contract price and the marked price 
 at the several times fixed for delivery. Brown v. 
 Mnller, 41 Law J. Eep. (n.s.) Exch. 214; Law 
 Eep. 7 Exch. 319. 
 
 6. — Where in the case of a contract for the sale 
 of goods to be delivered during certain specified 
 times, the vendee treats a repudiation of such 
 contract by the vendor as a breach of the whole 
 contract, and brings his action for such breach 
 before the expiration of the time for its perform- 
 ance, the true measure of damages is the fifference 
 between the market and contract price on each of 
 the times when the goods ought to have been 
 delivered, and if the amount of such damages can 
 be diminished, because at the time such repu- 
 diation was so treated as a breach, it was possible 
 to have made another forward contract with some 
 other person for the supply of the goods during 
 the remainder of the times contracted for, it is 
 for the vendor to shew that such other contract 
 Could have been made. Soper v. Johnson, 42 Law 
 J. Eep. (n.s.) C. p. 65 ; Law Eep. 8 C. P. 167. 
 
 7. — Where there was a breach by a vendor of 
 a contract by him to deliver iron by monthly in- 
 stalments, and the vendees bought iron in the 
 Digest, 1870-1875, 
 
 market to supply the deficiency, but there was no 
 evidence of forbearance by the vendees at the 
 request of the vendor, — Held, distinguishing Ogle 
 v. Earl Vane, that the vendees could prove in the 
 liquidation of the vendor only for the differences 
 between the contract price and the prices of the 
 days when the instalments ought to have been but 
 were not delivered. Ex parte the Llansamlet Tin 
 Plate Company ; In re Voss, Law Eep. 16 Eq. 155. 
 
 8. — The plaintiff purchased champagne lying at 
 the defendants' wharf at 14s. per dozen, and resold 
 to a ship's captain about to sail at 24s. The de- 
 fendants refused to deliver the wine, and the 
 plaintiff was unable to fulfil his contract, cham- 
 pagne of a similar quality not being procurable in 
 the market. Although the defendants had no 
 knowledge of the sale, or of the purpose for which 
 the plaintiff required delivery of the champagne : — 
 Held, that the plaintiff was entitled as damages to 
 the price at which he sold the champagne. France 
 V. Gaudit, 40 Law J. Eep. (n.s.) Q. B. 121 ; Law 
 Eep. 6 Q. B. 199. 
 
 9. — A consignor, having a contract with his 
 consignees for delivery to the consignees of cer- 
 tain goods by a particular day at an exceptional 
 price, with power in the consignees to reject the 
 goods and rescind the contract if not performed to 
 the day, delivered to a railway company goods 
 within the contract, in time for deliveiy to the 
 consignees within the time mentioned in the con- 
 tract, and at the time of delivery the company 
 had notice that the consignor was under a contract 
 to deliver by the time mentioned in the contract, 
 and was liable, in case of late delivery, to have 
 the goods thrown on his hands. The company did 
 not deliver the goods till after the time stipulated 
 in the contract, and the consignees refused to 
 receive them : — Held, that the measure of da- 
 mages to which the company were liable was the 
 difference between the market price of the goods 
 on the day when they ought to have been delivered 
 and on the day on which they were delivered, and 
 any incidental expenses to which the consignor 
 may have been put in finding a customer and re- 
 selling the goods ; but that the company, under 
 the notice which they had received, were not 
 liable to repay to the consignor the difference 
 between the exceptional price mentioned in the 
 contract and the price of resale. Horn v. The 
 Midland Bailway Company, 41 Law J. Eep, (n.s.) 
 C. P. 264 ; Law Eep. 7 C. P. 583. 
 
 10. — The defendant, in January, 1872, agreed 
 to furnish the plaintiffs with a quantity of sets of 
 wheels and axles, according to tracings, to be de- 
 livered on certain specified days, free on board at 
 Hull. The plaintiffs were under a contract with 
 a Eussian railway company to deliver them 1,000 
 covered waggons, 500 on the 1st of May, 1872, and 
 600 on the 31st of May, 1873, under a penalty of 
 two roubles per waggon for each day's delay in 
 delivery. In the course of the negotiations be- 
 tween the plaintiffs and the defendant, the de- 
 fendant was told by the plaintiffs that they wanted 
 the wheels and axles to complete waggons which 
 they were bound, to deliver under penalties, but 
 neither the precise day for the delivery nor the 
 
 FF 
 
218 
 
 PiiMAGES (B). 
 
 amount of the penalties was mentioned. The 
 defendant did not deliver the sets of wheels in 
 time, and the plaintiffs in oonseqiienoe had to pay 
 certain penalties, but the Eussian company con- 
 sented to take one rouble a day, amounting in the 
 whole to lOOl. : — Held, that though the plaintiffs 
 were not entitled to recover in an action for breach 
 of contract, as a matter of right, the amount of 
 the penalties, yet the jury might reasonably assess 
 the damages at that amount. Die Elbimger Aotien- 
 Gesell-Schaft fur Fahnoation von Eisenbahn Mate- 
 riel V. Armstrong, 43 Law J. Eep. (n.s.) Q. B. 
 211; Law Rep. 9 Q. B. 473. 
 
 11. — The plaintiffs in the beginning of the year 
 
 1871, contracted to supply, at 4s. a pair, a large 
 quantity of shoes to H. & Co., who required them 
 to fulfil a contract for the supply of the French 
 army during the late war. The last day for de- 
 livery by the plaintiffs was the 3rd of February, 
 
 1872, and all shoes not so delivered would be 
 thrown back on the plaintiffs' hands. The plain- 
 tiffs delivered a certain quantity of shoes to the 
 defendants (the Midland Eailway Company) at 
 Kettering, consigned to H. & Co., in London, in 
 time to be delivered on that day. Notice was 
 given to the station master that the plaintiffs were 
 under contract to deliver on that day, and if not 
 so delivered the shoes would be thrown on the_ 
 plaintiffs' hands, but no further information. The 
 shoes were not delivered by the defendants till the 
 morning of the next day, and were rejected. The 
 plaintiffs, using their utmost endeavours, could 
 only sell the rejected shoes at 2s. M. a pair, and 
 in consequence of the cessation of the war the 
 consignees, but for their French contract, could 
 not have sold them at a higher price even if duly 
 received. The defendants paid into Court 20Z., 
 which was sufficient to cover the incidental ex- 
 penses and the ordinary damages to which the 
 plaintiffs would be entitled, but the latter claimed 
 to be entitled to recover the difference between 4s. 
 and 2s. M. a pair : — Held, by the majority of the 
 Court of Exchequer Chamber, affirming the judg- 
 ment of the Court of Common Pleas (41 Law J. 
 Eep. (n.s.) C. p. 264 ; Law Eep. 7 C. P. 583), that 
 the plaintiffs were not entitled to recover the said 
 difference. Horn v. The Midland BaUway Com- 
 pany (Exch. Ch.), 42 Law J. Eep. (n.s.) C. P. 59 ; 
 Law Eep. 8 C. P. 131. 
 
 Whether the rule in Hadley v. Baxendale (23 
 Law J. Eep. (n.s.) Exch. 179 ; 9 Exch. Eep. 341) 
 is law seems questionable. Ibid. 
 
 12. — The defendants contracted to deliver on a 
 day certain goods of a particular quality, and at 
 an agreed price, bxit failed to do so. The plaintiff, 
 who was under a contract to ship the goods, en- 
 deavoured to procure goods of a similar quality, 
 but was unable to do so as there was no market 
 for them. He therefore bought at an advanced 
 price goods of a superior quality, and passed them 
 on to his subvendee, from whom he did not receive 
 any extra payment on account of the extra quality, 
 and it was admitted that this was a reasonable 
 course and the best he could have taken under the 
 circumstances. In an action for breach of contract 
 in not delivering the goods, — Held, that the mea- 
 
 sure of damages was the difference between the 
 contract price and the cost to the plaintiff of the 
 goods purchased by him in substitution. Uinde v. 
 UddM, 44 Law J. Eep. (n.s.) Q. B. 105 ; J-aw 
 Eep. 10 a. B. 265. 
 
 (e) Contraot to indemnify against breaches of 
 covenant, 
 
 13. — In consideration of B. promising to assign 
 to A. all his interest in an agreement by which B. 
 held certain premises, A. undertook to indemnify 
 B. against breaches of the covenants and conditions 
 in the agreement. No assignment was executed, 
 but A. entered and held possession of the premises 
 till the expiration of B.'s term (letting them fall 
 out of repair) when B. was sued by his landlord 
 for dilapidations. After giving A. notice of the 
 action, B. paid 301. into Court, which the jury 
 found to be enough : — Held, in an action brought 
 by B. against A. on his promise to indemnify him, 
 that a good consideration appeared for the promise, 
 and that B. was entitled to recover as damages the 
 extra costs necessarily incurred by him, over and 
 above the taxed costs paid to him, in defending 
 the former action. Howard v. Lovegrove, 40 Law 
 J. Eep. (n.s.) Exch. 13 ; Law Eep. 6 Exch. 43. 
 
 {d) Breach of covenant to repair. 
 
 14. — The plaintiffs, who were lessees of certaiil 
 premises, underlet them to the defendant by a 
 lease, in which there was the usual general cove- 
 nant by the lessee to repair. The defendant 
 having neglected to repair according to his cove- 
 nant, the plaintiffs entered and did the repairs 
 themselves in order to save a forfeiture of their 
 own lease, with which they had been threatened 
 by their landlord, and then and during the continu- 
 ance of the lease to the defendant, the term of whicE 
 had not expired, sued the defendant for breach 
 of such covenant to repair : — Held, that the plain- 
 tiffs could only recover nominal damages, since by 
 having done the necessary repairs, they had at the 
 time the action was brought sustained no injury 
 to the reversion. Williams r. Williams, 43 Law 
 J. Eep. (n.s.) C. p. 382 ; Law Eep. 9 C. P. 659. 
 
 Measure of damages : landlord and tenant : 
 covenant to repair. [See Lease, 11.] 
 
 (c) In other cases. 
 
 Principle of assessing under Lord Camp- 
 bells Act. [See Campbeix's Act.] 
 
 Charterer compelled to pay increased freight 
 and higher price for goods owing to 
 shipowner's default. [See Smppma 
 Law, E 4.] 
 
 Damages for refusal to load cargo. [See 
 Shipping Law, E 5.] 
 
 For wrongful working of mines. [See 
 Mine, 6, 11-24.] 
 
 Alternative contract. [See Contbact, 19.} 
 
 (/) Reduction of damages. 
 
 15, — The damages in an action for negligence 
 causing personal injury to the plaintiff are not 
 
Damages <B), (O). 
 
 219 
 
 Butject to any deduction therefeom of money paid 
 to him by an insurance office under a policy of 
 insurance against accident, as compensation foi" 
 the same injury. Bradbum v. The Great Western 
 Bailway Company, 44 Law J. Eep. (n.s.) Exch. 9 ; 
 Law Eep. 10 Exch. 1. 
 
 16. — ^Wben a breach of contract has been com- 
 mitted with the owner of a ship whereby he is 
 prevented from employing her upon an adventure, 
 the damages payable to him cannot be reduced on 
 the ground that he has earned a profit by sending 
 another ship upon the same adventxire in place of 
 the first-mentioned ship. Jebsen v. The East and 
 West India Sock Company, 44 Law J. Eep. (n.s.) 
 C. P. 181 ; Law Eep. 10 C. P. 300. 
 
 In an action by several plaintiffs for breach of 
 contract, the damages payable to them cannot be 
 reduced upon the ground that individual plaintiffs 
 have derived a profit from the breach. Ibid. 
 
 The plaintiffs were twelve in number, and were 
 owners of a ship called the J. ; by the defendants' 
 default she became unable to fulfil a contract to 
 carry 240 emigrants from B. to A. The de- 
 fendants were aware of this contract ; five of the 
 plaintiffs were part-owners of a ship called the 
 H., and five of them were part-owners of a ship 
 called the 0. 202 out of the 240 emigrants were 
 carried to A. in the H., and 25 more in the 0. 
 The plaintiffs having sued to recover damages in 
 respect of the loss happening to them through 
 being prevented from carrying the 240 emigrants 
 in "the J., the defendants contended that the gain 
 to individual plaintiffs from carrying the 202 emi- 
 grants in the H. and the 25 emigrants in the 0. 
 must be taken into account in mitigation of da- 
 mages : — Held, that the damages could not be so 
 reduced ; first, because even if there had been but 
 one owner of the J., and the same person had been 
 sole owner of the H. and the 0., the profits made 
 by him as owner of the two latter could not be 
 deducted from the damages sustained by him as 
 owner of the former ; and secondly, because the 
 contention of the defendants was in substance an 
 attempt to set off against joint damage a several 
 benefit. Ibid. 
 
 (C) Eemotbness of Damage. 
 
 17. — B., a carrier, having contracted with H. to 
 carry his pictures to Paris, made a second con- 
 tract (containing different stipulations) with a 
 railway company that the company should carry 
 them to Calais. The pictures having been injured 
 on the journey through the negligence of the rail- 
 way company, H. brought an action against B. for 
 the damage, claiming l.OOOZ. The railway com- 
 pany being requested by B. to defend the action, 
 refused, repudiated all liability, and told B. he 
 must deal with the action as he thought fit. B. 
 defended the action, and H. recovered against him 
 a verdict of 650?. for the damage to the pictures. 
 B. having sued the railway company to recover 
 the costs he had paid and incurred in defending 
 H.'s action, — Held (reversing the judgment of the 
 Court of Exchequer), that the two contracts being 
 different and independent, B. could not recover the 
 costs, since they were neither the natural and 
 
 proximate consequence of the railway company's 
 default, nor incurred at the request of the company 
 or for their benefit. Mora le Blanch v. Wilson 
 (42 Law J. Eep. (n.s.) C. P. 70 ; Law Eep. 8 0. P. 
 227, 232) overruled (Lush, J., dissentiente). Baxen- 
 dale V. The London, Chatham, and Dover Bailway 
 Company (Exch. Oh.), 44 Law J. Eep. (n.s.) Exch» 
 20 ! Law Eep. 10 Exch. 35. 
 
 18. — Where the appellants had imposed re-' 
 strictions upon the coal traffic of the respondent, 
 which the Court found to be improper and unrea- 
 sonable, — Held, that damages for loss of custom 
 arising from such restriction were not too remote. 
 The Lancashire and Yorkshire Bailway Company v. 
 Gidlow, Law Eep. 7 E. & I. App. 517. 
 
 1 9 . — Through negligence of a railway company's 
 servants, the plaintiflS and their two young child- 
 ren were takt-n to a wrong station, where they 
 could not obtain either accommodation or a con- 
 veyance, and had to walk home several miles in tlie 
 middle of a wet night. The female plaintiff caught 
 cold and was laid up for some time, and was 
 unable to help her husband in his business, and 
 he had to pay for medical attendance and other 
 things, rendered necessary by the illness of his 
 wife. The plaintiffs ha-ving recovered damages, 
 \0l. for the personal inconvenience suffered by 
 them, and 201. in respect of the wife's illness, — 
 Held, that the plaintiffs could recover damages for 
 the inconvenience to which they had been exposed, 
 but not for the illness of the wife or its conse- 
 quences, the damages from these being too remote, 
 and not flowing immediately from the cause of 
 action. Sobbs v. The London and South-Westeni 
 Bailway Company, 44 Law J. Eep. (n.s.) Q,. B. 
 49; Law Eep. 10 Q. B. 111. 
 
 20. — The defendants having contracted to 
 supply the plaintiff with a service pipe, from their 
 main to the meter on his premises, laid down a 
 defective pipe from which the gas escaped. A 
 workman, in the employ of a gas fitter, engaged 
 by the plaintiff to lay down pipes upon his pre- 
 mises, negligently took a lighted candle for the 
 purpose of finding out whence the escape pro- 
 ceeded. An explosion then took place, whereby 
 damage was occasioned to the plaintiff's premises, 
 and the plaintiff thereupon brought an action to 
 recover compensation from the defendants: — Held, 
 affirming the judgment of the Court below (39 Law 
 J. Eep. (n.s.) Exch. 33), that he was entitled to 
 recover. Burrows v. The March Gas and Coke 
 Company (Exch. Ch.), 41 Law J. Eep. (n.s.) Exch. 
 46 ; Law Eep. 7 Exch. 96. 
 
 21. — The defendant washed a van of his on the 
 part of the street opposite his coach-house, and 
 the water so used ran along the gutter by the side 
 of the street for about seventy feet down to the 
 corner of another street, where, meeting an ob- 
 struction, it accumulated and expanded over part 
 of the roadway, instead of going as usual into the 
 sewer, and there being a sharp frost at the time it 
 shortly became frozen over. The cleaning a Van 
 in the street was an offence under the Metropolitan 
 Police Act, 2 & 3 Vict. c. 47, s. 64, sub-sect. 1, 
 but the defendant was not shewn to have known 
 of the obstruction at the corner,, and if he had 
 
 Ff2 
 
220 
 
 DAMAGES (C)-DEBTOR AND CREDITOR (C). 
 
 cleaned the van in the coach-house the water lyould 
 also have gone into the same gutter in the street : 
 — Held, that the defendant -was not liable to the 
 plaintiif for damage caused to his horse by slipping 
 ■whilst passing over the frozen water at the corner, 
 as such damage was too remote, and was not the 
 immediate and proximate cause of the defendant's 
 act. Sharp v. Powell, 41 Law J. Rep. (n.s.) C. P. 
 95 ; Law Rep. 7 C. P. 253. 
 
 22. — In an action by an executor for injury to 
 the personal estate of his testator by breach of 
 contract whereby bodily harm was inflicted upon 
 the testator, — Held, that damages given in re- 
 spect of the loss of profit in the testator's business 
 were not too remote. Bradshavi v. The Lancashire 
 and Yorkshire Railway Company, 44 Law J. Rep. 
 (n.s.)C.P. 148; Law Rep 10 C.P. 189. 
 
 (D) Speoul Damage. 
 
 23. — The defendant in consideration of certain 
 property transferred to him, agreed to accept the 
 plaintiff's drafts : — Held, that this was a special 
 contract, and that the plaintiff was not precluded 
 from recovering as damage for breach of it more 
 than the principal money contracted to be paid 
 and interest. Larios v. Bonany y Gurety, Law 
 Rep. 5 P. C. 346. 
 
 In action of slander. [See Slandee, 2.] 
 Trover : special damage by loss of bargain, 
 [See Trover, 8.] 
 
 (E) In Suit foe Injitnotion. 
 
 24. — Where under the special circumstances of 
 the case, a plaintiff, whose light and air had been 
 interfered with by the defendant, was not entitled 
 to a mandatory injunction, — Held, that the Court 
 would direct an enquiry as to damages. — Observa- 
 tions upon Ayiisley v. Glover (43 Law J. Rep. 
 (n.s.) Chano. 777; Law Rep. 18 Eq. 544). Lady 
 Stanley of Alderley v. Earl of Shrewsbury, 44 Law 
 J. Rep. (n.s.) Chauc. 389 ; Law Rep. 19 Eq. 616. 
 
 25. — "Where a building obstructing the access 
 of light has been completed before bill filed, the 
 Court has jurisdiction under Lord Cairns' Act 
 (21 & 22 Vict. 0. 27) to award damages, notwith- 
 standing the plaintiff may not have made out 
 such, a case as would entitle him to a mandatory 
 injunction ; and Dwell v. Pritohard (35 Law J. 
 Rep. (n.s.) Chane. 223) is not an authority for 
 the contrary proposition. The City of London 
 Brewery Company v, Tewnant, 43 Law, J. Rep. 
 (n.s.) Chanc. 457 ; Law Rep. 9 Chano. 212 ; and 
 Holmes v. Upton, Law Rep. 9 Chano. 214, n. 
 
 [And see Injunction, 37-40.] 
 
 DEBTOR AND CREDITOR. 
 
 (A) Assignment op Debt. 
 
 (B) Security fob Debt. 
 
 (a) Charge on sums to become due from 
 
 creditor. 
 (A) Lien on policy. 
 
 (C) Payment. 
 
 (a) Payment by stramger : ratification. 
 (6) Term of loan : option, 
 (c) Appropriation of payments, 
 
 (D) Discharge of Debt. 
 (a) By release. 
 
 (i) By acceptance of new debtor. 
 
 (E) Interest. 
 
 (F) Fbaudulent Debtob. 
 
 (A) Assignment of Debt. 
 
 1. — The assignment for a valuable eonsidera- 
 tion of a future or contingent debt is effectual to 
 pass the property therein; and when the debt 
 comes into existence, it is payable to the assignee 
 of the original creditor. Percy v. Clements, 43 
 Law J. Rep. (n.s.) C. P. 155. 
 
 L. requested the plaintiff to supply him with 
 wine, which he intended to sell to M., and it was 
 agreed between L., M. and the plaintiff, for a 
 valuable consideration given by the plaintiff to L., 
 that if M. accepted the wine, the price of it should 
 be paid to the plaintiff instead of L. The agree- 
 ment was made in December, 1873, and the plain- 
 tiff accordingly supplied the wine, which was 
 delivered to M., and accepted by him in January, 
 1874 : — Held, that although the debt did not exist 
 at the time when the agreement was made, the 
 property in the debt vested in the plaintiff, and 
 that upon the acceptance of the wine by M. the 
 price thereof became payable to the plaintiff in- 
 stead of to L. Ibid. 
 
 (B) Security fob Debt. 
 
 (a) Charge on sums to become due from creditor. 
 
 2. — A creditor may have by contract a good 
 charge for his debt on sums to become due from 
 himself to the debtor. Ex parte MacTcay and 
 Brown; In re Jeavons, 42 Law J. Rep. (n.s.) 
 Chanc. 68 ; Law Rep. 8 Chanc. 643. 
 
 (b) Lien on policy. 
 
 3. — A debtor deposited a policy on his own life 
 with a creditor, and afterwards became bankrupt. 
 The creditor did not prove for his debt in the 
 bankruptcy, and the debtor continued to pay the 
 premiums on the policy until his death : — Held, 
 that the debtor's executrix had a lien on the pro- 
 ceeds of the policy for the premiums paid by the 
 debtor after his bankruptcy, with simple interest 
 at il. per cent. Shearman v. The British Empire 
 Mutual Assurance Association, 41 Law J. Rep. 
 (n.s.) Chanc. 466 ; Law Rep. 14 Eq. 4. 
 
 (0) Payment. 
 
 (ffl) Payment by stranger : ratification. 
 
 4. — Where a creditor accepts payment of a 
 debt from a stranger without the authority of the 
 debtor, it is competent to the creditor, on discover- 
 ing the want of authority and before any ratifica- 
 tion of the payment by the debtor, to undo the 
 payment by returning the money to the stranger ; 
 and the debtor cannot in such a case ratify the 
 
DKBTOE AND CREDITOR (C)— DEBTORS ACT (A). 
 
 221 
 
 payment by placing a plea of payment on the 
 record in an action brought against him for the 
 amount by the creditor. Walter v. James, 40 Law 
 J. Rep. (n.s.) Exoh. 104 ; Law Rep. 6 Exch, 124. 
 
 (i) Term of loan : option. 
 
 6. — The plaiutiif lent the defendants a sum of 
 money " for a term of nine or six months." After 
 six months from the date of the loan, but before 
 nine months had expired, the plaintiff sued for the 
 amount : — Held, that the option as to the time 
 of repayment was with the borrower, and that as 
 the credit had not expired when the action com- 
 menced, the plaintiff could not recover. Seed v. 
 The Kilbum Co-operative and Industrial Society 
 {Lim.), 44 Law J. Rep. (k.s.) Q. B. 126 ; Law Rep. 
 10 Q. B. 264. 
 
 (o) Appropriation of payments. 
 
 As between a company and its bankers, 
 [See Company, D 29.] 
 
 [And see Bill of Exohai^gb, 23-31 ; Bankeb, 
 12, 13.] 
 
 (D) DisoHAEGE OP Debt. 
 (ffi) By release. 
 [See Release.] 
 
 (6) By acceptance of new debtor. 
 
 [See cases collected under CoMPANr, Amal- 
 gamation.] 
 
 (c) By order of discharge in bankruptcy. 
 
 [See Banzetjptct, I.] 
 
 (E) Intebbst. 
 
 6. — ^It is not necessary in order to enable a 
 jury, under 3 & 4 Will. 4. c. 42, a. 28, to allow 
 interest upon a debt not payable at a time certain, 
 that the demand in writing shotild be of a specific 
 sum, it is sufficient to satisfy that enactment that 
 the demand be of what is due, with notice that 
 the debtor is required to pay interest thereon. 
 Geake v. Boss, 44 Law J. Rep. (n.s.) C.P. 315. 
 
 7. — Goods were delivered under a contract con- 
 tained in a letter of the plaintiff, as follows : — " In 
 the event of my furnishing the hotel, the terms I 
 should require would be one-third cash, and bills 
 at six and twelve months for the balance." These 
 terms were assented to : — Held, by Mellor, J., and 
 Lush, J. (Blackbiirn, J., dissentiente), that the 
 plaintiff was entitled to recover interest upon the 
 amount of one- third which was to be paid in cash, 
 inasmuch as that sum was payable by virtue of a 
 " written instrument at a certain time " sufficiently 
 to come within the 28th section of 3 & 4 Will. 4. 
 c. 42. Buncombe v. The Brighton Club a/nd Nor- 
 folk Hotel Company, 44 Law J. Rep. (n.s.) Q. B. 
 216; Law Rep. lOQ.B. 371. 
 
 (P) Ebaudulent Debtoe. 
 
 [See Dbbtoes Act, 19-21; Bankkuptcy, B 1-9; 
 Fbauduxent Conveyance.] 
 
 DEBTORS ACT. 
 (A) Abolition of Imprisonment for Debt. 
 
 {a) Enforcement of order of Irish Court of 
 Chancery. 
 
 (i) Contempt of Court. 
 
 (c) Defaulting trustee. 
 
 {d) Defaulting attorney. 
 
 (e) Person arrested under sec. 6. 
 
 (/) Foreign attachment. 
 
 (g) Pendency of bankruptcy proceedings. 
 
 (h) Order Jor committal under sec. 5. 
 (B) Ekattdulent Debtoks. 
 
 [Provisions for the abolition of imprisonment 
 for debt in Ireland, and for the punishment of 
 fraudulent debtors. 35 & 36 Vict. c. 57.] 
 
 [General Order of High Court of Chancery, 7th 
 Jan. 1870. See 40 Law J. Rep. (n.s.) Ohanc. 1 .] 
 
 (A) Abolition of Impbisonmbnt foe Debt. 
 
 (a)~Enforce7nent of order of Irish Court of 
 Chancery. 
 
 1. — The Debtors Act, 1869, applies to an appli- 
 cation under 41 Geo. 3. c. 90, s. 6, to enforce an 
 order of the Irish Court of Chancery. Ferguson 
 V. Ferguson, 44 Law J. Rep. (n.s.) Chanc. 616 ; 
 Law Rep. 10 Chanc. 661. 
 
 (i) Contempt of Court, 
 
 2. — ^Where a defendant, ordered to deliver bills 
 to a receiver " or " pay moneys received in respect 
 of them, said that he delivered over the only bill 
 in his possession, and that he had cashed the 
 others, but did not pay over the moneys received : 
 — Held, that the Debtors Act, 1869, sec. 4, had no 
 application, and that the defendant must be com- 
 mitted for breach of the order. Harvey v. Hall, 
 Law Rep. 11 Eq. 31. 
 
 3. — An order of this Court is necessary, under 
 the Debtors Act, 1869, for the discharge of a pri- 
 soner who has been in prison a year for contempt 
 of Court. In re Thompson's Estate; Nalty v. 
 ■ ■ lit, 43 Law J. Rep. (n.s.) Chanc. 721. 
 
 (o) Defaulting trustee. 
 
 4. — The order of a local Court sitting in bank* 
 ruptey, directing payment of a sum to the trustee 
 of a bankruptcy, does not impress upon the debtor 
 a fiduciary relation towards the creditors of the 
 bankrupt within section 4, sub-sec. 3, of the Debtors 
 Act, 1869, so as to make him liable to committal 
 in default of payment. The powers of arrest and 
 imprisonment preserved by section 9 of the same 
 Act are those only which are created by the Bank- 
 ruptcy Act, 1869. Ex parte Hooson; In re Chap- 
 man, 42 Law J. Rep. (n.s.) Bankr. 19 ; Law Rep. 
 8 Chanc. 231. 
 
 6. — A trustee who has received trust money is 
 deemed to have it in his possession until he dis- 
 charges himself of his trust, and he may be 
 attached, as being within the 3rd exception to 
 section 4 of the Debtors Act, 1869, for making 
 default in payment of a sum so received, and 
 
222 
 
 DEBTOES ACT (A), 
 
 ordered by a Court of equity to he paid by him, 
 notwithstanding that he may have parted with the 
 actual possession of or control over the money 
 prior to the order for payment. Middletm v. 
 Chichester, 40 Law J. Eep. (n.s.) Chanc. 237 ; Law 
 Eep. 6 Chanc. 162, 
 
 But interest, due from him in respect of trust 
 money so received, is not money in his possession 
 or under his control, and an attachment will not 
 issue for non-compliance with an order directing 
 payment of such interest. Ibid. 
 
 6. — Though the exception in the Debtors Act, 
 1869, as to imprisonment for default by a trustee 
 to pay " any sum in his possession or under his 
 control," applies where a trustee had improperly 
 parted with the fund, it does not apply where, 
 although through his wilfal default, he never 
 had it in his possession. Ferguson v. Ferguson, 44 
 Law J. Eep. (n.s.) Chanc' 615; Law Eep. 10 
 Chanc. 661. 
 
 Per Jame_s, L.J. — An attachment ought not to 
 issue under any of the exceptions in section 4 of 
 the Debtors Act, 1 869, ex parte, but the debtor 
 should have an opportunity of shewing that he is 
 not within the exception. Ibid. 
 
 7. — In a case excepted from the operation of 
 section 4 of the Debtors Act, 1869, abolishing im- 
 prisonment for default in payment of a sum of 
 money, the Court has no discretion to refuse an 
 application for leave to issue a writ of attach- 
 ment against the person mating default. In 
 order to bring a trustee within the exception 
 it is not necessary that the money should have 
 been in his sole possession or control, Evans v. 
 Bear, Law Eep. 10 Chanc. 76. 
 
 {d) Defaulting attorney. 
 
 8. — A solicitor was ordered to pay the costs of 
 an unsuccessful appeal against a common order to 
 tax his bill of costs, which had been obtained by 
 his client: — Held, that the non-payment of the 
 costs of the appeal was not a default in payment 
 of money within the meaning of sub-section 4 of 
 section 4 of the Debtors Act, 1869. In re Hope, 
 41 Law J. Eep. (n.s.) Chanc. 797 ; Law Eep. T 
 Chanc. 623. 
 
 9. — An attorney was arrested under an attach- 
 ment issued by a Court of law for contempt of 
 Court in not obeying a previous order that he 
 should pay to a client a sum which he had received 
 for him while acting in the capacity of attorney. 
 Before the attacliment issued the attorney had 
 been adjudicated a bankrupt, but when he was 
 arrested the bankruptcy was not closed, nor had 
 he obtained an order of discharge : — Held, that 
 the Court of Banki-uptcy ought not to order his 
 release from custody, but ought to leave the Court 
 of law to decide whether the attachment was 
 merely a process to compel payment of a debt, or 
 whether it was issued in the exercise of the Court's 
 guasi criminal jurisdiction over its own officer. 
 Ex parte Deere ; In re Deere, 44 Law J. Eep. (n.s.) 
 Bankr. 120 ; Law Eep. 10 Chanc. 668. 
 
 10. — A solicitor was ordered to pay money to 
 a receiver of the Court, on pain of sequestration 
 and imprisonment. His property was seized on a 
 
 fi. fa, under the order, but possession was gtveii 
 up under an agreement : — Held, on breach of the 
 agreement by him, that he could not be attached 
 under the order. Harvey v. Hall, 43 Law J. Eep. 
 (n.s.) Chanc. 96 ; La,w Eep. 16 Eq. 324. 
 
 Against attorney disobeying rule for pay- 
 ment of money. [See ATTOKinsY, 28.] 
 
 (e) Person arrested under seotion 6. 
 
 11.— A defendant who has been arrested and 
 imprisoned before final judgment, under the 6th 
 section of the Debtors Act, 1869, is entitled to be 
 discharged under the 4th section after final judg- 
 ment has been obtained, notwithstanding that the 
 judgment is still unsatisfied, and that the absence 
 of the defendant from England may prejudice the 
 plaiutiif in obtaining the fruits of the judgment. 
 Hwme V. Druyff, 42 Law J. Eep. (n.s.) Exch. 145; 
 Law Eep. 8 Exch. 214. 
 
 (/) Foreign attachment. 
 
 12. — Where in a proceeding by foreign attach- 
 ment, the defendant renders himself in dissolution 
 of the attachment, and the plaintiff goes on in the 
 action and recovers judgment, the defendant is 
 entitled to be discharged from custody by virtue 
 of section 4 of the Debtors Act, 1869. The 29th 
 section of that Act, which preserves the custom 
 of foreign attachment, does not operate so as to 
 make the defendant, under such circumstances, 
 liable to be detained in custody. Waine v. 
 Wilkins, 42 Law J. Eep. (n.s.) Q. B. 95 ; Law 
 Eep. Q. B. 107, mm. In re Wilkins. 
 
 (g) Pendency of banJcriiptcy proceedings. 
 
 13. — A debtor who is liable to be arrested 
 under section 4 of the Debtors Act, 1869, is pro- 
 tected from arrest by section 12 of tlie Bankruptcy 
 Act, 1869, during the pendency of his bankruptcy 
 or liquidation by arrangement. Cobham v. Dalton, 
 44 Law J. Eep. (n.s.) Chanc. 702; Law Eep. 10 
 Chanc. 666. 
 
 (h) Order for committal under seotion 6. 
 
 14. — Judgment having been obtained against a 
 married woman in an action in which she did not 
 plead coverture, a Judge has jurisdiction under 
 the Debtors Act, 1869, section 5, to order her to 
 pay the debt by instalments, without being satis- 
 fied that she has the means of paying. Dillon v. 
 Cunningham, 42 Law J. Eep. (n.s.) Exch. 11; 
 Law Eep. 8 Exch. 23. 
 
 15. — Order made under section 5 of the Debtors 
 Act, 1869, for payment of a debt of 9,000^., by 
 half-yearly instalments of 250Z., and for committal 
 in default of payment of the first instalment, the 
 Court being satisfied that the debtor had the 
 means to pay. In re the Imperial Mercantile 
 Credit Association (Lim.); Leuns's cflse, 42LawJ. 
 Eep. (n.s.) Chanc. 379. 
 
 16. — An order of committal by a superior Court 
 under the Debtors Act, 1869, section 5, is valid lot 
 the arrest of a debtor, though it has been made 
 more than a year before, and has not been re- 
 
DEBTOES ACT (B)-DBED. 
 
 223 
 
 newed. Hermitage v. KUpin, 43 Law J. Rep. 
 (]sr.s.) Exch. 127; Law Eep. 9 Exoh. 205. 
 
 17. — The non-payment by a debtor of a compo- 
 sition according to the terms of a resolution, 
 passed pursuant to section 126 of the Bankruptcy 
 Act, 1869, revives not only the debt but also the 
 rights and remedies of the creditor in respect 
 thereof, as they would have existed if no such 
 composition had been agreed to. Therefore, where 
 after a Judge's order had been made under the 
 Debtors Act, 1869, for the payment of a judgment 
 debt by instalments, the judgment debtor took 
 proceedings for liquidation under the Bankruptcy 
 Act, 1869, and a resolution binding on the judg- 
 ment creditor was passed, according to section 
 126, to accept a composition, and the debtor sub- 
 sequently failed to pay the composition according 
 to the terms of the resolution, it was held that 
 the judgment creditor was entitled to proceed upon 
 the Judge's order for the payment of the debt by 
 instalments, as if there had been no composition, 
 and accordingly to apply under section 5 of the 
 Debtors Act, 1869, for the debtor's committal in 
 case of his not paying such instalments when he 
 had the means of paying. Newell v. Van Praagh, 
 43 Law J. Eep. (n.s.) C. P. 94 ; Law Eep. 9 
 C. P. 96. 
 
 18.— The Judge of a County Court has no 
 power to make a second order for the committal 
 of a judgment debtor for default in payment 
 where the first order remains unexecuted, e.g,, 
 where the debtor was discharged from arrest on 
 the ground of his being privileged at the time 
 of such arrest. Per Bovill, C.J., and Brett, J., 
 the power of a County Court Judge under sec- 
 tions 98, 99 and 103 of 9 & 10 Vict. c. 95, to com- 
 mit more than once for the same default is taken 
 away by the Debtors Act, 1869, and he can now 
 only make a single order of commitment not to 
 exceed six weeks ; but where the debt is payable 
 by instalments each neglect to pay is a fresh de- 
 fault. Horsnail v. Bruce, 42 Law J. Eep. (n.s.) 
 C. P. 140; Law Eep. 8 C. P. 378. 
 
 (B) PEAtTDlXLENT DeBTOES. 
 
 19.— Section 71 of the Bankruptcy Act, 1869, 
 giving a right of appeal against " any order of 
 a local BaidiTuptcy Court in respect of a matter 
 of fact or of law made in pursuance of this Act," 
 gives a right of appeal against an order under 
 section 16 of the Debtors Act, 1869, as to the 
 prosecution of a fraudulent bankrupt. Ex parte 
 Dempsey ; In re Vempsey, 42Xaw J. Eep. (n.s.) 
 Bankr. 93 ; Law Eep. 8 Chanc. 676. 
 
 Semble, per Lord Justice James. — The word 
 Court in the expression in section 16 of the 
 Debtors Act, 1869, "Where a trustee inany bank- 
 ruptcy reports to any Court exercising jurisdic- 
 tion in bankruptcy," means any Court having 
 original or appellate jurisdiction in that bank- 
 ruptcy. Ibid. 
 
 The County Court Judge having held that a 
 liquidating debtor had committed fraudulent acts 
 ■under part 2 of the Debtors Act, 1869, but de- 
 clined to order his prosecution under section 16, 
 
 on the ground that that section only applied in 
 the case of bankruptcy : — Held, by the Chief Judge 
 and by the Lords Justices, that that section ap- 
 plied in the case of liquidation also, and a prose- 
 cution was directed. Ibid. 
 
 20. — -A deed of assignment of chattels by a 
 debtor to trustees void as against assignees in 
 bankruptcy of the debtor for want of registration, 
 is nevertheless operative as between the imme- 
 diate parties to it from the time of its operation 
 until the proceedings in bankruptcy, so as to pass 
 the property in the chattels from the debtor. The 
 Queen v. Creese, 43 Law J. Eep. (n.s.) M. C. 61 ; 
 Law Eep. 2 C. C. E. 105. 
 
 In December, 1872, a debtor made a deed of 
 assignment of farming stock, &c., to trustees upon 
 certain trusts, and the debtor continued to carry 
 on the farm as the bailiff of the trustees in pur- 
 suance of the trusts of the deed. On the 14th 
 and 16th of October, 1873, he removed certain 
 stock and sold it, and handed the proceeds to 
 third parties in fraud of the trustees and the 
 objects of the deed. On the 17th of October he 
 petitioned a County Court in Bankruptcy for 
 liquidation of his affairs by arrangement, and on 
 the 7th of January, 1871, was indicted and found 
 guilty of having within four months before the 
 commencement of the liquidation fraudulently 
 removed a part of his property of the value of 
 \0l. and upwards, contrary to the 5th sub-section 
 of the 11th section of the Debtors Act, 1869: — 
 Held, that at the time of the removal, the goods, 
 &c., were not his property, and therefore the con- 
 viction must be quashed. Ibid. 
 
 21. — An application to a County Court Judge 
 for an order to prosecute a debtor under the 
 Debtors Act, 1869, must be made in writing, and 
 be filed with the proceedings. Ex parte Leonard; 
 In re Lemiard, 44 Law J. Eep. (n.s.) Bankr. 80 ; 
 Law Eep. 19 Eq. 269. 
 
 Admissibility of evidence of trader in liqui- 
 dation, on indictment. [See Evidence, 
 24.] 
 
 DEED. 
 
 (A) Execution. 
 (a) Escrow. 
 
 (6) Evidence of execution.- 
 
 (B) Parties : Persons havino Powers of Dis- 
 
 tress. 
 
 (C) Construction of. 
 
 (a) Parcels. 
 
 (b) General words. 
 
 (c) Limitations. 
 
 (1) Habenditm invalid. 
 
 (2) Siile in Sheilas case. 
 
 (3) " Survivor" read "other.' 
 
 (d) Option as to time of payment. 
 
 (e) Conditions. 
 
 If) Contemporaneous doewments. 
 
 (D) Estoppel and Admission. 
 
 (E) Eectification. 
 
224 
 
 DEED (A), (C). 
 
 (A) Execution. 
 
 (a) Escrow. 
 
 1, — To determine ■whether an instrument is an 
 esoroTV or not, the question is not merely whether 
 the instrument was delivered to a third person to 
 be held conditionally, but whether the delivery 
 was of a character negativing its being a delivery 
 to the party who was to have the bfenefit of the 
 instrument. Watkins v. Nash, 44 Law J. Eep. 
 (n-.s.) Chanc. 505 ; Law Eep. 20 Eq. 262. 
 
 (4) Evidence of execution. 
 
 2. — The execution of a deed may, on an un- 
 opposed petition, be proved under the Common 
 Law Procedure Act, 1854 (17 & 18 Vict. c. 125), 
 s. 26, notwithstanding In re Eeai/s Trusts (1 Jut. 
 N.S. 222). In re Mair's Estate, 42 Law J. Rep. 
 (n.s.) Chanc. 882. 
 
 [And see Evidence.] 
 (B) Pabties: Persons HAvma Powees op 
 
 DiSTBESS. 
 
 3. — A colliery company covenanted to appro- 
 priate &d. per ton to secure money lent, and gave 
 to the lenders power to appoint receivers and 
 powers of distress over all their property : — Held, 
 that on sale in liquidation of a colliery, the cove- 
 nantees were not necessary parties to the convey- 
 ance. In re the Sankey Brook Coal Company ; 
 Ex parte the Liquidators, 41 Law J. Bep. (n.s.) 
 Chanc. 119 ; Law Eep. 12 Eq. 472. 
 
 (C) CONSTEUCTION OF. 
 
 {a) Parcels. 
 
 4. — The plaintiif purchased two adjoining 
 houses, one of which he had agreed to sell to P., 
 in whose occupation it then was. This house had 
 in front a projecting portion, which, to the extent 
 of between two and three feet, overlapped the 
 abjoining house, so that it extended to some dis- 
 tance beyond the party-wall of the two houses. 
 The door of the house was in the centre of the 
 projection which formed a portico with a pillar, 
 cornice, string-course and pediment, all of which 
 in part overlapped the adjoining house of the 
 plaintiff. P. conveyed his house to the defend- 
 ant, who painted the front, including the whole 
 of the projecting portion. In the conveyance to 
 P., which the owner of the two houses had pre- 
 pared at the plaintiff's request, the projecting 
 part was not specifically mentioned as being con- 
 veyed. The plaintiff brought an action of tres- 
 pass against the defendant : — ^Held (reversing the 
 judgment of the Court below. Law Eep. 7 Q. B. 
 748), that the plaintiff was not entitled to recover, 
 inasmuch as either the projecting portion passed 
 by the conveyance to the defendant, or he had an 
 easement in it. Fox v. Clarke, 43 Law J. Eep. 
 (N.e.) Q,.B. 178 ; Law Eep. 9 Q.B. 665. 
 
 5, — A. (by deed executed after the repeal of 
 the Bankruptcy Act, 1861) assigned to B. for the 
 benefit of his creditors, " AH his goods and chat- 
 tels, personal estate, substance and effects what- 
 soever, and all his right, title, property, benefit, 
 
 claim and demand whatever therein : — Held, that 
 these words were sufficient to pass a term of 
 years in certain premises ; and that B., having 
 executed the deed of assignment, and put a man 
 in possession of the premises, and never having 
 disclaimed the lease (though he had not expressly 
 accepted it), was liable to the lessor as assignee 
 of the term. White v. Hunt, 40 Law J. Eep. (n.s.) 
 Exch. 23 ; Law Eep. 6 Exch. 32. 
 
 The ruling of Lord Tenterden, in Carter v. 
 Wame (1 Moo. & M. 479) impugned. Ibid. 
 
 Parcels : construction of deed and inventory 
 when they vary. [See Moetgage, 3.] 
 
 Power : appointment ; diminished fund : re- 
 sidue. [See PowEE, 18.] 
 
 Warren of conies. [See Wabeen.] 
 
 (J) General words. 
 
 Grant of right of way. [See Way, 3.] 
 
 [And see Company, D 1]. 
 
 (c) Limitations. 
 
 (1) HahendMm invalid. 
 
 6. — The holder of an estate for life in realty 
 granted the land to A. B., his executors, adminis- 
 trators and assigns, habendum from a future date 
 for the term of the grantor's life: — Held, to pass 
 an estate for life. Boddington v. Bobinson, 44 Law 
 J. Eep. (n.s.) Exch. 223 ; Law Eep. 10 Exch. 270. 
 
 The rule is that where there is an express grant 
 in ,the premises of a deed, that grant cannot be 
 prejudiced by the invalidity of the habendum, 
 but where the premises contain only an implied 
 grant, and the habendum is invalid, the convey- 
 ance fails. Ibid. 
 
 (2) Sztle in Shelley's Case. 
 
 7. — Eeal estate was assured by deed unto and 
 to the use of a trustee, his heirs and assigns, 
 upon trust for a married woman for life to her 
 separate use, and from and after the determination 
 of that estate to stand seized thereof to such uses 
 and up(m such trusts as she should by will ap- 
 point, and in default of appointment to the use of 
 the heirs and assigns of the married woman : — • 
 Held, by the Lords Justices (reversing the deci- 
 sion of the Master of the EoUs), that the legal fee 
 was vested in the trustee ; that all the subsequent 
 limitations were merely equitable, and that there- 
 fore, under the rule in Shelley's case, the married 
 woman took an equitable estate in fee, and could, 
 with the concurrence of the trustee after her hus- 
 band's death, make a good title in fee to the pro- 
 perty, and one which the Court would force on 
 an unwilling purchaser. Cooper v. Kynoch, 41 
 Law J. Eep. (n.s.) Chanc. 296 : Law Eep. 7 Chanc. 
 398. 
 
 Distinction in construction of limitations in 
 deeds and wills. Ibid. 
 
 (3) " Survivor " read " other." 
 
 8. — In a deed, as in a will, "survivor" may 
 be read " other," in order to effect the intention 
 of the parties. In re Palmer's Settlements, 44 Law 
 J. Eep. (n.s.) Chanc. 247 ; Law Eep. 19 Eq. 320, 
 
DEED (0)— DEVISE. 
 
 225 
 
 By a settlement executed by two sisters, 
 E. and S., a trust fund -was settled upon trust to 
 pay the income to them equally during their joint 
 lives, and after the death of one of them to the 
 surviTor for her life ; and if either of them should 
 die, leaving children, to pay one moiety to such 
 children ; and if either should die without leaving 
 children, to pay the moiety of the deceased sister 
 to the children (if any) of the " survivor," but if 
 both of the sisters should die without leaving 
 children, then over. E. predeceased S., and left 
 children ; then S. died without leaving children-: 
 — Held, that S.'s moiety passed to the children of 
 E. Ibid. 
 
 {d) Opticm as to time of 'payment. 
 
 9. — Under various deeds and Acts of Parlia- 
 ment, certain waterworks became vested in a 
 municipal corporation, the company to whom the 
 works originally belonged being secured payment 
 of interest on their share capital. The corpora- 
 tion had power to pay off the share capital on 
 giving six months' notice. Notice to pay off was 
 given, but the money was not paid : — Held, 
 that the option to pay off could be exercised 
 again. Ward v. the Wolverhampton Waterworks 
 Com/pany, 41 Law J. Kep. (n.s.) Ohanc. 308 ; 
 Law Eep. 13 Eq. 243. 
 
 (e) Conditions. 
 [See Conditions.] 
 
 (/) Contemporaneous documents. 
 
 Construction of contemporaneous documents. 
 [See Company, D 47.] 
 
 (D) Estoppel and Admission. 
 
 Admission by deed. [See Evidenoe, 11.] 
 Estoppel by recitals, ^c, in deed. [See 
 Estoppel, 6, 7.] 
 
 (E) Rectification. 
 
 10. — ^Where a deed affecting the legal estate in 
 land is rectified, no further conveyance need be 
 directed. The deed when rectified becomes a 
 proper conveyance. It is unnecessary to have 
 the alterations directed by the decree actually 
 made in the rectified deed; the endorsement of 
 the decree is sufficient. White v. White, 42 Law 
 J. Eep. (n.s.) Chanc. 288 ; Law Eep. 15 Eq. 247. 
 
 DESERTION. 
 [See DivoBCE, H.] 
 
 DEFAMATION. 
 [See Libel, Slander.] 
 
 DELAY. 
 
 JEffect of delay in institution of suit. [See 
 DivoECE, 6, 7, 11, 12 ; Pkinoipal and 
 Agent, 5 ; Undue Influence, 4.] 
 
 As ground of defence. [See Fraud, 4.] 
 Digest, 1870-1875. . 
 
 DESIGNS. 
 [See Copyright, 4-6.] 
 
 DETINUE. 
 
 1.— Detinue does not lie against the maker of 
 a promissory note after he has delivered it to a 
 properly constituted stakeholder, although he may 
 have forbidden the stakeholder to hand it over to 
 the person claiming it, and in whose favour it 
 was drawn. Latter v. White (H.L.), 41 Law J. Eep. 
 (n.s.) a B. 342 ; Law Eep. 5 E. & I. App. 578. 
 
 The trustee of a composition deed or notes of 
 the debtor or his surety for the benefit of the 
 creditors, is such a stakeholder. Ibid. 
 
 2. — Final judgment recovered against one of 
 two joint wrongdoers is a bar to an action against 
 the other for the same cause of action, although 
 such judgment be unsatisfied, but unless it be 
 satisfied, the property in goods obtained by the 
 wrongdoer is not changed so as to vest it in the 
 person against whom such judgment was ob- 
 tained. Brinsmead v. Harrison, 40 Law J. Eep. 
 (n.s.) C.P. 281 ; Law Eep. 6 C. P. 584: aifirmed, 
 on appeal, 41 Law J. Eep. (n.s.) C.P. 190; Law 
 Rep. 7 C. P. 547. 
 
 Therefore, where in detinue the defendant pleaded 
 that the detention was committed, by him jointly 
 with A. B., and that the plaintiff had recovered 
 final judgment in trover against A. B. for the con- 
 version of the goods so detained, it was held a, 
 bad replication that such judgment was unsatis- 
 fied, but a good new assignment that the action 
 was brought for a detention subsequent to such 
 judgment. Ibid. 
 
 3. — The plaintiff in an action for the wrongful 
 detention of a lease, recovered judgment for 100/,, 
 to be reduced to nothing if the lease was returned. 
 Execution was afterwards stayed for a month, to 
 give the defendant time to search for the lease, 
 which had been mislaid. Before the month had 
 expired, the defendant filed a liquidation petition. 
 The first meeting of the creditors was held after 
 the expiration of the month, but the plaintiff had 
 not then levied execution for the 1001. The lease 
 was subsequently found, and was tendered to the 
 plaintiff, who refused to accept it:^-He!d, that 
 the 1001. was not a debt provfeable under the 
 petition. Ex parte Scarth ; In re Scarth, 44 Law 
 J. Rep. (n.s.) Bankr. 30; Law Eep. 10 Chanc. 
 234. 
 
 Bailment : goods at sufferance wharf. [See 
 Bailment, 2.] 
 
 DEVISE. 
 [See Will.] 
 
 GG 
 
226 
 
 DILAPIDATIONS-DIVOECE. 
 
 DILAPIDATIONS. 
 [See CHtiEOH, H.] 
 
 DISCOVERY. 
 
 [See Production of DocnMENTS ; Attorney, 1 6 ; 
 Patent, 30; Pxbading in Eqitit^, 12-1.5; 
 Practice at Law, 10-19; Practice in 
 Equity, 71-73.] 
 
 1, — Property in London was granted for a lease 
 of ninety- nine years in 1 763. At the expiration of the 
 lease the reversioner found difficulty in identifying 
 certain part of the property which had been gene- 
 rally described in the' original lease as " seven and 
 a half acres of pasture or meadow, and lying dis- 
 persedly in the ooramou fields at Walworth, com- 
 monly called Lock's Fields." The property had 
 during the lease been imderlet and dealt with by 
 instalments, some of which contained particular 
 descriptions, which, as the reversioner contended, 
 would help him to identify the houses and lands 
 now in the defendant's occupation as his property, 
 and he filed this bill for discovery of such under- 
 leases and instruments : — Held, on demurrer, that 
 the plaintiff was entitled to the discovery. Brown 
 V. Wales, 42 Law J. Hep. (n.s.) Chanc. 45 ; Law 
 Eep. 15 Eq. 142. 
 
 Dbmurrer for multifariousness overruled, coUu- 
 siju being charged by the bill. Ibid. 
 
 2. — A person complaining of a libel in a news- 
 paper may file a bill against the printer and pub- 
 lisher to ascertain the names of the proprietors, 
 for the purpose of bringing his action against the 
 proprietors alone. Dixon v. Enoch, 41 Law J. 
 Eep. (n.s.) Chanc. 231 ; Law Eep. 13 Eq. 394. 
 
 3. — Communications (including a bill of costs) 
 of suitor with his solicitor, relating to the matters 
 in suit, before commencement of proceedings, held 
 privileged, though the solicitor made an affidavit 
 on behalf of the suitor. Minet v. Morgan (42 Law 
 J. Eep. (n.s.) 627; Law Eep. 8 Chanc. 361) fol- 
 lowed. Turton v. Barber, 43 Law J. Eep. (n.s.) 
 Chanc. 468 ; Law Eep. 17 Eq. 329. 
 
 DISENTAILING ASSUEANCE. 
 [See Fines and Eecoveries.] 
 
 DISOEDEELY HOUSE. 
 
 [See Habitual CRiMiNAt,3 Act ; Public Enter- 
 tainment.] 
 
 DISSENTEES. 
 
 Where the proceedings by which the minister 
 of a religious congregation had been dismissed 
 had not in the opinion of the Court been fairly 
 
 and properly conducted, the Court refused to lend 
 its aid to such proceedings by an injunction to 
 restrain him from officiating. Dean v. Bennett, 
 40 Law J. Eep. (n.s.) Chanc. 452 ; Law Eep. 6 
 Chanc. 489. 
 
 Exemption of dissenting minister from toll. 
 [See Turnpike, 3.] 
 
 DISTEESS. 
 
 For annuity charged on land. [See An- 
 nuity, 11, 12.] 
 
 On cattle straying. [See Common, 3.] 
 
 For rent. [See Company, I 66, 67 ; 
 Landlord and Tenant, 7-13.] 
 
 Power of, in lease. [See Lease, 21.] 
 
 DISTEIBUTIONS, STATUTE OF. 
 
 If an intestate leaves no children, but 
 grandchildren and great-grandchildren only, they 
 take per stirpes and not per capita. In re Eoss's 
 Trusts, 41 Law J. Eep. (n.s.) Chanc. 130 ; Law 
 Eep. 13 Eq. 286. 
 
 Position of next-cf-Jcin for the purposes of 
 , [See Election, 1 .] 
 
 DIVORCE. 
 
 (A) Jurisdiction. 
 
 (a) Bomicil. 
 
 (b) Power to make rules. 
 
 (B) liEGiTiMAcr Declaration Act. 
 
 (C) Nullity of Marriage. 
 
 (a) Defect in the contract. 
 
 (b) Defect in the parties. 
 
 (c) Suit barred by delay. 
 
 (D) Dissolution of Marriage. 
 (a) When suit maintainable. 
 
 (1) Condonation. 
 
 (2) Previous judicial separation. 
 
 (3) Delay. 
 
 (4) Insanity of respondent. 
 (i) Wect of 
 
 (E) Judicial Separation. 
 
 (a) Wife's adultery no bar to suit. 
 
 {b) When granted in smtfor dissolution. 
 
 (1) Suit by husband. 
 
 (2) Suit by mfe. 
 
 (F) Eestitution of Conjugal Eights. 
 (Gr) Cruelty. 
 
 (H) Desertion. 
 
 (l) Connivance and Collusion. 
 
 (K) Parties. 
 
 (L) Pleading. 
 
 (o) To jurisdiction. 
 
 (b) Adultery after filing of petition. 
 
 (c) Particulars of cruelty. 
 
 (M) AMtaTDMENT OF PETITION. 
 
mVORCE (A), (C). 
 
 2a7 
 
 (N) Evidence. 
 
 (a)\Qiieen's Proctor intervening. 
 (V) Idetitity. 
 
 (c) AdmissiMlity tinder separation deed. 
 
 (d) Agent nf husband employed to watch 
 
 wife. 
 (0) Witness. 
 (P) Alimony. 
 
 (a) Alimony pendente lite. 
 
 (1) Effect of separation deed. 
 
 (2) Pending appeal hy wife. 
 
 (3) Plea to jurisdiction, 
 
 (5) Permaiietit alimony. 
 
 (1) After decree made. 
 
 (2) Increase of alimony. 
 
 (3) Paymemt of arrears. 
 
 (4) Allowance for children. 
 (Q) Custody of Childeen. 
 
 (E) Alteration of Settlement. 
 (S) Peacticb. 
 (a) Petition. 
 
 (1) Amendment. 
 
 (2) Withdrawal of petition. 
 
 (3) Answer to petition for alimx>ny. 
 (i) Serifice. 
 
 (1) Personal. 
 
 (2) Siibstituted. 
 (c) Issues. 
 
 {d) Dismissal of respondent from suit. 
 
 (e) Staying proceedings. 
 
 (<)■) Rehearing. 
 
 (A) Decrees and orders. 
 
 (1 ) Shewing cause against decree nisi. 
 
 (2) - Seversmg decree nisi. 
 
 (3) Time for making decree absolute. 
 
 (4) Suspending decree absolute. 
 (6) Or&r /or payment of money. 
 
 (i) Damages. 
 
 (k) Appeal : whether stay of proceedings. 
 (T) Costs. 
 
 (a) Of wife. 
 
 (1) Intervention of Queen's Proctor. 
 
 (2) fifej* /or dissolution: failure of 
 charges. 
 
 (3) Judicial separation. 
 
 (4) Bestitution of conjugal rights. 
 
 (5) Unsuccessful suit. 
 
 (6) Cos<s against separate estate of wife. 
 
 (c) Cosfs against petitioner. 
 
 (d) Claim for damages, 
 
 (e) Cosfe a/Ker &cree absolute. 
 (/) Security for costs. 
 
 {g) Proctor's or attorney's lien. 
 
 (A) JuitlSDICTION. 
 
 (a) Domicil. 
 
 1. — Tbe Court has not jurisdiction to entertain 
 a suit for judicial separation when the petitioner 
 is domiciled abroad, and is not bond fide resident 
 in England. Manning v. Manning, 40 Law J. 
 Eep. (n.s.) p. & M. 18 ; Law Eep. 2 P. & D. 223. 
 
 Quaere — whether the bond fide residence in 
 
 England of a petitioner who is domiciled abroad 
 is sufficient to give the Court jurisdiction. Ibid. 
 
 Jurisdiction : domicil : Scotch marriage. 
 [See Domicil, 1.] 
 
 (6) Power to make rules. 
 
 2. — The Judge Ordinary has power to make 
 rules and orders for regulating the practice and 
 procedure of the Court of Divorce. Wilson v. 
 Wilson, 41 Law J. Eep. (n.s.) P. & M. 1 ; Law 
 Eep. 2 P. & D. 341. 
 
 As a preliminary objection, the question of 
 jurisdiction can only be raised in the manner pre- 
 scribed by rule 22, viz., by tbe respondent appear- 
 ing under protest and filing an act on petition. A 
 respondent, however, although he has appeared 
 absolutely, may raise the question of jurisdiction 
 as a bar to the suit in his answer, either with or 
 without any other defence he may have on the 
 merits ; but in the latter case it must be clear on 
 the face of the answer that the absence of j urisdio- 
 tion is the only defence on the merits which he 
 intends to set up. Ibid. 
 
 3. — The Judge Ordinary alone has power to 
 make and alter rules of practice and procedure. 
 Wilson V. Wilson, 40 Law J. Eep. (n.s.) P. & M. 
 77 ; Law Eep. 2 P. & D. 341. 
 
 (B) Legitimacy Declaration Act. 
 [See that title.] 
 
 (C) Nullity of Marelage. 
 
 (a) Defect in the contract. 
 
 [See Mabbiage.] 
 
 (b) Defect in the parties. 
 
 [23 & 24 Vict. c. 144, s. 7, and 29 & 30 Vict, 
 c. 32, s. 3, extended to suits for nullity of marriage. 
 36 & 37 Vict. c. 31.] 
 
 4. — A marriage is void if consummation is 
 practically impossible, although there be no mal- 
 formation or structural defect rendering consum- 
 mation physically impossible. G. v. G., 40 Law 
 J. Eep. (n.s.) p. & M. 83 ; Law Eep. 2 P. & D. 
 287. 
 
 5. — Decree of nullity nisi granted, in a case 
 where the wife refused to submit to inspection, 
 on evidence by the husband that during three 
 years he had never been able to consummate the 
 marriage, as his attempts to do so had produced 
 hysteria on the part of the wife. H. v. P., falsely 
 calUd H., Law Eep. 3 P. & M. 126. 
 
 (c) Suit barred by delay. 
 
 6. — The marriage took place in 1863. In 1868 
 the wife became aware of her husband's impotency, 
 but continued to live with him until 1870, when, 
 serious disagreements having occurred between 
 them, a deed of separation was executed. In 1871 
 the wife for the first time heard of the remedy 
 that was open to her, and thereupon instituted her 
 suit for nullity, but failed to prove that the mar- 
 riage had remained uneonsummated by reason of 
 
228 
 
 DIVORCE (C), (E). 
 
 the irapotency of tlie husband. The Court dis- 
 missed the petition and condemned the petitioner, 
 ■who had a separate income, in the costs of the 
 suit. It at the same time intimated that it could 
 not discover in lier own conduct that impatience 
 under a sense of wrong, and reasonable activity in 
 complaint and redress, which should be expected 
 from one in her position, and that consequently, if 
 she had succeeded on the issue of fact, her delay 
 in instituting the suit would have constituted an 
 impediment to the relief which she claimed. 
 M. v. C, 41 Law J. Eep. (n.s.) P. & M. 37; Law 
 Eep. 2 P. & D. 414. 
 
 7. — Although delay is no bar to a proceeding 
 for declaration of nullity where impotency is 
 clearly proved, the judgment on such a proceeding 
 will be considerably influenced by delay where the 
 evidence is not absolutely clear. Mansfield v. 
 Cfuno (H.L.), 42 Law J. Eep. (n.s.) P. & M. 65 ; 
 Law Eep. 2 So. & Div. App. 300. 
 
 In 1863 the marriage took place. In 1868 the 
 wife became aware, according to her own evidence, 
 of the husband's impotency, but she continued co- 
 habitation until 1870, when a deed of separation 
 was executed. In 1871, she became aware of her 
 remedy, and she instituted a suit for declaration of 
 niillity. Xhe medical evidence was not conclusive. 
 Her own evidence and that of the husband were 
 conflicting : — Held, that, looking at the evidence 
 and considering the delay, she had failed to make 
 out the charge of impotency. As she had 
 separate property, the suit was dismissed with 
 costs. Ibid. 
 
 Time for making decree absolute. 
 infra No. 68.1 
 
 [See 
 
 (D) DissoLTjTioN OP Maeeiage. 
 
 (a) When suit maiiitainaUe. 
 
 (1) Condonation. 
 
 8. — Eighteen months after the marriage the 
 husband, the petitioner, committed adultery on one 
 occasion with a woman by whom he had had a 
 child previously to his marriage. He confessed 
 the fact to his wife who condoned his misconduct. 
 Subsequently the wife herself was guilty of adul- 
 tery. The Court was of opinion that there was 
 no special circumstance in the case to justify the 
 exercise of its discretion under section 31 of 20 & 
 21 Vict. c. 85, in favour of the petitioner, and de- 
 clined to pronounce a decree. M'Cord v. M'Cord, 
 44 Law J. Eep. (n.s.) P. & M. 38 ; Law Eep. 3 
 P. & D. 237. 
 
 9. — The husband was guilty of incestuous adul- 
 tery with his wife's sister. The wife, the peti- 
 tioner, became aware of it, but agreed, in con- 
 sideration of the respondent retiring from a, 
 partnership which then subsisted between him 
 and her father and brother, to institute no pro- 
 ceedings for a divorce. The agreement further 
 provided that the respondent might visit the 
 petitioner under certain circumstances once a 
 week, but it also contained this clause : " The 
 agreement or contract binds me (the wife) only 
 as long as you remain true to me in love and 
 duty." The agreement was signed on the 25th of 
 
 November, 1868. Tberespondentmetthepetitioner 
 afterwards on several occasions ; on the 19th of 
 April, 1869, she refused to see him again, and in 
 the following June the respondent was guilty of 
 adultery : — Held, that the subsequent adultery re- 
 stored to the wife the right to have the marriage 
 dissolved on the ground of the previous incestuous 
 adultery committed by the respondent. Newsome 
 V. Newsome, 40 Law J. Eep. (n.s.) P. & M. 71 ; 
 Law Eep. 2 P. & D. 306. 
 
 Condoned incestuous adultery is revived by sub- 
 sequent adultery not incestuous. Ibid. 
 
 (2) Frevious judicial separation, 
 
 10.— A decree of judicial separation obtained 
 by a wife on the ground of adultery, is no bar to 
 a suit by her for a divorce on the ground of cruelty 
 committed before the date of the petition for 
 judicial separation, coupled with adultery subse- 
 quent to the decree, if the suit is instituted bond, 
 fide. Green v. Green, 43 Law J. Eep. (n.s.) P. & 
 M. 6 ; Law Eep. 3 P. & D. 121. 
 
 (3) Bday. 
 
 11. — ^Where a husband who had delayed taking 
 proceedings for a divorce for nearly fourteen 
 years, was found at the end of that time to be in 
 possession, as a coal-hauler, of stock in trade of 
 the value of 600Z., nine horses, and some cottages, 
 the Court refused to accept want of means as an 
 excuse. Short v. Short, Law Eep. 3 P. & D. 193. 
 
 12. — "Where there is unreasonable delay {e.g. 
 two years) by a petitioner in presenting her 
 petition, it will be dismissed unless some sufficient 
 reason for the delay is shewn. Nicholson v. 
 Nicholson, Law Eep. 3 P. & D. 53. 
 
 (4) Insanity of respondent, 
 
 13.— There is nothing in the 20& 21 Vict. c. 85 
 to prevent proceedings for the dissolution of a 
 marriage for adultery being instituted or pro- 
 ceeded with, where the party proceeded against 
 has before the institution of the proceedings be- 
 come incurably lunatic. Mordaunt v. Moncreiffe 
 (H.L.), 43 Law J. Eep. (n.s.) P. & M. 49. 
 
 Whether proceedings for the dissolution of a 
 marriage can be instituted on behalf of a lunatic 
 husband or wife, qmcere. Eeversal of the decision 
 below, 39 Law J. Eep. (n.s.) P. & M. 57. 
 
 Bawden v. Bawde.n (2 Sw. & Tr. 417 ; 31 Law 
 J. Eep. (n.s.) p. M. & A. 94) disapproved. Ibid. 
 
 (6) Effect of 
 
 Effect of decree of on wife's separate pro- 
 [See MAKKIA.GE Settlement.] 
 
 (E) JuDiciAi. Sepabation. 
 
 (a) Wife's adultery no bar. 
 
 14. — Semble, that the adultery of the wife is 
 not a bar to a suit by her for judicial separation 
 on the ground of cruelty. Grossi v. Grossi, 42 
 Law J. Eep. (n.s.) P. & M. 69 ; Law Eep. 3 P. & 
 D. 118, 
 
DIVOECE (E), (H). 
 
 229 
 
 (i) When granted in suit for dissolution. 
 
 (1) Suit by husband. 
 
 15. — Husband and wife agreed to separate, and 
 a deed was executed under whicli an allowance 
 was secured to the wife. Subsequently the hus- 
 band filed a petition for dissolution of marriage on 
 the ground of the wife's adultery, which was 
 alleged to have taken place after their separation. 
 The wife denied the alleged adultery, charged the 
 petitioner with cruelty, and prayed for a decree of 
 judicial separation. At the trial the jury found in 
 favour of the wife : — Held, that the wife was re- 
 mitted to her original position by the institution of 
 the suit by the husband, and being the successful 
 party in the suit, that she was entitled to the 
 fullest redress which the law allowed, namely, a 
 decree of judicial separation. Brown v. Brown, 
 43 Law J. Eep. (n.s.) P. & M. 47. 
 
 16. — ^Where in answer to a husband's petition 
 for divorce on the ground of his wife's adultery, 
 the wife denied the adultery and pleaded acts of 
 cruelty committed before the execution of a se- 
 paration deed, under which she was then living 
 apart from her husband on a sufficient allowance, 
 and the jury found that the husband had been 
 guilty of cruelty, but the wife had not been guilty 
 of adultery, — Held, that the wife was entitled to 
 a judicial separation. Brown v. Browti and Shel- 
 ton, Law Eep. 3 P. & D. 202. 
 
 (2) Suit by wife. 
 
 17. — In a suit for dissolution of marriage pro- 
 moted by the wife, the jury, after several hours' 
 consultation, intimated that they were prepared 
 to find for the petitioner on the question of cruelty, 
 but that there was no hope of their being able to 
 agree on the questions of adultery. They were 
 then discharged. Subsequently the petitioner 
 moved the Court to accept the verdict of the jury 
 on the question of cruelty, and to order a new 
 trial of the questions of adultery. The Court re- 
 jected the application, but oifered to grant to the 
 petitioner a rule calling upon the respondent to 
 shew cause why the verdict of the jury on the 
 question of cruelty should not be accepted, and a 
 decree of judicial separation founded thereon. 
 Godrich v. Godrich, 41 Law J. Eep. (ir.s.) P. & 
 M. 45 ; Law Eep. 2 P. & D. 392. 
 
 18. — In a suit for dissolution of marriage on 
 the ground of cruelty and adultery, if one of the 
 charges only be established, the petitioner has a 
 right to a decree of judicial separation without 
 the consent of the respondent. Bromfield v. Brom- 
 Md, 41 Law J. Eep. (n.s.) P. & M. 17. 
 
 (F) Eestitution of Conjuoai, Eishts. 
 
 Suit for, when reheard. [See infra No. 63.] 
 Wife's costs in suit for. [See infra No. 78.] 
 
 (G) Ceuemt. 
 
 [See supra Nos. 10, 15 — 18, and infra 
 Nob. 26, 27.] 
 
 19. — A husband constantly abtised and swore 
 at his wife, and refused to provide delicacies 
 ordered by her doctor. He also used threate 
 
 towards hor, and on several occasions wantonly 
 beat her child in her presence : — Held, that such 
 conduct did not constitute legal cruelty, it not 
 appearing that the wife had suffered in health in 
 consequence of it, or been apprehensive for her 
 personal safety. Birch v. Birch, 42 Law J. Eep. 
 (n.s.) p. & M. 23. 
 
 Semble — the wanton ill-treatment of a child in 
 the mother's presence and for the purpose of 
 giving her pain, would, if carried to such an 
 extent as to affect the mother's health, constitute 
 legal cruelty. Ibid. 
 
 (H) Desertion. 
 
 20. — The parties were married in December, 
 1868. In May, 1869, the petitioner separated 
 from the respondent, she being, as he alleged, 
 either incapable or unwilling to consummate the 
 marriage. Three years afterwards the respondent 
 formed an adulterous connection with the co-re- 
 spondent, and gave birth to a child. At the hear- 
 ing she was called as a witness in her own behalf, 
 and attributed the fault of the non-consummation 
 of the marriage to the petitioner. The Court, 
 being satisfied that the petitioner had separated 
 from the respondent in consequence of the bon& 
 fide belief that the incapacity lay with her, held 
 that he had not been guilty of such desertion or 
 wilful separation without reasonable excuse, as 
 should disentitle him to a decree for dissolution 
 of his marriage. Omey v. Ousey, 43 Law J. Eep. 
 (n.s.) p. & M. 35 ; Law Eep. 3 P. & D. 223. 
 
 21. — The husband, who had been guilty of 
 several thefts, withdrew from his home in Novem- 
 ber, 1866, with the knowledge and consent of the 
 wife, for the purpose of concealment. He was 
 shortly afterwards arrested, tried and convicted, 
 and sentenced to a term of imprisonment. On his 
 release, in April, 1867, he begged his wife to re- 
 turn to him. She refused to do so until he was in 
 a position to support her, but occasionally visited 
 him. In June, 1867, he was again convicted of 
 larceny and sentenced to two years' imprisonment, 
 which terminated in Jime, 1869. He wrote to 
 her in July, and in the following October he went 
 to her parents' house with the view of inducing 
 her to resume cohabitation with him, but she re- 
 fused to see him, and conveyed to him through 
 her mother her determination not to live with 
 him. He was a third time convicted of larceny 
 in June, 1871, and sentenced to seven years' penal 
 servitude : — Held, that he had not been guilty of 
 desertion ; the original separation having been 
 with the wife's consent, and he having been pre- 
 vented from rejoining her either by his imprison- 
 ment or by her refusal to resume cohabitation. 
 Townsend v. Townsend, 42 Law J. Eep. (n.s.) P. 
 & M. 71 ; Law Eep. 3 P. & D. 129. 
 
 The husband, who had committed several thefts, 
 was convicted of larceny and sentenced to a term 
 of imprisonment. On his release, the wife refused 
 to rejoin him : — Held, that the refusal of the wife 
 to resume cohabitation, though morally justifiable, 
 not being founded on any matrimonial misconduct 
 of the husband, rendered the separation which re- 
 sulted involuntary on his part. Ibid, 
 
230 
 
 DIVOECE (H), (N). 
 
 22.— The husband withdrew from cohabitation, 
 and refused to return and live with his wife, unless 
 she wrote a letter exonerating a certain lady of 
 whom she had reason to be jealous. The wife, 
 having grounds for believing that her suspicions 
 were well founded, refused to comply with the con- 
 dition, but was desirous to live with her husband, 
 and pressed him to return to cohabitation. The 
 husband occasionally met and corresponded with 
 her, but persisted in his refusal to live with her : 
 — Held, that the denial of consortium by the hus- 
 band amounted to desertion, and that the desertion 
 was without reasonable excuse. Dallas v. Dallas, 
 43 Law J. Eep. (n.s.) P. & M. 87. 
 
 (I) Connivance and CotLTiaioN. 
 
 23. — The husband, who was separated from 
 his wife, employed an agent to watch her, in order 
 to obtain evidence of her adultery. By the in- 
 ducement of the agent the wife committed adul- 
 tery: — Held, that the husband could not claim 
 relief on the groxiud of such adultery, and petition 
 dismissed. Grower v. Gower, 41 Law J. Kep. (n.s.) 
 P. & M. 49 ; Law Eep. 2 P. & D. 428. 
 
 Sugg V. Sitgg and Moore (31 Law J. Eep. (n.s.) 
 P. & M. 41) distinguished. Ibid. 
 
 Pkken v. Picken (34 Law J. Eep. (n.s.) P. & M. 
 22) affirmed. Ibid. 
 
 (K) Parties. 
 
 I/imacy of respondent. [See supra No. 13.] 
 
 Service. [See infra Nos. 65, 56.] 
 
 (L) PLEADme. 
 
 (a) To jurisdiction. 
 
 24. — A respondent in a suit for dissolution of 
 marriage, who has entered an absolute appearance, 
 cannot file an answer raising the question of juris- 
 diction solely, but may in an answer pleading to 
 the merits also allege facts raising the question of 
 jurisdiction. Wilson v. Wilson, 40 Law J. Eep. 
 (n.s.) p. & JM. 77 ; Law Eep. 2 P. & D. 341. 
 [And see No. 39 infra.] 
 
 (6) Adultery after filing of petition. 
 
 25. — If it be sought in a matrimonial suit to 
 cliarge the respondent witli an act of adultery 
 committed after the filing of the petition in the 
 suit, the proper course is to file a supplemental 
 petition charging such adultery, and then to move 
 the Court to consolidate the two suits. Borham 
 V. Borham, 40 Law J. Eep. (n.s.) P. & M. 6 ; 
 Law Eep. 2 P. & D. j93. 
 
 (c) Particulars of cruelty. 
 
 26. — Where a respondent filed as particulars 
 of cruelty alleged in her answer allegations of 
 cruelty which did not correspond with the charge 
 in the answer but were fresh charges, the Court 
 ordered them to be struck out. Sanderson v. San- 
 derson, 41 Law J. Eep. (n.s.) P. & M. 24. 
 
 (M) Amendment op Petition. 
 
 27, — Cruelty being a fact which must be in the 
 Jsnowledge of a petitioner at the commencement of 
 
 the suit, the Court will generally refuse to allow 
 fresh charges of cruelty to be added to a petition. 
 Austin V. Austin, 41 Law J. Eep. (n.s.) P. & M. 8. 
 28. — At the date of filing his petition the only 
 evidence which the petitioner had was the con- 
 fession of the respondent. He subsequently ob- 
 tained independent evidence of her alleged adultery 
 with the co-rfspondent, and he then applied to 
 amend his petition by adding a claim for damages. 
 The Court allowed the amendment. Henslom v. 
 Henslow, 40 Law J. Eep. (n.s.) P. & M. 31. 
 
 (N) Evidenob. 
 
 (a) Queen's Proctor intervening. 
 
 29. — The intervention of the Queen's Proctor 
 being the discharge of a public duty, he is not 
 bound to give such strict proof of adultery as 
 would be requisite to found a decree of dissolution 
 of marriage. Privid facie evidence of such adul- 
 tery, if uncontradicted, is suificient. Hulse v. 
 Hulse, the Queen's Proctor intervening, 41 Law J. 
 Eep. (n.s.) p. & M. 19; Law Eep. 2 P. & D. 367. 
 
 (J) Identity. 
 
 30. — In support of a charge of adultery made 
 by the Queen's Proctor against a petitioner, the 
 only evidence was, that a man, calling himself by 
 the name, and using the card, of the petitioner, 
 had committed fornication. Full particulars of 
 the charge having been given, and the petitioner 
 at the hearing not coming forward to deny it, the 
 Court held that there was sufficient proof of iden- 
 tity. Hulse V. Hulse, 41 Law J. Eep. (n.s.) P. & 
 M. 19 ; Law Eep. 2P. & D. 357. 
 
 issibility under separation deed. 
 
 31. — The petititioner and respondent executed 
 a deed of separation, which provided, that " in 
 case either party shall hereafter commence or pro- 
 secute any proceedings against the other in respect 
 of any cause of complaint which may hereafter 
 arise, no offence or misconduct which has been 
 committed or permitted before the execution of 
 these presents, and no act, deed, neglect, or default 
 of either in relation to any such offence or mis- 
 conduct, shall be pleaded or alleged by either 
 party, or be admissible in evidence." The re- 
 spondent was subsequently guilty of adultery with 
 the co-respondent, and the petitioner instituted a 
 suit for dissolution of marriage by reason of such 
 adultery : — Held, that evidence of familiarities 
 between the respondent and co-respondent prior 
 to the separation was admissible within the terms 
 of the deed. Harris v. Harris, 41 Law J. Eep. 
 (n.8.) p. & M. 61. 
 
 {d) Agent of husband employed to watch wife. 
 
 32. — The husband, who was separated from 
 his wife, employed an agent to watch her, in order 
 to obtain evidence of her adultery. By the in- 
 ducement of the agent the wife committed adul- 
 tery : — Held, that the husband could not claim 
 relief on the groimd of such adultery, and petition 
 dismissed. Gower -v. ffowe?-, 41 Law.!. Eep. (n s.) 
 P. & M. 49 ; Law Eep, 2 P. & D. 428. 
 
DIVOECE (0), (P). 
 
 231 
 
 (0) Witness. 
 
 33. — The husband obtained a decree nisi for 
 dissolution of his marriage, on the ground of his 
 wife's adultery. Before the decree was made ab- 
 solute, the Queen's Proctor intervened, and alleged 
 that the petitioner had been guilty of specific acts 
 of adultery, and also of adultery -with divers 
 women whose names were unknown. Particulars 
 of the general charge of adultery were ordered, 
 but none were furnished by the Queen's Proctor. 
 The petitioner was called as a witness in his own 
 behalf, and denied the specific charges of adultery. 
 On cross-examination a question was put to him, 
 tending to shew that he had been guilty of adul- 
 tery as alleged in the general charge : — Held, that 
 having tendered himself as a witness to disprove his 
 alleged adultery, he was liable to cross-examina- 
 tion upon all the charges contained in the Queen's 
 Proctor's allegations, and was therefore bound to 
 answer the question. Brown v. Brovm, 43 Law 
 J. Eep. (n.s.) p. & M. 33 ; Law Eep. 3 P. & D. 
 198. 
 
 34. — In a suit by a wife for judicial separation 
 on the ground of desertion, the Court having 
 allowed substituted service of the petition, and 
 petition for alimony pendente lite, and the husband 
 not having appeared, the Court, under rule 89, 
 allowed the wife to examine witnesses in support 
 of her petition for alimony, without giving the 
 usual four days' notice. Robinson v. Robinson, 41 
 Law J. Rep. (n.s.) P. & M. 40. 
 
 35. — No witness is liable to answer in cross-ex- 
 amination any question tending to shew that he has 
 been guilty of adultery, unless he has in the same 
 proceedings given evidence in disproof of the 
 alleged adultery. Babbage v. Babbage and Man- 
 ning, Law Eep. 2 P. & D. 222. 
 
 (P) Alimony. 
 
 (a) Alimony pendente lite. 
 
 (1) Effect of separation deed. 
 
 36. — The wife, the respondent in a suit, pro- 
 moted by the husband for dissolution of marriage 
 on the ground of her adultery, prayed for an allot- 
 ment of alimony pendente lite. She was in the 
 receipt, under a deed of separation, of an allow- 
 ance of 40Z. a year, and had made no effort to 
 have it increased, notwithstanding that after the 
 execution of the deed the husband came into the 
 possession of very considerable property. The 
 Court, under these circumstances, reftised to allot 
 alimony pendente lite. Powell v. Powell, 42 Law 
 J. Eep. (n.s.) P. & M. 44; Law Eep. 3 P. & D. 
 186. 
 
 37. — -Aji allowance under a deed of separation 
 is no bar to a wife's petition for alimony pendente 
 lite. Powell v. Powell, 43 Law J. Eep. (n.s.) P. 
 & M. 9 ; Law Eep. 3 P. & D. 186. 
 
 As a rule, 3,]imonj pendente Ute is allotted in the 
 proportion of one-fifth of the joint income, but 
 the allotment and amount are in all cases in the 
 discretion of the Court. Ibid. 
 
 An allowance of 40/. a year was secured to the 
 wife, imder a deed of separation which was exe- 
 cuted in 1862. The income of the husband was 
 
 at the time about 21 OZ. a year, but in 1867 he 
 came into the possession of property which brought 
 him in an income of 1,700/. a year. The wife 
 continued to receive the allowance of 40/. a year, 
 and did not allege in her petition for alimony 
 pendente lite, that her status had been in any way 
 changed by the sviit which her husband had insti- 
 tuted against her. The Judge Ordinary, under 
 these circumstances, refused to make any order on 
 her petition, and on appeal, the decision was 
 affirmed by the full Court, who, in dismissing the 
 appeal, refused to make any order as to her costs. 
 Ibid. 
 
 (2) Pending appeal by wife, 
 
 38. — A wife who has appealed against a decree 
 is generally entitled to alimony pendente lite dur- 
 ing the appeal. Jones v. Jones, 41 Law J. Eep. 
 (N.s.) P. & M. 53. 
 
 Semble — that if the appeal is vexatious or the 
 wife has been guilty of laches, she will not be en- 
 titled to such alimony. Ibid. 
 
 (3) Plea to jurisdiction. 
 
 39. — Alimony pendente lite allowed notwith- 
 standing a plea to the jurisdiction raising a sub- 
 stantial question of domicile. Ronalds v. Ronalds, 
 Law Eep. 3 P. & D. 259. 
 
 (i) Permanent alimony. 
 (1) After decree made. 
 
 40. — It is not necessary, in suits for judicial 
 separation, that the wife should obtain an order 
 for alimony ^c»^ej!/e lite to enable the Court to 
 allot her permanent alimony after the final decree 
 has been pronounced. Covell v. Covell, 41 Law J. 
 Eep. (N.S.) P. & M. 81 ; Law Eep. 2 P. & D. 
 411. 
 
 The wife obtained a decree of judicial separation 
 by reason of the adultery of the husband. No 
 application was made for alimony pending the suit, 
 but after the final decree had been pronounced, she 
 filed a petition for permanent alimony. The hus- 
 band appeared under protest : — Held, that the 
 Court had power to entertain the petition, and 
 that the husband was bound to answer to the 
 merits. Ibid. 
 
 (2) Increase of alimony. 
 
 41. — Notice of an application for an increase of 
 permanent alimony should be given to the hus- 
 band. Notice to the attorney who conducted the 
 suit for him is insufficient. Louis v. Louis, 41 
 Law J. Eep. (n.s.) P. & M. 18. 
 
 (3) Payment of arrears. 
 
 42. — The Court, contrary to the usual prac- 
 tice, made an order for the payment of arrears of 
 alimony, specifying the amount, where it appeared 
 probable that the husband, who was an officer 
 serving in India, would be compelled by the India 
 Office to obey such an order. Louis v. Louis, 41 
 Law J. Eep. (n.s.) P. & M. 19. 
 
232 
 
 DIVOBCE (P), (E). 
 
 (4) Allowance firjohUdrem. 
 
 43. — The wife had an incjme from property 
 settled on her by the hnsband of 196Z. a year. 
 The husband had an income of 367^. a year. 
 There were three children of the marriage who 
 were in the custody of the wife. The Court in 
 allotting permanent alimony, ordered that in ad- 
 dition to the 196^. a year which the wife enjoyed 
 under the settlement, the husband should allow 
 her 30^. a year each for the maintenance of the 
 children. Todd v. Todd, 42 Law J. Eep. (n.s.) P. 
 & M. 62. 
 
 (Q) Custody of Childeen. 
 
 44.— Under section 9 of 24 & 25 Vict. c. 86, 
 the Court has a wide discretion as to the custody 
 of the children, and no general rule can be laid 
 down. Under special circumstances, after a judi- 
 cial separation on the ground of the husband's 
 adultery, but where there was no continuance of 
 immorality on his part the custody of the sons 
 was given to the father and that of the daughters 
 to the mother. Symington v. Symington, Law Eep. 
 2 Sc. App. 416. 
 
 45. — The Court, in exercising the power given 
 to it by 22 & 23 Vict. c. 61, s. 4, with respect to 
 the custody of children, will allow, in the interest 
 of the children, the intervention of a third person 
 after the final decree in a suit for judicial sepa- 
 ration as in a suit for dissolution of marriage. 
 Godrich v. Godrich, 43 Law J. Eep. (n.s.) P. & 
 M. 2 ; Law Eep. 3 P. & D. 134. 
 
 46. — In exercising its discretion in the matter 
 of access to children by their parents pending 
 a suit, the Court is mainly influenced by considera- 
 tions for the interests of the children. Therefore, 
 where it was satisfied that the visits of the 
 mother to the child, who was in a very sickly state, 
 might retard the child's recovery, it refused the 
 mother an order for access pending the suit, though 
 there was reason to apprehend that the separa- 
 tion of the mother from the child would exercise 
 a prejudicial effect on the mother's health. Philip 
 V. PhUip, 41 Law J. Eep. (n.s.) P. & M. 89. 
 
 (E) Alteration of Setti,embnt. 
 
 47. — The wife, on account of whose adultery 
 the marriage was dissolved, derived considerable 
 property from the will of her father. The pro- 
 perty was devised and bequeathed to trustees, 
 upon trust, to pay the annual income to the 
 respondent for her separate use, as a strictly per- 
 sonal and inalienable provision during her life, 
 " unless or until she, for the time being discovert, 
 should do or suffer any act or thing, or any event 
 should happen, whereby the said income, or any 
 part thereof, should either voluntarily or involun- 
 tarily be aliened or encumbered, or be receivable 
 otherwise than by the respondent herself perso- 
 nally ; " in which event, the will provided that the 
 trust should be void, and that the income should 
 then be applied in favoar or for the benefit of the 
 respondent or her children, as the trustees should 
 think proper : — Held, assuming the substituted 
 trust created by the will to arise, that the funds 
 
 ■which the trustees might in their discretion apply 
 to the use of the respondent could not be regarded 
 as property to which she was " entitled in rever- 
 sion," and that the Court had, therefore, no power 
 to make any order in respect of them. MiJme v. 
 Milne, 40 Law J. Eep. (n.s.) P. & M. 67 ; Law 
 Eep. 2 P. & D. 295. 
 
 48. — The parties were married in 1850. By 
 a post-nuptial settlement, executed in 1861, cer- 
 tain property belonging to the respondent was 
 assigned to trustees in trust, amongst other things, 
 to pay the interest and annual proceeds thereof to 
 her for her separate use. Subsequently, in 1869, 
 a deed of separation was entered into between the 
 parties with the same trustees as those of the 
 post-nuptial settlement, and by this deed the pe- 
 titioner covenanted to pay the respondent an an- 
 nuity for her life. The marriage was dissolved in 
 1871, by reason of the adultery of the respondent, 
 and the petitioner afterwards applied to the 
 Court to vary the deed of separation, so as to re- 
 lieve him from the payment of the annuity under 
 the deed of separation. The Court ordered that 
 whenever any money should be payable to the 
 respondent under the deed of separation the trus- 
 tees should, out of the moneys in their hands pay- 
 able to the respondent under the post-nuptial 
 settlement, pay and apply a sum equal in amount 
 upon such and the same trusts as would be appli- 
 cable thereto in case the respondent were dead, and 
 had died in the lifetime of the petitioner. Bullock 
 V. Bullock, 41 Law J. Eep. (n.s.) P. & M. 83 ; 
 Law Eep. 2 P. & D. 389. 
 
 49. — Under a post-nuptial settlement a power 
 was given to the wife (the respondent in the suit) 
 to appoint a life interest in the real and personal 
 estate comprised in the settlement in favour of any 
 future husband. There was one child, issue of 
 the marriage, which was dissolved by reason of 
 the wife's adultery : — Held, that the Court had 
 power under 22 & 23 Vict. c. 61, s. S, to deal with 
 the power of appointment possessed by the wife, 
 and to postpone the interests of the second hus- 
 band to those of the child of the first marriage 
 under the settlement. Evered v. Evered, 43 Law 
 J. Eep. (n.s.) P. & M. 86. 
 
 50. — After a decree of dissolution of marriage, 
 the parties concurred in asking for an order under 
 22 & 23 Viet. c. 61, s. 5, which would extinguish 
 the interest of an infant, the issue of the mar- 
 riage, under a settlement, proposing in lieu thereof 
 that a sum of money should be invested in such a 
 manner as would give the child an interest pro- 
 bably equal to that taken under the settlement. 
 The Court refused to make the order. Crisp v. 
 Crisp, 42 Law J. Eep. (n.s.) P. & M. 13 ; Law 
 Eep. 2 P. & D. 426. 
 
 51. — The powers conferred on the Court by 22 
 & 23 Vict. c. 61, s. 5, do not include the power of 
 interfering with a right reserved to the wife by 
 the marriage settlement of joining in the appoint- 
 ment of new trustees. Hope v. Hope, 44 Law J. 
 Eep. (n.s.) p. & M. 31 ; Law Eep. 3 P. & D. 
 226. 
 
 52. — The Court refused to alter a settlement 
 for the purpose of compelling the respondent in «, 
 
DIVOEOE (E), (S). 
 
 283 
 
 divorce suit, -who was in contempt for removing 
 her child under cover of an order for access to 
 restore the child to the petitioner. Synionds v. 
 Symonds and Harrison, Law Rep. 2 P. & D. 447. 
 
 (S) Peacticb. 
 (a) Petition. 
 
 (1) Amendment. 
 [See supra, Nos. 27, 28.] 
 
 (2) Withdrawal of petition. 
 
 53. — Where, on a husband's petition for a di- 
 vorce, the wife pleaded denial of the adultery, and 
 made counter charges, and nine months after the 
 petition was filed, filed a petition for alimony, 
 the husband was allowed to withdraw his petition 
 without answering the petition for alimony, the 
 wife having so long delayed to present her peti- 
 tion. Twistleton v. Twistleton and Kelly, Law 
 Eep. 2 P. & D. 339. 
 
 (3) Answer to petition for alim/my. 
 
 54. — The husband, in a matrimonial suit, filed 
 no answer to the wife's petition for alimony. 
 The Court made a peremptory order upon him, 
 under the 84th rule (Eules and Eegulations, 1 866), 
 to file an answer to the petition within a week. 
 Snowdon v. Snowdon, 40 Law J. Eep. (n.s.) P. & 
 M. 29 ; Law Eep. 2 P. & D. 200. 
 
 (i) Service, 
 (1) Personal. 
 
 55. — The citation in the suit was personally 
 served upon the respondent, but was lost or de- 
 stroyed by the clerk to whom it was given to be 
 returned into the registry. The Court allowed a 
 duplicate to be filed with the usual affidavit of 
 service. Chillcott v. ChUlcott, 43 Law J. Eep. 
 (n.s.) p. & M. 8. 
 
 56. — ^Personal service of a citation and petition 
 in a matrimonial suit dispensed with in a case 
 where every reasonable effort had been made to 
 trace the respondent. Appleyard v. Appleyard 
 and Smith, Law Eep. 3 P. & D. 257. 
 
 (2) Substituted. 
 
 57. — -The husband, the respondent in the suit, 
 was a convict in Portland Prison, and could not be 
 served personally with the citation and petition. 
 The Court declined to make an order for substi- 
 tuted service on the governor of the prison, unless 
 it could be shewn that by means of such service 
 the papers would reach the respondent. Bland 
 V. Bland, 44 Law J. Eep. (n.s.) P. &5 M. 14 ; 
 Law Eep. 3 P. & D. 233. 
 
 (c) Issues. 
 
 58. — The Court will not direct issues in a ma- 
 trimonial suit to be tried at the assizes against 
 the wish of the husband, if he is liable to pay the 
 wife's costs. Snowball v. Snowball, 40 Law J. 
 Eep. (n.s.) p. & M. ^56 ; Law Eep. 2 P. & D. 
 263. 
 
 Digest, 1870-1875. 
 
 69. — In a matrimonial suit in which two co- 
 respondents were charged, one appeared but filed 
 no answer ; the other appeared and filed an answer 
 denying the adultery alleged against him. The 
 Court, on his application, and on the suggestion 
 that his defence would be prejudiced if the two 
 cases were mixed up together, directed that the 
 issues relating to him should be tried separately 
 and apart from those connected with the other co- 
 respondent, the applicant undertaking to pay the 
 extra costs to which the petitioner might be put 
 by such separate trial. Cox v. Cox, 40 Law J. 
 Rep. (n.s.) p. & M. 23 ; Law Eep. 2 P. & D. 
 201. 
 
 id) Dismissal of respondent from suit. 
 
 60. — Suit by the husband for dissolution of 
 marriage. The respondent appeared absolutely. 
 The co-respondent appeared imder protest, and 
 filed an act on petition, in which he set out facts 
 raising the question of the jurisdiction of the 
 Court, and prayed that he might be dismissed 
 from the suit. The petitioner, after the pleadings 
 on the act on petition had been concluded and the 
 petition itself set down for hearing, applied to be 
 allowed to withdi'aw his answer, and that the co- 
 respondent might be dismissed from the suit on 
 payment of his reasonable costs. The co-respon- 
 dent refused to be dismissed from the suit, holding 
 that he was entitled to have the question of juris- 
 diction raised by him first determined, and that 
 until that question was determined he was not 
 called upon to answer to the merits of the suit : — 
 The Court, looking to the fact that the course 
 sought to be pursued by the co-respondent would 
 bring the suit to a dead lock, that success in his 
 act on petition would only result in that which 
 the petitioner offered, and that it was doubtful 
 whether, in strictness, he could be considered a 
 party to the suit, he having appeared only for the 
 limited purpose of disputing its jurisdiction, dis- 
 missed him from the suit, on payment by the peti- 
 tioner of his reasonable costs. Wilson v. Wilson, 
 41 Law J. Eep. (n.s.) P. & M. 33 ; Law Eep. 2 
 P. & D. 353. 
 
 (e) Staying proceedings. 
 
 [And see infra No. 72.] 
 
 61. — A petition was presented by a husband 
 for a dissolution of his marriage by reason of the 
 adultery of his wife. On an allegation that the 
 respondent was insane, an issue was directed to 
 try that question, and the jury found that on the 
 day of the service of the citation the respondent 
 was in such a condition of mental disorder as to 
 be imfit and unable to answer the petition and to 
 duly instruct her attorney for her defence, and 
 that she had ever since remained, and then still 
 did remain, so unfit and unable. Thereupon thn 
 Judge Ordinary ordered that no further proceed- 
 ings should be taken in the suit until the re- 
 spondent recovered her mental capacity, and this 
 order was affirmed on appeal. Two years having 
 elapsed, and there being no prospect that the 
 respondent would ever recover, the Court, on the 
 HH 
 
234 
 
 DIVORCE (S). 
 
 application of the petitioner, dismissed the petition, 
 ■without prejudice to liia right of appeal to the 
 Hoxase of Lords upon the whole matter. Mordaunt 
 V. Mm-daunt, 41 Law J. Rep. (n.s.) P. & M. 42 ; 
 Law Rep. 2 P. & D. 382. 
 
 (/) New trial. 
 
 62. — The wife petitioned for a dissolution of 
 marriage by reason of the husband's adultery and 
 cruelty. The cruelty charged consisted of divers 
 acts of personal violence, and also the communica- 
 tion of venereal disease, and the charge of adultery 
 rested on the same evidence as the charge of 
 cruelty by infection. The Court found, on the 
 evidence, that the charge of infection was not 
 proved, and that the charge of personal violence 
 was proved. On the application of the husband, 
 a rule for the rehearing of the issue which had 
 been found against him was made absolute, on the 
 ground of surprise ; but the hearing was ordered 
 to be confined to the charge of personal violence, 
 and not to extend to the other charge of cruelty. 
 Lee V. Lee, 41 Law J. Rep. (n.s.) P. & M.. 85 ; Law 
 Rep. 2 P. & D. 409. 
 
 (ff) Behearing. 
 
 63. — In a suit for restitution by a husband, the 
 respondent appeared but did not file an answer. 
 After due notice to her the cause was set down for 
 hearing. Subsequently, upon the motion of the 
 petitioner, the Court ordered the cause to be heard 
 out of its turn, and a decree was made, the respon- 
 dent having received no notice of the motion or 
 the order. Upon the application of the respon- 
 dent, the Court reversed the decree, and ordered 
 the cause to be reheard, giving the respondent, 
 who had a defence on the merits, leave to file an 
 answer. Keane v. Keane, 41 Law J. Rep. (n.s.) 
 P. & M. 41. 
 
 (h) Decrees and orders. 
 
 (1) Shewing cause against decree nisi. 
 
 64.— The power given by 23 & 24 Vict. c. 144, 
 B. 7, to shew cause why a decree should not be 
 made absolute " by reason of material facts not 
 brought before the Court," is not limited to cases 
 in which the facts occurred before the decree nisi; 
 and a material fact, such as the adultery of the 
 petitioner, although it occurred after the decree 
 nisi, is a ground for refusing to make the decree 
 absolute. Hvise v. Raise, 40 Law J. Rep. (n.s.) 
 P. & M. 51 ; Law Rep. 2 P. & D. 259. 
 
 (2) Eeversing decree nisi. 
 
 65. — The adultery of a petitioner after the 
 date of the decree nisi, although ground for re- 
 versing the decree, so far as it dissolves the 
 marriage, is not ground for reversing that part of it 
 which condemns the co-respondent in costs. Hulse 
 V. Hulse, 41 Law J. Rep. (n.s.) P. & M. 19 ; Law 
 Rep. 2 P. & D. 367. 
 
 66. — A petitioner obtained a decree nisi with 
 costs. Damages were also assessed against the 
 co-respondent, but no order was made on him for 
 their payment. On intervention by the Queen's 
 
 Proctor, it was proved that the petitioner after his 
 marriage had led a profligate life. The Court re- 
 versed the decree nisi, including that part of it 
 which condemned the co-respondent in costs, and 
 dismissed the petition. Eavenseroft v. Bavenscroft, 
 41 Law J. Rep. (n.s.) P. & M. 28; Law Rep. 2 
 P. & D. 376. 
 
 With respect to the damages, the Court declined 
 to make an order on the co-respondent for their 
 payment; at the same time expressing the opinion 
 that it was never intended that a petitioner should 
 be entitled to damages where the petition is dis- 
 missed, and that even where a decree is made 
 dissolving the marriage, the petitioner has no 
 definite or legal right to the damages, unless an 
 order for their payment to him be made by the 
 Court. Ibid. 
 
 (3) Time for maMng decree absolute. 
 
 67. — The Court has power to shorten the period 
 within which a decree 7iisi may be made absolute, 
 so that the time be not less than three months, 
 and will vary the decree nisi for that purpose. 
 Fitzgerald v. Fitzgerald, 43 Law J. Rep. (n.s.) 
 P. & M. 13 ; Law Rep. 3 P. & D. 136. 
 
 The wife obtained a decree nisi for dissolution 
 of her marriage, on the ground of adultery and 
 desertion, the decree to be made absolute at the 
 expiration of six months. It was the third peti- 
 tion filed by her. The Queen's Proctor intervened 
 on the hearing, and the facts as to the previous 
 suits were fully laid before the Court. Under 
 these circumstances, the Court shortened the period 
 within which the decree nisi might be made 
 absolute, and varied the decree itself by sub- 
 stituting " three " for " six " months. Ibid. 
 
 6 8. — The Court will not, unless there be peculiar 
 circumstances in the case, abridge the time within 
 which the decree nisi may be made absolute in 
 
 suits for nullity. M v. B , 43 Law J. Rep. 
 
 (n.s.) p. & M. 42; Law Rep. 3 P. & D. 200. 
 
 In a contested suit for a declaration of nullity 
 of marriage by reason of the impotency of the 
 husband, the wife obtained on the 24th of January, 
 1874, a decree nisi, which was to be made absolute 
 in six months. The Court declined to abridge the 
 time to enable an application to be made, before 
 the long vacation, to the Court of Chancery to 
 cancel the settlements made in consideration of 
 the marriage. Ibid. 
 
 (4) Suspending decree absolute. 
 
 69.— The Court refused to suspend the decree 
 absolute until the petitioner paid his costs. 
 Patterson v. Patterson, 40 Law J. Rep. (n.s.) P. & 
 M. 4 ; Law Rep. 2 P. & D. 192. 
 
 (5) Order for payment of money. 
 
 70.— The 52nd section of 20 & 21 Vict. e. 85, 
 does not empower the Court to enforce its decrees 
 or orders for payment of money by making charg- 
 ing orders under 1 & 2 Vict. c. 110, ss. 14 & 18. 
 Clarke v. Clarice, 42 Law J. Rep. (n.s ) P & M 
 72 ; Law Rep. 3 P. & D. 37. 
 
DIVOECE (S), (T). 
 
 235 
 
 (i) Damages. 
 
 71. — Damages to the amount of oOOZ. were 
 assessed against the eo-respondent. Subsequently 
 the co-respondent was adjudicated a bankrupt, and 
 an order -was made upon him to pay the damages 
 into the registry unless they were admitted as a 
 debt, payable out of the estate under the bank- 
 ruptcy. The bankruptcy authorities refused to 
 admit the proof tendered by the petitioner, on 
 the ground that the damages were still in the 
 disposition of the Court, and the damages remained 
 impaid : —Held, that the damages could not be 
 regarded as "a penalty, or sum in the nature of a 
 penalty," so as to warrant the issue of an attach- 
 ment against the co-respondent, but the Court 
 varied its order by directing payment of the 
 damages to the petitioner himself to enable him to 
 prove imder the bankruptcy. Patterson v. Patter- 
 son, 40 Law J. Eep. (n.s.) P. & M. 5 ; Law Eep. 
 2 P. & D. 187. 
 
 [And see supra No. 66.] 
 
 (X;) Appeal : whether stay of proceedings. 
 
 72. — To a petition for dissolution of marriage 
 the respondent appeared absolutely, the co-respon- 
 dent under protest. The respondent then filed an 
 answer, in which she merely stated facts to shew 
 that the Court had no jurisdiction to entertain the 
 suit. The Court ordered the answer to be re- 
 moved from the file, unless within a fortnight the 
 respondent amended it by pleading to the merits 
 as well as to the jurisdiction. The respondent 
 failed to amend her answer within th e time allowed 
 her, and appealed to the full Court from the order : 
 .^Held, that the appeal did not operate as a stay 
 of proceedings, and directions were given for the 
 mode of trial. Wilson v. Wilson, 40 Law J. Eep. 
 te.s.) P. & M. 58 ; Law Eep. 2 P. & D. 292. 
 
 '-■-.- (T) Costs. 
 
 (a) Of wife. 
 
 (1) Intervention of Queen's Proctor. 
 
 73. — The intervention of the Queen's Proctor 
 after a wife has obtained a decree nisi does not 
 affect her right to the costs of the suit. Glad- 
 stone V. G-ladstone, 44 Law J. Eep. (n.s.) P. & M. 
 46 ; Law Rep. 3 P. & D. 260. 
 
 (2) Suit for dissolution: failure of charges. 
 
 74. — The husband having instituted a suit for 
 divorce, the wife, without any ground for suspicion, 
 employed detectives with the object of making out 
 a counter case of adultery. As the result of their 
 enquiries the wife charged the husband with 
 numerous acts of adultery, but failed to establish 
 any of the charges. The Court, under those cir- 
 cumstances, refiised to allow her the costs incurred 
 in this portion of her defence. Wilson v. Wilson, 
 41 Law J. Eep. (n.s.) P. & M. 741 ; Law Eep. 2 
 P. & D. 435. 
 
 (3) Judicial separation. 
 
 75. — Husband and wife agreed to live separate 
 and apart, and a deed was executed by which th? 
 
 husband covenanted to allow the wife 60?. a year 
 for her maintenance. A year afterwards the wife 
 filed a petition for judicial separation on the ground 
 of cruelty, but failed to support the charge, and 
 the petition was dismissed. The Court, being of 
 opinion that the wife's attorney had acted in the 
 belief of the genuineness of her case, allowed the 
 wife's costs up to the amount for which security 
 had been given. Flower v. Flower, 42 Law J. Eep. 
 (n.s.) p. & M. 45 ; Law Eep. 3 P. & D. 132. 
 
 76. — The 159th rule gives the Court a discre- 
 tionary power to disallow the wife's costs of tho 
 hearing in a suit for judicial separation although 
 security has been given for such costs. And per 
 Lord Penzance, such power is also conferred on 
 the Court by s. 51 of 20 & 21 Viet. c. 85. Jones- 
 V. Jones, 41 Law J. Eep_. (n.s.) P. & M. 53. 
 
 The discretion is a judicial one, and the wife's 
 costs ought only to be disallowed in extreme cases, 
 as where her conduct has been vexatious. Ibid. 
 
 77, — In a suit by a wife for judicial separation 
 on the ground of cruelty and incestuous adultery, 
 the Court being of opinion that there was no pre- 
 tence for the charge, upon dismissing the petition 
 refused to allow the wife her costs of the hearing, 
 although security for them had been given. Jones 
 V. Jones, 41 Law J. Eep. (n.s.) P. & M. 21 ; Law 
 Eep. 2 P. & D. 333. 
 
 (4) Restitution of conjugal rights. 
 
 78. — A decree was made in a suit for restitution 
 of conjugal rights promoted by the husband. No 
 notice of the hearing having been served on the 
 wife, the decree was reversed, and a rehearing 
 ordered. Subsequently an order was made on the 
 petitioner for the payment of the respondent's 
 taxed costs amounting to \il. 9s. The petitioner 
 failed to comply with this order, and a writ of 
 f. fa. was issued, but without effect, against his 
 goods. In obedience to a further order he gave 
 security for the payment of 65?., the estimated 
 costs of the respondent on the re-hearing. Tho 
 Court ordered a stay of proceedings until the peti- 
 tioner had complied with the order for the pay- 
 ment of the respondent's taxed costs, but declined 
 to include in the taxation the costs of the writ 
 of fi. fa. issued for the recovery thereof. Keane 
 V. Keane, 42 Law J. Eep. (n.s.) P. & M. 12 ; Law 
 Eep. 3 P. & D. 52. 
 
 (5) Unsuccessful suit. 
 
 79. — Although the Court has power to disallow 
 the costs of an unsuccessful suit by a wife out of 
 the fund deposited by the husband as security, it 
 will not do so unless there has been misconduct on 
 the part of the wife's attorney, or knowledge by 
 him that there was no reasonable ground for the 
 suit. Flower v. Flower, Law Eep. 3 P. & D. 132. 
 
 (6) Costs against separate estate of wife. 
 
 80. — The law presumes that by the contract of 
 marriage all the property passes to the husband. 
 The wife is in consequence a privileged suitor in 
 the Court with regard to costs ; but where she 
 has separate property, she is liable, like any other 
 unsuccessful suitor, to be condemned in costs. 
 Hb2 
 
236 
 
 DIVORCE (T)— DOMIOIL (A). 
 
 ! V. Milne, 40 Law J. Eep. (n.s.) P. & M. 13 ; 
 Law Eep. 2 P. & D. 202. 
 
 In a matrimonial suit the alleged adultery 
 against tlie respondent and co-respondent was fully 
 established. The petitioner was without blame. 
 There was no excuse for the misconduct of the 
 respondent, and it appeared that she was possessed 
 of large separate estate. The Court, under these 
 circumstances, condemned her, as well as the co- 
 respondent, in costs. Ibid. 
 
 (c) Costs against petitioner-. 
 
 81. — On the trial of an issue of adultery raised 
 by the husband's answer to the wife's petition, the 
 alleged adulterer was called as a witness and 
 simply denied the charge. The jury were unable 
 to agree upon a verdict, and the issue was tried a 
 second time. On the second trial the alleged 
 adulterer, who was now the co-respondent in a 
 suit instituted by the husband, entered into a full 
 explanation of his conduct, and the jury found that 
 he was not guilty of the charge. The Court 
 refused to condemn the petitioner in costs, on the 
 ground that by his silence on the first, he had con- 
 tributed to the necessity of the second, trial. West 
 V. West, 40 Law J. Eep. (n.s.) P. & M. 11 ; Law 
 Eep. 2 P. & D. 196. 
 
 (d) Claim for damages. 
 
 82.— Section 33 of 20 & 21 Vict. c. 85, enacts 
 that a claim for damages against a co-respondent 
 " shall be heard and tried on the same principles, 
 in the same manner, and subject to the same or 
 the like rules and regulations as actions for criminal 
 conversation are now tried and decided in Courts 
 of Common Law ; " biit the Court is not thereby 
 deprived of the general discretion as to costs given 
 to it by section 51 of the Act. And on such a 
 petition, as in the case of a petition where no 
 damages are claimed, the Court may make such 
 order as to costs as to it may seem just. West v^ 
 West, 40 Law J. Eep. (n.s.) P. & M. 11 ; Law Eep. 
 2P. &II. 196. 
 
 (e) Costs after decree absolute. 
 
 83. — The Court has no power to make any 
 order as to costs which are for the first time asked 
 for after the decrtee absolute. Wait v. Wait, 40 
 LawJ.Eep.(N.s.)P.& M. 30; Law Eep. 2 P. &D. 
 228. 
 
 (/) Security for costs. 
 
 84. — Where an appeal is entered against a 
 decision of the Judge Ordinary dismissing the 
 wife's petition, and refusing to allow her the costs 
 of the hearing, the Court will not, pending the 
 appeal, order the cancellation of a bond given by 
 the husband to Secure those costs. Jb7ies v. Jones, 
 41 Law J. Eep. (n.s.) P. & M. 43. 
 
 A wife appealing against a decision of the Judge 
 Ordinary is entitled to security for her costs of 
 tlie appeal. Ibid. 
 
 85.— Semble, the Court will order a wife (peti- 
 tioner), who is out of the jurisdiction and has 
 separate property, to give security for costs. Se 
 B. v. Be B., 44 Law J. Eep. (n.s.) P. & M. 41. 
 
 (g) Proctor's or attorney's lien. 
 
 86.— The wife filed a petition for dissolution of 
 marriage. The husband appeared and answered. 
 The petitioner returned to cohabitation, and the 
 respondent, with her consent, applied to have the 
 petition dismissed. The petitioner's costs were 
 unpaid. The Court refused, at the instance of the 
 petitioner's attorney, to dismiss the petition forth- 
 with, and granted an order for the taxation of her 
 costs. Dixon v. Dixon, 40 Law J. Eep. (n.s.) P. 
 & M. 38 ; Law Eep. 2 P. & D. 253. 
 
 87. — 'The petitioner in a matrimonial suit ob- 
 tained a decree nisi. The co-respondent, who was 
 condemned in costs, subsequently became bankrupt ; 
 proof of the costs as a debt was admitted under 
 the bankruptcy, and a dividend of bs. was declared 
 payable in respect of them out of the co-respon- 
 dent's estate. The petitioner refused to allow his 
 proctor to receive the dividend, and remained in- 
 debted to him for the costs of the suit : — Held, 
 that the Court had no power to suspend the decree 
 absolute until the costs of the petitioner were paid. 
 Patterson v. Patterson, 40 Law J. Eep. (if.s.) P. & 
 M. 4 ; Law Eep. 2 P. & D. 1 92. 
 
 BOCK. 
 
 Sateability. [See Eate, 13.] 
 
 Deductions in rating. [See Eatb, 29, 30.] 
 
 DOMICIL. 
 
 (A) Acquisition ob Change of. 
 
 (B) Law of Country or DoMicn, when appli- 
 
 CABI.B. 
 
 (A) Acquisition or Change of. 
 
 1. — A., a domiciled Scotchman, married iu Scot- 
 land and cohabited with his wife in Scotland. On 
 discovering her infidelity he broke up his establish- 
 ment in Scotland, and took up his residence in the 
 neighbourhood of London. He remained a sleeping 
 partner in a firm whose business was carried on in 
 Scotland ; he continued his subscription to a club 
 at Glasgow, and retained possession of a shooting 
 lodge in Scotland, of which be held a lease. He 
 engaged in no pursuit in England, and he acquired 
 no residence in his own right in England. Six 
 years after leaving Scotland he instituted a suit in 
 this country for dissolution of marriage on tlie 
 ground of his wife's adultery in Scotland. At the 
 trial, he stated that he had come to England with 
 the intention of making it his permanent home, 
 and that he had no idea of returning to Scotland : 
 — Held, that although the fact of his resilence in 
 this country, and the way in which it arose, would 
 not be enough to enable the Court to come to the 
 conclusion that he had made England his domicil, 
 yet in the absence of circumstances tending to dis- 
 credit his oath, the Court was bound to accept his 
 statement as to the intention with which he had 
 
DOMICIL (A)— DOWEE. 
 
 237 
 
 left Scotland and come to Engfeud ; that he had, 
 therefore, acquired an English domioil, and that 
 the Coxirt had jurisdiction to entertain the suit. 
 Wilson V. Wilson, 41 Law J. Eep. (n.s.) P. & M. 
 74 ; Law Eep. 2 P. & D. 435. 
 
 2. — Eor many purposes a domicil of origin 
 requires more to change it than a domicil of acqui- 
 sition, and in order to prove that the domicil of an 
 adult of sound mind has been changed, an intention 
 on his part must be shewn. That is to say, such 
 an intention must be proved to have actually existed 
 in the mind of the party, or it must appear that 
 it was reasonably certain it would have existed, if 
 the question had arisen in a form requiring a de- 
 liberate and solemn determination. Douglas v. 
 Dotiglas, 41 Law J. Eep. (n.s.) Chane. 74 ; Law 
 Eep. 12 Eq. 617. 
 
 A child of Scotch parents for -some time resident 
 in England, who was born there, and was for many 
 years himself a resident with his' wife and children 
 there, and who died and was buried in England, 
 ■was, under all the circumstances of the case, held 
 not to have lost his Scotch domicil of origin. Ibid. 
 
 3. — A French subject, who had set up in busi- 
 ness in England, and resided there more than 
 thirty years, but who refused to take out letters of 
 naturalisation in England on the ground that he 
 might return to France, and did not wish to give 
 -up his status as a French citizen : — Held, neverthe- 
 less, to have acquired an English domicil, and to 
 have lost his original domicil. Brunei v. Brunei, 
 Law Eep. 12 Eq. 298. 
 
 4. — Li 1858 M. left Canada, which was his 
 domicil of origin, sold his house and burial-ground 
 there, and came to Paris to educate his children. 
 He lived in Paris ten years, but went over several 
 times to Montreal, and amongst other things made 
 his will there, describing himself as of Montreal. 
 In 1868 he came to England and took a lease of 
 a house in London, His daughter married and 
 settled in London, and he purchased for his son a. 
 share in a business in London. M. died in 1871 : 
 — Held, that M. had acquired and shewn an inten- 
 tion to retain an English domicil. Stevenson v. 
 Masson, 43 Law J. Eep. (n.s.) Chanc. 134 ; Law 
 Eep. 17 Eq. 78. 
 
 (B) Law of Cotjntey op Domicil when appli- 
 cable. 
 
 [See Conflict op Laws, 2, 3, 4, 6.] 
 
 5, — The validity of a testamentary gift of lease- 
 holds is governed by the lex loci, and not the lex 
 domicilii. Freke v. Lord Carbery, Law Eep. 16 
 Eq. 461. 
 
 As to succession duty payable under the will 
 of a testator domiciled abroad. [See 
 Legacy and Succession Duty, 4-6.J 
 Jurisdiction of Court of Divorce. [See 
 
 DiVOBCE, 1.] 
 
 M suit for nullity of 'marriage. [See Legi- 
 timacy Dbclaeation Act, 2.] 
 
 Administration of real estate in Scotland. 
 [See Administration, 25.] 
 
 DONATIO MOETIS CAUSA. 
 
 1. — The plaintiff (who was her husband's execu- 
 trix) claimed railway certificates and a deposit 
 note, either as having been given to her by her 
 husband in his lifetime, or on the ground that he 
 . had constituted himself a trustee of them for her, 
 or as donationes mortis causA: — Held, following 
 Ward v. Turner (2 Vos. sen. 431), that railway 
 certificates could not be made the subject of a 
 donatio mortis causd ; and held, on the facts, that 
 she was not entitled to the railway certificates, 
 but was entitled to the deposit note as a donatio 
 mortis causd. Moore v. Moore, 43 Law J. Eep. 
 (n.s.) Chanc. 617; Law Eep. 18 Eq. 474. 
 
 2. — ^An uncle upon his death-bed delivered to 
 his nephew a cheque for 4,000^., and with it his 
 banker's pass-book. The cheque was not presented 
 until after the donor's death: — Held, that the 
 intended gift failed. In re Beak's Estate, Beak v. 
 Beak, 41 Law J. Eep. (n.s.) Chanc. 470 ; Law Eep. 
 13 Eq. 489. 
 
 DOWEE. 
 
 1, — A. being the owner of leaseholds for a term 
 of ninety-nine years, mortgaged the property to 
 B. for the term less five days, and also to Gr. and 
 E.'for the term less three days. He also demised 
 to M. for the term less ten days on trust for Cr. 
 and E. He then acquired the fee subject to the 
 mortgages. B.'s mortgage was paid off to his 
 executors, who assigned the term upon which it 
 WM secured to a trustee for G. and E. Then A. 
 became bankrupt, and he and his assignees, in 
 consideration of a release by G. and E. of their 
 mortgage debt, by a deed to which A.'s wife was 
 named a party, but which she refused to execute, 
 granted the fee of the premises to them. They 
 sold the estate, and A. died. A.'s widow then filed 
 her bill against the purchaser, to enforce her right 
 to dower out of the premises : — Held, on demurrer, 
 that upon the release by G. and E. of the mortgage 
 debt, the mortgage terms became satisfied, and 
 were extinguished by the Satisfied Terms Act 
 (stat. 8 & 9 Vict. c. 112), and thereby the inchoate 
 right of A.'s widow to dower was let in, and she 
 was entitled to sustain her bill. Anderson v. 
 Pignet, 40 Law J. Eep. (n.s.) Chanc. 199; Law 
 Eep. 11 Eq. 329. 
 
 2. — ^A general devise of real estate is a bar to 
 the widow's dower, under section 4 of the Dower 
 Act ; and a devise in trust for sale and conversion, 
 with a direction to pay an annuity out of the pro- 
 ceeds to the widow during her life, is a like bar 
 under section 9 of the Act. Laoey v. Hill ; Leney 
 V. Hill, 44 Law J. Eep. (n.s.) Chanc. 215 ; Law 
 Eep. 19 Eq. 346. 
 
 Eemarks on Bowland v. Cuthbertson (Law Eep. 
 8 Eq. 466). Ibid. 
 
 Freebench can now be barred by a mere devise 
 without a surrender to the use of the will. Ibid. 
 
 [And see Babon and Feme, 30, 31.] 
 
238 
 
 DRAINAGE AND IMPEOVEMENT OF LANDS-EASEMENT (B). 
 
 DEAINAGE AND IMPEOVEMENT OF 
 LANDS. 
 
 [See Land DEAOiTAGE Act.] 
 
 [Amendment of law as to drainage and improve- 
 ment in Ireland. 35 & 36 Vict. c. 31, and 37 & 38 
 Vict. 0. 32.] 
 
 DRAMATIC COPYEIGHT. 
 [See CopYEiGHT, 7-9.] 
 
 DUPLEX QUEEELA. 
 [See Chtjech, 3.] 
 
 EASEMENT. 
 
 (A) CONSTETJOTION OF GeANT OF EaSEMEHTS : 
 
 Eeasonable Usee. 
 
 (B) Implied Geant. 
 
 (C) AcamsiTioN OF Easements by Peesceip- 
 
 TION. 
 
 (D) Extinguishment: Alteeation of Domi- 
 
 nant Tenement. 
 
 (E) Paeticulae Easements. 
 
 (F) Obsteuotion of Easements. 
 
 (A) CoNSTEfCTION OF Geant ; Eeasonable 
 Usee. 
 
 1. — In construing the grant of an easement 
 contained in a lease, and subsequently embodied 
 in a conveyance in fee of the reversion of the 
 demised premises, the Court ■mil look to the " rea- 
 sonable user " of the property when the lease was 
 granted; and in order to decide upon that, will 
 examine all the provisions in the lease ; and will 
 - not enlarge the easement so as to enable the pur- 
 chaser to extend the rights conferred by it beyond 
 their legitimate objects. Wood t. Saunders, H 
 Law J. Eep. (n.s.) Chane. 514 : affirmed, on appeal, 
 Law Eep. 10 Chanc. 582. 
 
 2. — When a private way is granted over apiece 
 of land of stipulated dimensions, the grantee is not 
 entitled to the use of every square inch of the 
 surface of the land ; all that the grant confers 
 upon him is a reasonable enjoyment of the land as 
 a road. Clifford v. Hoare, 43 Law J. Eep. (n.s.) 
 0, P. 225 ; Law Eep. 9 C. P. 362. 
 
 By an indenture, dated the 17th of May, 1872, 
 to which the defendant was a, party, A. bought a 
 plot of ground for the purpose of building a house, 
 and power was given to A. to erect as part thereof 
 a portico projecting into a private road upon the 
 west side thereof. By an indenture, dated the... 
 2nd of August, 1872, to which also the defendant 
 was a party, another plot of ground was conveyedl'' 
 to the plaintiff with a right of way over the 
 private road before mentioned, which was to be 
 
 forty feet wide; -and the defendant covenanted 
 with the plaintiff that he had not " been party or 
 privy to anything," whereby the premises granted 
 by him were or might be " impeached, affected, or 
 incumbered in title, estate, or otherwise how- 
 soever." A. erected a house upon the plot of 
 ground bought by her, and built out a portico 
 upon the west side thereof; the columns of the 
 portico stood in the carriage-way of the private 
 road ; the bases of the columns were five feet in 
 width and two feet in depth :— Held, that by the 
 indenture of the 2nd of August, 1872,_the plaintiff 
 was entitled only to the reasonable enjoyment of a 
 right of way over the private road, and not to the 
 use of every square inch of the surface of a road 
 forty feet wide ; that the portico did not interfere 
 with the reasonable enjoyment of the road by the 
 plaintiff, that the defendant's covenant had not 
 been infringed, and that he was not liable for 
 breach thereof in an action at the suit of the 
 plaintiff. Ibid. 
 
 Semble— that , the plaintiff's enjoyment of the 
 right of way over the private road had been in- 
 terfered with by the portico, the defendant would 
 have been, within the meaning of his covenant, 
 party and privy to a thing, which impeached, 
 affected, and incumbered the grant of the right of 
 way to the plaintiff, who might therefore have 
 maintained an action against the defendant. Ibid. 
 
 (B) Implied Geant. 
 
 3. — Upon a severance of tenements, easements 
 as of necessity or in their nature continuous will 
 pass by implication of law without any words of 
 grant. Watts v. Kelson, 40 Law J. Eep. (n.s.) 
 Chanc. 126 ; Law Eep. 6 Chanc. 166. 
 
 The owner of two adjoining properties, Black- 
 acre and Whiteacre, conveyed Blackacre to the 
 plaintiff by deed, " together with all waters, 
 watercourses, &c., used and enjoyed therewith." 
 There was a small natural watercourse, which 
 passed through Whiteacre to Blackacre. At the 
 date of the conveyance an artificial pipe existed in 
 this watercourse, which passed the water through 
 Whiteacre down to some cattle sheds in Blackacre. 
 After the severance the plaintiff pulled down the 
 cattle sheds and erected cottages in their place : — 
 Held, that the right to the water-flow through 
 the artificial pipe was an easement as of ne'cessity 
 and in its nature continuous, and as such passed 
 by implication of law to the plaintiff; that, if it 
 was not necessary, the general words in the con- 
 veyance were sufficient to pass it, and that the 
 change in the mode of user by the plaintiff had 
 not taken away his right to have the water flow 
 in the accustomed manner through the defendant's 
 premises. 
 
 Judgment of Erie, C.J., in Polden v. Bastard 
 (35 Law J. Eep. (n.s.) Q. B. 92 ; s. c. Law Eep. 1 
 Q. B. 156, 161) approved of. Ibid. ^ 
 
 4. — In a lease the demised premises were de- 
 scribed as " all that plot of land bounded on the 
 east and north by newly-made streets, a plan 
 whereof is endorsed on these presents," and the 
 lessee covenanted to kerb the causeways adjoining 
 the said lands. The site of the new streets was 
 
EASEMENT (B)— ELECTION. 
 
 239 
 
 marked as such in the plan indorsed: — Held, that 
 this amounted to a grant of a right of way along 
 the proposed new streets to the land demised. 
 Espleyx. Wilkes, 41 Law J. Eep. (n.s.) Exch. 241 ; 
 Law Kep. 7 Exoh. 298. 
 
 (C) Acquisition of Easements by Peesokiption. 
 
 5.— An easement overland cannot co-exi.st with 
 the possession of the land, and therefore a right to 
 the user of light and air cannot be acquired hy 
 means of lapse of time, imder the Prescription 
 Act, by the owner of a house while he is in occu- 
 pation of the land over which the right would 
 extend. Ladyman t. Grave, Law Eep. 6 Ohanc. 
 763. 
 
 6. — ^Where there has been an interruption to 
 the enjoyment of a prescriptive right imder 2 & 3 
 Will. 4. c. 71, it is a question of fact for the jury 
 whether such interruption has been submitted to 
 or acquiesced in by the party whose enjoyment has 
 been mterrupted; and if in fact it has not been 
 submitted to or acquiesced in by such party for 
 one year after notice thereof, it is not an inter- 
 ruption which will defeat the prescriptive right 
 from being acquired by an actual enjoyment for 
 twenty years without interruption within the 
 meaning of section 3 of that Act. Glover v. 
 Coleman, 44 Law J, Eep. (n.s.) C. P. 66 ; Law 
 Eep. 10 0. P. 108. 
 
 On trial of an action for obstructing the access 
 of light to the plaintiff's window, in which the 
 plaintifF proved the enjoyment of such light to 
 the window for more than twenty years, but for 
 an interruption during the last thirteen months 
 immediately preceding such action caused by the 
 defendant erecting a shed opposite such window, 
 there was evidence that during those thirteen 
 months the plaintiff had more than once com- 
 plained to the defendant of such interruption, and 
 had protested to the defendant against the shed 
 being there: — Held, that this was evidence on 
 which a jury might iind that the interruption had 
 not been submitted to or acquiesced in by plain- 
 tiff. Ibid. 
 
 (D) Extinguishment : Alteration of Dominant 
 Tenement. 
 
 7. — The plaintiff, who had a right to project 
 the eaves of his house over the land of the de- 
 fendant, raised the eaves about thirteen or fifteen 
 inches without changing the extent of their pro- 
 jection over the defendant's land: — Held, in an 
 action for interfering with such right, that the 
 easement was not destroyed by such raising of the 
 eaves, in the absence of evidence that any addi- 
 tional burthen had been cast upon the defendant's 
 land. Harvey v. Walters, 42 Law J. Eep. (n.s.) 
 0. P. 103 ; Law Eep. 8 C. P. 162. 
 
 Semble — that the fresh projection over the land 
 of the defendant which was made when the eaves 
 were raised, was not a new trespass, but only a 
 mere user of the space taken possession of by the 
 trespass occasioned by the original projection, 
 Ibid. 
 
 (E) Pabtioulak Easements. 
 [See Common; Wat; Watbbcoubsb; Libht.] 
 
 (F) Obstbuction oe Easements. 
 [See Injunction.] 
 
 EAST INDIA COMPANY. 
 
 A petition of right claimed from the Queen 
 payment of debts, which were incurred by the 
 ruler of Oude as part of the public debt of that 
 state before it was annexed by the East India 
 Company : — -Held, assuming the liability to pay 
 the debts to have been transferred to the East 
 India Company by the annexation, that such lia- 
 bility was transferred by the 21 & 22 Vict. c. 106, 
 ss. 65-68, from the East India Company to the 
 Secretary of State in Council of India ; that the 
 remedy, if any, was by action against him ; and 
 that the petition of right therefore could not be 
 maintained. Firth v. The Queen, 41 Law J. Eep. , 
 (n.s.) Exch. 171 ; Law Eep. 7 Exch. 365. 
 
 EJECTMENT. 
 
 In ejectment by lessor for breach of covenant 
 by the lessee the plaintiff delivered as particulars 
 of breaches, first, the non-payment of three years' 
 rent from 1867 to 1870; secondly, the permitting 
 a sale by public auction on the premises in 1867, 
 contrary to the covenants in the lease. The de- 
 fendant then took out a summons for relief under 
 the Common Law Procedure Act, 1852 (15 & 16 
 Vict. c. 76), s. 212, and obtained an order that 
 upon payment of the amount found to be due for 
 rent, &c., proceedings should be stayed with refer- 
 ence to the breach for non-payment of rent. The 
 defendant afterwards paid into Court the amount 
 found to be due to the plaintiff: — Held, that the 
 feet that the plaintiff had in his particulars 
 asserted his right to rent due after the first 
 forfeiture, and that the defendant had paid this 
 rent into Court, did not constitute a waiver of 
 this forfeiture, as the plaintiff was no party to 
 the payment into Court, and had merely stated 
 in his particulars that if he failed on one ground 
 of forfeiture, he should rely upon anpther. Tole- 
 man v. Porthitry, 40 Law J. Eep. (n.s.) Q. B. 125 ; 
 Law Eep. 6 Q. B. 245. 
 
 Judgment hy consent: costs. 
 
 AT Law, 10.] 
 Interrogatories in action for, 
 
 TicE AT Law, 19.] 
 
 [See Costs 
 [See Peac- 
 
 ELECTION. 
 
 (A) Whebb it aeises. 
 
 (B) Peoof op Election by Conduct. 
 
 (C) Suit to asceetain Value. 
 
240 
 
 ELECTION (A), (B). 
 
 (A) Where it arises. 
 
 1. — A will, made in the lifetime of E., affected 
 to give to A. personalty whicli iu truth belonged 
 to E., and it also gave legacies to E.'s children, 
 and by a codicil thereto, made after E.'s death, 
 additional benefits -were given to E.'s children : — 
 Held, that E.'s right to the above-mentioned per- 
 sonalty having devolved on his children as his 
 next-of-kin, they must elect between on the one 
 hand making satisfaction to A. out of their father's 
 personalty, and on the other hand abandoning all 
 the benefits which they took as well under the 
 will made in E.'s lifetime as by the codicil made 
 after his death. Cooper v. Cooper (H. L.), 44 
 Law J. Eep. (n.s.) Chanc. 6 ; Law Eep. 7 E. & I. 
 App. 53 : affirming the decision of the Court of 
 Appeal in Chancery, 40 Law J. Eep. (n.s.) Chanc. 
 S; Law Eep. 6 Chanc. 15. 
 
 Next-of-kin (unlike creditors) are not merely 
 interested in the balance in the hands of the 
 administrator after sale of the intestate's effects 
 , and payment of his debts, &c. : they take a sub- 
 stantial proprietorship in every one of the intes- 
 tate's chattels, the Statute of Distributions being 
 in the nature of a will for all persons who die 
 intestate. Therefore for the purpose of election, 
 the next-of-kin of an intestate who would have 
 been put to his election are under the same ob- 
 ligation. Ibid. 
 
 In estimating the amount of compensation to 
 be paid by such persons, they are entitled to de- 
 duct from the value of their property so derived 
 and so erroneously given away from them a rate- 
 able proportion of the debts, having regard to 
 the whole of the intestate's assets. Ibid. 
 
 AVhere a person who is put to election is a mar- 
 ried woman, an infant or under disability, an 
 inquiry should be directed whether it would be 
 for her benefit to take under the instrument or to 
 stand by her right without it. Ibid. 
 
 2. — Settlement on the marriage in 1850 of a 
 lady imder twenty-one, by which bank shares on 
 the part of her father, and stock on the part of 
 the intended husband, were brought into settle- 
 ment, and there was an attempted assignment of 
 a reversionary interest of the wife in a certain 
 fund, the trusts being for the benefit of the hus- 
 band, wife, and children of the marriage. The 
 marriage having been dissolved by a decree of the 
 Divorce Court, and the fund to which the wife 
 was entitled in reversion having fallen into pos- 
 session, — Held, that she was bound to elect be- 
 tween her right to receive this fund free from the 
 settlement and the interest provided for her by 
 the settlement, and that if she elected to take 
 against the settlement she must account for all 
 income received by her under it since the order 
 nisi for dissolution. Coirington v. Lindsay, 42 
 Law .1. Eep. (n.s.) Chanc. 626 ; Law Eep. 8 Chanc. 
 678 : affirmed, on appeal to the House of Lords, 
 Law Eep. 7 E. & I. App. i 54, nom. Codrington v. 
 Cod/rington. 
 
 3. — "Where a testatrix, having lent 9002. to M. 
 on an assignment by him of a 'covenant by F. to 
 transfer 1,000?. stock to him, by a codicil to her 
 
 will directed that her executors should not call on 
 F.'s representatives for a transfer of the 1,000Z. 
 stock, nor on M. for payment of the 900Z. ; and it 
 appeared by reading the codicil and will together 
 that the testatrix intended to provide for the debt 
 due from E. to M. : — Held, that M. could not en- 
 force the covenant to transfer the stock against 
 E.'s estate. Synge v. Synge (Law Eep. 1 5 Eq. 389) 
 afBrmed, on appeal, but varied by holding that 
 M. was at liberty to enforce the covenant against 
 F.'s estate to the extent of the difference between 
 the 900^. and the value of the 1,0002. stock. Bynge 
 V. Synge, Law Eep. 9 Chanc. 128. 
 
 4. — The testatrix after devising " all and sin- 
 gular the estate and mines of A."' upon certain 
 trusts, bequeathed to T. 10,0002. in satisfaction of 
 any sum of money in which she might be indebted 
 to T. The will also contained the usual devise of 
 trust and mortgage estates to the trustees. The 
 testatrix was in fact entitled to only one moiety 
 of the A. estates for her own benefit, and was 
 mortgagee in possession of the other moiety for a 
 sum of 100,0002. and upwards which her pre- 
 decessor in title had by deed settled on T. and 
 four other persons in eqijal shares. She was 
 ignorant of these facts and of the existence of 
 the deed of trust : — Held, that the testatrix in- 
 tended to devise the entirety of the A. estates, 
 and therefore that T. must elect between his in- 
 terest under the trust-deed and the legacy given 
 him by her will, and that, although the bequest 
 was made in satisfaction of a debt. Dictum of 
 Lord Hardwicke in East v. Cook (2 Ves. sen. 30) 
 not followed. WilJcinsmi v. Dent, 40 Law J. Eep. 
 (n.s.) Chanc. 263 ; Law Eep. 6 Chanc. 339. 
 
 5. — The testator, by his will, appointed his 
 widow one of the guardians of his children, be- 
 queathed her an immediate legacy of 2002., the 
 consumable stores at his mansion house, an an- 
 nuity of 7002. a year, charged on a, specifically- 
 devised portion of his real estate, in exoneration 
 of all his other property ; directed that his widow 
 should (on certain terms) occupy his mansion, 
 gave several powers to his trustees, and among 
 others, powers of leasing and management of his 
 estates, and added to his will four schedules, com- 
 prising freeholds, leaseholds, copyholds, and cus- 
 tomary lands. The evidence shewed that the 
 widow was entitled, though not in each case to 
 the same extent, to freebench in the customary 
 lands : — Held, that the widow was bound to elect. 
 Thompson v. Hurra, 42 Law J. Eep. (n.s.) Chanc. 
 827; Law Eep. 16 Eq. 592. 
 
 6. — The testator gave benefits to his heir. 
 His residuary devise of "all the residue of my 
 real estate situate in any part of the United 
 Kingdom or elsewhere," was upon trust for sale. 
 He had some real estate in Scotland: — Held, that 
 the heir-at-law was put to his election, and could 
 not take both the Scotch lands by descent and the 
 gifts in the will. Orrdl v. Orrdl, 40 Law J. 
 Eep. (n.s.) Chanc. 539 ; Law Eep. 6 Chanc. 302. 
 
 (B) Pboof of Election by Conduct. 
 
 . 7. — In order to establish election by conduct it 
 is necessary to prove that the party put to his 
 
ELECTION (B)— EMBEZZLEMENT. 
 
 241 
 
 election had full knowledge of his rights, and in- 
 tended to elect. Wilson v. Thonibury, 44 Law J. 
 Eep. (n.s.) Chano. 242; LawEep. 10 Chane. 239. 
 
 (C) Suit to ascertain Value. 
 
 8. — Consideration of the circumstances under 
 which a person, who is put to election, may file a 
 bill to ascertain the value of the property, Bu- 
 tricke v. Broadhurst (1 Ves. 171), and note in 
 Billon V. Parker (1 Sw. 381 n.) considered. Douglus 
 V. Douglas; Douglas v. Webster, 41 Law J. Eep. 
 (n.3.) Chanc. 74; Law Eep. 12 Eq. 617. 
 
 Election to treat agent as debtor. [See Prin- 
 ciPAi AND Agent, 6.] 
 
 by the Society to set aside the transfer, — Held, 
 that the Act did not require the consent of the 
 Society to the transfer, and that having appeared 
 before the Education Department and urged their 
 objections to the transfer, the Society had no 
 ftirther power of opposing it. The National 
 Society v. The School Board for London ; and The 
 Attorney-General v. English, 44 Law J. Eep. (n.s.) 
 Chane. 229 ; Law Eep. 18 Eq. 608. 
 
 EMBEZZLEMENT. 
 
 (A) Indictment: Three distinct Acts. 
 
 (B) Cleek ob Servant. 
 
 ELEMENTARY EDUCATION ACT. 
 
 [Alteration of date in paragraph 3, schedule 2, 
 of the above Act. 34 & 35 Vict. c. 94.] 
 
 [The above Act amended and in part repealed. 
 18 & 19 Vict. c. 34 repealed and other provisions 
 substituted. 36 & 37 Vict. c. 86.] 
 
 X, — Though it is not necessary that the person 
 employed as returning officer at the first election 
 of a school board shoidd be a solicitor, neverthe- 
 less if he is so, the board, who are directed to pay 
 his expenses, may have his bill taxed in the usual 
 way. In re Jones, 41 Law J. Eep. (n.s.) Chanc. 
 367 ; Law Eep. 13 Eq. 336. 
 
 2. — The sections of the Lands Clauses Consoli- 
 dation Act, 1845, relating to the purchase of lands, 
 are incorporated in the Elementary Education Act, 
 1870, for all purposes, and their application is not 
 confined to cases where the relation of vendor and 
 purchaser exists. Therefore the remedy of a per- 
 son whose lands are injuriously aifected by the 
 works of the School Board, but no part of whose 
 land is taken, is by proceeding for compensation 
 under section 68 of the Lands Clauses Act, and 
 not by bill for an injunction. Maeey v. The Metro- 
 politan Board of Works (33 Law J. Eep. (n.s.) Chane. 
 377 ; 10 Jur. (n.s.) 333) approved of and followed. 
 Clark V. The School Board for London, 43 Law J. 
 Eep. (n.s.) Chanc. 421 ; Law Eep. 9 Chanc. 120. 
 
 3. — The trust deed of a school supported by 
 " The National Society for Promoting the Educa- 
 tion of the Poor in the Principles of the Estab- 
 lished Church throughout England and Wales," 
 provided that the school should "always be in 
 union with and conducted according to the princi- 
 ples, and in furtherance of the ends and designs 
 of the Society." The deed contained no power of 
 alienation. The managers of the school having, 
 under section 23 of the Elementary Education Act, 
 1870, entered into arrangements for the transfer 
 of the school to a School Board, the Society ap- 
 peared before the Education Department under 
 the provisions of that section, and objected to the 
 transfer on the ground that if it were effected, 
 the children, under section 14 of the Act, could 
 not be educated in the principles of the\ Society. 
 The Department, however, overruled the objection, 
 and the transfer was executed. Upon a bill filed 
 DiHEST, 1870-1875. 
 
 (A) Indictment: Three distinct Acts. 
 
 1. — It was the duty of an agent of a coal 
 society to collect and receive from persons who 
 bought coals from the society, for which they 
 were to pay by weekly instalments, such weekly 
 payments, and to send in a weekly account on the 
 Tuesday of every week, and to pay the gross 
 amount received by him in the course of the week 
 on such Tuesday, into a bank to the credit of the 
 society. An indictment for embezzlement against 
 the agent, containing three counts, charged in the 
 first count the act of embezzling a sum of ll. Is., 
 and evidence was given on that count that during 
 a certain week, payments amounting in the whole 
 to this amount had been paid to the prisoner by 
 ten difierent persons in small sums, and that the 
 prisoner omitted to account at the end of the week 
 or at any time for those several sums, or for any 
 specific amount of ll. Is. In the other two counts, 
 sums were charged, being aggregate sums similarly 
 composed and received weekly, but not accounted 
 for weekly in a similar manner, and thirty-one 
 small sums in all were thus shewn not to have 
 been accounted for at three weekly accountings ; 
 — Held, that the evidence was properly received, 
 and that the indictment did not charge more than 
 three distinct acts of embezzlement, each act of 
 embezzlement being the omission to account weekly 
 for the aggregate sum composed of the several 
 sums received during the week. The Queen v. 
 Balls, 40 Law J. Eep. (n.s.) M. C. 148 ; Law Eep. 
 1 C. C. E. 328. 
 
 (B) Clerk or Servant. 
 
 2. — The son of a man who kept an office and 
 held various appointments, amongst which was 
 that of clerk to a local board, which son living at 
 home assisted his father in his ofiice,, conducting 
 the business of the board, but without being paid 
 any salary, may be convicted of embezzling moneys 
 received by him on business of the local board as 
 the clerk or servant, or as being employed in the 
 capacity of a clerk or servant of his father, and 
 the moneys may be alleged in the indictment to 
 be the moneys of the father. The Queen v. Fowlkes, 
 44 Law J. Eep. (n.s.) M. 0. 65; Law Eep. 2 
 C.C.E. 150. 
 
 3.^The prisoner was employed to solicit orders 
 II 
 
242 
 
 EMBEZZLEMENT— ESCEOW. 
 
 for the prosecutors, and was to be paid by a com- 
 mission on the sums received through^ his means. 
 He ■was at liberty to apply for orders whenever he 
 thought most convenient, but was not to employ 
 himself for any other persons than the prosecutors. 
 The Judge at the trial directed the jury that the 
 prisoner was a clerk or servant within the mean- 
 ing of 24 & 25 Vict. c. 96, s. 68 :— Held, upon the 
 above facts, that he was not a clerk or servant 
 within the meaning of 24 & 26 Vict. c. 96, s. 68, 
 and therefore that the direction was wrong, but 
 that, generally speaking, whether a person under 
 such an employment and paid by commission is a 
 clerk or servant is a question of fact for the jury. 
 The Queen v. Negtis, 42 Law J. Eep. (n.s.) M. C. 
 62 ; Law Eep. 2 C. C. E. 34. 
 
 4. — Embezzlement of money by a servant under 
 24 & 25 Vict. c. 96, o. 68 must be in respect of 
 money delivered to or received, or taken into pos- 
 session by the servant for or in the name of or on 
 the account of his master. And where a servant, 
 — whose duty it was to take a barge belonging to 
 his master with cargo from A. to B. and receive 
 back such return cargo, and from such persons as 
 his master should direct, and such only, contrary 
 to the erpress orders of his master, which were 
 to return empty from B. to C, part of the return 
 voyage to A, — toot, nevertheless, a return cargo 
 from B. to C, and received the freight from the 
 owner of the cargo (who knew only the prisoner 
 in the transaction) and did not account to his 
 master for the freight, and denied having carried 
 such return cargo: — Held, that the money was 
 not received by him for or in the name of or on 
 the account of his master, and that he was not 
 guilty of embezzlement. The Queen v. Cullum, 
 42 Law J. Eep. (n.s.) M. C. 64; Law Eep. 2 
 C. C. E. 28. 
 
 sion of Wickens, V.C, 41 Law J. Eep. (n.s.) Chano. 
 187; Law Eep. 13 Eq. 269. 
 
 2. — Where an order of the Master of the EoUs or 
 a Vice-Chancellor, made upon an application under 
 section 28 of the Charitable Trusts Act, 1853, 
 relates to several charities, the aggregate income 
 of which exceeds 100/., it is subject to appeal, 
 notwithstanding the income of each charity is 
 under that amount. Where an application has 
 been made under section 28 of the Charitable 
 Trusts Act, 1853, for a scheme for the manage- 
 ment of a charity, the object of which has become 
 obsolete, the fact that such charity is one of those 
 enumerated in the 30th section of the Endowed 
 Schools Act, 1869, and that a scheme had been 
 submitted to the Commissioners under that Act, is 
 no ground for the Court's refusal to deal with the 
 application under the first-mentioned Act. Deci- 
 sion of Bacon, V.C, affirmed. In re Charitable 
 Gifts for Prisoners ; Ex parte the Governors of 
 Ohrisfs Hospital, 42 Law J. Eep. (n.s.) Chanc. 
 391 ; Law Eep. 8 Chanc. 199. 
 
 ENTAIL. 
 
 [See Fnras and Eecoveeies; 
 17-21.] 
 
 Scotch Law, 
 
 EPPING- FOEESTS ACT. 
 
 Disobedience to order of Epping Forest Com- 
 missioners. [See MiSDElEEANOTJE.] 
 
 ENDOWED SCHOOLS ACTS. 
 
 [The time for presenting an address by Parlia- 
 ment against any scheme extended to forty days. 
 36 & 37 Vict. c. 37. 32 & 33 Vict. u. 56 amended 
 and in part repealed, and Elementary Schools ex- 
 cepted therefrom. 36 & 37 Vict. c. 87.] 
 
 [The above Acts in part repealed. The powers 
 of the Endowed Schools Commissioners transferred 
 to the Charity Commissioners. 37 & 38 Vict. 
 c. 87.] 
 
 [The Endowed Schools Act, 1868, continued. 
 38 & 39 Vict. e. 29.] 
 
 1, — Wales is a district of England within the 
 Endowed Schools Act, 1869 ; and if a college holds 
 a fnnd in trust for exhibitioners to be selected 
 froin a particular district of England, and whose 
 exhibitions are tenable at the imiversity, such 
 college must give the Endowed Schools Commis- 
 sioners any information they may require as to the 
 fiind. So held by the full Court of Appeal. In re 
 the Meyriche Fnnd, 42 Law J. Eep. (n.s.) Chanc. 
 553 ; Law Eep. 7 Chanc. 500: af5rming the deci- 
 
 EaUITABLE ASSIGNMENT. 
 [See Bill ob Exchange, 2 ; Bill of Sale, 1, 2.] 
 
 EQUITABLE SET-OFF. 
 [See Set-oit.] 
 
 EEROE. 
 
 Writ of. [See Writ of Eeeob.] 
 Jurisdiction of Court of Error. [See Juris- 
 diction AT Law, 1, 2.] 
 What decisions are subjects of proceedings in 
 error. [See Pbactice at Law, 43.] 
 
 ESCEOW. 
 [See Deed, 1.] 
 
Estoppel (a). 
 
 243 
 
 ESTOPPEL. 
 
 (A) By Mattke op Eecokd ahd Quasi of 
 
 Recoed. 
 
 (B) By Deed. 
 
 (C) In pais. 
 
 (a) By acceptance of estate. 
 
 (A) By acceptance of bill of exchange. 
 
 (c) By conduct and representation. 
 
 (A) By Matter of Rbcoed and Quasi of 
 Eecoed. 
 
 1. — ^A record works an estoppel only as to those 
 matters capable of being controverted between the 
 parties at the time of the proceedings in the 
 action ; and therefore although a deed may have 
 been proved to be valid in one action, yet it may be 
 shewn in a subsequent suit to have become in- 
 valid, if the circumstances avoiding it have 
 happened after the determination of the earlier 
 action. Hall v. Levy, 44 Law J. Eep. (n.s.) C. P. 
 89; Law Eep. 10 0. P. 154. 
 
 To a declaration upon a bill of exchange the 
 defendant pleaded by way of estoppel that the 
 plaintiff had saed the defendant in a former action 
 upon the bill of exchange now declared upon ; that 
 in the former action the defendant had pleaded to 
 its further maintenance a composition deed under 
 the Bankruptcy Act, 1861, by which the defend- 
 ant's creditors had agreed to release him from their 
 debts in consideration of his agreement to pay one 
 shilling in the pound by instalments of sixpence 
 each, with a proviso that oh default of payment of 
 the composition the release was to become void ; 
 that the plaintiff had replied to the plea in the 
 former action the non-payment of the first instal- 
 ment under the deed; that the defendant had 
 rejoined upon equitable grounds a mistake in non- 
 payment on the proper day ; that thereupon the 
 plaintiff struck out the replication, confessed the 
 plea and taxed his costs which were paid. The 
 plaintiff replied that after the confession, taxation 
 and payment of the costs in the former action as 
 alleged in the plea, and before the commencement 
 of the present action another instalment under 
 the deed had become payable, that the defendant 
 had made default in its payment, and that thereby 
 the release had become void : — Held, upon de- 
 murrer, that the replication was good on the 
 ground that although the confession in the former 
 action was final as to everything which had been, 
 or might have been, controverted therein, yet in 
 the present suit the replication relied on a default 
 which did not exist at the time of the former 
 action, and therefore which could not have been 
 controverted therein. Ibid. 
 
 2. — The plaintiff (creditor of the testator) 
 having recovered judgment for his debt in an 
 action against the executor after issue found for 
 the plaintiff on a plea of plene administravit, sued 
 the executor in an action on such judgment, sug- 
 gesting a devastavit : — Held, that the defendant 
 could not shew that the acts of waste complained 
 of were committed by him before such judgment 
 with the concurrence of the plaintiff, as that 
 
 would amount to no assets as between the plaintiff 
 and the defendant, and would therefore negative 
 the judgment, which the defendant was estopped 
 from doing. Jeweshwry v. Mummery, 42 Law J. 
 Eep. (n.s.) 0. P. 22 ; Law Eep. 8 C. P. 56. 
 
 S.-'Though it is a rule that a final decision of 
 a competent Court estops the litigant parties and 
 those claiming under them from re-opening the 
 question in another Court, yet this does not apply 
 to persons whose interest is almost identical with 
 the parties, but who do not actually claim through 
 them. Spencer and Spencer v. Williams, 40 Law 
 J. Eep. (n.s.) p. & M. 45 ; Law Eep. 2 P. & M. 
 230. 
 
 4. — Semble, by Lord Cairns, a creditor who has 
 as between himself and the debtor, successfully 
 contested in a Court of law the validity of a cre- 
 ditor's or composition deed executed by his debtor, 
 is not thereby precluded from afterwards coming 
 in under the deed, and obtaining the benefits he 
 would only be entitled to on the footing that the 
 deed was valid. Latter v. White (H.L.), 41 Law 
 J. Eep. (n.s.) Q. B. 342 ; Law Rep. 6 E. &I. App. 
 578. 
 
 5, — The judgment of a Court of competent 
 jurisdiction is, as evidence, conclusive as to the 
 matters at issue, whenever the same matters shall 
 be afterwards in question between the same parties 
 in another Court. Flitters v. Allfrey, 44 Law J, 
 Eep. (n.s.) C.P. 73 ; Law Eep. 10 C.P. 29. 
 
 The judgment of a County Court as to matters 
 within its jurisdiction is, by virtue of 9 & 10 Vict. 
 0, 95, s. 89, of equal validity for the purposes of 
 evidence with the judgment of a Superior Court 
 although the County Court may not shew upon 
 what issues or upon what grounds the decision was 
 given. Ibid. 
 
 F. was tenant to A. of a cottage. A. treated E. 
 as a weekly tenant, and gave him one week's notice 
 to quit. As F. remained in the cottage, A. ob- 
 tained a warrant of justices under 1 & 2 Vict. c. 74, 
 and evicted F. from the cottage. Afterwards A. 
 sued F. in a County Court for rent of the cottage, 
 claimed to be due upon the weekly tenancy. E. 
 alleged that his tenancy was from year to year, 
 and that at the time of his eviction a year of his 
 holding had not expired, and no rent was due. 
 The Judge held that the tenancy was from year 
 to year, and gave judgment for F. Thereupon F. 
 sued A. in the Superior Court for trespass in 
 wrongfidly evicting him from the cottage by the 
 wairant of the justices, and he again contended 
 that as he was tenant from year to year his tenancy 
 had never been lawfully determined. The jury 
 found that F.'s tenancy was from week to week : 
 —Held, that despite of the finding of the jury F. 
 was entitled to have the verdict entered for him ; 
 for the judgment of the County Court was, as evi- 
 dence, conclusive between F. and A. as to the 
 tenancy, in this Court ; that the tenancy must be 
 assumed to have been from year to year, and that 
 the eviction of F. from the cottage must be taken 
 to have been unlawful. Ibid. 
 
 Action : release with condition subsequent : 
 confession of plea an estoppel to fresh 
 action. [See Action, 8.j 
 Ji2 
 
244 
 
 ESTOPPEL (B), (0). 
 
 (B) By Deed. 
 
 6. — The owner of the equity of redemption in a 
 mortgaged estate, demised the estate to a trustee 
 for a term, upon certain trusts, and afterwards 
 devised the same estate in fee. The devisees 
 having contracted to sell the estate to a purchaser, 
 paid off the mortgage, took a reconveyance to the 
 uses of the will, and conveyed the estate to the 
 purchaser, who had no notice of the term A bill 
 filed by the cestuique trust under the demise 
 against the trustee of the term and the purchaser 
 for administration of the trust, was dismissed by 
 one of the Vice-Chancellors, on the ground that 
 there was no term by estoppel in the trustee, and 
 on appeal the Lord Chancellor afSrmed the de- 
 cision, but without prejudice to any question that 
 might be raised at law, being of opinion that the 
 question of estoppel was a question for a Court of 
 law, and that there was no equity against the pur- 
 chaser if the legal estate was in him. Clemow 
 V. Geach, 40 Law J. Bep. (n.s.) Ghanc. 4*4 ; Law 
 Eep. 6 Chanc. 147. 
 
 7. — A mortgagor with the privity of one of his 
 joint mortgagees, who were trustees, but without 
 the knowledge of the other, sold part of the mort- 
 gaged property to a purchaser suppressing the 
 mortgage. The first-mentioned trustee received 
 the money and gave a receipt on behalf of self and 
 co-trustee, and afterwards appropriated it. The 
 mortgagor, on the occasion of a subsequent sale of 
 other part of the property, knowing the facts, 
 joined with the defaulting trustee in procuring a 
 reconveyance from him and his innocent co-trustee 
 of the part already sold as well as the part then 
 sold. The defaulting trustee afterwards ab- 
 sconded; — Held, 1, that the innocent trustee was 
 entitled to have the reconveyance cancelled ; 2, that 
 the reconveyance did not operate to perfect by 
 estoppel the defective title of the purchasers from 
 the mortgagor. Heath v. Crealock, 44 Law J. 
 Eep. (n.s.) Chanc. 157 ; Law Eep. 10 Chanc. 22. 
 
 (C) In pais. 
 {a)_By acceptance of estate. 
 
 8. — E. A., a tenant by the curtesy of an estate 
 of freehold of inheritance, died in 1820, after 
 making a will by which he devised the freehold to 
 trustees in trust for his daughter Eebecca, for life, 
 and after her decease to his grandson, W. B. Cer- 
 tain annuities were payable under the will, and were 
 paid by Eebecca. The testator died in the year 
 1855, and at and after his death, Eebecca remained 
 in possession. In 1849 the plaintiff bought of 
 W. B., the reirainderman, all his interest in the 
 freehold. In 1863 Eebecca sold the freehold to 
 the defendant, and in 1872 she died, whereupon 
 the plaintiff demanded possession and brought an 
 action of ejectment against the defendant to re- 
 cover possession : — Held, that Eebecca having 
 taken under the will, and having acted under it, 
 would have been estopped from asserting that it 
 was invalid and that by reason of her possession 
 for twenty years she was entitled to the fee ; that 
 the defendant, who claimed through her, was es- 
 topped in like manner, and that consequently the 
 
 plaintiff who had purchased from W. B., the re- 
 mainderman, was entitled to recover from the 
 defendant. Board v. Board, 43 Law J. Eep. 
 (N.s.) Q. B. 4 ; Law Eep. 9 Q. B. 48. 
 
 ip) By acceptance of bill of exchange. 
 
 9. — The acceptance of a bill of exchange pay- 
 able to order of a firm, drawn in the name of a 
 firm by one of its members, without the authority 
 of the other, does not estop the acceptor from dis- 
 puting the endorsement on the ground of want of 
 authority from such other member. Cfarland v. 
 Jacomb, Law Eep. 8 Exch. 221. 
 
 (c) By condVfCt and representation. 
 
 10. — One recognised proposition as to estoppel 
 in pais is, that if a person by words or conduct 
 wilfully endeavours to cause another to believe in 
 a certain state of things which such person knows 
 to be false, and if the other believes in such state 
 of things, and acts upon his belief, he who know- 
 ingly made the false statement is estopped from 
 averring afterwards that such a state of things did 
 not, in fact, exist. Cam v. The London and North- 
 western Railway Company, 44 Law J". Eep. (n.s.) 
 C. P. 109 ; Law Eep. 10 0. P. 307. 
 
 Another recognised proposition as to estoppel in 
 pais is, that if a person either in express terms or 
 by conduct makes a representation to another of 
 the existence of a certain state of facts which he 
 intends to be acted upon in a certain way, and it 
 be acted upon in that way in the belief of the 
 existence of such a state of facts to the damage of 
 him who so believes and acts, such person is es- 
 topped from denying the existence of such a state 
 of tacts. Ibid. 
 
 A third recognised proposition as to estoppel in 
 pais is, that if a person, whatever his real meaning 
 may be, so conducts himself that a reasonable man 
 would take his conduct to mean a certain repre- 
 sentation of facts, and that it was a true represen- 
 tation, and that he was intended to act upon it in 
 a particular way, and if he with such belief does 
 act in that way to his damage, such person is 
 estopped from denying that the facts were as re- 
 presented. Ibid. 
 
 A fourth recognised proposition as to estoppel 
 in pais is, that if in the transaction itself which i^ 
 in dispute, A. has led B. into the belief of a cer- 
 tain state of facts by conduct of culpable negli- 
 gence calculated to have that result, and such 
 culpable negligence has been the proximate cause 
 of leading and has led B. to act by mistake upon 
 such belief to his prejudice, A. cannot be heard 
 afterwards as against B. to shew that the state of 
 facts referred to did not exist. Ibid. 
 
 The plaintiff entered into a contract with A. 
 for the purchase of bleaching powder, and imme- 
 diately afterwards into a contract for the sale 
 thereof to other persons. Owing to a mistake of 
 the plaintiff's vendor the defendants, a railway 
 company, were induced without culpable negli- 
 gence on their part to advise the plaintiff that 
 they had received fifteen casks of bleaching 
 powder, marked and numbered in a particular 
 manner, and that they held the same to his orders 
 
ESTOPPEL (C)— EVIDENCE (A). 
 
 243 
 
 as warehousemen. The defendants never had re- 
 ceived the casks in question, and afterwards in- 
 formed the plaintiff of the error; at" a subsequent 
 time, owing to another mistake, the plaintiff paid 
 the defendants a sum of money as warehouse rent 
 for the fifteen casks supposed to have been received 
 by them. The mistake having been subsequently 
 made known to all parties, the plaintiff's vendees 
 bought in fifteen casks of bleaching powder at a 
 loss to him : — Held, that the above facts did not 
 create an estoppel in pais within any of the four 
 propositions above mentioned, that the defendants 
 were not estopped from shewing that the fifteen 
 casks bed never been received by them, and that 
 the defendants were not liable to the plaintiff in 
 trover or any other form of action. Ibid. 
 
 Semble (per Denman, J.), that an action of 
 trover cannot be maintained upon an estoppel in 
 pais, where the defendant never had the goods 
 alleged to be converted. Ibid. 
 
 11. — Estoppel by representations applies only 
 where the representation is as to a fact in exist- 
 ence at the time, not where it is as to something 
 yet to come or as to a matter of future intention. 
 The Citisens' Bank of Louisiana v. I'he First Na- 
 tional Bank of New Orleans (H.L.), 43 Law J. 
 Hep. (n.b.) Chanc. 263 ; Law Eep. 6 E. & I. App. 
 352. 
 
 A representation or assurance given by the 
 drawer of a bill, that the bill was drawn " spe- 
 cially " or " expressly " against funds already re- 
 mitted by him more than sufficient to meet the 
 bill on maturity, does not amount to a specific ap- 
 propriation or equitable assignment of the funds 
 so remitted, although it be given to one who is 
 induced thereby to purchase the bill, unless it is 
 also represented, or the fact is, that there was a 
 trust already constituted, by which the payer qf 
 the bill would hold funds in trust for the payment 
 of the particular bUl, or of bills of that particular 
 class or description. Ibid. 
 
 12, — Where an amalgamation of the Bank of 
 China with the Bank of Hindustan had been set 
 aside by the Court of Chancery as being ultra vires, 
 it was held, in an action to recover calls, and balance 
 of premium, that a shareholder in the former bank 
 was not estopped from denying that he had become 
 a shareholder in the latter bank, by the fact that 
 he had applied for shares, paid a deposit, and re- 
 ceived notice of calls without objecting ; inasmuch 
 as he had so acted on a mistaken representation 
 of the facts on the part of the plaintiffs. The 
 Bamk of Hindustan, China and Japam v. Alison 
 (Exch. Oh.), 40 Law J. Eep. (n.s.) C.P. 117 ; 
 LawEep. 6C.P. 117. 
 
 13.— An executor of a will entered a caveat to 
 a will of earlier date, but withdrew the caveat 
 before it was warned, and allowed letters of ad- 
 ministration, with the earlier will annexed, to be 
 granted to one of the residuary legatees named 
 therein: — Held, that he was not estopped by the 
 withdrawal of the caveat under the circumstances 
 from calling in the letters of administration (with 
 the earlier will annexed) and propounding the al- 
 leged later will. Goddard v. Smith, 42 Law J, 
 Eep. (if.8.) P. & M. 14 ; Law Eep. 3 P. & D. 7. 
 
 14. — Where a declaration shews a contract and 
 tender, in compliance, and sets out an alternative 
 case of tender, not in compliance, the plaintiff is 
 not thereby estopped for contending for the true 
 interpretation of the contract. MoConnell v. 
 Murphy, Law Eep. 5 P. C. 203. 
 
 Sale of goods : recognition by vendor of 
 sale to second vendee. [See Sale, 25.] 
 
 EVIDENCE. 
 
 (A) Admissibility. 
 
 (o) Parol evidence to vary or explain writ- 
 ten document. 
 
 (1) Jb explain will. 
 
 (2) To vary promissory note. 
 
 (3) Of collateral verbal agreement. 
 (6) Of usage of trade, 
 
 (c) Of right of common. 
 
 (d) Bes inter alios acta : receipt. 
 
 (e) Certified copy of record. 
 
 (/) Certified copy of register of births. 
 
 Ig) Judge's notes. 
 
 (k) Statement by witness contradictory of 
 
 his evidence, 
 (i) I/unatic witness. 
 
 (B) Sufficiency and Effect. 
 
 (a) Admissions. 
 
 (b) Beceipi. 
 
 (c) Of foreign law. 
 
 (d) Obscure written docmnents. 
 
 (e) Of execution of deed. 
 ■ If) Of negligence. 
 
 (g) Of legitimacy. 
 (A) Of posting of letters. 
 (0) Sbcondaky Evidence of lost Document" 
 
 (D) Onus of Proof. 
 
 (E) Pbesumptive Evidence. 
 
 (F) Evidence disclosing Felony. 
 (Gr) In Criminal Cases. 
 
 (ffi) Confession. 
 
 (4) Evidence of co-defendant. 
 
 (c) Evidence of prisoner' s wife. 
 
 {d) Of trader in liquidation on indictment 
 
 under Debtors Act. 
 (e) In support of particular indictments. 
 (/) Depositions. 
 
 [Declaration to be taken by persons objecting or 
 incompetent to take oaths in civil or criminal pro- 
 ceedings. 33 & 34 Vict. c. 49.] 
 
 (A) Admissibility. 
 
 (o) Parol evidence to vary or explain written 
 contract. 
 
 (1) To explain will. 
 
 1. — In construing a will, nothing contained in 
 a letter from a solicitor to the testator, written 
 about the time of the execution of the will, is ad- 
 missible as evidence of the construction of the 
 will. Wilson v. QLeary, 41 Law J. Eep. (n.s.) 
 Chanc. 342 ; Law Eep. 7 Chanc. 448. 
 
246 
 
 EVIDENCE (A). 
 
 2. — Evidence that testator had in hie possession 
 his first codicil at the time he made his second 
 was admitted, so far as it went to prove the posi- 
 tion of the testator, but rejected, so far as it sug- 
 gested any motive for his making the second 
 codicil. Wilson v. O'Leary, 40 Law J. Eep. (n.s.) 
 Chanc. 709 ; Law Eep. 12 Eq. 525. 
 [And see Legacy, 1 ; Will, Construction, G- 
 6, 8-10, H 20.] 
 
 (2) To vary promissory note. 
 
 3. — Parol evidence is inadmissible to prove a 
 note expressed to be a security for 500^. and in- 
 terest, to have been intended to secure the interest 
 only. Hill v. Wilson, 42 Law J. Eep. (n.s.) Chanc. 
 817 ; Law Eep. 8 Chanc. 888. 
 
 (3) Of collateral verbal agreement. 
 
 4. — A tenant entered on lands on the under- 
 standing that a lease should be signed at a future 
 time. When the lease was present* d to him for 
 signature he refused to sign unless the landlord 
 would undertake to destroy the rabbits. This the 
 landlord by word of mouth promised to do, and 
 the tenant thereupon signed. The lease contained 
 a clause by which the tenant agreed not to shoot, 
 hunt, or sport on the demised land, or destroy any 
 game, but to use his best endeavours for the pre- 
 servation of the same, and to allow his landlord or 
 friends at any time to hunt, shoot, and sport on 
 the land. In an action by the tenant against the 
 landlord, for breach of agreement in not destroy- 
 ing the rabbits : — Held, that this agreement was 
 collateral to, and did not alter or vary the written 
 contract, and that therefore evidence of such 
 agreement was admissible. Morgan v. Griffiths, 
 40 Law J. Eep. (n.s.) Exch. 46 ; Law Eep. 6 
 Exch. 70. 
 
 Evidence of verbal promise collateral to 
 written agreement. [See Conteact, 
 35, 36.] 
 
 Admissibility of extrinsic evidence of con- 
 sideration. [See Emlwat, 13.] 
 
 Parol evidence of alterations in written con- 
 tract. [See Sale, 1.] 
 
 Parol evidence of liability of agent on writ- 
 ten contract. [See Principal and 
 Agent, 4.] 
 
 Evidence of extent of agent's authority. [See 
 Principal and Agent, 15.] 
 
 (i) Of usage of trade. 
 
 5. — If a mercantile document is insensible when 
 read according to the ordinary sense of the words 
 used therein, it is a question for the jury whether 
 the language thereof has not acquired a definite 
 meaning by mercantile usage. Ashworth v. Bed- 
 ford, 43 Law J. Eep. (n.s.) C. P. 57 ; Law Eep. 9 
 C. P. 20, nom. Ashforik v. Bedford. 
 
 The plaintiiF sold to the defendants certain 
 goods ; the invoice was dated the 1st of May, and 
 at the foot of it were written the words, " Terms 
 — Net cash, to be paid within six to eight weeks 
 from date hereof." The goods not having been 
 
 paid for, the plaintiff issued a writ to recover the 
 price thereof on the 18th of June, scarcely seven 
 weeks from the 1st of May. At the trial the Judge 
 left to the jury the question whether the credit 
 had expired on the 18th of June according to mer- 
 cantile usage ; the jury having found that the 
 action was not brought too soon, — Held, per 
 Keating, J., and Brett, J. (Grove, J., doubting), 
 that the direction to the jury was proper, and that 
 the plaintiff was entitled to the verdict. Ibid. 
 
 [And see Principal and Agent, 1-3 ; Contract, 
 35, 36.] 
 
 (e) Of right of common. 
 [See Common, 5, 6.] 
 
 {d) Res inter alios acta : receipt. 
 
 6. — The defendants being bound to repay the 
 plaintiffs what the plainti& paid P. for certain 
 work, the plaintiffs in order to prove what they 
 had so paid, &c., proved that having received F.'s 
 bill for doing such work amounting to a certain 
 sum, they sent a cheque by post to P., and P. 
 proved that he received the cheque, and sent in 
 return a receipt, which the plaintiffs produced, and 
 the Judge at the trial allowed it to be put in evi- 
 dence : — Held (Bovill, C.J., diisentiente), that the 
 receipt was admissible as one of the facts con- 
 nected with the payment, though it would not 
 have been admissible by itself to have proved the 
 payment. The Carmarthen and Cardigan Eailway 
 Company v. The Manchester and Milford Eailway 
 Company, 42 Law J. Eep. (n.s.) C. P. 262 ; Law 
 Eep. 8 C. P. 685. 
 
 (e) Certified copy of record. 
 
 7. — An action in a superior Court is a " pro- 
 ceeding " in which a certified copy of a record is 
 admissible as evidence of the record under 14 & 
 16 Vict. c. 99, s. 13. Bichardson v. WUlis, 42 
 Law J. Eep. (n.s.) Exch. 15; Law Eep. 8 
 Exch. 69. 
 
 (/) Certified copy of register of births. 
 
 8. — A copy of an entry in the register book of 
 births in a registrar's district within a superinten- 
 dent registrar's larger district, certified to be a 
 true copy under the hand of the deputy superin- 
 tendent registrar, who also certified imder his 
 hand that the register book was in his lawful cus- 
 tody, was held to be admissible evidence of the 
 entry in the register book upon the mere produc- 
 tion of such copy. The Queen v. Weaver, 43 Law 
 J. Eep. (n.s.) M.C. 13; Law Eep. 2 C. C.E. 86. 
 
 Upon an indictment for carnally knowing a girl, 
 being above the age of ten .years and xmder the 
 age of twelve years, such a certified copy of an 
 entry shewing that the child was of the age of 
 eleven years and eight months was held sufficient 
 proof of the age, there being independent evi- 
 dence of the identity of the child with the name , 
 of the child entered in the book. Ibid. 
 
 (g) Judges notes. 
 [See BANKEtTPTOT, N 17.] 
 
EVIDENCE (A), (B). 
 
 247 
 
 {h) Statement by witness contradiotort/ of his 
 evidence. 
 
 9. — The solicitor for the defendant stated in an 
 affidavit that a witness for the plaintiff had stated 
 to him facts which were put in writing signed by 
 the witness, and he made the writing an exhibit. 
 The statements in the writing were contradictory 
 to the evidence of the witness as given in the suit : 
 — Held, that the writing was not admissible in 
 evidence in the way in which it was put in, the 
 witness having had no opportunity of explaining 
 it. Hemming v. Maddick, 41 Law J. Eep. (n.s.) 
 Chanc. 522 ; Law Eep. 7 Ohanc. 395. 
 
 (j) Lunatic witness. 
 
 10. — The jurat of an affidavit sworn by a per- 
 son suffering from monomania, and confined in a 
 lunatic asylum, should state the fact that it was 
 sworn in an asylum, otherwise the affidavit is ir- 
 regular, and wiU be taken off the file. Spittle v. 
 Walton, 40 Law J. Rep. (js.s.) Chanc. 368 ; Law 
 Eep. 1 1 Eq. 420. 
 
 Before the evidence of a lunatic, subject to in- 
 sane haUueinations, can be received, there must 
 be an enquiry as to his mental condition. Ibid. 
 
 (B) SUFFICIENOY AND EFFECT. 
 
 (a) Admissions. 
 
 11. — Eecitals in a deed tendered but not exe- 
 cuted were held admissions by the parties on 
 whose behalf the deed was prepared but capable 
 of being rebutted. Bulley v. Bulley, 44 Law J. 
 Eep. (n.s.) Ohanc. 79; Law Eep. 9 Chanc. 739. 
 
 The plaintiff sold a fifth share, to which she was 
 believed to be entitled under a certain will, in afree- 
 hold farm, and conveyed her fifth part or share and 
 all other her estates, parts, shares, and interests in 
 the farm to the purchaser, who was believed to be 
 entitled to two other fifths, and who thereupon 
 mort.gaged the three-fifths. An unenrolled disen- 
 tailing deed, dated six-and-twenty years before, 
 was afterwards discovered, and led to the belief 
 that the plaintiff was really tenant in tail of the 
 whole, and thereupon a disentailing deed contain- 
 ing recitals admitting the fact was sent to her for 
 execution. The plaintiff refused to execute this, 
 and filed a biU to set aside the purchase deed alto- 
 gether : — Held, that the mortgagees were entitled 
 to hold any legal estate they might have, and the 
 Tice-Chancellor having dismissed the bill as 
 against them without costs, the decree was varied 
 by giving them their costs. That as against the 
 purchaser of the fifth, as the plaintiff might be 
 embarassed at law by the form of the conveyance, 
 the Court would entertain the suit as an equitable 
 ejectment, treating the conveyance as effecting 
 one-fifth only. That the admissions were evi- 
 dence, but that the Court must judge of their 
 weight ; that such admissions not being of facts 
 within the knowledge of the person making them, 
 but only inferences, of which the grounds were 
 folly disclosed, the Court would consider how far 
 such inferences were well founded. And, further, 
 that the discovered disentailing deed only shewing 
 an intention to bar the estate tail in any part of 
 
 the land that might be entailed, the plaintiff was 
 thrown back to shew strictly that a testator was 
 seized in 1746 ; that it was not sufficient to shew 
 that he was then seized of copyhold parts of the 
 same farm, and that the whole were held together 
 in 1833, and that in the absence of further evi- 
 dence, the bill must be dismissed as against the 
 purchaser as well as the mortgagees, but, under 
 the circumstances of the case, without costs. 
 Ibid. 
 
 (i) Beoeipt. 
 
 12. — ^A receipt is merely evidence of satisfac- 
 tion at law, and liable to be rebutted by contrary 
 evidence. Therefore, where a passenger injured in 
 a railway accident, claimed 6911. for compensa- 
 tion, but accepted 400Z., and gave a receipt ac- 
 knowledging it to be in full discharge of his claim, 
 and afterwards commenced an action against the 
 company for further satisfaction, in which they 
 pleaded payment of the 400/. in full satisfaction 
 and discharge; a bill by the plaintiff in such 
 action to restrain the company from relying on the 
 plea, not charging fraud, but on the ground that the 
 plaintiff had expressly stipulated that the receipt 
 was not to exclude him from further compensation 
 if his injuries turned out more serious than sup- 
 posed, was dismissed, inasmuch as the whole case 
 could be tried at law. Lee v. The Lancashire and 
 Yorkshire Railway Company, Law Eep. 6 Chanc. 
 527. 
 
 (e) Of fordgn law. 
 
 13. — An opinion of a Scotch advocate was in 
 evidence. The Judge considering that there was 
 implied therein an opinion on a question of Scotch 
 law raised in the suit, decided the question on that 
 evidence. Macdonald v. Macdonald, 41 Law J. 
 Eep. (n.s.) Chanc. 566 ; Law Eep. 14 Eq. 60. 
 
 {d) Obscwre written documents. 
 
 14. — In a case of obscurity in written docu- 
 ments the Court adopted the construction upon 
 which the parties long acted, in the absence of 
 better evidence. Forbes v. Watt, Law Eep. 2 Sc. 
 App. 214. 
 
 (e) Of execution of deed. 
 Of sealing of deed. [See Deed, 2.] 
 
 (/) Of negligence. 
 
 Evidence of negligence by servant ; blow by 
 
 omnibus driver. [See Master and 
 
 Sebvant, 9.] 
 Of negligence in ca/rriage of livi stock. [See 
 
 Carbier, 35.] 
 In action against carriers for loss of goods 
 
 by felony of servants. [See Carrier, 
 
 26-28.] 
 
 {g) Of legitimacy. 
 
 [See Lebitimact Declaration Act, 4 ; Pro- 
 bate, 32. J 
 
24S 
 
 EVIDENCE (B), (G). 
 
 (h) Posting letters. 
 
 15, — Proof of the posting of several letters at 
 siicoessive dates is not conclusive evidence of any 
 of them having been received at the address to 
 which they were directed. In re the Constantinople 
 and Alexandria Hotels Company ; Reidpatk's case, 
 40 Law J. Rep. (n.s.) Chano. 39; Law Rep. 11 
 Eq. 86. 
 
 [And see Compamt, G- 15, 16.] 
 
 (0) Secondary Evidence of Lost Dootjment. 
 
 18. — ^Although upon the presumption omnia 
 rite esse acta, if secondary evidence is tendered to 
 prove the contents of an instrument which is either 
 lost, or retained by the opposite party after notice 
 to, produce it, the Court will presume that the 
 original was duly stamped unless some evidence to 
 the contrary be given ; yet where there is evidence 
 that an instrument, unstamped at its execution, 
 continued for a considerable time after itsi execu- 
 tion unstamped, the omis is shifted, and unless 
 evidence is produced to lead to the belief that it 
 was stamped at some time subsequently the 
 conclusion is that it remained unstamped. The 
 Marine Investment Company v. Haviside (H.L.), 42 
 Law J. Rep. (n.s.) Ghanc. 173 ; Law Rep. 5 E. & 
 I. App. 624. 
 
 17. — Where, in answer to the plaintiff's affi- 
 davit for the production of a document, setting 
 out its terms, the defendant made an affidavit 
 stating that it was destroyed, but not objecting to 
 the terms set out, — Held, that the affidavits were 
 not admissible as secondary evidence of the con- 
 tents of the document. Rainy v. Bravo, Law Rep. 
 4 P. 0. 287. 
 
 Evidence of execution of lost will. 
 Peobate, 53.] 
 
 (D) Onus of Pboof. 
 
 [See 
 
 18. — Judgment was recovered by a creditor of 
 the testator in an action at law against the testa- 
 tor's executors. In a creditor's sxiit by the plain- 
 tiff at law against the executors, the devisee in trust 
 of the real estate and beneficial owner of the real 
 estate, it was held, that the judgment at law was 
 primA facie evidence of the debt against the de- 
 visees of, and persons interested in the real estate, 
 so far that the burden of proof was shifted to 
 them from the applicant ; but that they must have 
 liberty to adduce evidence to disprove it. Harvey 
 V. Wilde, 41 Law J. Rep. (n.s.) Chane. 698 ; Law 
 Rep. 14 Eq. 438. 
 
 19, — He upon whom the burden of proving an 
 issue lies is not bound to prove every fact or con- 
 clusion of fact upon which the issue depends. 
 Prom every fact that is proved, legitimate and 
 reasonable inferences may be drawn ; and hence, 
 in discussing whether there is, in any case, evi- 
 dence to go to the jury, what the Court has to 
 consider is whether, assuming the evidence to be 
 true, and adding to the direct proof all such in- 
 ferences of fact as in the exercise of a reasonable 
 intelligence the jury would be warranted in draw- 
 ing from it, there is sufficient to support the issue. 
 
 Parfitt V. Lawless, 41 Law J. Rep. (n b.) P. & M. 
 68 ; Law Rep. 2 P. & D. 462 : and see Ashwell v. 
 Lomi, Law Rep. 2 P. & D. 477. 
 
 [And see Presumption ; Undue Influence.] 
 
 (E) Peesumptive Evidence. 
 [See Pebsumption.] 
 
 (F) Evidence disclosins Eelont. 
 
 20. — ^Where, at a trial for a civil injury, the 
 plaintiff's evidence discloses &cts which may 
 amount to a felony, it is not the duty of the Judge 
 to nonsuit the plaintiff or to direct the jury that 
 if they find that a felony has been committed by 
 the defendant they must find against the plaintiff. 
 The duty of the Judge simply is to try the issues 
 on the record. WeUs v. Abrahams, 41 Law J. 
 Rep. (n.s.) Q. B. 306 ; Law Rep. 7 Q. B. 554. 
 
 (Gr) In Ceiminal Cases. 
 
 (a) Confession. 
 
 21. — The mother of a little boy in custody on a 
 charge of attempting to obstruct a railway train 
 said to him and another little boy in custody also 
 on the same charge, in the presence of the mother 
 of the latter and of the policeman, " You had 
 better, as good boys, tell the truth," whereupon 
 both boys confessed: — Held, that the confession 
 was clearly admissible. The Queen v. Reeve, 41 
 Law J. Rep. (n.s.) M C. 92 ; Law Rep. 1 C. G. R. 
 362. 
 
 (b) Evidence of co-defendant. 
 
 22. — -In any criminal proceeding the defendants 
 jointly indicted for or charged with the commis- 
 sion of any offence, and on their trial, cannot be 
 called as witnesses for or against themselves or 
 each other, notwithstanding anything contained 
 in the 14 & 15 Vict. c. 99, ss. 2 and 3. The Quern 
 41 Law J. Rep. (n.s.) M. C. 65 ; Law 
 
 Rep. 1 C. 0. R. 349. 
 
 Four prisoners were jointly indicted for night 
 poaching, and during the trial and at the close of 
 the case for the prosecution, it was proposed to 
 call one of the prisoners to prove an alibi for 
 another of them. The proposed witness had been 
 examined before the justices on the committal of 
 the other three prisoners, and had given evidence 
 of an alibi, and had been bound over, by recog- 
 nisance, by the Justices to give evidence on the 
 trial under 30 & 31 Vict. c. 35. s. 3, but had been 
 afterwards taken into custody, and committed, and 
 was indicted jointly with the others. No nolle 
 prosequi was entered for him, nor did he plead 
 guilty, and no application had been made for a 
 separate trial. The evidence was rejected : — Held, 
 that the evidence was properly rejected, and that 
 the conviction was right. Ibid. 
 
 (c) Evidence of prisoner's wife. 
 
 23. — The wife of ^ne of several prisoners on 
 their trial at the same time on a joint indictment 
 cannot be called as a witness for or against any of 
 the prisoners notwithstanding that the indictment 
 
EVIDENCE (G)-EXECUTOE AND ADMINISTBATOE. 
 
 249 
 
 contains more counts than one respectively 
 charging distinct offences. The Queen v. Thompson, 
 41 Law J. Rep. (n.s.) M. 0. 112; Law Rep. 1 
 0. 0. R. 377. 
 
 {d) Of trader in liquiiation on indictment under 
 Debtors Act. 
 
 24. — On an indictment of a trader for obtain- 
 ing property on credit, under the false pretence of 
 dealing in the ordinary way of his trade, within 
 four months before his liquidation contrary to the 
 11th section of the Debtors Act, 1869, an examin- 
 ation of the trader in liquidation taken under the 
 97th section of the Bankruptcy Act, 1869 (32 & 33 
 Vict. c. 71), was admitted in evidence against him. 
 The summons to bring up the trader for examina- 
 tion was issued before the 'certificate of the ap- 
 pointment of the trustee was given by the regis- 
 trar. The trader attended, was examined, and 
 the examination was taken after the giving of 
 the certificate of appointment : — Held, that 
 whether the summons was regularly issued or 
 not, the trader by appearing and submitting to 
 be examined, waived the irregularity, if any, and 
 the examination was properly taken and was ad- 
 missible in evidence against the prisoner on the 
 trial of the indictment. The Queen v. Scott (25 
 Law J. Rep. (n.s.) M. C. 128 ; D. & B. 47) fol- 
 lowed. The Queen v. Widdop, 42 Law J. Rep. 
 (n.s.) M. C. 9 ; Law Rep. 2 C. C. E. 3. 
 
 (e) In support of particular indictment. 
 
 25. — On an indictment for an inlecent assault, 
 as in cases of rape, or attempt to commit rape, the 
 answer of the prosecutrix to questions put to her 
 on cross-examination as to particular acts of con- 
 . nection with persons named to her, other than the 
 prisoner, is final, and the party questioning is 
 bound thereby, and if her answer be a denial the 
 persons named cannot be called to contradict her. 
 The Queen v. Holmes, 41 Law J. Rep. (n.s.) M. C. 
 12; Law Rep. 1 C. 0. E. 334. 
 
 Semble— that the question may be put to her 
 on cross-examination, but that she is not bound to 
 answer it. Ibid. 
 
 26. — The respondent was indicted for arson ; 
 and at the trial the deposition of the respondent 
 taken en oath upon an inquiry into the cause of 
 the fire, was admitted as evidence in support of 
 the indictment : — Held, that the evidence was ad- 
 missible. The Queen v. Goote, 42 Law J. Eep. 
 (n.s.) p. C. 46 ; Law Rep. 4 P. C. 599. 
 
 False pretences : evidence of false pretences 
 on prior distinct occasion's. [See Faisb 
 Pretence, 3.] 
 
 Indecent assault : evidence as to acts of con- 
 nection with third parties. [See As- 
 SATJIT, 2.] 
 
 Larceny: indictment: evidence to support 
 allegation of stealing nineteen shillings 
 in money. [See Larceny, 6.] 
 
 Scienter: Contagisvs Diseases Act. [See 
 CoNTAGiotrs Diseases Act.] 
 Digest, 1870-1875. 
 
 (/) Depositions, 
 
 27.— By 11 & 12 Vict. c. 42, s. 17, the deposi- 
 tion of a witness examined on the preliminary 
 examination before the Justices may be read at 
 the trial, if it be proved that the person whose 
 deposition shall have been taken in the manner 
 directed by and under the circumstances men- 
 tioned in the section is so ill as not to be able to 
 travel. A witness whose depositions were duly 
 taken, under the 11 & 12 Vict. c. 42, s. 17, before 
 Justices, was absent from the trial of the prisoner 
 charged. It was proved by her doctor that she 
 was seventy-four ye.^rs of age and very nervous, 
 that she was liable to faint with nervousness at 
 the idea of coming into a public Court and being 
 examined, and that it might be dangerous to her, 
 but that she was capable of going to London to 
 see her doctor without danger or dificulty. She 
 was living at the time of the trial in the assize 
 town and not far from the assize Court : — -Held, 
 that the depositions of the witness were impro- 
 perly received at the trial, and the conviction was 
 quashed. The Queen v. Farrell, 43 Law J. Rep. 
 (N.s.) M. C. 94 ; Law Rep. 2 C. C. R. 116. 
 
 EXCISE. 
 
 The duty imposed by 32 & 33 Vict. c. 14, 
 s. 18, is payable on carriages belonging to the 
 proprietor of an equestrian circus and used by him 
 for the conveyance of the performers, their instru- 
 ments and materials, on their journeys from place 
 to place and in their processions through the 
 towns they visit ; since they are not within the 
 exception made by section 19, sub-section 6, in 
 favour of vehicles " used solely for the conveyance 
 of any goods or burden in the course of trade or 
 husbandry." Speak v. Powell, 43 Law J. Eep. 
 (n.s.) M. C. 19 ; Law Eep. 9 Exch. 25. 
 
 EXECUTOE AND ADMINISTEATOE. 
 
 (A) Appointment of Executor. 
 
 (a) Executor according to the tenor. 
 
 (b) Executor for property not named in the 
 
 will. 
 
 (B) Powers, Eights, and Duties. 
 
 (a) Betainer of debt. 
 
 (b) Sale of leaseholds. 
 
 (e) Power to charge and mortgage. 
 
 (d) Carrying on testator's business. 
 
 (e) Bight to sue in representative capacity, 
 (/) Bight to interest. 
 
 (g) Executor of executor : right to costs, 
 
 (h) Bight of, to swrpVus. 
 
 (i) Bight to be refunded as against legatees. 
 
 lie) Executor durante minore (state, 
 
 (V) Legacy to executor, 
 
 (C) Liabilities. 
 
 (a) Bights of creditors. 
 
 (b) Liability as partners. 
 
 (c) Husband nf residuary legatee. 
 
 KK 
 
250 
 
 EXECUTOR AND ADMINISTRATOE (A), (B). 
 
 (d) Involuntary losses. 
 
 (c) Calls on shares. 
 
 If) Devastavit. 
 
 (g) Garnishee order against executor. 
 
 {h) Executor de son tort. 
 
 (1) Extent of liability . 
 
 (2) Belief in suit against, 
 (i) Purchase from legatee. 
 
 (Jc) Advertisement for claims. 
 (D) Eektjnoiation. 
 
 (A) AppoINTM:E^fT of Executor. 
 (a) Executor according to the tenor. 
 
 1. — The eseential duties of an executor are to 
 collect the assets of the testator, to pay his funeral 
 expenses and debts, and discharge the legacies ; 
 and -where it appears that a testator intended any 
 person to perform these duties, such person is 
 executor according to the tenor. In the goods of 
 Adamson, Law Rep. 3 P. & D. 253. 
 
 2. — Whether when a person is by will ap- 
 pointed a trustee, and there is nothing for him to 
 do in the character of a trustee, he is not consti- 
 tuted an executor. In the goods of Coles, 41 Law 
 J. Rep. (n.s.) p. & M. 21 ; Law' Rep. 2 P. & D. 
 362. 
 
 3. — Testatrix, a married woman, made her will 
 in exercise of a power. The will commenced, " I 
 direct the trustees under my marriage settlement 
 to pay," &c. It then set out sereral legacies, and 
 disposed of the residue of the trust fund, and con- 
 cluded thiis : "And I give the said trustees all 
 necessary powers of sale, and power to mortgage 
 all or any part of my said property, the more 
 effectually to carry this my will into execution : " — 
 Held, that the trustees were not executors ac- 
 cording to the tenor. In the goods of Eraser, 40 
 Law J. Eep. (n.s.) P. & M. 9 ; Law Eep. 2 P. & 
 
 D. 183. 
 
 4. — A will contained this clause : " I wish 
 P. A. C. to act as trustee to the estate,'' Nothing 
 was conTcyed to him as trustee, and no duty 
 whatever was cast upon him : — Held, that he was 
 not executor according to the tenor. In the goods 
 of Punchard, 41 Law J. Eep. (n.s.) P. & M. 25 ; 
 Law Eep. 2 P. & D. 369. 
 
 5. — A will contained this clause: "I appoint 
 
 E. H. my sole trustee, and he is to be paid as an 
 attorney, the same as if he were not a trustee to 
 this my last will and testament." There were 
 debts to be paid, but the only duties created by 
 the will were those which would devolve upon a 
 trustee: — Held, that E. H. was not executor 
 according to the tenor of the will. In the goods 
 ofLowry, 43 Law J. Eep. (n.s.) P. & M. 34; Law 
 Eep. 3 P. & D. 157. 
 
 6. — Testatrix bequeathed all her property, 
 charged with the payment of her debts, to A., 
 her daughter, whom she appointed her sole execu- 
 trix. A. was a child eight years of age, and the 
 will contained the clause — " I also appoint C. and 
 D. as trustees for A. till she is of age." The next- 
 of-kin of A. were in Australia, and not likely to 
 return to this country. The Court held that C. 
 
 and D. were not executors according to the tenor, 
 but granted to them, under the 73rd section, 
 administration, with the will annexed, until A. 
 should attain her majority. In the goods of 
 Stewart, 44 Law J. Eep. (n.s.) P. & M. 37 ; Law 
 Eep. 3 P. & D. 245. 
 (5) Executor for property not named in the will. 
 [See Peobate, 5.] 
 (B) Powers, Rights, and Duties. 
 (a) Retainer of debt. 
 7. — A debtor devised his real • estate to his 
 creditor, in trust for sale and payment of debts, 
 and appointed the creditor his executor. The 
 executor retained part of his debt out of the legal 
 assets come to his hands ; and then claimed^ a 
 further payment in respect of it, out of the equit- 
 able assets, conjointly with the other creditors: — 
 Held, that they must be placed on an equality 
 with him, out of those assets before he could be 
 allowed anything further thereout. Held, also, not- 
 withstanding io«C5'»'OW v. Cooper (2 Sm. & Gr. 271), 
 that proceeds of real estate ordered to be sold for 
 payment of debts, and paid into Court, are equit- 
 able and not legal assets. Held, also, that the 
 union of the two characters of trustee for sale and 
 executor in the creditor did not give him rights 
 analogous to those he woidd have as executor, 
 which he had not as trustee. Hall v. Macdonald 
 (14 Sim. 1) observed upon. Bain v. Sadler, 40 
 Law J. Eep. (n.s.) Ohanc. 791 ; Law Eep. 12 Eq. 
 670. 
 
 8. — The right of an executor to retain assets 
 for the payment of his own specialty debts, ex- 
 tends to a debt in which the executor is bene- 
 ficially interested as cestui que trust, but not to a 
 mortgage debt for the payment of which the ex- 
 ecutor has become surety by a mortgage of his 
 own property, but which he has not paid before 
 bill filed. Ferguson v. Criison, 41 Law J. Eep. 
 (n.s.) Chano. 640 ; Law Eep. 14 Eq. 379. 
 
 9 . — An executor or administrator has, as against 
 the general creditors of the estate, not only the 
 right of retaining, out of the assets of his testator 
 or intestate, debts due to himself as an individual 
 or as a cestui que trust, but also has and is bound 
 to exercise the right to retain, oiit of such assets, 
 debts due to him in the character of trustee for 
 others. Sander v. Seathfield, 44 Law J. Eep. (n.s.) 
 Chanc. 113 ; Law Eep. 19 Eq. 21. 
 
 10. — An executor's right to retain his testator's 
 assets for his own debts extends as well to a debt 
 which can only be ascertained by taking accounts 
 in a Court of Equity as to a debt which is ascer- 
 tainable at law. In re Morris's Estate; Morris v. 
 Morris, 44 Law J. Eep. (n.s.) Chanc. 178; Law 
 Eep. 19 Eq. 21. 
 
 A testator carried on business in partnership 
 under two firms, both composed of the same indi- 
 viduals, an(i died, having appointed one of the 
 surviving partners his executor. In a suit for 
 administration of his estate the Chief Clerk found 
 that the executor had in his hands a balance of 
 1,675Z., including a sura of 964?. due to the estate 
 from one of the firms, that no account of the 
 
EXECUTOR AND ADMlNISTEATOIl (B). 
 
 251 
 
 dealings and ti'ansactions between the partners in 
 either business was ever taken, and it would not 
 answer any useful piirpose that the accounts 
 should be taken; but it was alleged that the 
 other of the biisinesses was carried on at a loss, 
 and that there was dxie from the testator's estate 
 in respect of the liabilities of the firm carrying on 
 that business S,106l., and there was due to his 
 estate in respect of his share as a partner in the 
 other firm 9642.: — Held, affirming the decision of 
 Hall, V.C., that the executor was entitled as sur- 
 Tiving partner in the creditor firm to retain out 
 of the 1,6752. the amount of 9642. due from the 
 one firm to the estate, by way of set-off, against 
 the amount due to the other firm, and as executor 
 to retain the balance of the 1,6752., in part satis- 
 faction of the same debt. Ibid. 
 
 (b) Sale of leaseholds. 
 
 11. — A testator bequeathed his leaseholds to exe- 
 cutors and trustees upon trust for his nephews and 
 nieces, with a power of sale. All the trustees 
 who surviTed the testator renounced the probate, 
 and refused to accept the trusts. Administration 
 with the will annexed was granted to another per- 
 son, who paid all the debts and assented to the 
 bequests. By the decree in a suit for the admi- 
 nistration of the testator's estate, a sale of the 
 leaseholds was ordered : — Held, that the adminis- 
 trator alone, without the beneficiaries, could make 
 a title to the leaseholds, and had the same power 
 to sell them as if he had been a trustee of the 
 will. Wyman t. Garter, 40 Law J. Kep. (n.s.) 
 Chanc. 559 ; Law Eep. 12 Eq. 309. 
 
 (c) Power to charge and mortgage. 
 
 12. — An executor or administrator borrowing 
 money in that character does not give the lender 
 any claim against the testator's or intestate's es- 
 tate. The contract simply creates a personal 
 liability on the part of the executor or adminis- 
 trator. Farhall v. Farhall, 41 Law J. Eep. (n.s.) 
 Chanc. 146; Law Eep. 7 Chanc. 123. 
 
 The decision of Bacon, V.C, reversed. Ashhy v. 
 Ashby (7 B. & C. 444) explained. Ibid. 
 
 13. — ^An executor mortgaged three small lease- 
 hold houses to a building society. The deed, which 
 was in the usual form of a building society's mort- 
 gage, recited the will and probate, and that the 
 money was wanted for executorship purposes. It 
 incorporated by reference the rules and bye-laws 
 of the society, and made the mortgage a security 
 not only for the moneys advanced, but for any 
 moneys at any time due by the executor in respect 
 of any shares held by him in the society. The 
 deed contained also personal covenants by the 
 executor for payment of the mortgage money, 
 &c. : — Held, that the mortgage was a good one, 
 and that a title derived under it might be forced 
 on a purchaser. Omickshanh v. Sufin, 41 Law 
 J. Eep. (n.s.) Chanc. 317; Law Eep. 13 Eq. 555. 
 
 An executor may create a mortgage of his tes- 
 tator's property, with power of sale. Sanders v. 
 Miehards (2 Coll. 568) is no longer law. Ibid. 
 
 {d) Carrying on testator's husincss. 
 
 14. — In a suit instituted for the administra- 
 tion of the estate of an intestate trader by bene- 
 ficiaries, where there are infants interested, the 
 Court has no jurisdiction to authorise the admi- 
 nistrator to carry on the trade of the intestate. 
 Land v. Land, 43 Law J. Eep. (n.s.) Chanc. 311. 
 
 15. — D. by his will gave directions that his 
 executors should, after his death, carry on his 
 business of a baker. They did so, employing the 
 widow of D. as their agent: — Held, that they 
 might, in their representative capacity, bring an 
 action against the defendant in respect of bread 
 and flour supplied to him while the business was 
 being so carried on. Abbott v. Farfitt, 40 Law 
 J. Eep. (n.s.) G. B. 1 15 ; Law Eep. 6 Q. B. 216. 
 
 (c) Eight to sue in representative capacity. 
 
 16. — In an action for work done and materials 
 provided by the plaintiff as administratrix of H., it 
 appeared that H. was a coach-builder, and that 
 upon his death his widow took out administra- 
 tion, and cansed carriages to be repaired for the 
 defendant, the materials used being part of H.'s 
 estate, with the exception of one shaft. After this 
 work had been done, the widow died, and the plain- 
 tiff took out administration de bonis non : — Held, 
 that the cause of action was part of the estate of 
 the intestate and not of the widow, and therefore 
 passed to the plaintiifasadministratrix(feio»isMo«. 
 Secondly, that the case was one in which the de- 
 claration might he amended at Nisi Prius by 
 stating that the plaintiff sued, not as adminis- 
 tratrix of the deceased, hut as administratrix de 
 bonis non. Moseley v. Eendell, 40 Law J. Eep. 
 (n.s.) a. B. Ill ; Law Eep. 6 a. B. 338. 
 
 Action by executor for injury to personal 
 estate of his testator by breach of con- 
 tract, causing bodily harm to the tes- 
 tator. [See Action, 1.] 
 
 (/) Bight to interest. 
 
 17. — An executor who expended money of his 
 own for the benefit of the estate was allowed 
 simple interest at 42. per cent. Finch v. Presoott, 
 43 Law J. Eep. (n.s.) Chanc. 728; Law Eep. 17 
 Eq. 554. 
 
 (g') Executor of executor : right to costs. 
 
 18. — An executor died insolvent, having misap- 
 plied the assets. An administration suit having 
 been instituted against his executors, who had 
 received part of the testator's estate, they duly 
 accounted for what they had received: — Held, 
 that they were entitled to the costs of accounts 
 against themselves, nor to costs of accounts against 
 the estate of the insolvent executor, and that as 
 to other costs of suit, being parties in both capa- 
 cities, they should have half the costs. Palmer v. 
 Jones, 43 Law J. Eep. (n.s.) Chanc. 349. 
 
 (h) Sight of, to surplus. 
 
 19. — Will appointing executors, and devising 
 to them "as such" all the testatrix's property and 
 ]^K 2 
 
2.32 
 
 EXECUTOR AND ADMINISTEATOE (B), (C). 
 
 effects " in trust as after mentioned." Specific be- 
 quests and disposition of residue "by a simple direc- 
 tion that the executors should receive and collect, 
 and apply and distribute the same as they should 
 think fit, all circumstances duly considered, — Held, 
 that the executors did not take beneficially. Neo 
 V. Neo, Law Eep. 6 P. C. 381. 
 
 (i) Riffht to be refunded as against legatees. 
 
 20. — Distribution of the estate by an executor 
 ■with notice of a contingent liability does not pre- 
 clude liim from recovering the estate from the 
 legatees in case the contingent liability after- 
 wards ripens into actual loss. Jtrvis v. Wolfer- 
 stan, 43 Law J. Eep. (n.s.) Chanc. 809 ; Law Eep. 
 18 Eq. 18. 
 
 An executor who compels a legatee to refund 
 can only require repayment of the capital and not 
 of any intermediate income. Ibid. 
 
 {Jc) Executor dura/nte minore estate. 
 
 21. — An executor durante minore estate can 
 exercise a power given to " the" executor for the 
 time being." Monsell v. Armstrong, 41 Law J. 
 Eep. (n.s.) Chanc. 715 ; Law Eep. 14 Eq. 423. 
 
 if) Legacy to executor. 
 [See Leoact, 4.] 
 
 (C) LlABEDITIES. 
 
 (a) Eights of creditors. 
 
 Retainer by mortgagee of balance of proceeds 
 of security to secure a simple contract 
 debt. [See Moktgaoe, 8.] 
 
 [And see Administbation.] 
 (J) Liability as partners. 
 
 Liability, as partners, of executors of de- 
 ceased partner. [See Partnership, 
 17, 18.] 
 
 (c) Husband of residuary legatee. 
 
 22. — If a testator bequeaths his property to a 
 married woman, and makes her husband his exe- 
 ciitur, and he acts, he is primarily responsible to 
 the estate ; and if largely indebted to it, his ^nife 
 has no equity to a settlement out of any part of it 
 till her husband's liabilities to it are discharged. 
 Knight v. Knight, 43 Law J. Eep. (n.s.) Chanc. 
 611 ; Law Eep. IS Eq. 487. 
 
 {d) Involuntary losses. 
 
 23. — An administrator who had deposited trust 
 moneys in a prirate bank on a separate account 
 current, using ordinary prudence, was held not to 
 be liable for the loss of the moneys through the 
 failure of the bank, although the moneys had 
 been suffered to, remain so deposited for three 
 and a half years after the death of the intestate, 
 and for nearly a year and a half after the admi- 
 nistrator had carried into chambers, in the suit, 
 his accounts shewing a large balance against him- 
 self. In re Marcon's Estate; Finch v. Maroon, 
 40 Law J. Eep. (n.s.) Chanc. 537. 
 
 24. — Where one of three executors employed 
 
 the solicitor of the testatrix to compromise two 
 debts due frpm the estate, and on the solicitor 
 falsely stating that the debts had been compro- 
 mised, handed him a cheque for the money, in 
 order that he might pay the parties, which money 
 the solicitor misappropriated, — Held, that the 
 executor had discharged his duty, and was not 
 liable. In re Bird; The Oriental Commercial 
 Sank V. Savin, Law Eep. 16 Eq. 203. 
 
 (e) Calls on shaires. 
 
 25.^Where an administratrix had distributed 
 the whole of the intestate's assets without making 
 provision for calls on shares, — Held, that there 
 ought to be a decree for payment, and in default 
 for administration. Trice v. Mayo, 43 Law J. 
 Eep. (n.s.) Chanc. 402. 
 
 (/) Devastavit. 
 
 Devastavit : employment of testator's sepa- 
 rate assets) in carrying on business : 
 proof by receiver in suit to administer 
 testator's estate against executor's estate 
 in liquidation. [See Baniedptcy, E 
 18.] 
 
 {g) Garnishee order against executor. 
 
 26. — A garnishee order made against execu- 
 tors will not affect money paid into Court by 
 them in an administration suit, and carried to a 
 separate account to meet a debt due to the judg- 
 ment debtor. Stevens v. Fhelips, 44 Law J. Eep. 
 (n.s.) Chanc. 689; Law Eep. 10 Chanc. 417. 
 
 (h) Executor de son tort. 
 (1) Extent of liability. 
 
 27. — The plaintiffs, being assignees of the re- 
 version upon a lease, sued the defendant for breach 
 of the covenants therein. The lease had been 
 granted to H. G., who held the demised premises 
 thereunder until his death. His widow, A. G., 
 administered to his personal estate. At her 
 death H. received the rents of the demised pre- 
 mises, which were let to under-tenants, and upon 
 his death the defendant received the rents. 'The 
 covenants in the lease granted to H. G. had been 
 broken:— Held, that the defendant was liable as 
 executor de son tort upon the covenants. WUlianis 
 V. Heales, 43 Law J. Eep. (n.s.) 0. P. 80 ; Law 
 Eep. 9 0. P. 177. 
 
 28. — An executor of an executor de son tort 
 is not liable for breach of contract committed by 
 the original testator, although the executor de 
 son tort has actually possessed himself of the par- 
 ticular property or effects of the testator in re- 
 spect of which the contract was entered into. 
 Wilson V. Hodgson, 41 Law J. Eep. (n.s.) Exch. 
 49 ; Law Eep. 7 Exch. 84. 
 
 (2) Belief in suit against. 
 
 29. — Bill stating a will and codicils giving the 
 plaintiff an annuity, and appointing the defendant 
 executor, that the defendant had proved the will 
 and also previously meddled with the assets, and 
 praying administration. Plea, that the defendant 
 
EXECUTOR AND ADMINISTRATOR (C)— EXTRADITION. 
 
 253 
 
 had not proved the will :— Held, that the plea 
 ■was good, since the only relief that could be given 
 against an executor de son tort in the absence of 
 the proper executor, is the appointment of a re- 
 ceiver. Eay-ner v. Koehier (41 Law J. Rep. (n.s.) 
 Chane. 697 ; Law Rep. U Eq. 262) disapproved of. 
 Cary v. Hills, 42 Law J. Rep. (n.s.) Chanc. 100 ; 
 Law Rep. 15 Eq. 79. 
 
 30. — The plaintiff, a creditor of an intestate, 
 filed a plaint in the County Court against the 
 widow and two other persons for administration 
 of the estate, and for an account against the de- 
 fendants as executors de son tort. On the plaint 
 coming on for hearing, the defendants demurred 
 to it ore tenus, on the ground that the legal per- 
 sonal representative was not before the Court. 
 The hearing was then adjourned, and shortly after- 
 wards the plaintiff took out administration. On 
 the case subsequently coming on for hearing, the 
 County Court Judge dismissed the plaint, so far 
 as it sought relief against the defendants, but 
 made a common administration decree, giving the 
 plaiutiff leave to amend the plaint by stating the 
 grant of administration. On appeal by the plain- 
 tiff, — Held, that a bill for an account against an 
 executor de son tort was sustainable, notwithstand- 
 ing the absence of the legal personal representa- 
 tive. Decree of the Court below accordingly re- 
 versed, and the defendants ordered to pay the 
 costs of appeal, but under the peculiar circum- 
 stances of the case to have them allowed out 
 of the estate if solvent. Eayner v. Koehier 
 (41 Law J. Rep. (n.s.) Chanc. 697) followed ; 
 Cary v. Hills (42 Law J. Rep. (n.s.) Chanc. 
 100) disapproved of. Coote v. Whittington, 42 
 Law J. Rep. (n.s.) Chanc. 846 ; Law Rep. 16 Eq. 
 534. 
 
 31. — ^A bill for administration of the estate, or 
 execution of the trusts of the wiU, of a deceased 
 testator, cannot be sustained against the executor 
 de son tort without the legal personal represeutar 
 tive. Bayner v. Koehier (4 1 Law J. Rep. (n.s.) Chanc. 
 697 ; Law Rep. 14 Eq. 262), and Coote v. Whitting- 
 ton (42 Law J. Rep. (n.s.) Chanc. 846 ; Law Rep. 16 
 Eq. 534), dissented from. Eowsell v. Morris, 43 Law 
 J. Rep. (n.s.) Chanc. 97 ; Law Rep. 17 Eq. 20. 
 
 Where it appears on the bill that the suit is 
 defective for want of parties, a defendant who 
 takes the objection at the hearing is entitled to 
 the costs of the day, though he has not taken the 
 objection by his answer. Ibid. 
 
 (t) Purchase from legatee. 
 
 32. — If a legatee agrees to sell to the executor 
 of the will his legacy for an annuity, the burden 
 win lie on the executor to shew that there was 
 no unfairness in the transaction. Gray v. Warner, 
 42 Law J. Rep. (n.s.) Chanc. 556 ; Law Rep. 16 
 Eq. 677. 
 
 (Jc) Advertisement for claims. 
 
 '33. — Executors who had not advertised for 
 claims in the " London Gazette," but only in local 
 newspapers in the neighbourhoood where the tes- 
 tator resided, — Held not relieved from liability 
 
 under the above section. Wood v. Weightman, 
 Law Rep. 13 Eq. 434. 
 
 (D) Renunciation. 
 [See supra No. 11.] 
 
 EXECUTION. 
 [See Jttdqment.] 
 
 EXPLOSIVE SUBSTANCES. 
 
 [Repeal of previous Acts and new provisions 
 substituted. 38 & 39 Vict. c. 17.] 
 
 EXTRADITION. 
 
 [33 & 34 Vict. c. 52 amended. 36 & 37 Vict. 
 c. 60.] 
 
 1.— By Ordinance No. 2, 1850, of Hong Kong it 
 was enacted " that if any complaint, &c., be made 
 or forwarded to any magistrate 6r Court, desiring 
 the arrest of any person being a Chinese subject, 
 and then within the said colony of Hong Kong, 
 and alleging that such person has committed, oris 
 charged with having committed any crime or offence 
 against the laws of China, &c., it shall and may 
 be lawful for such magistrate to issue a summons 
 or warrant for the appearance or apprehension of 
 such person :" — Held, that the words " crimes and 
 offences against the laws of China " mean those 
 ordinary crimes and offences which are punish- 
 able by the laws of all nations, and which are not 
 peculiar to the laws of China, and that piracy is 
 within the meaning of the Ordinance. The Attor- 
 ney- General of Hong Kong v. KwoTc-a-Sing, 42 
 Law J. Rep. (n.s.) P. C. 64 ; Law Rep. 5 P. C. 
 179. 
 
 The respondent, a Chinese coolie, was charged 
 before a magistrate at Hong Kong with murder 
 and piracy on board a French ship, in which he 
 was a passenger, on the high seas : — Held, that 
 murder and piracy under the above circumstances 
 were not offences against the laws of China within 
 the meaning of the Ordinance. Ibid. 
 
 2.— Under the Extradition Act, 1870, 33 & 34 
 Vict. c. 52, foreign depositions (if duly authenti- 
 cated) may be received in evidence in proceedings 
 under the Act, although taken in the absence of 
 the person accused, and without his having had ah 
 opportunity of cross-examining the witnesses. 
 Ex parte Counhaye, 42 Law J. Rep. (n.s.) Q. B. 
 217; Law Rep. 8 Q. B. 410. 
 
 In the list of " extradition crimes " in the sche- 
 dule to the Act are included " crimes by bankrupts 
 against the bankruptcy law : ' — Held, that a mar- 
 ried woman charged with complicity in the frau- 
 dulent bankruptcy of her husband is not a person 
 charged with a crime within the meaning of the 
 above description, as it is limited to crimes com- 
 mitted by bankrupts only. Ibid. 
 
254 
 
 EXTRADITION— FACTORY. 
 
 By treaty between this country and Belgium, a 
 requisition for the surrender to Belgium of a fugi- 
 tive criminal shall be made to the Foreign Secre- 
 tary, accompanied by a warrant of arrest or other 
 equivalent judicial document issued by a Judge or 
 magistrate, duly authorised, &e., together with 
 duly authenticated depositions taken on oath before 
 such Judge or magistrate, which documents are 
 to be transmitted to the Home Secretary, who, if 
 there be due cause, shall require a magistrate to 
 apprehend the fugitive : — Held, that the Secretary 
 may waive the fulfilment of these conditions, and 
 that such documents may be received in evidence 
 before the police magistrate before whom the 
 fugitive is brought, although the warrant is not 
 issued and tlie depositions taken before the same 
 Judge. Ibid. 
 
 Quaere — whether the Extradition Act, 1870, ap- 
 plies to criminals who have taken refuge in this 
 country before the date of the Act. (But see 36 
 & 37 Vict. c. 60, s. 2.) Ibid. 
 
 3. — B. was arrested in the island of Jersey, 
 under a warrant issued pursuant to the Extradi- 
 tion Act, 1870, and was sent to prison, there to 
 remain for fifteen days, after which he was to be 
 surrendered to the French authorities. He had 
 been condemned by a French Court, upon a judg- 
 ment for three separate oflences, one of which, 
 ahus de cimfiance, was not within the existing ex- 
 tradition treaty between this country and France, 
 nor within the Extradition Act, 1870, which re- 
 peals the 6 & 7 Vict. c. 75, passed for giving 
 effect to the said treaty. By section 3 sub-sec- 
 tion 2 of the Extradition Act, 1870, "a fugitive 
 criminal shall not be surrendered to a. foreign 
 state, unless provision is made by the law of that 
 state, or by arrangement, that the fugitive cri- 
 minal shall not, until he has been restored, or had 
 an opportunity of returning, to her Majesty's do- 
 minions, be detained or tried in that foreign state 
 for any offence committed prior to his surrender, 
 other than the extradition crime proved by the 
 facts on which the surrender is grounded:" — 
 Held, that under the existing law of France such 
 a provision is made, and therefore that B. was not 
 entitled to be discharged. In re Bouvier, 42 Law 
 J. Rep. (N.s.)a B. 17. 
 
 Semble— that the 27th section of the Extradition 
 Act, 1870, has the effect of keeping in fall force 
 the said treaty, though it repeals the Act passed 
 to give it effect. Ibid. 
 
 FACTOR. 
 
 (A) Agent SNTEtrsTBD with the Possession op 
 
 Goods. 
 
 (B) Transactions pkotected by Faotoes Act. 
 
 (A) Asent entbtjbtbd with the Possession op 
 Goods. 
 
 1, — A person who carries on the business of a 
 warehouseman, and in that character receives 
 goods solely for the purpose of warehousing them, 
 
 is not an agent within the Factors Act, 5 & 6 
 Vict. c. 39, although he also carries on the busi- 
 ness of a broker ; and therefore a pledge of the 
 goods by such person without the authority in fact 
 of his principal either to pledge or sell them is 
 not protected by section 1 of that Act. Cole v. the 
 North-Western Banlc, 44 Law J. Rep. (n.s.) C. P. 
 233 ; Law Rep. 10 C. P. 364. 
 
 Decision of the Court of Common Pleas (43 Law 
 J. Rep. (n.s.) C. p. 194 ; Law Rep. 9 C. P. 470) 
 affirmed. Ibid. 
 
 (B) Teansaotions peoteoted by Factoes Act. 
 
 2. — A wool broker gave to a bank, to secure an 
 advance, a letter of hypothecation on certain 
 wools, promising to lodge warehonse warrants for 
 them next day. The bank made repeated appli- 
 cation for the warrants, but did not obtain them. 
 After a few days, the bankrupt having left his 
 house, they by pressure obtained the keys of his 
 warehouse, where the wool was stored, and took 
 possession. It appeared that part of the wool (the 
 subject of the present application) had belonged 
 to a customer of the broker, but he was under 
 advance and made no claim : — Held, that the bank 
 acquired a valid charge on the wool in question 
 under the provisions of the Factors Act. Ex parte 
 the North-Western Bank; 2ra re iSfee (No. 2), 42 
 Law J. Rep. (n.s.) Bankr. 6 ; Law Rep. 15 Eq. 
 69. 
 
 In leaving his house, the bankrupt was, as it 
 turned out, absconding : — Held, on the facts, that 
 the bank had no notice of this. Ibid. 
 
 The Bills of Sale Act does not apply to ordinary 
 mercantile transactions. Ibid. 
 
 3. — A merchant, who has enabled his factor to 
 raise money fraudulently, can claim no redress 
 against the party who has bma fide made the 
 advances. The goods or symbols of property 
 entrusted to the factor may be regarded by unsus- 
 pecting third parties as his own, and be dealt with 
 accordingly, under the Factors Act, 5 & 6 Vict, 
 c. 39. Vickers v. Hertz, Law Rep. 2 H.L. Sc. App. 
 113. 
 
 FACTORY. 
 
 [The Acts relating to workshops (7 & 8 Vict, 
 c. 15, 11 & 12 Vict. c. 43, and 27 & 28 Vict. e. 48) 
 amended and in part repealed. 34 & 35 Vict, 
 c. 104.] 
 
 [The Factory Acts amended. 3 7 & 33 Vict. 
 c. 44.] 
 
 Premises consisting of about ten acres of land, 
 and connected by railroad with chalk pits, were 
 used by the respondents for the manufacture of 
 cement. The premises were open to the surround- 
 ing country, and contained mills, kilns, sheds, &c., 
 for the preparation of the cement from chalk or 
 mud, but no large roofed building. About two 
 hundred men were employed in the work : — Held, 
 that the process of manufacturing the cement 
 being practically carried on in the open air, the 
 works were not "premises" within the meaning 
 
FACTOEY— FALSE REPRESENTATION. 
 
 256 
 
 of the Factory Acts Extension Act, 1867, 30 &31 
 Viot. e. ins, s. 3, sub-s. 7. Bedgrave v. Lee, 43 
 Law J. Rep. (n.s.) M. 0. 105 ; Law Rep. 9 Q. B. 
 363. 
 
 FALSE IMPRISONMENT. 
 
 The plaintiflf travelled by the defendants' rail- 
 way with a ticket which entitled him to leave the - 
 train at N. Before the train arrived at N. it 
 stopped at E. whereupon plaintiflf got out of the 
 carriage, and, upon being asked for his ticket, 
 handed it to the collector. He was told by the 
 collector that it was not available, and that he 
 must pay the sum of id. excess fare. He refused 
 to do so, unless a receipt was given to him, and 
 was given into custody by the inspector of the 
 station at E., and charged with having, on arriv- 
 ing at the station at E., refused to deliver up his 
 ticket or pay his legal fare, and thereby defraud- 
 ing the company of 2d. The charge was preferred 
 before a magistrate, and dismissed. The plaintiff 
 brought an action against tbe defendants for false 
 imprisonment, but was nonsuited, upon the ground 
 tbat there was no evidence that the inspector had 
 any authority either express or implied from the 
 defendants to give the plaintiflf in charge : — Held, 
 in accordance with Goff v. The Great Northern 
 Railway Company (30 Law J. Rep. (n.s.) Q,. B. 
 148), that the question was one for the jury, and 
 that the nonsuit was wrong. Moore v. The Metro- 
 politan Railway Company, 42 Law J. Rep, (n.s.) 
 ft. B. 23 ; Law Rep. 8 ft. B. 36. 
 
 Railway company: liability for acts of 
 servant. [See Mastee and Ser- 
 vant, 11.] 
 
 44 Law J. Rep. (n.s.) M. 0. 11 ; Law Rep. 2 C. 
 0. R. 134. 
 
 2. — A prisoner was convicted upon an indict- 
 ment which charged that he obtained money from 
 one W. by falsely pretending to W. that a certain 
 albert chain, which prisoner asked "W. to buy of 
 him, was of 15-carat gold, and that he was a 
 draper, and that the chain was expressly made for 
 him. The evidence as to the quality of the chain 
 was that the prisoner said "it is 16-carat fine 
 gold, and you will see it stamped on every link." 
 W. examined the chain, and gave 51. for it, but 
 did so relying on the prisoner's statement. 
 The chain was in fact marked as 15-carat, which 
 was a Hall mark used to denote that quality of 
 gold in some towns in England. The chain was 
 of a quality little better than 6-carat gold. The 
 jury found specifically that the prisoner knew that 
 he was falsely representing the value of the chain : 
 — rield, that the conviction was right. The Queen 
 V. Bryan (Dears. & B. C. C. 265) distinguished. 
 The Queen v. Ardley, 40 Law J. Rep (n.s.) M. C . 
 85; Law Rep. 1 CO. R. 301. 
 
 (B) Evidence. 
 
 3. — On an indictment for attempting to obtain 
 money by falsely pretending that a ring was com- 
 posed of diamonds, which in fact was composed of 
 crystals, evidence is admissible of a false pretence 
 on a prior occasion to another person that a chain 
 was gold, whilst it was plated, and on another 
 distinct occasion that a ring was of diamonds, 
 which it was not. And it was held no objection 
 that the diamond ring spoken to on the prior oc- 
 casion was not produced in Court. The Queen v. 
 Francis, 43 Law J. Rep. (n.s.) M. C. 97 ; Law 
 Rep. 2 0. 0. R. 128. 
 
 FALSE PERSONATION. 
 
 [Personation with intent to deprive any person of 
 real estate or other property rendered felony. 37 
 & 38 Vict. c. 36.] 
 
 FALSE PRETENCE. 
 
 (A) What constitutes the Offence. 
 
 (B) Evidence. 
 
 (A) What constitutes the Offence. 
 1. — A man who makes and gives a cheque for 
 the amount of goods purchased in a ready money 
 transaction, saying that he wishes to pay ready- 
 money, makes a representation that the cheque is 
 a good and valid order for the amount inserted in 
 it ; and if such person has only a colourable ac- 
 count at the bank on which the cheque is drawn 
 without available assets to meet it, and has no 
 authority to overdraw, and knows that the cheque 
 wiU be dishonoured on presentation, and intends 
 to defraud, he may be convicted of obtaining such 
 goods by a false pretence. The Qmen v. Hanelton, 
 
 FALSE REPRESENTATION. 
 The defendant caused to be inserted in a public 
 newspaper an advertisement for the letting by 
 tender with immediate possession " all that farm," 
 &o. (describing it). The plaintiff, believing in the 
 bona fides of such advertisement, and desiring to 
 become tenant of a place of the description adver- 
 tised, was induced to take and did take trouble 
 and incurred expense in going to and inspecting 
 the property, and in the employment of persons 
 to inspect and value it for him, with a view of 
 his becoming tenant thereof. The defendant knew 
 at the time he caused the advertisement to be pub- 
 lished that he had not power to let the farm, and 
 in fact the farm was not to be let, and the de- 
 fendant caused the advertisement to be issued to 
 serve some purpose of his own other than that 
 appearing by the advertisement. Upon the above 
 facts, disclosed by the particulars in a plaint in a 
 County Court, the Judge directed a nonsuit, hold- 
 ing that no cause of action was disclosed : — Held, 
 upon appeal, that the Judge was wrong, and that 
 he ought to have heard the evidence. Richardson 
 V. Sylvester, 43 Law J. Rep. (n.s.) Q. B. 1 ; Law 
 Rep. 9 ft. B. 34. 
 
 Action to recover money paid. [See Ac- 
 tion, 5.] 
 
256 FALSIFICATION OF ACCOUNTS— FIXTURES. 
 
 FALSIFICATION OF ACCOUNTS. FISHEEY. 
 
 [24 & 25 Vict. 0. 96 to bo construed together 
 with this Act. 38 & 39 Viet, c. 24.] 
 
 Eels held to be included in the general words 
 " every kind of fish known as river fish " contained 
 in a bye-law made by river conservators. Wood- 
 : V. Etkcridge, Law Kep. 6 C. P. 570. 
 
 FEES. 
 
 Burial. [See Bueial, 4.] 
 Counsel's. [See Costs in Equity, 69-73 ; 
 Costs at Law, 21-23.] 
 
 FELONY. 
 
 An agreement to withdraw from a prosecution 
 for felony, provided the person accused will pro- 
 mise to bring no action for trespass and false im- 
 prisonment or malicious prosecution, is void, and 
 cannot be enforced ; and if the person accused sub- 
 sequently sues the prosecutor the action wiU not 
 be stayed upon the ground that it is brought 
 against good faith. Eawlings v. The Coal Con- 
 sumers Association (Lim.), 43 Law J. Rep. (n.s.) 
 M. C. 111. 
 
 Forfeiture for felony. [See Forfeiture, 9.] 
 
 FINES AND EECOVEEIES. 
 Protector of settlement. 
 
 1. — Where protectors of the settlement are ap- 
 pointed under section 32 of the Fines and Eeco- 
 veries Act, the protectorship is not determined by 
 the death of one of them, but vests in the survivor 
 or survivors. Bell v. Holtby, 42 Law J. Rep. 
 (n.s.) Chanc. 266; Law Eep.'l5 Eq. 178. 
 
 2. — -A., 13., C. and D. were joint tenants of free- 
 holds for life with remainder to A., B., C, D. and 
 E., as tenants in common in tail with cross re- 
 mainders. A., without the consent of B., C. or 
 D., executed a disentailing assurance. Subse- 
 quently E. died without issue, and without having 
 barred his estate tail : — Held, that A. was protec- 
 tor of the same share of which he was tenant in 
 tail, and that, therefore, he had effectually barred 
 his estate tail as well as the one-fourth of E.'s 
 fifth share, to which he was entitled in remainder 
 on E.'s estate tail, as in his original one-fifth 
 share. Tuffnell v. Borrell, 44 Law J. Eep. (n.s.) 
 Chanc. 766 ; Law Rep. 20 Eq. 194. 
 
 Aiknowledgmmt of deed by married woman. 
 
 [See ACKNOWLBaJOMENT.] 
 
 FIEE ENGINE. 
 
 [See Towns Police 
 
 Expenses of use of. 
 Act, 2.] 
 
 FIXTURES. 
 
 (A) Trade Fixtures : Eegistration of Deed. 
 (rt) Mortgage in fee. 
 lb) Mortgage of leaseholds. 
 
 (A) Trade Fixtures : Eegistration of Deed. 
 {a) Mortgage in fee. 
 
 1. — Trade fixtures pass by a mortgage of the 
 freehold or of a freeholder's interest in the jiro- 
 perty to which they are attached, whether such 
 mortgage be effected by a regularly executed deed, 
 or by deposit with memorandum, and such mort- 
 gage will be effectual, though not registered, as 
 against any subsequent unregistered bill of sale. 
 Trade fixtures added subsequently to the mort- 
 gage are subject to this rule as much as those 
 attached before the mortgage. Richard v. James 
 (36 Law J. Eep. (n.s.) Q. B. 116), and BegUe v. 
 Fenwick (Law Eep. 8 Chanc. 1075 »), commented 
 on. Mewx v. Jacob (H.L.), 44 Law J. Eep. (n.s.) 
 Chanc. 481 ; Law Rep. 7 E. & I. App. 481. 
 
 2. — Where the occupier, who is also owner in 
 fee, of a mill containing looms nailed to the floor, 
 mortgages the mill and fixtures in fee and after- 
 wards assigns all his effects to a trustee for the 
 benefit of his creditors, the mortgagee is, as against 
 the trustee, entitled to the looms as part of the 
 mill. Longbottom v. Berry (39 Law J. Eep. 
 (n.s.) a. B. 37 ; Law Eep. 5 Q,. B. 123) affirmed. 
 Holland v. Hodgson (Exeh. Ch.), 41 Law J. Eep. 
 (n.s.) C. p. 146 ; Law Eep. 7 C. P. 328. 
 
 3. — A mortgage by a leaseholder of his tenant's 
 fixtures with his lease, in whatever form, requires 
 registration under the BiUs of Sale Act, 1854, as 
 a bill of sale of fixtures. Ex parte Daglish ; In re 
 Wilde, 42 Law J. Rep. (n.s.) Bankr. 102; Law 
 Eep. 8 Chanc. 1072. 
 
 Such a mortgage is quite different from a mort- 
 gage by a freeholder of fixtxires with the freehold. 
 There the title to the land and fixtures is identi- 
 cal, for the fixtures belong to the landlord simply 
 as part of the land, and it is for this reason that 
 a mortgage does not require registration. Ibid. 
 
 Boyd V. Shorroch (37 Law J. Eep. (n.s.) Chanc. 
 "144; Law Eep. 5 Eq. 72) dissented from. Ibid. 
 
 A lease contained covenants by the lessee to 
 erect certain machinery in the buildings demised, 
 and to keep the buildings and machinery in repair 
 during the term ; and a covenant to deliver up the 
 buildings at the end of the term, not mentioning 
 the machinery : — Held, nevertheless, that the ma- 
 chinery was made landlord's fixtures, as, practi- 
 cally, the tenant could never remove it. Ibid. 
 
FIXTTJEES— JJ'OBEIGN JUDGMENT. 
 
 257 
 
 (i) Mortgage of leaseholds. 
 
 4. — An indenture of lease for a term, of ■which 
 about sixteen years were to run, was assigned in 
 the year 1 868 to H., and by theindenture of assign- 
 ment the trade fixtures upon the premises were 
 absolutely assigned to him. By an indenture of 
 mortgage, dated the 20th of March, 1872, H. de- 
 mised the premises to the plaintiffs for the residue 
 of the said term except the last two days, and he 
 also assigned to the plaintiff the trade fixtures, 
 subject to redemption on payment of the amount 
 of mortgage debt and interest. The indenture of 
 mortgage was not registered under the Bills of 
 Sale Act. A judgment having been obtained 
 against H., the sheriff, on 14th April, 1872, by 
 virtue of afi.fa, seized the said trade fixtures, as 
 well as the moveable and unfixed machinery and 
 effects, all of which were at the time of the seizure 
 in the apparent possession of H. The plaintiffs 
 thereupon claimed the trade fixtures as being 
 their property : — Held, upon an interpleader issue, 
 that the indenture of mortgage of 20th March, 
 1872, ought to have been registered under 17 & 
 18 Vict. c. 36, and that the plaintiffs were not en- 
 titled to claim the trade fixtures which bad been 
 assigned to him. Sawtrey v. Butlin, 42 Law J. 
 Kep. (n.s.) a. B. 163 ; Law Eep. 8 Q. B. 290. 
 
 5. — The lessee of a public-house who under a 
 covenant in the lease was bound to deliver up to 
 the lessor all the fixtures on the premises, tenant's 
 fixtures put up for trade excepted, demised by 
 way of mortgage the leasehold premises (including 
 tenant's fixtures) to a mortgagee for the residue 
 of the term less three days. 
 
 The mortgage deed contained a power of sale by 
 which it was provided that in case of default the 
 mortgagee might sell the demised premises, or 
 any part thereof, either for the term thereby 
 granted, or for the whole term granted by the 
 original lease, and either together or in parcels, 
 with a proviso that after any sale the mortgagor 
 should stand possessed of the last three days of 
 the original term, in trust for the purchaser :■ — 
 Held, that the mortgage deed did not empower 
 the mortgagee to take the fixtures and sell them 
 separately from the public-house, and that conse- 
 quently it was not requisite that the deed should 
 be registered under the BiUs of Sale Act. Ex 
 parte Barclay ; In re Joyce, 43 Law J. Eep. (n.s.) 
 Bankr. 137; Law Eep. 9 Chanc. 576. 
 
 The test whether the Act applies in such a 
 case is, whether the mortgage deed gives power 
 to the mortgagee to sever the fixtures and sell 
 them separately from the house. Ibid. 
 
 Ex parte Dagleiah ; In re Wilde (42 Law J. Eep. 
 (n.s.) Bankr. 102 ; Law Eep. 8 Chanc. 1072) con- 
 sidered and distinguished. Ibid. 
 
 Su/rrender of lease by a trustee in harik- 
 rv/ptcy who had sold the fixtv/res, held 
 not to affect the pwchaser's right to 
 thefixtmes. [See Lease, 33.] 
 
 FOEEIGN ENLISTMENT ACT. 
 
 1, — The employment of an English steam-tug 
 for the purpose of towing a prize to the captor's 
 waters, is a despatching a ship from the United 
 Kingdom for the purpose of being employed in the 
 naval service of a foreign state, within the mean- 
 ing of section 8 of the Foreign Enlistment Act, 
 1870. The Queen v. Elliott, The Gauntlet {P. C), 
 41 Law J. Eep. (n.s.) Adm. 65. 
 
 2. — The L. B., a German merchant vessel, was 
 captured by a French man-of-war, a prize crew 
 was put on board, she was brought into the 
 Downs within three miles of the English coast. 
 A steam-tug called the G. afterwards came into 
 the Downs, and was hired by the French consul 
 to tow the L. B. to Dxmkirk for the ordinary 
 amount, which she accordingly did : — Held, that 
 the towage did not constitute a breach of the Fo- 
 reign Enlistment Act, 1870, so as to entitle the 
 Crown to a forfeiture ; and the G. was released 
 with costs. The Gauntlet, 40 Law J. Eep. (n.s.) 
 Adm. 34; Law Eep. 3 Adm. & Ecc. 319, 381. 
 
 3. — By the 8th, section of the Foreign Enlist- 
 ment Act, 1870, if any person within Her Ma- 
 jesty's dominions, without Her Majesty's license 
 despatches any ship with intent that the same 
 shall be employed in the military or naval service 
 of any foreign state at war with any friendly state, 
 the ship in respect of which any such offence is 
 committed and her equipment shall be forfeited 
 to Her Majesty : — Held, that a vessel despatched 
 to furnish and lay a submarine telegraph cable - 
 along certain parts of the French coast between 
 Cherbourg and Verdun was not despatched to be 
 employed in the military service of France. Tlie 
 International, 40 Law J. Eep. (n.s.) Adm. 1 ; Law 
 Eep. 3 Adm. & Ecc. 321. 
 
 Application to release such a vessel granted, 
 but without costs and damages. Ibid, 
 
 FOEEIGN COUET : JUEISDICTION. 
 
 The Supreme Consular Court of Constantinople 
 has jurisdiction to order the sale of lands in 
 Turkey held by British subjects in the name of a 
 Turkish subject. Abbott v. Abbott, Law Eep. 6 
 P. C. 220. 
 
 FOEEIGN ATTACHMENT. 
 [See Attachment, 9, 10; Debtors Act, 12.] 
 Digest, 1870—1875. 
 
 FOEEIGN JUDGMENT. 
 
 1. — ^In an action on the judgment of a foreign 
 tribunal having jurisdiction over the defendant 
 and the cause, the fact that the judgment pro- 
 ceeded on a mistake as to English law is no more 
 a defence to the action than a mistake as to the 
 law of some third country incidentally involved, 
 or as to any other question of fact ; and it can 
 make no difference as to the binding effect of the 
 judgment whether the mistake appears on the 
 face of the proceedings or not. Godard v. Gray, 40 
 Law J. Eep. (N.s.) Q. B. 62 ; Law Eep. 6 Q. B. 
 139. 
 
 2. — In an action upon the judgment of a French 
 LL 
 
2o8 
 
 FOREIGN JUDGMENT— FOREST OF DEAN, 
 
 Court, given against tlie defendants for default of 
 appearance, it appeared tliat the plaintiffs were 
 Danes resident in France, and that the defendants 
 ■were Danes resident in London, carrying on busi- 
 ness there, and having no property in France, and 
 that the contract in respect of which the judg- 
 ment -was obtained was not made in France. By 
 the law of France a French subject may sue a 
 foreigner though not resident in France, and for 
 this purpose an alien, if resident in France, is 
 considered by the French law as a French subject. 
 The mode of citation in such a case is by serving 
 the summons on the Procureur Imperial. If the 
 foreign defendant thus cited does not within one 
 month appear, judgment may be given against 
 him, but he may still at any time within two 
 months after judgment appear and be heard on 
 the merits. After that time the judgment be- 
 comes final. The practice of the Imperial Go- 
 vernment in such a case is to forward the summons 
 thus served to the consulate of the country where 
 the defendant is resident, with directions to 
 intimate the summons, if practicable, to the 
 defendant ; but this is not required by the law, 
 and only done from a regard to fair dealing. It 
 was admitted that the French consulate in Lon- 
 don had served the defendants with a copy of the 
 citation, but that the defendants had in no way 
 interfered in the proceedings in France : — Held, 
 that the true principle on which foreign judg- 
 ments are enforced in England is, that there is a 
 duty or obligation to submit to the decree of a 
 Court of competent jurisdiction, and anything 
 which negatives that duty is a defence to the 
 action. In the present case the defendants, not 
 being at the commencement of the suit French 
 subjects, or owing temporary allegiance to France, 
 or having been there when the obligation was 
 contracted, or in any way interfered in the pro- 
 ceedings, were not subject to the jurisdiction of 
 the French Courts. They were, therefore, under 
 no obligation to submit to a jurisdiction which 
 these Courts assumed to exercise over absent fo- 
 reigners, and consequently the judgment could 
 not be enforced in this country. Schibshy v. 
 Westeinholz, 40 Law J. Rep. (n.s.) Q,. B. 73 ; 
 Law Rep. 6 Q. B. 155. 
 
 3. — The law of a foreign' country being that 
 shareholders of a company there established are 
 subject to the provisions in the articles of associa- 
 tion — by taking shares in such a company, the 
 articles of association of which provide that all 
 disputes shall be submitted to the jurisdiction of 
 a tribunal in such country, and that a shareholder 
 shall, in certain events, elect a domicile within the 
 jurisdiction whereat process shall be served, or, in 
 default, that such election shall be made for him, 
 an English subject, neither resident, nor domiciled 
 in the foreign country, becomes bound by legal 
 proceedings there in a suit against him for calls, 
 if process has been duly served at a domicile 
 elected for him under the provision aforesaid, 
 although he may have had no notice or knowledge 
 of such proceedings ; for he has contracted to be 
 bound thereby, and an action may be maintained 
 in this country upon a judgment recovered against 
 
 him in such suit. Copin v. Adamson; Same v. 
 Strahan, 43 Law J. Rep. (m.s.) Bxch. 161 ; Law 
 Rep. 9 Exch. 345 : reversed, on appeal, 46 Law 
 J. Rep. (n.s.) C. p. 45 ; Law Rep. 1 Exch. 17. 
 
 But held (Kelly, C.B., dissmtiente) that his 
 mere membership in the French company does not 
 make him subject to the general law of France so 
 as to be bound by similar provisions for the elec- 
 tion of a domicile, contained in that law, and 
 thereby liable to an action here upon a, French 
 judgment recovered under the above-mentioned 
 circumstances. Ibid. 
 
 FOREIGN LAW. 
 
 [See Colonial Law; Conflict of Laws; Domicil.] 
 Emdenceof. [See Evtdencb, 1 3.] 
 Foreign ship. [See Shipping Law K.] 
 Foreign Contract. [See Jueisdiction ik 
 
 Equity, 14.] 
 Suit affecting interest of foreign government. 
 
 [See Jueisdiction in EauiTY, 15.] 
 Spectfio performance : sale of foreign ship. 
 
 [See Specific Peeformance, 14.] 
 
 FORESHORE. 
 
 In order to establish a possessory title to fore- 
 shore as against a trespasser it is not necessary to 
 produce evidence sufficient as against the Crovra. 
 Nor may the defendant, the trespasser, prove acts 
 of ownership by the Crown not shewn to have 
 been done with the knowledge of the plaintiffs. 
 A grant of a parcel of land by Queen Elizabeth to 
 a corporation held not primd facie to exclude the 
 beach below high-water mark, it appearing that 
 the words descriptive of the land contained in the 
 grant were applied in more modern times to the 
 entire beach. The Corporation of Hastings v. Ivall, 
 Law Rep. 19 Eq. 558. 
 
 FOREST OF DEAN. 
 
 1. — A gale to work a coal mine is " exhausted " 
 within the meaning of 1 & 2 Vict. c. 43, s. 61, 
 when there is not enough coal left in it to make it 
 worth working. Ellway v. Davis, 43 Law J. Eep. 
 (n.s.) Chanc. 75 ; Law Rep. 16 Eq. 294. 
 
 2. — A free miner of the Forest of Dean applied 
 for an unoccupied gale. The gaveUer acceded to 
 the application, duly entered it in his book, and 
 gave notice of his intention to make the grant 
 upon a certain day. Conflicting claims being set 
 up, the actual grant of the gale was delayed, and, 
 in the meantime, the free miner died. The 
 devisees under his will then presented their peti- 
 tion of right, praying that the gale might be 
 granted to them in right of their testator. Upon 
 demurrer by the Crown, — Held, that the 38th 
 section of the Act 1 & 2 A''ict. u. 43, applied only 
 
FOREST OF DEAN— FOEFEITURE (A), 
 
 259 
 
 to the state of things at the passing of the Act, 
 and that the free miner had acquired a title trans- 
 missible by will ; and the demurrer was overruled 
 accordingly. James v. The Queen, 43 Law J. Eep. 
 (n.s.) Chanc. 764; Law Eep. 17 Eq. 502. 
 
 3. — The gaveller of the Forest of Dean granted 
 a gale of a colliery to J. B., a free miner. By the 
 form of the certificate of grant, the gale was granted 
 to the miner, rendering and paying a tonnage rent 
 for coal gotten, and so working as to get a specified 
 amount every year, with a minimum rent of 200Z., 
 in case no coal was gotten or the tonnage rent for 
 coal gotten did not reach that amount ; the certifi- 
 cate continuing, " and the grant is made upon this 
 further condition," that the mine should be worked 
 in a particular manner: — Held, that both upon 
 general principles, upon the form of the grant 
 itself, and upon the Acts of Parliament and rules 
 in force with reference to grants of gales, this was 
 a grant upon condition of payment of rent, so as 
 to entitle the Crown to declare the grant forfeited 
 and re-enter upon non-payment. In re Brain, 
 44 Law J. Eep. (n.s.) Chane. 103; Law Eep. 18 
 Eq. 389. 
 
 The minimum rent being in arrear the gaveller, 
 after a formal demand, took possession of the mine, 
 and gave notice to the galee of his having re- 
 entered. The galee ten months afterwards ten- 
 dered the rent due and subsequently presented 
 a petition of right to have the forfeiture of the 
 gales set aside on payment of the rent due, with 
 interest, and for an inj unction against a re-grant 
 to others : — Held, that after the lapse of time, the 
 galee must be treated as having acquiesced in the 
 re-entry of the Crown, and the petition was dis- 
 missed with costs. Ibid. 
 
 Semble — the galee would not have had, under 4 
 Geo. 2. c. 28, as against the Crown, any right in 
 equity to redeem on payment of arrears and in- 
 terest even if he had filed his petition within six 
 months after the day of re-entry. Ibid. 
 
 FOEFEITUEE. 
 
 (A) FoEFEITUEE ON BanKEUPTCT OB ALIENA- 
 
 TION. 
 
 (a) When the forfeiture takes effect. 
 (J) Gift over to wife and children. 
 
 (B) Name and Ahms Clause : Ignokance no 
 
 Protection. 
 (0) On Bbeach of Covenant. 
 
 (D) Condition in Contract of Sale of Land. 
 
 (E) On Felony. 
 
 (A) FoBFEITtJEB ON BaNKBUPTCT OR ALIENATION. 
 
 (a) When the forfeitti/re takes effect. 
 
 1, — Liquidation by arrangement on a petition 
 by the debtor was held to work a forfeiture under 
 a proviso guarding against voluntary alienation. 
 In re Amherst s Trusts, 41 Law J. Eep. (n.s.) Chanc. 
 222 ; Law Eep. 13 Eq. 464. 
 
 2. — After G-. had been adjudged a bankrupt by 
 a Scotch sequestration, and before he obtained his 
 
 discharge, his wife, who had taken part in pro- 
 curing the sequestration, made her will and thereby 
 gave an annuity to him for life, and declared, that 
 if he should become bankrupt, or should assign, 
 &c., the annuity should cease ; and she also em- 
 powered the trustees of her will in their discretion 
 at any time to refuse or discontinue payment of 
 the annuity to her husband. After the death of 
 the testatrix, and before the first payment of the 
 annuity became due, G. obtained a discharge which 
 did not divest the property from the trustee in the 
 sequestration: — Held, reversing the decision of 
 one of the Vice-Chancellors, that the annuity was 
 forfeited. Trappes v. Meredith, 41 Law J. Eep. 
 (n.s.) Chanc. 237 ; Law Eep. 7 Chanc. 248. 
 
 3. — Under a clause of forfeiture of a life in- 
 terest on a future bankruptcy, a forfeiture will be 
 caused by a past bankruptcy which remains uhan- 
 nuUed at the time at which the first payment under 
 the gift for life becomes due, although the bank- 
 ruptcy is afterwards annulled, before any claim is 
 made by the persons entitled under the gift over. 
 The retention of the money by the trustees is 
 equivalent to payment to another person. In re 
 Pamham's Trusts, 41 Law J. Eep. (n.s.) Chanc. 
 202; Law Eep. 13 Eq. 413. 
 
 4. — B., by his will, gave certain moneys to 
 trustees upon trust, to invest the same and pay 
 the income to J. B. for his life, or until he should 
 become bankrupt or insolvent, or make a general 
 assignment for the benefit of his creditors, or 
 otherwise deprive himself or be deprived by law 
 of the beneficial enjoyment thereof ; and after his 
 death, or the happening of any of the said events, 
 upon certain trusts for J. B.'s wife, and after his 
 deatli for his children. J. B. executed a composi- 
 tion deed, with a recital that he was unable to pay 
 his debts in full, though it appeared he was at the 
 time entitled to a reversionary share in the trust 
 fund sixfficient to meet all his liabilities : — Held, 
 that J. B. could not dispute the recital, and that 
 his life interest was forfeited. Billson v. Crofts, 
 42 Law J. Eep. (n.s.) Chanc. 531 ; Law Eep. 15 
 Eq. 314. 
 
 5. — A gift over of leaseholds on insolvency was 
 held to take effect though the insolvency (being in 
 Australia) did not affect the leaseholds. In, re 
 Aylwin's Trusts, 42 Law J. Eep. (n.s.) Chanc. 
 745 ; Law Eep. 16 Eq. 585. 
 
 A power given to the insolvent to appoint 
 among his children held to be capable of being 
 exercised after the insolvency. Ibid. 
 
 6. — The meaning of the word "bankruptcy" 
 was held to be cut down by the particular inten- 
 tion of a testator. Bobins v. Sose, 43 Law J. Eep, 
 (n.s.) Chanc. 334. 
 
 A testator gave the income of property to one 
 of his trustees for life, or till bankruptcy, or till 
 he should do or suffer anything to deprive himself 
 of the enjoyment of the income. He was adju- 
 dicated bankrupt, the bankruptcy was annulled, 
 and ultimately his property revestel in himself. 
 The trustees managed the property so that there 
 was no income payable to him in the mean time. 
 — Held, that he had not forfeited his life interest. 
 Ibid. 
 
 lj.2 
 
260 
 
 FORFBITUJIE (A)— FBAUD AND MISEEPRESENTATION (A). 
 
 (J) Gift over to wife and ohildrm. 
 7. — The testator left his property to trustees in 
 trust as to different portions of it for each of his 
 children for life, and after the death of each child 
 for its issue, with a gift over of the share of 
 any child dying without issue to the other 
 children and their issue, and declared that if any 
 of his sons should become bankrupt his life estate 
 should cease as if he were dead, and during the 
 remainder of his life the trustees should apply the 
 income to which, but for such forfeiture, he would 
 hare been entitled, for the benefit of the wife and 
 children of such son in such manner as the said 
 trustees should think fit. One of the testator's 
 sons was married at the time of the testator's 
 death; he subsequently became bankrupt; his 
 wife died, leaving him without issue ; and he 
 married again and had two children : — Held, that 
 the trust for the wife and children of the bank- 
 rupt son revived as soon as there came to be any 
 wife or child to take under it. Longworth v. 
 Bellamy, 40 Law J. Eep. (N.s.)Chanc. 513. 
 
 (B) Namb and Akms CLAtrsB : Iqnoeance no 
 Peotbction. 
 
 8. — Section 4 of 3 & 4 Will. 4. c. 27, extends to 
 forfeitures which operate to accelerate an estate 
 mider a conditional limitation as well as to for- 
 feitures, of which the heir-at-law only can take 
 advantage. Astley v. The Earl of Essex, 43 Law 
 J. Eep. (n.s.) Chanc. 817 ; Law Eep. 18 Eq. 290. 
 
 A devisee under a conditional limitation is not 
 protected from forfeiture by ignorance of the con- 
 dition. Ibid. 
 
 An estate was settled on a tenant for life and 
 remaindermen in tail, with a name and arms clause 
 providing that in case any person should fail to 
 comply with it for twelve calendar months after 
 becoming entitled in possession the estate should 
 go over as if he were dead. T. G. C. entered into 
 possession as tenant in tail, and did not comply 
 with the condition ; he remained in possession for 
 more than twenty years after he had forfeited the 
 estate : — Held, that he did not acquire a title by 
 adverse possessiop, but that under 3 & 4 Will. 4. 
 c. 27, s. 4, the right of the remaindermen to enter 
 commenced on his death. Ibid. 
 
 At the death of T. G-. C. the next remainderman 
 was in India, and was ignorant of the clause until 
 after the twelve months expired : — Held, that his 
 ignorance did not prevent the forfeiture operating 
 as to his interest. Ibid. 
 
 (C) On Breach of Covenant. 
 
 Forfeiture for breach of covenant : waiver 
 of. [See Ejectment.] 
 
 (D) Condition in Contract of Sale of Land. 
 
 Contract for sale of land : power to relieve 
 from penalty : proviso for re-entry on 
 non-payment o/ balance of purchase- 
 money. [See Penalty.] 
 
 (E) On Felony. 
 
 0. — A gift " to be transferred " to the legatee 
 on his attaining twenty-one, with provisions for 
 
 maintenance out of the income meanwhile, and a 
 gift over on death under twenty-one, such gift 
 being afterwards referred to by the testator as a 
 contingent gift,— Held, to be vested before twenty- 
 one so as to be forfeitable on conviction for felony. 
 In re Bateman's Trusts, 42 Law J. Eep. (n.s.) 
 Chanc. 553 ; Law Eep. 16 Eq. 365. 
 
 A colonial conviction for felony forfeits the 
 goods of the felon in this country, so as to enable 
 the Crown to take them. Ibid. 
 
 FOEGEEY. 
 
 1.— By 24 & 25 Vict. c. 98, s. 20, " whosoever, 
 with intent to defraud, shall forge or alter, or 
 shall offer, utter, dispose of or put off, knowing 
 the same to be forged or altered, any deed, or any 
 bond or writing obligatory, &c., shaU be guilty of 
 felony." The prisoner altered the name of a 
 person ordained so as to change it to his own, and 
 made other alterations in Letters of Orders signed, 
 sealed and issued under his episcopal seal by the 
 Bishop of Bath and Wells :— Held, that such docu- 
 ment was not a deed within the above section of 
 the statute, and therefore the prisoner could not 
 be convicted of felony under that section. The 
 Queen v. Morton, 42 Law J. Eep. (n.s.) M. C. 68 ; 
 LawEep. 2C. C.E. 22. 
 
 2.— An I U in this form : " I U thirty- 
 five pounds — ^- ^- " — given by A. C, the prisoner, 
 to his creditor for the amount of his debt, by 
 which means he obtains further time for pay- 
 ment, and upon which is forged the signature of 
 another person, is an instrument upon which the 
 latter person would be liable if the signature had 
 been genuine, and is therefore an undertaking for 
 the payment of money within the meaning of sec- 
 tion 23 of 24 & 25 Vict. c. 98, and the subject 
 matter of forgery within that section. The Queen 
 r. Chambers, 41 Law J. Eep. (n.s.)M. C. 15 ; Law 
 Eep. 1 C. C.E. 341. 
 
 FEAUD AND MISEEPEESENTATION. 
 
 (A) Liability to Suit on Action. 
 
 (ffl) Suppression of mortgage deed. 
 
 (b) Fraud by agent of company. 
 
 (c) Misrepresentation of law. 
 (i) In general. 
 
 (e) Belay, whether a defence. 
 
 (B) As Ground of Defence. 
 
 (C) What Transactions wui be set aside on 
 
 Ground of Fraud or Misrepresent- 
 ation. 
 
 (D) Jurisdiction of Court of Chancery. 
 
 (E) Fraud by Asent under 24 & 25 Vict. 
 
 c. 96. 
 
 (A) Liability to Suit or Action. 
 
 (a) Suppression of mortgage dead. 
 
 1, — The plaintiff in the year 1866 entered into 
 a partnership with L., the terms being that L. 
 should bring in as capital the business premises, to 
 
FEAUD AKD MISREPRESENTATION (A), (C). 
 
 261 
 
 be taken at a valuation, and so much money as 
 might be required to make up 6,000?., aud that 
 the plaintiff should bring in 6,0001. and pay a 
 certain premium to L. The defendant, J. C, 
 acted as solicitor for L. in this transaction, and 
 furnished the valuer with the particulars of his 
 interest in the business premises. -Four years 
 afterwards L. became banlmipt, having drawn all 
 his capital o\it of the partnership, and being in 
 debt to it at the time ; and the defendant, J. 0., 
 then informed the plaintiff that he and his brother 
 F. C. held a mortgage on L.'s interest in the busi- 
 ness premises for 8501., the sum advanced being 
 trust money. This mortgage had been created 
 before the partnership was agreed upon, and neither 
 J. G. nor L. had ever mentioned it to the plaintiff, 
 nor was it noticed in the particulars furnished 
 to the valuer, and the interest had been paid upon 
 it by L. in cash, or by cheques on his private 
 account : — Held, that J. 0. was bound to make 
 good to the plaintiff the amount of the mortgage 
 and any interest he might have to pay on it, and 
 that he must pay the costs of the suit. Sterry v. 
 Combs, 40 Law J. Rep. (n.s.) Chanc. 595. 
 
 (b) Fraud, by agent of company. 
 
 2. — An action of deceit will lie against an in- 
 corporated company for the fraud of their agent 
 if tiie fraud of the agent is the fraud of the com- 
 pany, and the company is benefited thereby. 
 Maokay v. The Commercial Bank of New Bruns- 
 wick, 43 Law J. Rep. (if.s.) P. C. 31 ; Law Rep. 5 
 P. C. 394. 
 
 L., a merchant of New Brunswick, consigned 
 goods to the appellants at Liverpool. The appel- 
 lants accepted L.'s biUs, sometimes for goods 
 received and sometimes on the guarantee of 
 the respondents, an incorporated banking com- 
 pany. The appellants telegraphed to L. that 
 certain of these bills would not be accepted 
 unless certain guarantees were remitted. The 
 manager of the bank telegraphed a reply, " Sent 
 last mail, L." This was true, but at this time 
 L. had become insolvent. The appellants ac- 
 cepted the bills, and their acceptances were 
 placed to the credit of the respondents: — Held, 
 that the respondents were liable to make good 
 the amount of the bill so accepted. Ibid. 
 
 (c) Misrepresentation of law. 
 
 3. — The doctrine that a person who by a false 
 representation induces another to do an act which 
 results in a loss, is liable to make good his repre- 
 sentation, does not apply where the misrepresen- 
 tation is one of law only. Beattie v. Ebury, 41 
 Law J, Rep. (n.s.) Chanc. 804 ; Law Rep. 7 Ohanc. 
 
 777. 
 
 Decision of Vice Chancellor Bacon (41 Law J. 
 Eep. (n.s.) Chanc. 393) aflSrmed. 
 
 Where (with the sanction of their Board) three 
 directors of a railway company signed an authority 
 to the company's bankers to honour the company's 
 cheques, and upon the strength of this authority 
 the bank pennitted the company to overdraw their 
 account to a very large amount, the directors who 
 signed the authority were held not to be personally 
 
 liable for the debt, even if the authority could be 
 considered as a representation (which probably it 
 was not), that the company had power to overdraw 
 their account, which they could not legally do. 
 Ibid. 
 
 By an arrangement with the manager of the 
 company's bank, preference shares and debentures 
 of the railway company on which nothing was 
 paid were issued to two of the directors of the 
 company, and transferred to the nominees of the 
 bank as security for the above-mentioned ad- 
 vances : — Held, under the circumstances, that 
 the bank knew at the date of the transfer that 
 nothing had been paid on the shares aud deben- 
 tures, and that there was no misrepresentation or 
 fraud in the transaction. Ibid. 
 
 (d) In general. 
 
 Gift of house for life: alteration of conduct 
 of donee in consequence of representa- 
 tion of donor. [See CoNTEACT, 8.] 
 
 Action to recover money paid: misrepre- 
 sentation: failure of consideration. 
 [See Action, 5.] 
 
 Liability of bank for misrepresentation of 
 manager. [See Banker, 1.] 
 
 Liability of directors for misrepresentation 
 in prospectus. [See Company, D 25, 
 26.] 
 
 (e) Delay, whether a defence. 
 
 4. — The delay which will constitute a defence 
 to a suit for relief founded on fraud must be 
 delay commencing after the party had knowledge 
 of the circumstances concerning the fraud. Browne 
 V. MoClintook, Law Eep. 6 E. & I. App. 456. 
 
 (B) As Geotjnb of Defence. 
 
 5. — Misrepresentation whereby one has been 
 induced to enter into an agreement, may afford a 
 good defence to a suit for specific performance of 
 , the. agreement, although it be not such a clear 
 and direct misrepresentation as would afford a 
 good ground for a suit to set the agreement aside 
 or for an action for damages upon it. La/mare v. 
 Mxon (H. L.), Law Eep. 6 E. & I. App. 414. 
 
 If the plaintiff in a suit for specific perform- 
 ance has delayed for a length of time to enforce 
 the agreement, acquiescence in a breach of the 
 agreement, or in a misrepresentation on the faith 
 of which the defendant entered into the agree- 
 ment, will not be imputed to the defendant by 
 reason of a similar delay on his part in repudiating 
 it, though accompanied by possession. Ibid. 
 
 (C) "What Teansactions will be set aside on 
 
 GbOUND of FbAUD OB MiSBEPEESENTATION. 
 
 6. — The plaintiff was a single lady, about fifty- 
 three years of age, and the heiress-at-law of her 
 deceased brother. The defendant had been the 
 brother's agent, and managed his property for him 
 till his death, and for the plaintiff afterwards. 
 The plaintiff knew nothing of her brother's affairs. 
 Soon after the brother's death the defendant in- 
 formed the plaintiff that her brother had left 
 
282 
 
 FRAUD AND MISREPRESENTATION (0), (E). 
 
 some land, to which she was entitled as his 
 heiress-at-law, and asked her what she meant to ' 
 do with it ? adding, that her brother often said 
 the defendant and his daughter were to have it, 
 but he never in any way made it over to them. 
 The plaintiff then asked the defendant what was 
 the value of the land, and he answered, " lOOL, 
 may be a trifle more or less ;" and asked her 
 whether she was willing that he should purchase 
 it at that price ? On her saying yes, the defen- 
 dant further added that all his property would 
 come to his daughter, and that he should, have it 
 made over to her. The defendant then asked the 
 plaintiff whether she would like to consult any 
 one on the subject, and she replied that she did 
 not want that, because she had perfect confidence 
 in him. The property was really worth about 
 7502. or 800^. The plaintiff executed a convey- 
 ance of it to the defendant's daughter in fee, for 
 the expressed consideration of 5002. ; but was 
 paid only 1002. on the transaction. The de- 
 fendant explained the amount of the considera- 
 tion money by alleging (but not proving) that 
 there were moneys due to him from the plaintiff's 
 brother, which, if taken into account, would have 
 reduced the value of her interest in the property 
 to the 1002. The plaintiff, on ascertaining the 
 truth, filed a bill to set aside the sale : — Held, 
 that the transaction was a. sale and not a gift ; 
 that there was no such fiduciary relationship 
 between the parties as incapacitated them to 
 bargain for the property ; but that on the simple 
 ground of the misrepresentation made by the de- 
 fendant, the sale must be declared void, and the 
 conveyance set aside. Haygarth v. Wearing, 40 
 Law J". Rep. (n.s.) Chauc. 577; Law Rep. 12 Eq. 
 320. 
 
 Semble — if the transaction had been a gift, and 
 not a sale, the result would on that groimd have 
 been the same. Ibid. 
 
 7. — -A Court of Equity will, at the suit of the 
 debtor, entertain a bill to open an account settled 
 between a debtor and creditor, although the debtor 
 has registered a composition under the Bank- 
 ruptcy Act, 1861, and entered the creditor for the 
 amoxmt settled, and the composition has been 
 paid, if it be shewn that the creditor was guilty 
 of overcharges. Decision of the Master of the 
 Rolls (40 Law J. Rep. (n.s.) Chanc. 450; Law 
 Rep. 12 Eq. 64) affirmed. Pike v. Dickinson, 41 
 Law J. Rep. (n.s.) Chauc. 171 ; Law Rep. 7 
 Chanc. 61. 
 
 Misdescription, or misrepresentation hy per- 
 son effecting policy of insurance, [See 
 Instjhance, 6 ; Mabine Instieanoe, 6.] 
 Innocent misrepresentation: setting aside 
 iioUmtary settlement. [See Voluntaby 
 Settlement, 13.] 
 [And see Oonteact, 29.] 
 
 (D) Jtjeisdiction oe CotiBT or Chanobey. 
 [See Jtjeisdiction in Equity, 4, 5.] 
 
 (E) Fbaih) by Agent, under 24 & 25 ViOT. c. 96. 
 
 8. — By 24 & 25 Vict. c. 96, s. 76, whosoever 
 having been entrusted as a broker, &c., or other 
 
 agent, with any money or security for the payment 
 'of money, with any direction in writing to apply 
 such money or security or the proceeds of such 
 security for any purpose specified in such direction, 
 shall, in violation of good faith and contrary to 
 the terms of such direction, in any wise convert 
 to his own use or benefit such money, security, or 
 proceeds, shall be guilty of a misdemeanour. A 
 broker from time to time gratuitously made in- 
 vestments in shares, bonds, &c., on the Stock 
 Exchange to a considerable amount as agent for 
 the prosecutrix, and was kept in cash advances by 
 cheques in round sums not specifically made 
 against any particular items. On the 12th of 
 November, 1872, by letter, he sent to the prose- 
 cutrix a scheme of investment, mentioning as an 
 item two Japanese bonds with an approximate 
 price against them. On the 1 6th of November the 
 prosecutrix sent by letter a statement of account 
 between them, balanced up to that date, with a 
 cheque for the balance, sajring, " When I know 
 the amount of the Japanese I will immediately 
 forward you a cheque for the same." On the 27th 
 of November the broker wrote to the prosecutrix 
 enclosing a contract note for three 1002. Japanese 
 bonds at 1122. each, saying he was fortunate in 
 securing them for her, and that he had no doubt 
 of her ratifying what he had done. The contract 
 note was signed by the broker in the form of a 
 sold-note from him to the prosecutrix. On the 
 same day the prosecutrix wrote to him, that she 
 had received the contract note for three Japanese 
 bonds and his letter, and that she " enclosed a 
 cheque for 3362. in payment," and that she was 
 satisfied that he had purchased the three bonds 
 for her. The cheque was payable to the broker's 
 order, and was endorsed and cashed by him. He 
 wrote on the 29th of November acknowledging the 
 receipt of the cheque for three Japanese bonds 
 which he would forward to her immediately on 
 their being delivered. The broker never paid for 
 the bonds, which, after being carried over from 
 time to time, were sold by his order. He applied 
 the proceeds of her cheque to his own purposes : — 
 Held, that the letter from the prosecutrix of the 
 27th of November, saying that she " enclosed the 
 cheque for 3362. in payment," was a sufficient 
 direction to apply the cheque or its proceeds to 
 take up the Japanese bonds by paying the seller 
 if not delivered, and if delivered by paying him- 
 self, the broker, and that a conviciion of the 
 broker, under the above section, should be con- 
 firmed. The Queen v. Christiati, 43 Law J. Rep. 
 (n.s.) M. C. 1 ; Law Rep. 2 0. C. R. 94. 
 
 9. — An attorney was employed to raise money 
 on mortgage of property, which money was to be 
 in part applied to pay off an incumbrance on the 
 property, and the rest, after payment of the ex- 
 penses, to be paid to the mortgagor. There was 
 no direction in writing as to how the money was 
 to be applied. The attorney found a mortgagee, 
 prepared the mortgage deed, got it executed, ob- 
 tained the money and handed over the deed to the 
 mortgagee. He did not pay off the prior incum- 
 brancer, but paid over a portion of the money to 
 the mortgagor who did not know for some ye>irs 
 
FEAUD AND MISEEPEESENTATION (E)— FRAUDS, STATUTE OF (A). 
 
 263 
 
 how muoh money he, the attorney, had received ; 
 and he received from the mortgagor the interest 
 upon the portion of the mortgage money he had 
 paid over to him, and paid the mortgagee the in- 
 terest upon the whole mortgage money. He con- 
 verted to his own use all the money which he 
 received, except tJie portion which hg paid over to 
 the mortgagor : — Held, that as the attorney was 
 not entrusted with the deed or the money for safe 
 custody, and as there was no direction in writing 
 to apply the proceeds of the mortgage deed, and 
 as the mortgage deed could not be said to have 
 been transferred in violation of good faith and 
 contrary to the object or purpose for which it was 
 entrusted to him, he did not come within the 75th 
 or 76th sections of the 24 & 25 Vict. c. 96. The 
 Queen v. Cooper, 43 Law J. Eep. (n.s.) M. C. 89 ; 
 Law Eep. 2 C. C. E. 123. 
 
 Effect of fraud, or suppression as to priori- 
 ties of mortgagees. [See Moetgagb, 
 10-13.] 
 
 No confirmation of fraud. [See Undxte 
 Infltjenoe, 6.] 
 
 Bight of set-off. [See Set-off, 4.1 
 
 Production of documents in action for fraud- 
 ulent representation. [See Peoduc- 
 TION, 7.] 
 
 Conspiracy to defend. [See Conspibacy.] 
 
 FEAUDS, STATUTE OF. 
 
 (A) CONTHACTS EEaTTIfiED TO BE IN WbITING. 
 
 {a) To answer debt or default of another. 
 (6) Interest in land. 
 
 (1) What is. 
 
 (2) Collateral verbal agreement. 
 
 (3) Description of vendor. 
 
 (4) Contract by letters. 
 
 (5) Notice to treat. 
 
 (6) Signature by agent lawfully au- 
 
 thorised. 
 (e) Agreement not to be performed within 
 
 a year. 
 ((?) Sale of goods. 
 
 (1) What memorandum sufficient. 
 
 (2) Signature by agent. 
 
 (B) Paet Peefobmance. 
 
 (C) Non-Application of, in Cases of Feattd. 
 
 (A) OONTEACTS EEaUIKED TO BE IN "WeITINO. 
 
 (a) To answer debt or default of another. 
 1, — Where one person induces another to enter 
 into an engagement by a promise to indemniiy him 
 against liability, such promise is not an agreement 
 within section 4 of the Statute of Frauds, and need 
 not be in writing. Accordingly, where A. joined 
 in a joint promissory note with B. on the faith of 
 a promise by B. to indemnify him from loss, and 
 A. afterwards had to meet the note, — Held, that 
 A., on becoming C.'s executor, was entitled to re- 
 coup himself out of C.'s estate to the amount of 
 his loss. Wildes v. Dudlow, 44 Law J. Eep. (n.s.) 
 Chanc. 341 ; Law Eep. 19 Bq. 198. 
 [And see Contract, 23.] 
 
 (i) Interest in land. 
 
 (1) What is. 
 
 2. — The plaintiffs agreed in writing with the 
 defendant to let him a public-house from year to 
 year, with an option for him to call on them to 
 grant him a lease for twenty-eight years, and a 
 stipulation, inter alia, tliat if ho sold such lease 
 for more than l,200i., he should give the plaintiffs 
 half the diiference. The plaintiifs subsequently 
 granted him a lease differing from that agreed to 
 be granted in the following particulars : — It was 
 for thirty-two years instead of twenty-eight. The 
 rent was 105^. instead of lOOl. The premium was 
 SOOl. instead of 1,200Z. There was no covenant, 
 as had been agreed, against assignment without 
 the lessor's consent, nor binding the lessee to take 
 his beer of the plaintiffs. Some other covenants 
 burthensome on the defendant which had been 
 agreed for were omitted. These alterations were 
 arranged by parol only. The defendant sold the 
 lease for 2,500?. The plaintiffs sued upon the 
 agreement for half the difference between that 
 sum and 1,200Z. The jury found that the stipu- 
 lation as to dividing the surplus remained in force 
 or was renewed: — Held, that the effect of the 
 alteration of the original terms agreed upon be- 
 tween the parties was that the old agreement was 
 dissolved, and a new one made incorporating such 
 parts of the old agreement as the parties did not 
 choose to alter ; and that as such new agreement 
 related to land, and was not in writing within the 
 4th section of the Statute of Frauds, it could not 
 be enforced by action. Sanderson v. Graves, 44 
 Law J. Eep. (n.s.) Exch. 210 ; Law Eep. 10 Exch. 
 234. 
 
 3. — A municipal corporation, being the owner 
 of a graving-dock, issued regulations for its use 
 (inter alia), that the dock would " be let to parties 
 requiring the same for the repair of vessels " at 
 certain rates, that a book would be kept by the 
 borough treasurer for the entering of the names of 
 vessels intended for repair, and that as far as 
 practicable priority would be given to vessels in 
 the order of entry. A sum of three guineas was 
 to be paid to the borough treasurer on entering 
 each vessel, which " entrance money, and the right 
 of turn for the use of the dock," were to be for- 
 feited if the vessel did not take her turn at the 
 specified time ; and the corporation were to have 
 a lien for dockage upon the vessel, with a power 
 to detain the vessel for the same. In an action 
 by a shipowner against the corporation for not 
 allowing his vessel, for which the entrance fee 
 had been paid, to enter such dock in her turn, 
 according to these regulations, — Held, that the con- 
 tract for the use of I he dock did not amount to 
 an interest in land within the 4th section of the 
 Statute of Frauds, and further, that it did not 
 require to be under seal. Wells v. 2%e Mayor, 
 ^c, of Kingston-upon-HuU, 44 Law J. Eep. (n.s.) 
 0. P. 257 ; Law Eep. 10 C. P. 402. 
 
 4. — An undertaking by a lessor to build a 
 water-closet in a demised messuage, — Held, not a 
 contract for an interest in land within the 4th 
 section of the Statute of Frauds, and therefore not 
 
264 
 
 FEAUDS, STATUTE OF (A). 
 
 needing to be in writing. 
 J.Eep. (n.s.)C.P. 241. 
 
 ■, 43 Law 
 
 (2) Collateral verbal agreement. 
 
 5. — A declaration alleged that before the making 
 of the agreement thereinafter mentioned, the plain- 
 tiff and the defendant had been negotiating for the 
 letting by the defendant to the plaintiff of a mes- 
 suage and premises, together with the use of the 
 furniture therein ; that the plaintiff had objected 
 to becoming tenant on the ground that the mes- 
 suage and premises were insufficiently furnished. 
 It further alleged that the defendant, in order to 
 induce, as he did in fact thereby induce, the plain- 
 tiff to become tenant, without requiring the de- 
 fendant to send in furniture previously to the 
 commencement of the tenancy, verbally promised 
 the plaintiff that he, the defendant, would, within 
 a reasonable time after such commencement, Send 
 in such additional furniture as might be found 
 necessary; and thereupon, in consideration that 
 the plaintiff, at the request of the defendant, had 
 become tenant, without requiring the defendant, 
 previously to the plaintiff so becoming tenant, to 
 send in the furniture, the defendant promised the 
 plaintiff that he would within a reasonable time 
 send in such furniture, &c. Breach, that he did 
 not perform his last-mentioned promise: — Held, 
 upon demurrer, that the declaration was good ; 
 that the promise to send in the furniture was col- 
 lateral to the agreement relating to the tenancy of 
 the house ; and that it was not required by the 
 4th section of the Statute of Frauds to be in 
 writing, as not being an agreement for an interest 
 in land. Angell v. Duke, 44 Law J. Hep. (n.s.) 
 Q. B. 78 ; Law Eep. 10 Q. B. 174. 
 
 (3) Description of vendor. 
 
 6. — On sale of real estate by auction the par- 
 ticulars stated that the property was put up for 
 sale by " the proprietor." No farther description 
 of the vendor was given in the particulars or con- 
 ditions. The auctioneer signed a memorandum in 
 his own name, by which he agreed " that the 
 vendor on his part should in all respects fiilfil the 
 conditions of sale mentioned in the said par- 
 ticulars." On bill for specific performance by the 
 purchaser, — Held, that on the particulars and 
 memorandum there was a sufficient description of 
 the vendor within the 4th section of the Statute of 
 Frauds. Sale v. Lambert, 43 Law J. Eep. (n.s.) 
 Chanc. 470 ; Law Eep. 18 Eq. 1. 
 
 Part of the property sold was in the occupation of 
 a tenant under a lease, by which the vendor agreed 
 to repair. The repairs not being done, the tenant 
 instituted a suit against both vendor and pur- 
 chaser. The purchaser sent in an objection and 
 requisition in respect of the repairs not being 
 done : — Held, that such an objection was not an 
 objection to title in respect of which the vendor 
 was entitled to rescind the contract under a con- 
 dition applying to objections to the abstract. Ibid. 
 
 7. — To satisfy the 4th section of the Statute of 
 Frauds, both parties must be specified either nomi- 
 nally or by such a description that their identity 
 
 cannot be fairly disputed. Potter v. Duffield, 43 
 Law J. Eep. (n.s.) Chanc. 472 ; Law Eep. 18 Eq. 4. 
 
 A memorandum, signed on behalf of the vendor 
 by the auctioneer without further specifying the 
 vendor, is not a good contract within the statute. 
 Ibid. 
 
 Certain land was purchased at an auction by G. 
 P. The particulars and conditions of sale did not 
 disclose the name of the vendor; they shewed 
 that Messrs. Duffield & Bruty acted as his soli- 
 citors, Messrs. Beadels as his auctioneers. The 
 purchaser's agent, in his own name, signed the 
 memorandum of purchase. The memorandum did 
 not contain the name of the vendor, but was signed 
 by the auctioneer " on behalf of the vendor." No 
 abstract was sent to the purchaser, and he was 
 informed by Duffield that the property was mort- 
 gaged to several mortgagees, that W. PoUey was 
 the owner of the equity of redemption, and the 
 vendor. W. Policy denied that he had authorised 
 the sale, and the purchaser having discovered that 
 Duffield was a puisne mortgagee, filed a bill for 
 specific performance against him. Duffield pleaded 
 the Statute of Frauds, and put in evidence to shew 
 that the property was put up on behalf of Policy : 
 — Held, That the memorandum did not sufficiently 
 specify the vendor to make a binding contract 
 within the Statute of Frauds. That in order to 
 shew who was the vendor it was necessary to have 
 recourse to parol evidence, which was contrary to 
 the statute, and further, that the evidence shewed 
 that the defendant was not the vendor. BiU dis- 
 missed with costs. Ibid. 
 
 8. — A memorandum annexed to particulars and 
 conditions of sale was signed by C. " as agent for 
 the vendors." Neither the memorandum nor par- 
 ticulars nor conditions contained the names of the 
 vendors, but the particulars and conditions shewed 
 that the vendors " were a company in possession 
 of and carrying on mining operations on the pro- 
 perty." On bill filed for specific performance, 
 setting out the memorandum, conditions, and par- 
 ticulars, and containing an allegation that the 
 plaintiffs were the company referred to in them, 
 and were in possession of the property, — Held, 
 that though parol evidence could not be admitted 
 to explain the memorandum, and shew who were 
 the principals for whom C. signed as agent the 
 description of the vendors as a company in pos- 
 session, &c., was a sufficient description to satisfy 
 the Statute of Frauds. Commins v. Scott, 44 Law 
 J. Eep. (n.s.) Chanc. 563; Law Eep. 20 Eq. 11. 
 
 (4) Contract by letters. 
 
 9. — The plaintiff in a suit for specific perform- 
 ance of an alleged agreement for a lease, put in 
 as evidence of the agreement two letters written ■ 
 by the defendant, the first of which shewed all 
 the terms of the agreement, except the date at 
 which the term was to commence. The second 
 referred to the former letter as applying to a 
 lease to commence from "Michaelmas next," but 
 added several other terms, to which the plaintiff 
 did not assent. The plaintiff adduced evidence 
 that a complete verbal agreement had been made 
 upon the terms contained in the first letter, 
 
FBAUDS, STATUTE OF (A). 
 
 265 
 
 ■with the additional term of " Michaelmas next," 
 being- the date of the commencement of the 
 intended lease. This evidence was not undis- 
 puted by the defendant : — Held, affirming the 
 decision of the Master of the Bolls (41 Law J. 
 Eep. (n.s.) Ohanc. 173 ; Law Eep. 13 Eq. 191), 
 that there was no complete agreement within the 
 Statute of Frauds, for that if the plaintiff sought 
 to rely upon the second letter, he must take the 
 whole of it, and then there were imported into the 
 negotiation terms which had never been agreed to. 
 Nesham v. Selbi/, 41 Law J. Eep. (n.s.) Ohanc. 551 ; 
 Law Eep. 7 Ohanc. 406. 
 
 ConnecHoa between two writings by internal 
 evidence : liability of auctioneer for not 
 making binding contract. [See Auc- 
 tion, 2.] 
 
 (5) Notice to treat. 
 
 10. — ^Where a railway company gave notice to 
 treat for certain lands, and the price was sxibse- 
 quently fixed by surveyors and verbally agreed to 
 by the vendor, but no writing made out : — Held, 
 that there was a valid contract notwithstanding 
 the Statute of Frauds which operated as an 
 ademption of a specific devise of the lands in the 
 will of the vendor, who died before completion : 
 but held that the specific devisee was entitled, 
 under 1 Vict. e. 26, s. 23, to the rents which ac- 
 crued between the vendor's death and the comple- 
 tion of the contract. Watts v. Watts, 43 Law J. 
 Eep. (n.s.) Ohanc. 77 ; Law Eep. 17 Bq. 217. 
 
 (6) Signature by agent lawfully authorised. 
 
 [See Company, D 6 ; Conteact, 2 ; and 
 infra Nos. 14, 15.] 
 
 (c) Agreement not to be 'performed within a year. 
 
 11. — The defendant having had bastard children 
 by the plaintiff, a spinster, promised her verbally 
 that so long as she would at his request maintain 
 and educate the children, he would pay her 300?. 
 per annum quarterly. An action having been 
 brought to recover the instalments due in respect 
 of two years and a htilf, during which she had 
 maintained and educated the children, — Held, that 
 the agreement was not an "agreement that is 
 not to be performed within the space of one year 
 from the making thereof" within the Statute of 
 Frauds, s. 4, and that the plaintiff could recover. 
 Knowlman v. Bluett, 43 Law J. Eep. (n.s.) Exch. 
 29 ; Law Eep. 9 Exch. 1. 
 
 Held also, that the declaration, which claimed 
 only 600Z. for two years' instalments, could be 
 amended before verdict by increasing the claim to 
 750?., this being an amendable "defect" within 
 the Common Law Procedure Act, 18S2, s. 222. 
 Ibid. 
 
 And on appeal to the Exchequer Chamber (43 
 Law J. Eep. (n.s.) Exch. 151 ; Law Eep. 9 Exch. 
 307), held, that whether the agreement was within 
 the statute or not, the action lay, being, in sub- 
 stance, for money paid at the defendant's request. 
 Ibid. 
 
 DiOEST, 1870-1875. 
 
 (<Z) Sale of goods. 
 (1) What memoTandv/m suffioient, 
 
 12. — A verbal order for goods was given, with 
 a direction that they should be sent by a particular 
 route. The goods were afterwards sent by another 
 route, and a letter written to the purchaser by 
 the vendors stating the original order and the 
 alteration in the mode of transit, and enclosing an 
 invoice which contained the particulars of the 
 goods and the price. The goods did not reach the 
 purchaser, who, on being applied to afterwards for 
 payment, wrote a letter in which he acknowledged 
 the original order, but declined to pay on the 
 ground that the goods were not sent by the route 
 directed. In an action for the price of the goods, 
 the jury found that the defendant, by his conduct, 
 had ratified the alteration in the route : — Held, 
 that the letters and invoice constituted a memo- 
 randum in writing of the original contract within 
 the Statute of Frauds, and the alteration of the 
 route having been ratified by the defendant, the 
 plaintiffs were entitled to recover although the 
 ratification was not in writing. The Leather Cloth 
 Company v. Hieronimus, 44 Law J. Eep. (n.s.) Q,. B. 
 54 ; Law Eep. 10 Q,. B. 140. 
 
 13.— On the 11th of January the plaintiff 
 verbally agreed with the defendant to buy his 
 wool for a price exceeding 10?., and wrote the 
 terms in a letter, which the defendant took away. 
 One of those terms was, " the whole to be -cleared 
 in about twenty-one days.'' In a letter sent to the 
 plaintiff on the 8th of February, and signed by the 
 defendant, he said, "It is now twenty-eight days 
 since you and I had a deal for my wool which was 
 for you to have taken all away in twenty-one days 
 from the time you bought it. I do not consider it 
 business to put it off like this, therefore I shall 
 consider the deal off, as you have not completed 
 
 .your part of the contract " On the 9th of 
 
 February the plaintiff verbally asked the defend- 
 ant for a copy of the contract which he had given 
 him on the 11th of January, and later on the same 
 day the defendant wrote and signed a letter to the 
 plaintiff: "I beg to enclose a copy of your letter 
 of the 11th of January, 1871." On the same 
 paper and underneath there was, in the defendant's 
 writing, a copy of the letter of the 11th of Janu- 
 ary. The plaintiff ha-ving sued the defendant for 
 not delivering the wool, — Held, afBrming the de- 
 cision below (41 Law J. Eep. (n.s.) Exch. 1 ; Law 
 Eep. 7 Exch. 1), that rightlj' interpreted the de- 
 fendant's two letters admitted the contract, but 
 alleged that the defendant's construction of the 
 contract was the correct one ; and that taking the 
 three letters together there was a sufficient me- 
 morandum in writing to charge the defendant 
 ■within section 17 of the Statute of Frauds, iwa;- 
 <o« V. i?Msif, 4lLawJ. Eep. (n.s.) Exch. 173; Law 
 Eep. 7 Exch. 279. 
 
 Memorandmn within sec. 17 : contract for 
 sale of goods or delivery of goods sold. 
 [See Sale of Goods, 15.] 
 
 (2) Signature by agent. 
 14. — The agent to sign the memorandum of a 
 contract, according to section 17 of the Statute of 
 MM 
 
266 
 
 FEAUDS, STATUTE OF (A)— FEAUDULENT CONVEYANCE. 
 
 Frauds, must be a third person, and not one of 
 the parties to the contract. The plaintiff, a broker 
 carrying on business as S. & Co., was authorised 
 by the defendants to buy for them a quantity of 
 hemp. He sent them the note of a contract as 
 follows :—" Bought for Messrs. B. & H. (the 
 plaintiffs) of our principals, 200 tons of hemp, at 
 37?. a ton. Signed S. & Co. (plaintiff), brokers." 
 He had, in fa"t, no principal : — Held, that he could 
 not sue on the contract, for being really a con- 
 tracting party, his signature could not bind the 
 defendants as agent within the meaning of section 
 17 of the Statute of Frauds. Held also by Kelly, 
 C.B., and Martin, B., that there was no note or 
 memorandum within the statute, for the contract, 
 if any, was between the plaintiff as principal and 
 the defendants, and was therefore misdescribed in 
 the note signed by the plaintiff as broker. Sharman 
 V. Brandt (Exch. Ch.), 40 Law J. Eep. (n.s.) Q,. B. 
 312; Law Rep. 6 G.B. 720. 
 
 15. — The plaintiff's traveller called on the de- 
 fendant, and, receiving from him an order for goods, 
 made out, in his presence, a memorandum of the bar- 
 gain upon a partially printed form, wrote the de- 
 fendant's name in a space left for that purpose in 
 the heading of the form, made a copy and gave it to 
 the defendant, who took it without at that time 
 reading it. Goods were sent in pursuance of the 
 order, accompanied by an invoice containing a 
 stipulation that the plaintiff was " not responsible 
 for breakage." The defendant objected to this 
 stipulation, repudiated the contract and rejected 
 the goods : — Held, that there was no evidence that 
 the memorandum was signed by an agent of the 
 defendant thereunto lawfully authorised within the 
 terms of section 17 of the Statute of Frauds. 
 Murphy v. Boese, 44 Law J. Eep. (n.s.) Exch. 40 ; 
 Law Eep. 10 Exch. 26. 
 
 Alteration in written contract after signa- 
 ture. [See Sale, 1.] 
 
 (B) Paet Peeformanoe. 
 
 16. — Where, at the expiration of a lease, the 
 landlord verbally agrees with the tenant for a new 
 lease, and the tenant remains in possession and 
 does any act referable to the verbal agreement, 
 there is a part performance of the agreement which 
 takes it out of the Statute of Frauds and entitles 
 the tenant to specific performance. Williams v. 
 Evans, 44 Law J. Eep. (n.s.) Ghanc. 319; Law 
 Eep. 19 Eq. 547. 
 
 After the expiration of the lease of a house. A., 
 the lessor, verbally agreed with B., the lessee, who 
 still remained in possession, to grant him a new 
 lease, B. undertaking to rebuild the front of the 
 house, if the consent of the railway company, who 
 owned the adjoining laud, could be obtained. B. 
 then verbally agreed with C to grant him an 
 underlease at an increased rent, whereupon C. 
 entered into possession and expended money in 
 erecting a wooden stable, a boiler, laying on water 
 and gas, and converting a lumber-room into a 
 parlour. The railway company having withheld 
 their consent to the proposed alteration of the 
 frontage, A. refused to grant B. a new lease and 
 
 served him with notice to quit : —Held, that the 
 expenditure by C. must be regarded as having been 
 made by B., or by his authority, and that such 
 expenditure, coupled with B.'s remaining in pos- 
 session after the expiration of the former lease, 
 amounted to such a part performance of the verbal 
 agreement with A., as to entitle B. to a decree for 
 specific performance, notwithstanding the circum- 
 stance that A.'s agreement .was for a lease for 
 thirty years of freehold property belonging to his 
 wife, who was then living. Ibid. 
 
 Frame v. Dawson (14 Ves. 386) observed upon. 
 Ibid. 
 
 (C) NON-APPMCATION OF, Df CabES OF FeAUD. 
 
 17. — The Statute of Frauds is not available as 
 a defence to a suit to establish a trust where it 
 would be fraud to deny the trust. Haigh v. Kaye, 
 41 Law J. Eep. (n.s.) Chanc. 567 ; Law Eep. 7 
 Chanc. 469. 
 
 The defence that the transaction under which 
 the plaintiff claims was illegal, must be pleaded in 
 distinct terms. Ibid. 
 
 18. — ^Assignment by the plaintiff of his agree- 
 ment for a lease to the defendant accompanied 
 with a parol agreement that the defendant should 
 hold part of the premises in trust for the plaintiff : 
 — Held, that, as the Statute of Frauds cannot 
 cover a fraud, the defendant could not rely on that 
 statute to defeat the plaintiff's right. Booth v. 
 Tarle, Law Eep. 16 Eq. 182. 
 
 FEAUDULENT CONVEYANCE. 
 
 1. — In 1868 C, a trader solvent, but indebted 
 to the plaintiffs, a short time before his death dis- 
 posed of the whole of his property in favour of his 
 children as foUows : — On the 13th of June ho 
 gave certain machines to his sons, in consideration 
 of an annuity of 202. a year for his life ; on the 
 7th of November he divided a sum of 300/. among 
 his six daughters, and shortly afterwards, by deed, 
 assigned a mortgage debt of 350Z. to trustees upon 
 trust for his daughters and the child of a deceased 
 daughter. The Court was of opinion on the evi- 
 dence that all the depositions formed part of one 
 connected transaction and the settlor was weak in 
 mind and body, and that the children, though not 
 the settlor, were aware that the effect of the trans- 
 action would be to defeat the plaintiffs' claim : — 
 Held, on bill filed by the plaintiffs, that all the 
 dispositions were void against creditors under the 
 13 Eliz. c. 6, and that the donees must contribute 
 rateably to pay the plaintiffs' debt and costs. Cor- 
 nish V. Clark, 42 Law J. Eep. (n.s.) Chanc. 14 ; 
 Law Eep. 14 Eq. 184. 
 
 2. — B., a solicitor, having mortgaged an estate 
 to the trustee of his settlement, fraudulently de- 
 posited with a creditor the title-deeds which were 
 in his possession as solicitor for the mortgagees, 
 suppressing the fact of the original mortgage. In 
 1871 he mortgaged certain other lands to H. & T. 
 in fee. He died insolvent in 1872, and shortly 
 after his death a deed of November, 1860, was 
 
FRATJDULENT CONVEYAKOE— FEIENDLY AND OTHER SOCIETIES (A). 207 
 
 found in his safe, by -which he had demised to the 
 original mortgagee for the term of 400 years some 
 of the lands comprised in the mortgage of 1871 by 
 ■way of further security for the amount due on the 
 original mortgage. No consideration was stated 
 in this deed, and the conclusion was that it had 
 never been communicated to the original mortga- 
 gee, or been out of B.'s possession : — Held, that 
 the deed of November, 1860, was fraudulent and 
 void, under 27 Eliz. c. 4, as against H. & T. Held 
 also, that the circumstance of B.'s having been 
 solicitor to the original mortgagee did not entitle 
 the latter to claim the benefit of the deed as if it 
 had been actually communicated to him. In re 
 Barker's Estate ; Jones v. Sygott ; and Bygott v. 
 Hellard, 44 Law J. Eep. (n.s.) Chanc. 487. 
 
 FEATJDULENT DEBTOR. 
 [See Dkbtoes Act, 19, 20.] 
 
 FRAUDULENT PREFERENCE. 
 [See Bankeuptcy, B 1-28.] 
 
 FREIGHT, 
 [pee Shipping Liw.] 
 
 FRIENDLY AND OTHER SOCIETIES. 
 
 (A) Bknefit Botldinq Societies. 
 (a) Borrowing powers. 
 
 (6) Advanced meinbers. 
 
 (c) Disputes between members. 
 
 (1) Equity jurisdiction. 
 
 (2) Reference to arbitration. 
 ((Z) Winding-wp. 
 
 (B) Fbiendlt Societies. 
 
 (A) Benefit Bitllding Societies. 
 
 [6 & 7 Will. 4. c. 32, repealed. The laws re- 
 lating to Benefit Building Societies consolidated 
 and amended. 37 & 38 Vict. c. 42.] 
 
 [37 & 38 Vict. c. 42, s. 8, repealed and new pro- 
 vision substituted. 38 & 39 Vict. o. 9.] 
 
 (a) Borrowing powers. 
 
 1. — The certified rules of a permanent benefit 
 building society stated that the society's objects 
 were "to raise a fund for the purpose of enabling its 
 membersto purchase land ; to erect buildingsthere- 
 on ; to provide mean,? for the profitable investment 
 of small savings, and in cases of accidental death to 
 relieve the widows and families of deceased share- 
 holders by adding the interest and estimated profits 
 of the current year on the withdrawal of their 
 
 shares at the time of death. The original rdeS 
 contained no powers of borrowing. Subsequently 
 the rules were altered, so as to empower the di- 
 rectors, " from time to time to borrow for the pur- 
 poses of the society such sums, and at such rates 
 of interest, and xmder such terms and conditions, 
 as they might think proper and expedient." This 
 rule was duly certified by the barrister : — Held, 
 that under tbis power the directors could only 
 borrow for the purposes expressly mentioned in 
 the original rules of the society, and that money 
 lent to the society by way of deposit at interest, 
 and used for an unauthorised purpose, could not 
 be recovered by the depositor. In re the Durham 
 County Permanent Benefit Building Society ; Davis's 
 case ; Wilson's case, 41 Law J. Rep. (n.s.) Charlc. 
 124 ; Law Rep. 12 Eq. 616. 
 
 But where the loan had been secured by a de- 
 posit of mortgage deeds executed in usual course 
 by the members to the society to secure the ad- 
 vances made to them, — Held, that the official 
 liquidator of the society was not entitled without 
 payment of the loan to deprive the lender of his 
 securities. Ibid. 
 
 [And see infra No. 6.] 
 
 (i) Advanced members. 
 
 2. — The Court will not make an order to wind 
 up a benefit building society compulsorily, on the 
 petition of advanced members, contrary to the 
 wishes of the majority of the creditors and contri- 
 butories, unless a plain injustice will be done to 
 the petitioners by refusing the order. A contri- 
 butory is not entitled to a winding-up order 
 against an insolvent company ex debito Jiietitia. 
 In re the Professional, Commercial, and Indus- 
 trial Benefit Building Society, Law Rep. 6 Chanc. 
 856. 
 
 3. — By the rules of a building society every 
 member was to pay for his shares by monthly sub- 
 scriptions, and every member receiving an advance 
 was to repay the same, with interest at the rate 
 which should be determined by the board, by in- 
 stalments, and to execute a mortgage to the so- 
 ciety. The society's prospectus set forth a scale of 
 the different amounts of monthly instalments by 
 which repayment of advances was to be made, 
 graduated according to the term during which 
 such instalments were to continue payable, and 
 stated that such instalments amounted to five per 
 cent, per annum for the term selected, added to 
 the principal sum borrowed. G-. became a member, 
 by taking twelve shares of 502. each in the society, 
 and received an advance of 600Z., repayable by 
 equal monthly instalments during a period of 
 seven years. At the time of his advance he re- 
 ceived a copy of the prospectus, and executed a 
 mortgage, with a power of sale, to trustees of the 
 society. The mortgage deed provided that out of 
 the moneys to arise by a sale, the trustees should 
 retain all subscriptions, fines, and other sums and 
 payments then due or to become due in rfespee', of 
 the said shares during the remainder of the seven 
 years, it having been agreed that in case any sale 
 should take place, all moneys which would at any 
 M M 2 
 
268 
 
 PEIENDLY AND OTBEE SOCIETIES (A)— GAME (A). 
 
 time afterwards become due from G. in respect of 
 his said shares, according to the rules of the so- 
 ciety, should be considered " then immediately due 
 and payable." G. having made default, the trus- 
 tees, before the expiration of three years of the 
 term, sold the property : — Held, that under the 
 above provision in the mortgage deed, when read 
 in connection with the rules, they were entitled to 
 retain only the amount then due from G. for past 
 instalments and fines, together with so much as 
 would represent the portion of fature instalments 
 attributable to principal, but not for the portion at- 
 tributable to interest. In re Goldsmith ; Ex parte 
 Osborn, ii Law J. Eep. (n.s.) Bankr. 1 ; Law Eep. 
 10 Chanc. 41. 
 
 (c) Disputes between members. 
 
 (1) Equity jimsdiction. 
 
 4. — The Court has no jurisdiction to determine 
 a question as to the rights of a member of a benefit 
 building society, as such. Thompson v. The Planet 
 Benefit Building Society, 42 Law J. Eep. (n.s.) 
 Chanc. 364 ; Law Eep. 15 Eq. 333 : overruling 
 Boubleday v. HosMng, Law Eep. IS Eq. 344 n. 
 
 (2) 'Reference to arbitration. 
 
 6. — By the rules of a benefit building society, 
 constituted under 10 Geo. 4. c. 56, and 6 & 7 "Will. 
 4. i;. 32, it was provided that disputes between the 
 trustees and " any one or more of the members of 
 the society, or any person or persons claiming on 
 account of any member or members," should be 
 referred to arbitration. P., who had been the 
 holder of certain shares in the society, transferred 
 them to P., but the defendants, who were trustees 
 of the society, reflised to recognise P. as a member. 
 P. thereupon sued to recover the value of the 
 shares : — Held, that as the defendants denied that 
 P. was a member, the question whether he was 
 entitled to the value of the shares could not be 
 referred to arbitration under the rules of the so- 
 ciety, and that the action was maintainable. Pren- 
 tice V. London, 44 Law J. Eep. (n.s.) C. P. 353 ; 
 Law Eep. 10 C.P. 679. 
 
 {d) Winding-up. 
 
 6. — An order to wind up a benefit building so- 
 ciety whose rules do not give it express power to 
 borrow, may be obtained on the petition of a per- 
 son, who, under the rules of the society, has de- 
 posited money therein with a view of becoming a 
 shareholder, but before becoming one, has given 
 proper notice to withdraw the money and been 
 unable to obtain it. But such petition must not 
 be a mere creditor's petition, but must express 
 that the petitioner is a creditor in respect of 
 money advanced by him as a member of the so- 
 ciety, which he has given notice to withdraw. In 
 re the Queen's Benefi,t Building Society, 40 Law J. 
 Eep. (n.s.) Chanc. 381 ; Law Eep. 6 Chanc. 815. 
 
 Distinction between investing members and 
 outside creditors. [See Company, 1 12.] 
 
 Stamps on d/rqfts by members of benefit 
 building societies. [See Stamp, 5.] 
 
 (B) Friendly Sooibties. 
 [Consolidation and amendment of the law relat- 
 ing to Friendly Societies. 38 & 39 Vict. c. 60.] 
 
 7.— By the rules of a friendly society established 
 under 18 & 19 Vict. c. 63, s. 9, a member, under 
 certain conditions, was entitled to receive eight 
 shillings a week during any sickness or accident 
 that might befall him, unless by rioting or drunk- 
 enness, &c. : — Held, in the absence of words shew- 
 ing a different intention, that insanity was a sick- 
 ness which entitled a member to relief under the 
 above rule. Bwton v. Eyden, 42 Law J. Eep. 
 (n.s.) M. C. 115 ; Law Eep. 8 a. B. 295. 
 
 8. — The summary remedy by complaint before 
 the justices, under 18 & 19 Vict. c. 63, s. 24, 
 against an officer of a friendly society who with- 
 holds money of such society, is limited to cases in 
 which there has been some fraud by such officer. 
 Barrett v. Markham, 41 Law J. Eep. (n.s.) M. C. 
 118; Law Eep. 7 C. P. 405. 
 
 Statute : construction : benefit of widow, 
 
 children, or relatives. [See Insue- 
 
 ANCB, 2.] 
 
 GAME. 
 
 (A) Geant ok Eesbrvation of Eight op 
 
 Shootinq. 
 
 (B) Prevention of Poaching Act. 
 
 (A) Grant oe Eeseevation of Eight of 
 Shooting. 
 
 1. — Under an ordinary grant of the exclusive 
 right of shooting over an estate the tenant has no 
 right to prevent the landlord from cutting down 
 trees in the proper course of management of the 
 estate, even though the result of the cutting vriU 
 be prejudicial to the shooting. Geams v. Baker, 
 44 Law J. Eep. (n.s.) Chanc. 834 ; Law Eep. 10 
 Chanc. 355. 
 
 Decision of Hall, V.O., reversed. Ibid. 
 
 2.— By 1 & 2 Will. 4, c. 32, ». 12, where the 
 exclusive right of kiUing the game upon any land 
 has been specially reserved by, or granted»to, or 
 belongs to the lessor, landlord, or any person other 
 than the occupier of such land, then, if the occu- 
 pier of such land shall kill or take game upon such 
 land without the authority of the lessor, landlord, 
 or other person having the right, &c., he shall be 
 liable to a penalty. By agreement between C. and 
 B., C. became the tenant to B. of a farm, and he 
 agreed, among other things, that he would not de- 
 stroy any game, nor keep any hound or other dog 
 destructive thereof, and would at all times, at the 
 request of B., forbid any person or persons hunting 
 and shooting, &c., and would endeavour to the 
 utmost of his power to preserve all game bred and 
 being on the farm. C. having killed game upon 
 the fiirm, he was convicted before two justices : — 
 Held, by Cockburn, C. J., and Mellor, J. (Lush, J., 
 dissenfiente), upon a case raising the question, 
 whether, upon a true construction of the above 
 
GAME (A)— GAMING (A). 
 
 269 
 
 agreement, the game was reserved to B., that the 
 conviction was wrong. Coleman v. Bathurst, 40 
 Law J. Eep. (n.s.) M. C. 131 ; Law Eep. 6 Q. B. 
 366. 
 
 Grant of right of shooting : right to injunc- 
 tion against sale of land for building 
 purposes. [See Injunction, 27.] 
 
 (B) Prevention of Poaching Act. 
 
 3.— The appellants were arrested hy constables 
 on the highway at about nine on a December even- 
 ing. One of them had then a net used in catching 
 hares in his hand. The net was wet, and the ap- 
 pellants had been heard to whistle to a dog, half 
 lurcher, which was near them when they were 
 taken, and appeared to belong to one of them : — 
 Held, that there was evidence upon which the 
 appellants might be convicted under 25 & 26 Vict, 
 c. 114, s. 2, as it was not necessary to shew that 
 game had actually been killed by them, and it 
 was enough to shew that the net had been used 
 with the object of killing game. Jenkin v. King, 
 41 Law J. Eep. (n.s.) M. C. 145 ; Law Eep. 7 
 a.B. 478. 
 
 4. — In order to justify a conviction for poaching 
 under 25 & 26 Vict. t. 114, ». 2, the game, &e., in 
 the possession of the suspected person must be 
 seized by the constable on the highway. Turner 
 V. Morgan, 44 Law J. Eep. (n.s.) M. C. 161 ; Law 
 Eep. IOC. P. 587. 
 
 The appellant, whilst going in a cart along a 
 highway, was required to stop by the respondent, 
 -A constable. The appellant drove off without 
 obeying the order to stop, and shortly afterwards 
 delivered to G. several rabbits, of which the re- 
 spondent subsequently took possession : — Held, 
 that as the rabbits were not seized whilst they 
 were in the appellant's possession upon the high- 
 way he could not be convicted under 25 & 26 Vict, 
 c. 114, 8. 2. Ibid. 
 
 GAMING. 
 
 (A) Sditbession of Bettins-houses. 
 
 (B) VAGBAirr Act Amendment Act. 
 
 (A) StTPPEESSION OF BeTTING-HOUSES. 
 
 1, — To an action for money paid for the use of 
 the defendant, there was 'a plea that the money 
 was paid after 16 & 17 Vict. c. 119 (the Betting 
 Houses Act), and was knowingly paid by the 
 plaintiff to, and received by the owner, occupier, 
 or keeper of a certain house, office, room, or place 
 opened, kept and used for the purpose of betting 
 with persons resorting thereto. At the trial the 
 evidence was that the plaintiff, a betting agent, 
 was a member of a club consisting of about 1,400 
 persons, in which there was a room wherein the 
 members betted with one another, and that the 
 plaintiff, at the request of the defendant, who was 
 not a member of the club, made bets there with 
 members on certain horseraces, which bets, having 
 
 been afterwards lost, the plaintiff paid : — Held, 
 that the plea was not proved by the above evi- 
 dence, and that the transaction not being illegal, 
 the plaintiff was entitled to recover the money he 
 had so paid. Oldham v. Ramsden, 44 Law J. Eep. 
 (n.s.) C. p. 309. 
 
 2. — The defendant had a stool on a racecourse 
 during the races, over which was kept up open a 
 large umbrella, about seven or eight feet high, 
 capable of covering several persons, the stick of 
 which was fastened in the ground with a spike. 
 The defendant's name, with the addition " Victoria 
 Club, Leeds," was painted in large letters on the 
 umbrella, and there was a card with the words, 
 " "We pay all bets first past the post." The defend- 
 ant stood on the stool, offering to make and mak- 
 ing bets, the money being deposited with him at 
 the time, for which he gave a ticket : — Held, that 
 the stool and umbrella constituted a " place " 
 within 16 & 17 Vict. c. 119, the Act for the Sup- 
 pression of Betting-houses. Bows v. FenwicJc, 43 
 Law J. Eep. (n.s.) M.C. 107; Law Eep. 9 C.P. 
 339. 
 
 3. — Police constables entered, at about half- 
 past two in the afternoon, an enclosed place called 
 Borough Park Ground, occupied by the appellant. 
 People were admitted to this ground after paying 
 money and receiving tickets. Among those pre- 
 sent inside the grounds were two men, vrith books 
 in their hands. These two men were shouting 
 out " Twenty to two on the match ! " The match 
 about to take place was a pigeon shooting .match 
 for lOl. a side. Two men came up to one of the 
 bookmakers, and one of them gave to one of the 
 men with the book a sovereign. As this man 
 was getting some change back the other man said, 
 "Hold on; that will do for both of us." The 
 bookmaker took a ticket out of his book, gave it 
 to one of the men, and said, " That's on Wooler" 
 (one of the parties to the match). Soon after this 
 Wooler was going to shoot at a pigeon, when 
 another man shouts out, "Four to one he kills !" 
 This bet was taken, and the man said, " Three to 
 one he kills!" The appellant could hear what 
 the bookmakers and other persons said : — Held, 
 that there was evidence : first, that the ground in 
 question was a " place " within the meaning of the 
 Act; secondly, that although used for pigeon 
 shooting it was also used for the purposes of 
 betting, and that the magistrates were therefore ' 
 justified in convicting the appellant. Eastwood v. 
 MiUar, 43 Law J. Eep. (n.s.) M. C. 139; Law 
 Eep. 9 a. B. 440. 
 
 4.— By "The Betting Houses Act," 16 & 17 
 Vict. c. 119, s. 1, " no house, office, room, or other 
 place shall be opened, kept or used for the pur- 
 pose, amongst others, of the owner, occupier or 
 keeper, or any person using the same, or any per- 
 son procured or employed by, or acting for or on 
 behalf of such owner, occupier or keeper, or per- 
 son using the same, or of any person having the 
 care or management, or in any way conducting the 
 business thereof, betting with persons resorting 
 thereto." By section 3 a penalty is imposed on 
 " any person who, being the 0T\Tier or occnpier of 
 any house, office, room, or other place, or a person 
 
270 
 
 GAMING (A)— GAS. 
 
 using the same, shall open, keep or use the same 
 for the purposes hereinbefore mentioned, or either 
 of them ; and also on any person who, being the 
 owner or occupier of any house, room, office or 
 other place, shall knowingly and wilfully permit 
 the same to be opened, kept or used by any other 
 person for the purposes aforesaid, or either of 
 them " : — Held, that any such owner, occupier or 
 keeper may be convicted under the Act for know- 
 ingly permitting any other person to use any such 
 house, office or place for the purpose of betting 
 with persons resorting to it, though the person so 
 using it is in no sense the occupier or keeper of 
 the premises. Raigh v. The Corporation of Shef- 
 field, a Law J. Rep. (n.s.) M. C. 17 ; Law Eep. 
 10 a. B. 102. 
 
 Information against the defendant as the occu- 
 pier of a place caUed Hyde Park Cricket Ground, 
 in Sheffield, for unlawfully permitting the place to 
 be used by G. Trickett and others for the purpose 
 of betting with persons resorting thereto. It ap- 
 peared that the defendant occupied as tenant a 
 house with a piece of enclosed ground adjoining, 
 called Hyde Park Cricket Ground, used for cricket, 
 foot-racing and other games and sports. On the 
 day named in the information foot-racing took 
 place in the grounds, to which persons were ad- 
 mitted on payment of sixpence within the grounds ; 
 but outside the space reserved for the runners, 
 and amongst the spectators, some fifteen or twenty 
 persons, being clearly professional bettors (Trickett 
 being one of them), stood on chairs and stools in 
 different spots witli books in their hands, calling 
 out the odds on the various runners, and betting 
 with different persons, a man behind each of the 
 professional bettors recording the bets in a book, 
 the persons betting paying a shilling each and 
 receiving a ticket. The evidence satisfied the 
 magistrate that the defendant knew of what was 
 going on, and took no steps to prevent it, and that 
 he might have prevented it if he had been so 
 minded ; and the magistrate was also satisfied that 
 Trickett resorted to the grounds for the sole or 
 principal object of betting with other persons : — 
 Held, affirming the conviction of the defendant, 
 first, that as occupier of the premises, he knowingly 
 permitted them to be used by Trickett for the 
 purposes mentioned in sections 1 and 3 of the Act ; 
 secondly, that the cricket-ground was a " place " 
 within the meaning of the Act. Ibid. 
 
 (B) Vaqeant Act Amendment Act. 
 
 5, — Betting odds on one of several dogs about 
 to be run in a race and paying half a sovereign, is 
 not playing or betting with a coin as an instru- 
 ment of gaming. Hirst v. Molesbury, 40 Law J. 
 Rep. (n.s.) M. C. 76 ; Law Eep. 6 Q. B. 130. 
 
 6. — By the Vagrant Act Amendment Act, 1868 
 (31 & 32 Vict. c. 52), s. 3, " every person playing 
 or betting by way of wagering on any street, road, 
 highway, or other open and public place, or in any 
 place in which the public have or are permitted 
 to have access, at or with any table or instrument 
 ot gaming, or any coin, card, token, or other ar- 
 ticle used as an instrument or means of such wa- 
 gering on {sic) gaming, at any game or pretended 
 
 game of chance, shall be deemed a rogue and vaga- 
 bond within the true intent and meaning of the 
 recited Act, and liable to be punished accord- 
 ingly." The appellants took to a racecourse a 
 machine having on it numbers, beside each of 
 which there were three holes. Behind these holes 
 were figures which could be shifted so as to re- 
 present any number from to 999, On the top 
 of the machine was the word "total," and beside 
 it were holes in which figures could be shifted and 
 exhibited in a similar manner. Each of the num- 
 bers on the machine was appropriated to a parti- 
 cular horse about to rim in a race. Any person 
 who wished to bet upon any of these horses depo- 
 sited half-a-crown with the appellants, and 
 received from them a ticket with the number 
 appropriated to the horse, and the appellants, by 
 turning a key, altered the figures, increasing the 
 sum indicated alongside of that number by one, 
 and, as the machine was contrived, by the same 
 turn of the key, increasing the sum indicated by 
 the figures beside " total " by one. When the 
 race was run, the holders of tickets which had on 
 them the number appropriated to the winning 
 horse, were entitled to divide among them the 
 amount of the total, less ten per cent., which was 
 retained by the appellants, as proprietors of the 
 machine. It followed that any one desirous of 
 betting might see at a glance the then state of the 
 odds offered if he backed any particular horse, 
 but the state of odds was, of course, liable to 
 be changed, according to the number of persons 
 subsequently betting and the horses they backed : 
 — Held, that the appellants were rightly convicted 
 under section 3,as the machine was an instrument 
 of wagering or gaming, and the game on which 
 the wagering took place a game of chance within 
 the meaning of the statute. Tollett v. Thomas, 
 40 Law J. Eep. (n.s.) M. C. 209; Law Eep. 6 
 a. B. 514. 
 
 GARNISHEE. 
 [See Attachment.] 
 
 GAS. 
 
 [33 & 34 Vict. c. 70 extended and amended. 36 
 & 37 Vict. c. 89.] 
 
 [Amendment of the Gasworks Qauses Act, 
 1847. Provisions as to supply and testing of gas, 
 and recovery of gas rents. 34 & 35 Vict. c. 4).] 
 
 l,-;-By the Metropolis Gas Act, 1860 (23 & 
 24 Vict. e. 125), s. 4 : The words " common gas" 
 shall mean gas of an illuminating power herein- 
 after defined, of not less than twelve candles. The 
 words " cannel gas " shall mean gas of an illumi- 
 nating power hereinafter defined of not less than 
 twenty candles. By section 25, the quality of the 
 comrnon gas supplied by any gas company shall 
 be, with respect to its illuminating power, at a dis- 
 tance as near as may be of 1,000 yards from the 
 works, such as to produce from an Argand burner, 
 
GAS— GUNPOWDER. 
 
 271 
 
 having fifteen holes, and a 7-in. chimney, con- 
 suming 5 cubic feet of gas an houT, a light equal 
 in intensity to the light produced by not less than 
 twelve sperm candles of six to the pound, each 
 burning 120 grains an hour ; and the quality of 
 cannel gas supplied by any gas company shall, 
 with respect to its illuminating power at the dis- 
 tance aforesaid, be such as to produce from a 
 batswing or iishtail burner, consuming 5 feet of 
 gas per hour, a light equal in intensity to twenty 
 such sperm candles ; and each such gas shall, with 
 respect to its purity, be so far free from ammonia 
 and sulphuretted hydrogen that, upon certain spe- 
 cified tests, there shall not be more than twenty 
 grains of sulphur in any form in 100 cubit feet of 
 gas. 
 
 By the Gas Light and Coke Company's Act, 
 1868 (31 & 32 Vict. 0. cvi.), s. 8, The company 
 shall be and continue subject to the powers and 
 provisions of the Metropolis Gas Act, 1860, and 
 of any Act passed, or hereafter to be passed, for 
 amending the same, and entitled to the powers 
 and privileges of those Acts, as if this Act were 
 not passed, so far as the same are not varied by 
 this Act. By section 109, If the Bill, the short 
 title of which, when passed, is intended to be "The 
 City of London Gas Act " (in this Act referred to 
 as the City Gas Act), now pending, pass into a 
 law in the present session, then the company and 
 their undertaking shall be subject to the provi- 
 sions of the City Gas Act without, as weE as 
 within, the City of London and the liberties 
 thereof, and such Act shall extend to the whole 
 imdertaking of the company. By section 110, 
 nothing in this Act contained shall exempt the 
 company or their gas works from the provisions 
 of the Metropolis Gras Act, 1860, or the Act for 
 regulating measures used in sales of gas as 
 amended by subsequent Acts, or any other general 
 Act already or hereafter passed, in the present or 
 any future session of Parliament, for regulating 
 gas companies in the metropolis, or for regulating 
 the supply or sale of gas in the metropolis, &c. 
 
 By the City of London Gas Act, 1868 (31 & 32 
 Vict. c. cxxv.), s. 3, such parts of the Act of 1860 
 as are described in the first schedule to the Act, 
 and any part of any special Act of any company 
 inconsistent with the Act are, so far as they re- 
 ■ spectively relate to the companies and the city, 
 repealed. By sections 63 and 54, the gas (ex- 
 cept cannel gas) supplied by each company, shall 
 be of an illuminating power of not less than six- 
 teen candles. The Act also contains provisions as 
 to the purity and quality of the gas, and provides 
 means for testing it : — ^Held (affirming the decision 
 below, 41 Law J. Eep. (n.s.) Q,. B. 36), that the 
 Acts of 1868 did not repeal the provisions in the 
 Act of 1860 as to the purity, quality, and mode of 
 testing of the gas, and that the company re- 
 mained subject to these provisions as well as to 
 those contained in the City of London Gas Act. 
 The Gaslight and Coke Company v. The Vestry of 
 St. George, Hanover Square, 42 Law J. Eep. (n.s.) 
 Q. B. 60. 
 
 2. — The Gasworks Clauses Act, 1871, which is 
 to be construed as one with the Gasworks Clauses 
 
 Act, 1847, is to be deemed as incorporated into all 
 Acts {e.g. the Metropolitan Gas Act, 1860) 
 which incorporate the Act of 1847. The Com- 
 mercial Gas Company v. Scott, 44 Law J. Eep. 
 (n.s.) M. C. 171 ; Law Rep. 10 Q. B. 400. 
 
 GIFT. 
 
 W., the uncle of H.'s wife, declined to accede to 
 a request made by G., a friend of H., that he 
 would lend H. 1,000/. towards the payment of cer- 
 tain election expenses, but stated to G. that he 
 would give H. 600Z. and deduct that amount from 
 a legacy which he intended to leave H.'s family. 
 He accordingly sent H. a cheque for 500Z. H. 
 acknowledged the receipt of this by letter, saying, 
 that he would repay it. H. afterwards gave to 
 W. a promissory note for the 600/. with interest at 
 \l. per cent. W. died, and this suit was instituted 
 to restrain proceedings at law which W.'s execu- 
 tors had taken against H. upon his promissory 
 note. H. deposed that the promissory note had 
 been given at his own suggestion, and only for the 
 purpose of securing to W. the interest during his 
 life ; but one of "W.'s executors stated, that W. 
 had told him he would have to get in the debt : — • 
 Held, upon the evidence that although the 500/. 
 was in the first instance intended by W. as a gift, 
 it was accepted by H. only as a loan, and was sub- 
 sequently so treated by both parties in giving and 
 taking the promissory note. It requires the assent 
 of the minds of both parties to the making of a 
 gift as well as to the making of a contract. And 
 in this case the transaction being open to the par- 
 ties at the time of the promissory note being given, 
 to make it either a loan or a gift, the giving of 
 the note was conclusive evidence that both par- 
 ties treated it as a loan. Parol evidence is in- 
 admissible to prove a note expressed to be a 
 security for 500/. and interest, to have been in- 
 tended to secure the interest only. Hill v. 
 Wilson, 42 Law J. Eep. ;n.s.) Chanc. 817; Law 
 Eep. 8 Chanc. 888. 
 
 [See Donatio Mobtis Causa.] 
 
 GOLD FIELDS ACT. 
 Construction oj Gold Fields Act of New Zea- 
 land as to cancelling lease. [See Co- 
 loniax, Law, 32.] 
 
 GUAEANTIE. 
 [See Pbincipal and Suebty.] 
 
 GUNPOWDEE. 
 
 1.— By 23 & 24 Vict. c. 139, s. 6, " The fol- 
 lowing regulations shall be observed with respect 
 to the manufactureof loaded percussion caps, and 
 the manufacture and keeping of ammunition, 
 fireworks, fulminating mercury, or any other pre- 
 
272 
 
 GUNPOWDER— HACKNEY CAERIAGE. 
 
 paration or composition of an explosive nature — 
 no such articles aforesaid, except percussion caps, 
 exceeding the respective quantities hereinafter 
 mentioned, and set opposite to the descriptions 
 of the respective articles (that is to say), am- 
 munition containing five pounds of gunpowder, 
 shall be kept in any place not licensed for that 
 purpose." By section 7, "all loaded percussion 
 caps made, and all ammunition, fireworks, fulmi- 
 nating mercury, &c., made or kept in any place, 
 where, under the Act, it is not lawful to make 
 percussion caps, or to make or (as the case may 
 be) keep ammunition, &c., and any quantities of 
 ammunition kept in any lawful place exceeding 
 the quantity which may be lawfully kept there, 
 shall be forfeited." The appellant, a gun and pis- 
 tol manufacturer and a dealer in cartridges, 
 which he retailed to customers, but not other- 
 wise a manufacturer of the articles specified in 
 section 6, kept on his premises without a license 
 60,400 loaded cartridges, which he had purchased 
 from a manufacturer, and which severally con- 
 tained small quantities of gunpowder, varying 
 from six to nineteen grains each, and in the 
 whole containing upwards of fifty pounds : — Held, 
 that he was not liable to be convicted under sec- 
 tion 6, which applied only to the keeping in con- 
 nection with the manufacture of ammunition, and 
 not to the case of a mere dealer purchasing am- 
 munition from the manufacturer. Webley v. 
 Woolley, 41 Law J. Eep. (n.s.) M. C. 38 ; Law 
 Eep. 7 a ^- 61- 
 
 2.— By 23 & 24 Vict. c. 139, s. 2, par. 9, 
 " Every maker of gunpowder shall cause to be 
 erected good and sufficient lightning conductors in 
 connection with every store magazine where gun- 
 powder is kept by him." By section 4, "All 
 gunpowder made in any place where under this 
 Act it is not lawful to make gunpowder, and all 
 gunpowder in any mill, press-house, coming-house, 
 drying-house, or other place exceeding the quan- 
 tity which for the time being may lawfully be 
 therein, shall be forfeited ; and every person 
 making or causing to be made any gunpowder 
 contrary to this Act, or keeping or causing to be 
 kept in any such mill or place any gunpowder 
 contrary to the provisions hereinbefore contained, 
 shall for so doing, in addition to such forfeiture 
 as aforesaid, forfeit for every such offence any 
 sum not exceeding 2s. for every pound of gun- 
 powder so forfeited : " — Held, that the forfei- 
 tures and penalties imposed by section 4 do not 
 apply to the offence of keeping gunpowder in a 
 store magazine without providing lightning con- 
 ductors. Eliott V. Majendie, 41 Law J. Eep. 
 (n.s.) M. C. 147 ; Law Eep. 7 Q. B. 429. 
 
 became, as she alleged, anxious that the child 
 should be removed, and placed in a home for poor 
 children, so that she might be broi^ht up in the 
 mother's own faith, and in that in which the 
 child had been baptized. She had, before being 
 in the infirmary, lived in lodging-houses, had 
 neglected the child, and had lived a drunken 
 and immoral life. The father of the child was 
 dead, and the child herself desired to remain 
 in the school : — Held, that under these circum- 
 stances the Court would not grant a habeas 
 corpus to remove the child. In re Turner ; Ex 
 parte Tvirner, 41 Law J. Rep. (n.s.) Q. B. 142. 
 
 2. — By 31 Car. 2. c. 2, s. 6, it is provided " that 
 no person set at large upon any ' habeas corpus ' 
 shall be again imprisoned or committed for the 
 same offence by any person other than the legal 
 process of the Court having jurisdiction of the 
 same:" — Held, that this provision only applies 
 when a second arrest is substantially for the same 
 cause as the first. The Attorney- General of Hong 
 Kong V. Kwoh-a-Sing , 42 Law J. Eep. (n.s.) P. C. 
 64; Law Eep. 5 P. C. 179. 
 
 [And see Infant, 17.] 
 
 HABITUAL CEIMINALS. 
 
 By section 10 of 32 & 33 Vict. c. 99, every 
 person who keeps any place where excisable 
 liquors are sold, &c., and knowingly permits or 
 suffers thieves or reputed thieves to meet or 
 assemble therein shall be liable to a penalty. 
 The appellant, who kept such a place, knowingly 
 permitted thieves or reputed thieves to meet and 
 assemble therein at a meeting held for the pur- 
 pose of collecting money to pay for the defence 
 of a person about to be tried upon a criminal 
 charge, and not in pursuance of any unlawful de- 
 sign, or for the purpose of concerting crimes, or 
 for misbehaviour. The appellant was convicted 
 under the above section : — Held, that the magis- 
 trate' was right in so convicting him. Marshall v. 
 Fox, 40 Law J. Eep. (n.s.) M. C. 142 ; Law Eep. 
 6 Q. B. 370. 
 
 HABEAS COEPUS. 
 
 1. — The mother of a child, between ten and 
 eleven years of age, although a Eoman Catholic, 
 had consented to the child being placed in a Pro- 
 testant school for destitute children. Being ill, 
 from consumption, in a workhouse infirmary, she 
 
 HACKNEY CAEELAGE. 
 
 1. — By an Act, 4 Vict. c. xvi., s. 145, if the 
 driver of any hackney carriage .... shall be 
 found standing or plying for hire within the limits 
 of the Act without a license, &c., he shall be liable 
 to a penalty. There is no definition of a hackney 
 carriage in the Act : — Held, that the words " hack- 
 ney carriage " must be taken to mean a carriage 
 exposed for hire to the public, whether standing 
 in the public street or in a private yard. Bateson 
 V. Oddy, 43 Law J. Eep. (n.s.) M. C. 131. 
 
 2.— By 6 & 7 Vict. e. 86, s. 2, the word "hack- 
 ney carriage " shall include. every carriage (except 
 a stage carriage) which shall stand on hire or 
 apply for a passenger for hire at any place within 
 the limits of the city of London and the liberties 
 
HACKNEY CARRUGE-HAKBOUR. 
 
 273 
 
 thereof and metropolitan police dislrict. By sec- 
 tion 33 every driver of a hackney carriage who 
 shall apply for hire elsewhere than at some stand- 
 ing or place appointed for that purpose, or who by 
 by loitering or any wilful misbehaviour sliall cause 
 any obstruction in or upon any public street, road 
 or place is liable to a penalty. The appellant was 
 convicted of plying for hire elsewhere than at 
 some standing or place appointed for that purpose. 
 He was the servant of a cab proprietor, who was 
 also the occupier of a public-house immediately 
 opposite to a railway station. In front of the 
 public-house, and between it and the road, was 
 an open piece of ground belonging to the public- 
 house, and private property. Here the appellant 
 stood with his master's cab, took up a person who 
 hailed him, and afterwards returned to his former 
 position. The place was not appointed by the 
 Commissioners of Police as a stan(Sng for hackney 
 carriages : — Held, that the conviction was wrong, 
 for the Act 6 & 7 Vict. c. 86, was not intended to 
 alter the 1 & 2 Will. i. e. 22, as to the place where 
 it was legal to " ply for hire," but only to extend 
 the area of the Acts, and therefore section 33 
 might be interpreted to mean " elsewhere in a 
 public place," a description which did not apply 
 to the appellant's premises. Skinner v. Usher, 
 41 Law J. Rep. (nr.s.) M. 0. 158 ; Law Rep. 7 
 Q. B. 423. 
 
 3.— By section 7 of 32 & 33 Vict. c. 115, if any 
 unlicensed hackney or stage carriage plies for 
 hire, the owner of the carriage is to be liable to 
 a penalty, and the driver to a like penalty, unless 
 he proves that he was ignorant of the fact of the 
 carriage being unlicensed. By arrangement with 
 arailway company, 0., the owner of an unlicensed 
 fly, sent it to the station of the company to await 
 the arrival of the trains. It was driven by G. and 
 waited in the enclosed yard of the company with 
 the view of taking any of the passengers as a fare : 
 — Held, that C. and G. were liable to the penalty 
 above mentioned as being the owner and driver 
 respectively of an unlicensed hackney carriage 
 plying for hire. Clarke v. Stanford, 40 Law J. 
 Rep. (n.s.) M. 0. 151 ; Law Rep. 6 Q. B. 357. 
 
 4. — The owner of a brougham which he himself 
 drove, and which was unlicensed as a hackney car- 
 riage, was allowed by a railway company the pri- 
 vilege of s( anding his carriage within their railway 
 station, for the purpose of being hired by passen- 
 gers arriving by their railway, and whilst there 
 with his carriage alongside the arrival platform, he 
 spoke to two such passengers, with the object of 
 getting his carriage hired : — Held, on the autho- 
 rity of Clarke v. Stanford (see last case), that this 
 was a plying for hire by an unlicensed hackney 
 carriage within the meaning of section 7 of the 
 Metropolitan Public Carriage Act, 32 & 33 Vict, 
 c. lis. AUen v. TvMhridge, 40 Law J. Rep. (n.s.) 
 M. C. 197 ; Law Rep. 6 C. P. 481. 
 
 5. — By 32 & 33 Vict. u. 115, a Secretary of 
 State may license hackney carriages to be distin- 
 guished as he may order, such license to be granted 
 at such price, on such conditions, in such form, 
 and generally to be dealt with .as he may prescribe 
 by order ; may by order make regulations for fixing 
 
 Digest, 1870-1876. 
 
 the fares for time and distance, and for secttting 
 their due publication ; and may annex a penalty 
 for breach of an order or regulation. A Secretary 
 of State made an order that the application for 
 a license should specify the proposed fares ; that 
 the carriage should be examined and numbered ; 
 that a license specifying the number and the fares 
 should be granted ; and that such fares should be 
 put on a flag on the carriage ; and provided a pe- 
 nalty for breach of the order : — Held, that the 
 order was valid, and the penalty for not having a 
 flagi inscribed with the feres enforceable. Bockviig 
 V. <7b«es, 40 Law J. Rep. (n.s.) M. 0. 19; Law 
 Rep. 6 C. P. 29. 
 
 Wilful trespass hy cahdriver. [See Rail- 
 way, 42.] 
 
 Carriage plying for hire without, license. 
 [See Towns Police Act, 1 .] 
 
 HARBOUR. 
 
 1, — By the Harbours, Docks and Piers Clauses 
 Act, 1847 (10 Vict. c. 27), section 74, " the owner 
 of every vessel shall be answerable to the under- 
 takers for any damage done by such vessel, or by 
 any person employed about the same, to the har- 
 bour, dock, or pier ; and the master, or person 
 having the charge of such vessel, through whose 
 wilful act or negligence any such damage is done, 
 shall also be liable to make good the same, &c., 
 provided always that nothing herein contained 
 shall extend to impose any liability for any such 
 damage upon the owner of any vessel where such 
 vessel shall, at the time when such damage is 
 caused, be in charge of a duly licensed pilot, whom 
 such owner or master is bound by law to employ, 
 and put his vessel in charge of." A vessel, Ly 
 inevitable accident, struck against a pier and 
 thereby damaged it: — Held, that the owner of the 
 vessel was answerable for damages under the sec- 
 tion, the proviso making an exception where the 
 vessel is in charge of a pilot, but no exception in 
 case of damage done by inevitable accident. 
 Dennis v. Tovell, 42 Law J. Rep. (n.s.) iVl. C. 33 ; 
 Law Rep. 8 Q. B. 10. 
 
 2. — By 64 Geo. 3. c. 1 59, s. 1 4, in order to pre- 
 vent damage being done to the shores and banks of 
 the ports, harbours or havens in this kingdom, no 
 person or persons shall take any ballast or shingle 
 from the shores or banks or any portion of the 
 shores or banks of any port, harbour or haren of 
 this kingdom, from which the Af'miralty Commis- 
 sioners (now by 26 & 26 Vict. c. 69, s. 16, the 
 Board of Trade instead) shall find it necessary for 
 the protection of such port, harbour or haven, or 
 the works thereof, by order to prohibit the taking 
 or removing of such shingle or ballast under a cer- 
 tain penalty; and by 9 & 10 Vict. c. 102, s. 16, 
 the Commissioners of Customs may annul the. 
 limits of any port, &c., declare it no longer a port, 
 &c., and alter or vary the names, bounds or limits 
 of any such port, &c. In the year 1848, by an 
 order under the latter Act, the limits of the port 
 of Hull were extended and defined, and the sea 
 NN 
 
274 
 
 HABBOUR-HIGHWAY (B). 
 
 shoro between Flamborougli Head and the Spurn 
 Point (formerly in the port of Bridlington sup- 
 pressed by the said order) placed within them ; 
 and in the years 1868 and 1869, by orders under 
 the former Act, persons were prohibited from tak- 
 ing ballast or shingle from certain parts of the 
 shore so added to the port of Hull : — Held, that 
 the powers conferred by 64 Geo. 3. i;. 159, s. 14, 
 are not confined to that which is geographically or 
 popularly, or was at the time of the Act part of a 
 particular port, but extended to the port in its 
 legal and proper sense ; and that those conferred 
 by 9 & 10 Vict. c. 102, s. 15, are not confined to 
 customs purposes,, and that the orders of the years 
 1868 and 1869 were therefore valid, and persons 
 infringing them liable to the penalty imposed by 
 54 Geo. 3. c. 159, s. 14. Nicholson v. Williams, 
 40 Law J. Rep. (sr.s.) M. C. 159 ; Law Rep. 6 
 Q. B. 632. 
 
 HEIRLOOMS. 
 By a settlement made in 1804 real estate was 
 settled to the use of C, third Earl of Harrington, 
 for life, with remainder to his first son, Lord Pe- 
 tersham, for life, remainder to the first and other 
 sons successively of Lord Petersham, in tail male, 
 with similar remainders in succession, to the eight 
 other sons of the third earl for life, and their 
 respective first and other sons in tail _ male ; 
 remainder to the third earl in fee. By his will 
 made in 1824 the third earl gave chattels upon 
 trust " for the person or persons who for the time 
 being should, under the limitations in the set- 
 tlement, be in the actual possession of the estates, 
 to the intent that the same chattels might be 
 deemed heirlooms, to go along and for ever be en- 
 joyed with the estates, so far as the rules of law 
 and equity would permit, but so, nevertheless, as 
 thit the same chattels should not, as to the effect 
 or purpose of transmission, vest absolutely in any 
 person who under the settlement should become 
 seized of or entitled to the estates for an estate of 
 inheritance either in possession or reversion, or 
 otherwise, unless such person should attain the 
 age of t wenty-one, or dying under that age shoidd 
 leave issue inheritable under the limitations in 
 the settlement." The testator gave his residuary 
 personal estate upon trusts for investment in lands 
 to be settled to the same uses as those declared in 
 the settlement of 1804. The first tenant in tail 
 in possession died under twenty-one, within the 
 period allowed by the law as to perpetuities : — 
 Held, that the gift was not an executory bequest : 
 — Held, also, that the proviso that no tenant in 
 tail should take absolutely unless he attained 
 twenty-one, was a condition inseparably annexed 
 to the gift, so that any tenant in tail must take 
 subject to it, and if the proviso was void the whole 
 gift was void. But a tenant in tail having become 
 entitled to the chattels absolutely, either as tenant 
 in tail or under the gift of residue, the House pro- 
 nounced no opinion on the validity of the gift. 
 Harrington v. Harrington (H.L.), 40 Law J. Rep. 
 (x.s.) Chanc. 716 ; Law Rep. 6 E. & I. App. 87. 
 
 By Lord Westbury. — The death of the first 
 tenant in tail in possession under twenty-one hav- 
 ing happened within the time allowed by law for 
 the vesting of personalty, the heirlooms on that 
 event under the direction to accompany the real 
 estate, were carried on to the next tenant under 
 the limitations in the settlement. Ibid. 
 
 HERIOT. 
 [See Limitations, Statute of, 3.] 
 
 HIGHWAY. 
 
 (A) Pbesdjiption op Ownehship. 
 
 (B) Dedication of Highway. 
 
 (C) LiABBLITT to BEPAm. 
 
 (D) Exemption prom Highway Rate. 
 
 (E) Divebtinq and Stopping up. 
 (fl) Notice of vestry meeting, 
 lb) Form of certificate. 
 
 (c) Notice of appeal. 
 
 (F) Nuisances and Obsteuctions. 
 {a) Bight to plough v/p. 
 
 (J) Bight to carriage way across foot pave- 
 
 (c) Invalidity of custom to obstruct. 
 
 \d) Powers of highway board to dig wp high- 
 way. 
 
 (c) Obstruction of namgable lake. 
 (G) Enceoachment. 
 (H) SuEVEYOE OF Highways. 
 
 (a) Liability for negligence. 
 
 (A) lAability for trespass by order of board. 
 
 (c) Notice of actio7i against, 
 
 (d) Mandamus to, to summuni a vestry. 
 («) Surveyor's accounts. 
 
 (I) Personal Liability of Members of High- 
 way Board. 
 
 (A) Presumption of Ownership. 
 [See Presumption.] 
 
 (B) Dedication of Highway. 
 
 1. — A highway cannot be created by statute 
 unless the provisions of the statute creating it are 
 strictly followed. Citbitt v. Maxse, 42 Law J. 
 Rep. (n.s.) 0. P. 278 ; Law Rep. 8 C. P. 704. 
 
 By the General Inelosure Act, 41 Geo. 3. c. 109, 
 es. 8 and 9, the Commissioner, before making the 
 allotments of the land to be enclosed, was to set 
 out such roads as he should judge necessary, and 
 to appoint a surveyor to form and complete the 
 same, and until so formed and completed tie parish 
 was not to be bound to repair such roads, but after 
 that time they were to be for ever after kept in 
 repair by the parish. An Inelosure Commissioner 
 appointed to act under a local Inelosure Act, sub- 
 ject to the provisions of 41 Geo. 3. c. 109, duly 
 set out a road which he described in his award 
 made in 1808, but although such road was staked 
 out on the ground and fenced off from the adjoin- 
 
HIGHWAY (B), (E). 
 
 276 
 
 ing allotments on either side, it was never formed 
 and completed as required by the 41 Geo. 3. o. 109, 
 nor was it ever used by the public : — Held, that as 
 the requirements of the statute had not been com- 
 plied with, the road so set out was not a highway 
 created by statute, and as there had been no user, 
 and therefore no acceptance of the road by the 
 public, it was not otherwise a highway. Ibid. 
 
 [And seq next case.] 
 
 (C) Liability to repair. 
 
 2. — A private roEid, set out under an inclosure 
 award, may, upon proof of sufficient user by the 
 public before the passing of the Highway Act, 
 6 & 6 Will. 4. c. 50, be deemed to be a highway 
 which the parish or township is compellable to 
 repair, though the award provides that such road 
 is for ever thereafter to be kept in repair by the 
 owners or occupiers of the adjoining land. The 
 Queen v. The Inhabitants of Bradjield, 43 Law J. 
 Bep. (h.s.) M. C. 155 ; Law Kep. 9 Q. B. 652. 
 
 3.— Under 5 & 6 Will. 4. i;. 50, s. 23, where a 
 person is about to dedicate a new road to the public, 
 and seeks to make it repairable by the parish, 
 and gives notice to the surveyor that at the end 
 of three months it will be dedicated, it is the duty 
 of the surveyor to call a vestry meeting of the 
 inhabitants of the parish, and if such meeting 
 decides that the road is not of sufficient utility to 
 Justify its being kept in repair at the expense of 
 the parish, it is his further duty to summon the 
 party proposing to dedicate before the justices at 
 the next special sessions for highways, who are to 
 decide on the question of the utility of the road ; 
 but if the surveyor omits to summon the party, at 
 the next special sessions after such vestry meeting, 
 the parish is not liable to repair the road, and a 
 mandamus wiU not lie to the justices, after such 
 special sessions have been passed over, and after 
 the three months mentioned in the notice have 
 expired, to view and certify that the road has been 
 substantially made. TAe Queen v. Bagge and 
 another. Justices of Norfolk, 44 Law J. Eep. (n.s.) 
 M.C. 45. 
 
 Semble — a mandamus would lie to the surveyor 
 to summon the vestry or the party before the 
 special sessions, and semble per Blackburn, J., 
 after the three months had expired. Ibid. 
 
 Highway repairable by the inhabitants at 
 large within the Public Health Act, 1848, 
 «cc. 69. [SeePuBLic Health, 12, 14.] 
 
 (D) Exemption from Hi&hway Bate. 
 
 4. — An occupier of land, forming part of a 
 highway district, who claims exemption from high- 
 way rates, must shew that there is some considera- 
 tion for such exemption, and it is not sufficient to 
 shew that none of the inhabitants of the land, or 
 the occupiers thereof, have ever paid highway 
 rates, or done statute work, or paid composition 
 in lieu of highway rates. — Lush, J., dissentiente. 
 The Queen v. EolUtt, 44 Law J, Rep. (n.s.) M. C. 
 190; Law Eep. 10 Q.B.469. 
 
 (E) DiTEETINa AOT) STOPPING TTF. 
 
 (a) Notice of vestry meeting. 
 
 5.— By the Highways Act, 5 & 6 Will. 4. e. 60, 
 s. 84, " when the inhabitants, in vestry assembled, 
 shall deem it expedient that any highway should 
 be stopped up, diverted or turned .... the chair- 
 man of such meeting shall, by an order in writing, 
 direct the surveyor to apply to the justices to view 
 the same, &c." (specifying other proceedings for 
 stopping up or diverting the highway). By 58 
 Geo. 3. c. 69, s. 1, no vestry shall be holden until 
 public notice shall have been given of such vestry, 
 and of the place and hour of holding the same, 
 and the special purpose thereof, three days at the 
 least before the day to be appointed for holding 
 such vestry, by the publication of such notice in 
 the parish church or chapel, &c. 
 
 Notice of a vestry meeting was given in the 
 words following: — "Hamlet of Trevecca. — I, the 
 undersigned, hereby give notice that a meeting of 
 the ratepayers of the above hamlet will be held at 
 
 the Vestry Eoom, &c for the purpose of 
 
 taking into consideration the proceedings now 
 
 taken by Mr. John Parry, of , against Mr. 
 
 Ehys Davies, surveyor of the Talgarth District 
 Highway Board, respecting Blaenanbach Road, and 
 for other purposes connected -nith the highways of 
 the above hamlet." 
 
 The meeting so convened passed a resolution 
 that the road should be stopped up, under the 
 Highways Act, 6 & 6 Will. 4. c. 50, s. 84 :— Held, 
 that, having regard to the fact that proceedings 
 had been taken for compelling the parish to repair 
 the highway, the notice sufficiently informed the 
 public that any steps which might be necessary for 
 defeating these proceedings, such as stopping up 
 the highway, would be considered by the vestry, 
 and that the meeting was therefore duly convened. 
 The Queen v. Powell, 42 Law J. Rep. (n.s.) M. C. 
 129; Law Eep. 8 ft.B. 403. 
 
 (A) Form of cet tificate. 
 
 6. — A certificate of two justices relative to the 
 stopping up of a highway did not state that the 
 surveyors, at whose request, it was alleged, the 
 justices viewed the highway, had first duly ob- 
 tained the consent of the inhabitants in vestry 
 assembled to the proposed stopping up of the 
 highway, after a notice in writing from the party 
 desirous of stopping up the same, requiring the 
 surveyors to convene a meeting of the vestry for 
 the purpose of obtaining such consent, or that the 
 surveyors were, at the time of the said request to 
 view, in possession of and acting under an order 
 in writing of the chairman of a meeting of the 
 inhabitants in vestry assembled : — Held, in oppo- 
 sition to the dictum in The Queen v. The Justices 
 of Worcestershire (3 E. & B. 477 ; 23 Law J. Eep. 
 (n.s.) M. C. 113) that the certificate was not bsid 
 for not containing statements as to these matters. 
 The Queen v. Hervey, 44 Law J. Rep. (n.s.) M. 0. 
 1; Law Rep. lOQ.B. 46. 
 
 [And see next case.] 
 hn2 
 
276 
 
 HIGHWAY, (E), (F). 
 
 ((!) Notice of appeal, 
 
 7.— Section 88 of 6 & 6 Will. 4. c. 50, providee 
 that it shall be lawful for any person who may 
 think that he would be injured or aggrieved if any 
 highway should be ordered to be diverted and 
 turned or stopped up, to make his complaint 
 thereof by appeal to the justices of the peace at 
 the Quarter Sessions, "upon giving to the sur- 
 veyor ten days' notice in writing of such appeal : " 
 — Held, that notwithstanding this provision, it is 
 necessary to give the fourteen days' notice, re- 
 quired by the 12 & 13 Vict. c. 45, s. 1, which 
 applies to such an appeal. The Queen v. Maule, 
 41 Law J. Eep. (n.s.) M. C. 47. 
 
 Where proceedings are instituted under s. 84 of 
 5 & 6 Will. 4. c. 50, at the desire of a person or 
 persons other than the inhabitants in vestry, for 
 stopping up or diverting a highway, the certificate 
 of the justices need not state that the surveyor 
 was authorised by an authority in writing of the 
 chairman of the vestry meeting, to apply to the 
 justices to view. Ibid. 
 
 (F) NmsANCES AND Obstructions. 
 {a) Eight to plough up. 
 
 8. — A footway across an arable field had from 
 time immemorial at all times of the year been 
 used by all persons, as of right, but the occupier 
 of the field and his predecessors had also from 
 time immemorial, in ploughing the field, ploughed 
 up the footway in such parts as they thought fit, 
 and in other parts lifted the plough across it : — 
 Held, by the Court of Exchequer Chamber, up- 
 holding the decision in Mercer v. Woodgate (39 
 Law J. Kep. M. C. 21), that the surveyors of the 
 parish highways were not justified in repairing 
 the way with hard materials, so as to prevent it 
 from being ploughed, or the plough from being 
 lifted over it, so easily as before, as it must be 
 presumed to have been dedicated to the public 
 subject to the inconvenience of being occasionally 
 ploughed up. Arnold v. Blaker, 40 Law J. Eep. 
 (n.s.)Q.B. 185 ; Law Eep. 6 Q. B. 433. 
 
 9. — The public had a right to use a footpath 
 across the field of A., but subject to the right of A. 
 to plough it up when he ploughed the rest of the 
 field. He did so plough it up, and having done so, 
 did not set out or mark the line of the path, but 
 left the public to tread it out. The public con- 
 tinued to walk across the field in the direction in 
 which the path had been, but soon finding the 
 path in a muddy and bad condition, turned out of it, 
 and walked on either side thereof. To prevent 
 them from doing so, A. placed hurdles on the parts 
 upon which the public so walked, leaving a space 
 of about six feet in width where the path had been. 
 The respondent having thrown down the hurdles, 
 an action was brought against him by A. in a 
 Ooiiuty Court. The Judge having given judgment 
 in favour of the respondent, the Court reversed 
 such judgment, holding that the respondent could 
 not claim a right to go off the line of the footpath 
 or a right to pull down the hurdles. Arnold v. 
 Holhrook, 42 Law J. Eep, (n.s.) Q, B. 80 ; Law Eep. 
 8 Q. B. 96, 
 
 (J) Right to carriage way across foot pavement. 
 
 10. — The respondent was owner and occupier 
 of premises consisting of a yard, building, and 
 railway arches, in a metropolitan parish. These 
 premises abutted upon a highway consisting of a 
 foot pavement and roadway, and had a gateway 
 opening on to the pavement. For sixty years 
 and upwards, whenever the occupier of premises 
 abutting on the footway wished to have access to 
 them, across the footway for carts, &c., it was the 
 practice for him to apply to the highway board, or 
 vestry, for permission to construct the necessary 
 way, which was usually granteJ. The respondent 
 after taking possession of his premises began to use 
 them for the deposit of heavy machinery, the only 
 use, owing to the character of the neighbourhood, to 
 which they could be put. He at first conveyed the 
 machinery across the causeway by means of rollers 
 and levers, but this being objected to as an ob- 
 struction of the thoroughfare, he applied to the 
 vestry for leave to take up the pavement and 
 make a carriage way. This leave was refused, and 
 he then conveyed it to and from his premises in 
 waggons across the flagged footway. The weight 
 of the machinery in the waggons crushed the 
 paving stones and obstructed the way, and the 
 appellants took out a summons against him under 
 6 & 6 Will. 4. c. 50, 3. 72, for a nuisance. The 
 magistrate dismissed the summons, finding as a 
 fact that " the premises could not be reasonably 
 enjoyed without access over the existing footway, 
 and that the rights of ownership and those of the 
 public might be jointly exercised consistently with 
 the general welfare : " — Held, upon a case raising 
 the question whether the magistrate was bound to 
 convict, that the respondent was entitled to judg- 
 ment, as the owner of land, who dedicates part of 
 it as a public way, may enjoy all rights not incon- 
 sistent with the dedication, and that the respon- 
 dent did not appear to have exceeded these rights. 
 The Vestry of St. Mary, Newington, v. Jacobs, 41 
 Law J. Eep. (n.s.) M. 0. 72 ; Law Eep. 7 Q,.B. 47. 
 
 (o) Invalidity of custom to obstruct. 
 
 11.— Under 6 Eliz. c. 4, s. 48, it is lawful to 
 hold Petty Sessions, otherwise called Statute Ses- 
 sions, in all shires wherein such sessions have been 
 used to be kept, but there cannot be a legal cus- 
 tom to put up stalls for refreshments at such ses- 
 sions, on the public highway. And if such stalls 
 are put up so as to obstruct the free passage of a 
 public highway, the persons putting them up are 
 liable to be convicted under s. 72 of 5 & 6 Will. 4. 
 c. 60. Simpson v. Wells, 41 Law J. Eep. (n.s.) 
 M. C. 105 ; Law Eep. 7 Q,. B. 214. 
 
 The jurisdiction of justices is not ousted by a 
 claim of right to put up such stalls. Ibid. 
 
 (d,) Powers of highway board to dig up highway. 
 
 12. — A highway board may make and enforce 
 an agreement with a gas company that the gas 
 company may dig up the highway and pay at per 
 yard for the surface broken. The Edgware High- 
 way Board v. Thi Harrow District Gas C'mpany, 
 
HIGHWAY (F), (H). 
 
 277 
 
 44 La-w J. Rep. (n,s.) M. C. 16 ; Law Eep. 10 
 Q. B. 92. 
 
 13. — Declaration, that it was agreed between 
 the plaintiffi (a highway board) and the defendants, 
 that if the plaiutifis would allow the defendants 
 to open a highway within the jurisdiction of the 
 plaintiffs, the defendants would make good the 
 surface and pay one shilling per yard of the high- 
 way opened, that the license was given and acted 
 upon, and neither the surface made good by the 
 defendants, nor the one shilling per yaid paid : — 
 Held, on demurrer, a good declaration ; that the for- 
 bearance of the plaintiffs to interfere, and their 
 submission to the risk of having to repair the 
 highway themselves, amoimted each of them to a 
 sufficient consideration for the agreement, and, 
 further, that the consideration was not illegal, as 
 the performance of the agreement by the defend- 
 ants did not necessarily involve a nuisance to the 
 highway. The Edgware Highwat/ Board v. The 
 Harrow District Gas Company, 44 Law J. Eep. 
 (n.s.) Q. B. 1 ; Law Eep. 10 Q. B. 92. 
 
 (e) Obstruction of navigable lake. 
 [See Teespass, 3.] 
 
 (G) Encroachment. 
 
 14.— By ». 51 of 27 & 28 Vict. c. 101, if any 
 person shaE encroach by making or causing to be 
 made any building or pit, or hedge, ditch, or other 
 fence, &c., on the side or sides of any carriage way 
 or cart way within 15 feet of the centre thereof, 
 &c., he shall be subject, on conviction for any such 
 offence, to any sum not exceeding 40s., notwith- 
 standing that the whole space of 15 feet from the 
 centre of such carriage-way or cart-way has not 
 been maintained with stones or other materials 
 used in forming highways : — Held, that this enact- 
 ment only applies to persons who have committed 
 the alleged encroachment upon the carriage-way 
 or cart-way, or upon that part of the side thereof 
 which has been dedicated to the public. Eastom. 
 The Highway Board of the Richmond Highway 
 District, 41 Law J. Rep. (n.s.) M. 0. 25 ; Law Eep. 
 7Q.B. 69. 
 
 (H) SUBTETOE OF HiGHWATS. 
 
 (a) Liability fornegligence. 
 
 15. — A Local Board of Health being, under the 
 117th section of the Public Health Act, 1848, 
 surveyor of highways, is liable to an action at the 
 suit of a person, who, when passing along the 
 highway, is injured by reason of the servants of 
 the Local Board negligently leaving a heap of 
 stones upon the highway. Foreman v. The Mayor, 
 ^c, of Canterbury, 40 Law J. Rep. (n.s.) Q. B. 
 138 ; Law Rep. 6 Q. B. 214. 
 
 Qtiaere — whether, if the negligence was that of 
 the surveyor appointed by the Board under section 
 37, and who could not be removed without the 
 approval of the General Board of Health, there 
 would be such liability. Ibid. 
 
 16. — The defendant had been appointed by the 
 vestry surveyor of highways. The vestiy resolved 
 that a part of a highway should be raised, and 
 
 ordered the defendant to employ men to do it. He 
 contracted with G. to do the work, at so much per 
 yard, and the vestry found the materials. G. em- 
 ployed his own men, and proceeded to perform the 
 work. The defendant did not personally interfere 
 with the work. G. left the road in such a state 
 that the plaintiff, in driving along by night, was 
 overturned and injured. The defendant did not 
 give any direction that the road should be left, in 
 such a state : — Held (in an action by the plaintiff), 
 that the defendant was not liable. Taylor v. 
 Greenhalgh. Fendlebury v. Same, 43 Law J. Rep. 
 (N.s.) Q. B. 168 ; Law Eep. 9 Q.B. 487. 
 
 [And see Negligence, 9, 10, 14.] 
 
 (6) Liability for trespass by order of board. 
 
 17. — If a highway board acting as a corpora- 
 tion order the district surveyor to commit a tres- 
 pass on private property within the district of the 
 board, for the purpose of removing an obstruction 
 from a disputed highway, the surveyor is liable to 
 an action if he obeys the order and commits the 
 trespass. So held, afBrming the decision of the 
 Court below (43 Law J. Eep. (n.s.) Exch. 129 ; 
 Law Eep. 9 Exch. 309) on that question, leaving 
 untouched the decision of that Court (see next 
 note) that the individual members of the board 
 are personally liable to an action of trespass. 
 Mill V. Hawker (Exch. Ch.), 44 Law J. Eep. (n.s.) 
 Exch. 49; Law Eep. 10 Exch. 92. 
 
 18. — A highway board under 25 & 26 Vict. c. 
 61, has no authority to determine whether a dis- 
 puted highway is or is not a highway, or to order 
 the removal of an obstruction from a disputed 
 highway. That statute, by section 9, sub-section 
 6, protects the members of the board from liability 
 by reason of any "lawful act done by them in 
 execution of any of the powers of the board ; " 
 but if the board, acting as a corporation, order the 
 surveyor to commit a trespass on private property 
 for the purpose of removing an obstruction from a 
 disputed highway, such an order is ultra vires, and 
 the members of the board who concur in giving 
 the order are personally liable and may be sued 
 for the trespass, though they have acted bond fide. 
 The surveyor who obeys such an order and commits 
 the trespass is also liable to be sued ; and he is 
 not protected from such a liability by section 16, 
 which requires him " in all respects to conform to 
 the orders of the board in the execution of his 
 duties." — So held per Pigott, B., and Cleasby, B. ; 
 dissentiente Kelly, C. B. Mill v. Hawker, 43 Law 
 J. Eep. (n.s.) Exch. 129 ; Law Eep. 9 Exch. 309. 
 
 (c) Notice of action against. 
 
 Notice of action against surveyors of high- 
 ways. [See Action, 12.] 
 
 (d) Mandamus to, to swnmon vestry. 
 [See supra No. 3.] 
 
 (e) Siirveyor's accounts. 
 19. — Justices, sitting at a special sessions for 
 highways, have no power, under section 44 of 5 & 
 6 Will. 4. c. 60, to allow charges in the surveyor's 
 
278 
 
 HIGHWAY (H)— IMPRISONMENT FOE DEBT. 
 
 accounts ■vchicli are illegal by reason of the pro- 
 visions of the 46th section of that Act. 'Barton 
 V. Piggott, 44 Law J. Eep. (n.s.) M. C. 5 ; Law Eep. 
 10 a. B. 86. 
 
 (I) Peesonal Liability of Members of High- 
 way BOASD. 
 
 [See supra No. 18.] 
 
 HOSIEEY. 
 
 The Hosiery Manufacture (Wages) Act, 1874 
 (37 & 38 Vict. c. 48), s. 3, enacts— "If any em- 
 ployer shall bargain to deduct or shall deduct, 
 directly or indirectly, from the wages of any arti- 
 ficer in his employ any part of such wages for 
 frame-rent and standing or other charges, or shall 
 refuse or neglect to pay the same or any part 
 thereof in the current coin of the realm, he shall 
 forfeit a sum of five pounds for every offence, to 
 be recovered by the said artificer, or any other 
 person suing for the same, in the County Court in 
 the district where the offence is committed, with 
 full costs of suit." The plaintiff, a haudframe 
 worker, was in the employment of the defendants, 
 who were hosiery manufacturers. By the regula- 
 tions of the factory he was liable to a fine of 8d 
 a day for staying away from work without permis- 
 sion. The plaintiff, having been fined for such 
 absence and the amount having been deducted 
 from his wages, brought an action to recover from 
 the defendants the penalty mentioned in section 3 : 
 — Held, that the employer was prohibited from 
 deducting from the wages of the artificer frame- 
 rent and standing or other charges ejtesdem, generis 
 with rent and standing, but that fines were not 
 charges within the meaning of section 3, and 
 therefore the defendants had not incurred the 
 penalty under that section. Willis v. Thorp, 44 
 Law J. Eep. (n.s.) Q.B. 137 ; Law Eep. 10 Q. B. 
 383. 
 
 HOSPITAL. 
 Eating of. [See Eate, 12, 31.] 
 
 HOTCHPOT. 
 [See Will, Construction, M.] 
 
 HOUSE OF LOEDS. 
 
 Decisions binding on Home. 
 
 1. — Decisions of the House of Lords upon ques- 
 tions of law, as the construction of statutes, and 
 especially of fiscal Acts, are binding upon the 
 House in subsequent cases. 2'Ae Commissioners oj 
 Inland Sevenue v. Harrison, 43 Law J. Eep. (n.s.) 
 Exch. 138; Law Eep. 7 E, & I. App. 1. 
 
 What guestions appealable. 
 
 2. — A question depending on a mere preponder- 
 ance of a balance of evidence ought not to be 
 brought before an appellate tribunal. Gray v. 
 TwrrthuLl, Law Eep. 2 Sc. App. 53. 
 
 3. — Appeal entertained though the amount of 
 damages was infinitesimal. Neilson v. Betts 
 (H.L.), 40 Law J. Eep. (n.b.) Chanc. 317; Law 
 Eep. 5 E. & I. App. 1. 
 
 Election between enquiry as to the plaintiff's 
 damages and the defendant's profits. Ibid. 
 
 4. — An appellant in the House of Lords will 
 not be allowed to raise a merely technical objection 
 which was disposed of in the Court of first instance 
 and which he failed to raise in the intermediate 
 Court of Appeal. Hilliard v. Eiffe, Law Epp. 9 
 E. & I. App. 39. 
 
 Practice in appeals. 
 
 6. — Case in which the House rectified the decree 
 below so as to suit the pleadings. The Parish of 
 Bathven v. The Parish of Elgin, Law Eep. 2 Sc. 
 App. 535. 
 
 6. — An alteration in a decree will not be made 
 by the House of Lords on the application of a 
 person who is not an appellant. Yates v. The 
 University College, London, Law Eep. 7 E. & I. 
 App. 438. 
 
 7. — Interest will as a matter of course be given 
 for the time that execution has been delayed by a 
 proceeding in error. The Lancashire and Yorkshire 
 Bailway Company v. GHdlow, Law Eep. 7 K. & I. 
 App. 617. 
 
 8. — Although the rule of the House of Lords, 
 where the decree appealed from is reversed or 
 varied, is that the respondent is not fixed with the 
 costs of the appeal, yet where the appellant had 
 offered to withdraw the appeal and to pay the 
 respondent's costs on condition that the respondent 
 submitted to a variation in the decree to which 
 the House held that he was entitled, and the re- 
 spondent refused to consent to the proposal, the 
 House marked its disapproval of the respondent's 
 conduct by directing him to pay all the costs 
 incurred after the date of the making of the offer 
 by the appellant. Be Vitre v. Betts (H. L.), 42 Law 
 J. Eep. (N.s.) Chanc. 841 ; Law Eep. 6 E. & I. 
 App. 319. 
 
 As to practice and jvHsdiction on Scotch 
 appeals. [See Scotch, Law.] 
 
 ILLEGITIMACY. 
 [See Bastardy ; Legitimacv Declaeatiok Act.] 
 Whether entitled under gift to children. 
 [See Will, Construction, H 11-17.] 
 
 IMPEISONMENT FOE DEBT. 
 [See Debtors Act.] 
 
INCLOSURE— INDICTMENT. 
 
 279 
 
 INCLOSUBE. 
 
 (A) Right of Pastueaqe of Lord of Manob. 
 
 (B) Right of Spoeting of Lord of Manor. 
 
 (A) Right of Pasturage of Lord op Manor. 
 
 1. — The words, in section 27 of 8 & 9 Vict. 0. 
 118, "right of pasturage ■which may have been 
 usually eigoyed by the lord or his tenants," mean 
 rights of common or pasturage, de facto enjoyed 
 by the lord and his tenants in respect of the 
 demesne lands, for such a period as, but for the 
 fact that the lord was the freeholder both of the 
 dominant and servient tenement, would be evidence 
 of an immemorial right. Musgrave v. The Inch- 
 sure Commissioners for England and Wales, 43 
 Law J. Eep. (n.s.) Q. B. 80 ; Law Rep. 9 Q. B. 
 162. 
 
 A provisional order, sUent as to any such rights, 
 was assumed to have omitted to take them into 
 accoimt in the allotment to the lord. Ibid. 
 
 There being claims to pasturage over different 
 parts of the waste in respect of seven farms, and 
 no objection being made before the valuer and 
 assistant commissioner, — Held, that these officers 
 had no power, in the absence of any such objection, 
 to disallow a claim. Ibid. 
 
 (B) Right of Sporting of Lord of Manor. 
 
 2. — The lords of the manor of K., in which 
 there was waste land, were the owners of the soil, 
 subject to rights of common. As an incident to 
 the ownership of the soil, they had a right to take 
 the game. Under the powers conferred by 8 & 9 
 Vict. c. 118, and 11 & 12 Vict. c. 99, the waste 
 lands of the manor were inclosed, and certain por- 
 tions allotted to T. M. The Commissioners made 
 a provisional order, and declared as one of the 
 conditions on which they were of opinion that 
 the inclosure should be made, "that one-sixteenth 
 part in value of the said lands be allotted under the 
 provisions of the said Act to the said lords of the 
 said manor, in lieu of their right and interest in 
 the soil of the said lands, exclusively of their right 
 and interest in the game, and in aU mines, minerals, 
 stone and other substrata under the said lands." 
 The defendants, by the authority of T. M., kiUed 
 game upon the land allotted to him : — Held, that 
 the Commissioners had power to impose the con- 
 dition that the right to the game should be in the 
 lord, that the language used by them was sufficient, 
 and that consequently the right of taking the game 
 was in the lord, who might maintain an action 
 against the defendants for killing game on the 
 allotment. Musgrave v. Forster, id Law J. Rep. 
 (n.s.)O.B.207. 
 
 3. — The reservation clause of an inclosure Act 
 enacted that nothing in the Act should prejudice 
 the right of the lords or ladies of a certain manor 
 " of, in or to the seignory or royalties incident or 
 belonging to such manor or lordship, or either or 
 any of them ; but that the present and all suc- 
 ceeding lords of the manor should and might, from 
 time to time, and at all time, hold and enjoy all 
 
 rents, &c., and rights of fishery, and liberty of 
 hawldng, hunting, coursing, fishing and fowling 
 within the said manor, and all toUs, fairs," &c., 
 "royalties, jurisdictions, franchises, matters and 
 things whatsoever to the said manor, or to the 
 lord thereof incident .... other than and except 
 such common right as could or might be claimed 
 by the then lord as owner of the soil and inheri- 
 tance of the said commons or waste grounds:" 
 — Held (per Cookburn, C.J., Mellor, J., Bramwell, 
 B., and Amphlett, B.), affirming the judgment oi 
 the majority in the Court of Common Pleas (42 
 Law J. Rep. (n.s.) C. P. 233 ; Law Rep. 8 C. P. 
 514) (Cleasby, B., and Pollock, B., disseatient- 
 ibus), that the reservation clause referred only to 
 the seignorial or manorial rights of the lady of 
 the manor, and did not extend to her territorial 
 right, as owner of the soil, of shooting over the 
 allotted lands. Sowerbv v. Smith (Exeh. Ch.), 43 
 Law J. Rep. (n.s.) C. P. 290 ; Law Rep. 9 C. P. 
 524. 
 
 INCOME TAX. 
 
 Commissioners empowered by Act of Parlia- 
 ment to levy a duty on every ton of coal, culm, &e., 
 landed on the beach at, or brought into and con- 
 sumed within the town of Brighton, for the purpose 
 of erecting and maintaining groines against the 
 inroads of the sea, were by a later Act authorised 
 tx) form from these coal dues, and from other rates 
 they were then also empowered to levy, a common 
 fund for the purposes of lighting, watching, &c., 
 as well as for the maintenance of groins : — Held, 
 that these dues were property or profits within 
 the meaning of the Income Tax Act, and that they 
 were chargeable with income tax accordingly. 
 The Attorney- General v. Black (Exch. Ch.), 40 Law 
 J. Rep. (n.s.) Exch. 194 ; Law Rep. 6 Exch. 308 : 
 affirming the judgment of the Court of Exchequer, 
 40 Law J. Rep. (n.s.) Exch. 89 ; Law Eep. 6 
 Exch. 78. 
 
 INDECENT ASSAULT. 
 [See Assault, 2, 3 ; Nitisancb, 9.] 
 
 INDEMNITY. 
 
 Implied contract : delivery of goods toperson 
 not being the owner thereof at his re- 
 quest. [See Contract, 30.] 
 
 INDICTMENT. 
 
 (A) Form and Reqotsites in pabtictjiae Oases. 
 
 (B) Amendment. 
 
 (C) Costs. 
 
280 
 
 INDICTMENT— INFANT (A). 
 
 (A) Form and Eeuuisites in partictjlae Cases. 
 
 1, — Indictment for conspiracy to fraudulently 
 remove the goods of a bankrupt: — Held, that it 
 was not necessary to allege that the debtor had 
 been adjudged a bankrupt, as the offence was com- 
 plete if there was an agreement to remove the 
 goods in contemplation of an adjudication being 
 obtained. No such agreement was expressly al- 
 leged, but the defect was held to be cured by the 
 verdict ol' the jury. There is no distinction be- 
 tween civil and criminal pleadings as to defects 
 being cured by the verdict. Heyman v. The Queen, 
 Law Eep. 8 Q. B. 102. 
 
 Allegation of ownership : arson : intent to 
 imjme. . [See Arson, 4.] 
 
 For indecency in public place. [See Nui- 
 sance, 8.] 
 
 Indictment for larceny. [See Laeobnt.] 
 
 For perjury. [See Pbrjuey.] 
 
 For embezzlement. [See Embezzlement.] 
 
 (B) Amendment. 
 
 2. — An indictment alleged that the prisoner 
 stole nineteen shillings and sixpence. The Court 
 prdered it to be amended at the trial by describing 
 the property stolen to be a sovereign, subject to 
 the question whether the Court had power so to 
 do. The jury found the prisoner guilty of stealing 
 a sovereign : — Held, that the Court had power to 
 order the amendment to be made as a variance 
 between the statement and the proof in the de- 
 scription of a thing named in the indictment,. under 
 14 & 15 Viet. c. 100, s. 1. The Queen v. Chimble, 
 
 42 Law J. Eep (n.s.) M. C. 7; Law Eep. 2 C. C. 
 E. 1. 
 
 Indictment for receiving stolen goods : de- 
 fect cured by verdict. [See Eeoeivinq 
 Stolen Goods.] 
 
 (C) Costs. 
 
 3. — Upon the removal of an indictment hy cer- 
 tiorari into the Queen's Bench the prosecutor, on 
 conviction of the prisoner, is entitled to his costs 
 under 16 & 17 Vict. c. 30, s. 5, although he is not 
 the "party grieved or injured" as mentioned in 
 5 & 6 Wm. 4. c. 11, s. 3. The Queen v. Oastler, 
 
 43 Law J. Eep. (n.s.) Q. B. 42; Law Eep. 9 
 a.B. 132. 
 
 INFANT. 
 
 (A) Maintenance. 
 
 (a) On what property chargeable, 
 {b) BegMst for benefit of infant. 
 (e) Maintenance by mx>ther. 
 
 (B) Advancement. 
 
 (C) POWEES OP COUET OF Chancbet ovee 
 
 Infant's Peopeett. 
 (ffl) Sale of reversion. 
 
 (b) Sale of more than reqmred : conversion. 
 
 (c) Eaising fine on copyholds. 
 
 (d) Settlement of property of ward of Court. 
 
 (D) Eeijgiotjs Education. 
 
 (E) CONTItACTS OF InFANT. 
 
 (F) Suit to eecovee Land. 
 
 (G) Guaedian. 
 
 (a) Appointment. 
 (i) Powers and duties. 
 (H) Infants Eblief Act, 1874. 
 
 [2 & 3 Vict. c. 54, repealed. Power to Court 
 of Chancery to order that the mother may have 
 access to and custody of the infant under sixteen. 
 Separation deeds providing for the giving up to 
 the mother of the custody of the children not to 
 be held invalid. 36 & 37 Viet. <;. 12.] 
 
 {Eules of equity as to custody and education of 
 infants to prevail after November the 2nd, 1874. 
 36 & 37 Vict. c. 66, s. 25.] 
 
 [Provisions for the protection of infant life. 
 The Summary Jurisdiction Acts applied. 35 & 
 36 Vict. c. 38.] 
 
 [Amendment of the law as to the contracts of 
 infants. 37 & 38 Vict. e. 62.] 
 
 (A) Maintenance. 
 (ffi) On what property chargeable. 
 
 1.- — The Court has power on petition of an infant 
 owner of real estate to make an order charging 
 his real estate with the cost of his past mainte- 
 nance, and the costs of the petition. In re Howarth, 
 42 Law J. Eep. (n.s.) Chanc. 316; Law Eep. 8 
 Chanc. 415. 
 
 2. — Eeversionary property of infants, some of 
 whom might never become entitled in possession, 
 charged with money required for their mainte- 
 nance. Insurance directed for restoring the money 
 in the event of the infants not becoming entitled. 
 De Witte v. Palin, Law Eep. 14 Eq. 251. 
 
 3. — A legacy of 5,000?. was given to trustees to 
 be expended by them for the benefit and advance- 
 ment of an infant as they in their absolute dis- 
 cretion should think fit. There was also a gift 
 by the same will, of the income of a share of re- 
 sidue to the same infant for life on his attaining 
 twenty-one, with a power to the trustees to apply 
 the income during his minority for his mainte- 
 nance and education. A suit for administration 
 was instituted by the trustees immediately after 
 the testator's death, and orders were from time to 
 time made in it for the advancement, and also the 
 maintenance and education of the infant out of the 
 5,000Z. legacy. On his attaining twenty-one, — ■ 
 Held, that he was absolutely entitled to the un- 
 applied residue of the legacy. Held, also, that 
 inasmuch as maintenance would have been ordered 
 out of the income of the contingent share of the 
 petitioner, he was entitled to be recouped out of 
 the past income of the residuary estate what had 
 been expended out of the 5,000?. legacy for his 
 maintenance and education. Furley v. Hyder, 41 
 Law J. Eep. (n.s.) Chanc. 583. 
 
 4. — The testator, in 1853, devised freeholds to 
 the trustees, upon trusts to pay the rents (after 
 satisfying certain premiums and repairs) to and 
 for the use of his grandson, C. D., for life, and 
 after his decease " to and for the use of all and 
 every child or children of C. D., equally as tenants 
 
INFANT (A), (E). 
 
 281 
 
 in common, who should attain the age of twenty- 
 one years being sons, or being daughters, should 
 attain that age or marry," and if but one such child, 
 to him or her absolutely. The testator devised and 
 bequeathed the residue of his estates to his trus- 
 tees, upon trust to convert, invest, and hold the 
 same, and the accumulations thereof, upon similar 
 trusts for his grandchildren and their issue. He 
 then directed his trustees to apply a competent 
 part of the income of the investments for the 
 maintenance and education of such " grandchildren 
 and their issue ;" and to accumulate the residue, 
 as in his will was mentioned. C. D. attained 
 twenty-one, and died in 1869 leaving three child- 
 ren, still infants : — Held, that they were entitled 
 to maintenance out of the interim rents and profits 
 of the specifically devised freeholds. Best v. 
 SonmaU, 40 Law J. Kep. (n.s.) Chanc. 160. 
 
 (i) Beguest for benefit of infant. 
 
 5. — Interest on a legacy bequeathed in trust to 
 apply the income or principal, for the benefit of 
 an infant, is payable from the death of the testator. 
 In re Richards (Law Eep. 8 Eq. 119) observed 
 upon, but followed. Chidgey v. Whitby, 41 Law 
 J. Eep. (K.s.) Chanc. 699. 
 
 6. — Grift of an annuity to A. in trust for the 
 maintenance of an infant at the discretion of A. ; — 
 Held, that A. must account for all sums not shewn 
 to be applied for the infant's maintenance. Wain- 
 ford V. Heyl, Law Eep. 20 Eq. 321. 
 
 mam- 
 [See 
 
 (c) Maintenance by mother. 
 
 Mother not bound to maintain child : 
 tenance by mx>ther not a debt. 
 Paeent and Child, 4.] 
 
 (B) Advancement. 
 [See Advakcbment.] 
 
 (C) POWEES OF OOTJET OF ChANCEET OVEB 
 
 Infant's Peopeett. 
 (a) Sale of reversion. 
 
 7. — When in an administration suit an order 
 has been made by the Court for the sale of an 
 infant's reversion in personal property, and the 
 sale has been effected subject to a condition that 
 the jurisdiction of the Court to make such an order 
 should not be questioned, nor should any requisi- 
 tion or objection be made on account thereof, the 
 purchaser cannot be discharged from his purchase 
 on the ground that the Court had no jurisdiction 
 to order the sale, but he is entitled to a declaration 
 on the face of tlie order confirming the sale that 
 all parties to the suit are bound by it. Nimn v. 
 Hancock, 40 Law J. Eep. (n.s.) Chanc. 700 ; Law 
 Eep. 6 Chanc. 850. 
 
 Semble — the' Court has jurisdiction in such a 
 suit to sell an infant's reversionary interest in per- 
 sonal estate. Ibid. 
 
 (6) Sale of more than required : conversion. 
 
 8. — ^When real estate of an infent is ordered to 
 be sold for payment of costs or any other special 
 purpose, and more is sold than is required, the 
 Digest, 1870-1875. 
 
 surplus proceeds of sale are converted into per-. 
 sonal estate, and on the death of the infant go to 
 his personal representatives. Jermy v. Preston 
 (13 Sim. 356) and Cooke v. Dealey (22 Beav. 196) 
 questioned. Steed v. Preece, 43 Law J. Eep. (n.s.) 
 Chanc. 687; Law Eep. 18 Eq. 192. 
 
 (c) Raising fine on copyholds. 
 
 9. — The Court has no jurisdiction to direct a 
 fine in respect of copyholds to which an infant has 
 become entitled as customary heir' of an intestate 
 to be raised by a mortgage of the copyholds. 
 Harbroe v. Combes, 43 Law J". Eep. (n.s.) Chanc. 
 336. 
 
 {d) Settlement of property of ward of Court. 
 
 10. — The Court, on a petition presented in an 
 administration suit by a ward of Court and her 
 husband, who had married without its consent 
 while the wife was a minor and in ignorance that 
 she was a ward of Court, settled her property on 
 her for life, with remainder to her children ; and 
 with a power for the wife to appoint the property 
 by will to her husband for his life. Wilkinson v. 
 Joughin, 40 Law J. Eep. (n.s.) Chanc. 234. 
 
 (D) Eelmiotts Education. 
 
 11. — Upon an application for a habeas corpus to 
 secure the custody of an infant affidavits were 
 read, which stated that before marriage an ar- 
 rangement was made between the parents of the 
 infant (the father being a Eoman Catholic and the 
 mother a Protestant) that sons of the marriage 
 should be brought up as Eoman Catholics and the 
 daughters as Protestants ; that a daughter, the 
 infant, who at the date of the application was 
 about ten years old, was, with the sanction of the 
 father, who died a few months after her birth, 
 baptized as a Protestant, and that when she was 
 about a year old she was left in the custody of her 
 maternal grandmother, by whom she was brought 
 up as a Protestant, and at whose expense she was 
 maintained and clothed until the date of the appli- 
 cation. It was alleged that two days before the 
 father's death he had executed a document ap- 
 pointing the applicant, his brother, testamentary 
 guardian of his children, but it did not appear 
 that the applicant made any claim to the custody 
 of the child until it was about eight years old : — 
 Held, notwithstanding the lateness of the appli- 
 cation, that the Court had no power to refuse the 
 writ, so as to give effect to the arrangement made 
 by the father as to the religious education of his 
 child, but as there appeared to be some doubt upon 
 the affidavits as to the validity of the document 
 appointing the applicant guardian, an issue must 
 be directed in order that the question might be 
 submitted to a jury. In re Edwards, 42 Law J. 
 Eep. (N.s.) a. B. 99. 
 
 [And see 'Wabd of Coubt, Paeent and Child, 
 1-3.] 
 
 (E) CONTEACT OF InfANT. 
 
 12. — ^Where an infant mortgaged his rever- 
 sionary interest in a fund, and at the same time 
 executed a statutory declaration stating that he 
 GO 
 
282 
 
 INFANT (E)— INJUNCTION. 
 
 was of full age, and afterwards on coming of age 
 mortgaged the same interest to a bond fide mort- 
 gagee without notice, — Held, that the Toidable 
 first mortgage was avoided by the second, and that 
 the second mortgagee had therefore priority. In- 
 man v. Inman, Law Eep. 15 Eq. 260. 
 
 13. — An infant entered into the service of a 
 milk-seller, and covenanted not to carry on the 
 same trade, and after he came of age he continued 
 in the same service for eighteen months without 
 repudiating the contract : — Held, that this conduct 
 amounted to a ratification of the contract in equity, 
 and an injunction to restrain a breach of the cove- 
 nant was granted. Cornwall v. Hawkins, 41 Law 
 J. Eep. (n.s.) Chanc. 435. 
 
 Contract by, to tales shares. [See Com- 
 pany, G 21.] 
 
 [And see infra Nos. 18, 19.] 
 
 (F) Suit to eeoovee Lakd. 
 
 14. — An infant may file a bill in equity to re- 
 cover land under an equitable title, whether he has 
 been in possession himself or not. Crowther v. 
 Cromther (23 Beav. 305; s. u. 26 Law J. Eep. 
 (n.s.) Cliauo. 702) dissented from. Howard v. Earl 
 of Shrewsbury, 43 Law J. Eep. (n.s.) Chanc. 495 ; 
 Law Eep. 17 Eq. 378. 
 
 An infant filed a bill claiming real estate raider 
 an equitable title ; it was held at the hearing that 
 on the construction of the documents he had a 
 legal title, but the Court made a decree without 
 requiring any amendment. Ibid. 
 
 (G) Gtjaediajt. 
 
 (a) Appointment. 
 
 15, — A father cannot appoint a testamentary 
 guardian to his illegitimate child. Sleeman v. 
 Wilson, Law Eep. 13 Eq. 36. 
 
 (4) Powers and duties. 
 
 16. — If a person appointed guardian takes pos- 
 session in that character of any of the ward's pro- 
 perty he becomes trustee of such property. Slee- 
 man V. Wilson, Law Eep. 13 Eq. 36. 
 
 17. — A guardian duly appointed by the will of 
 the father has a legal right to the custody of his 
 intant ward, and a Court of common law has no 
 discretion to refuse him a writ of habeas corpus 
 to obtain possession of such ward. If the validity 
 of the appointment is questioned, an issue will be 
 directed. In re Andrews, Law Eep. 8 Q. B. 153. 
 Guardian of infant remainder-man, under 
 Places of Worship Sites Act, 1873. [See 
 Places of "Worship Sites Act.] 
 Voluntary settlement : liability of infants 
 guardian to costs. [See Voluntary 
 Settlement, 14.] 
 
 (H) Infants Eelief Act, 1874. 
 
 18.— Section 2 of the Infants Eelief Act, 1874, 
 applies to a contract entered into during infancy, 
 and before the passing of the Act by a person who 
 attains full age after the passing of the Act, and 
 renders it impossible for such person to ratify a 
 contract (not for necessaries) so entered into. Ex 
 
 parte Kibble; In re Onslow, 44 Law J. Eep. (n.s.) 
 Bankr. 63 ; Law Rep. 10 Chanc. 373. 
 
 19.— A charging order obtained by a judgment 
 creditor under section 14 of 1 & 2 Vict. c. 110, has 
 no greater operation than an instrument of charge 
 signed in his &vour by the judgment debtor would 
 have had. In re Onslow's I'rusts, 44 Law J. Eep. 
 (n.s.) Chanc. 628 ; Law Eep. 20 Eq. 677. 
 
 0. having attained his majority shortly after the 
 passing of the In&nts Eelief Act, 1874, D. ob- 
 tained judgment by default in an action for money 
 lent to him during his minority, the judgment 
 being followed by a charging order, under section 
 14 of 1 & 2 Vict. 0. 110, against a trust fund to 
 which 0. was entitled: — Held, that D. had no 
 claim upon the fund, inasmuch as, O.'s debt 
 having been contracted during infancy, the judg- 
 ment and subsequent proceedings were inopera- 
 tive. Ibid. 
 
 Habeas corpus to remove child. [See Habeas 
 Corpus.] 
 
 INJUNCTION. 
 [And see Bankruptct, 0.] 
 
 (A) Jurisdiction op Court of Chancery to 
 
 GRANT. 
 
 (a) Against Commissioners for Beduetion of 
 
 the National Debt. 
 
 (b) To restrain liiel. 
 
 (B) When granted in particular Cases. 
 (a) ,Not granted for breach of agreement 
 
 which Court could not enforce. 
 (A) Absence of negative words not regarded. 
 (e) To restrain proceedings in otjier C<mrts. 
 
 (1) To restrain action at law. 
 
 (2) To restrain proceedings in Probate 
 
 Court. 
 
 (3) To restrain proceedings in, Police 
 Court. 
 
 {d) lAght and air. 
 
 (e) Interference with water. 
 
 (/) Nuisance. 
 
 (1) Sewers. 
 
 (2) Ejection of jiational school. 
 
 (3) Acquiescence. 
 
 (4) Obstruction of street : right of re- 
 versioner to sue. 
 
 (6) "Visible " damage : smoke nuisance. 
 
 (6) Bailways Clauses Act. 
 
 (7) Prospective nuisance. 
 
 (g) Interference with right of shooting. 
 
 {K) Trespass. 
 
 {i) Secret preparation. 
 
 {k) Sale of goodwill. 
 
 {I) Confidential communication. 
 
 (m) Injurious document. 
 
 (n) Against public bodies. 
 
 (o) Inequitable use of powers by directors. 
 
 (C) Damages. 
 
 (D) Practice in Suits for Injunction. 
 (a) Parties. 
 
 lb) Injunction before bill filed. 
 
 (c) Motion ordered to stand till the hearing, 
 {d) Interlocutory injunction. 
 
 (e) Mandatory injunction. 
 
INJUNCTION (A), (B). 
 
 2S3 
 
 (A) Jtieisdiction of Cotjut of Chancery 
 
 TO BliANT. 
 
 (a) Against Commissioners for Seduction of the 
 National Debt. 
 
 1, — The Court has jurisdiction under 5 Vict. 
 e. 5, s. 4, to restrain the Commissioners for the 
 Eeduction of the National Debt from paying or 
 transferring an annuity payable -by them. Watts 
 V. Watts, 40 La-w J. Eep. (n.s.) Chanc. 388. 
 
 (i) To restrain libel. 
 
 2. — The Court of Chancery has no jurisdiction 
 to restrain the publication of a libel, eren when its 
 publication will be injurious to properhy or repu- 
 tation. Dicta of Malins, V.C, in Dixon y. Holden 
 (Law Eep. 7 Kq. 492) disapproved. The Pru- 
 dential Assttrance Company v. Knott, 44 Law J. 
 Eep. (N.s.) Chanc. 192 ; Law Eep. 10 Chanc. 142 ; 
 and Fisher v. The Apollinaris Coirupany {lAm.), 44 
 Law J. Eep. (n.s.) Chanc. 600; Law Eep. 10 
 Chanc. 297. 
 
 (B) When granted in particular Cases. 
 
 (ffi) Not granted for breach of agreement which 
 Court could not enforce. 
 
 3. — An injunction will not be granted to restrain 
 a breach of a portion of an agreement of which 
 the Court could not enforce the whole. Fothergill 
 v. Eowland, 43 Law J. Eep. (n.s.) Chanc. 252 ; 
 Law Eep. 17 Eq. 132. 
 
 4. — ^The plaintiffs, a colliery company, having 
 sidings which connected their collieries with a 
 railway, gave notice to the railway company of 
 their desire to run engines and carriages over the 
 railway, pursuant to the provisions of the 92nd 
 section of the Eailway Companies Clauses Act, 1 845. 
 The railway company declined to give effect to the 
 notice, and obstructed the passage of the plaintiffs' 
 trains over their line. The plaintiffs filed a bill to 
 restrain the railway company from interfering with 
 their use of the railway: — Held, that although 
 the plaintiffs were entitled, under the above sec- 
 tion, to the use of the railway, the Court could not 
 compel the railway company to employ their 
 servants in working the points and signals on the 
 line, or to entrust the working of them to the 
 plaintiffs' servants ; and, since it was impossible 
 for the plaintiffs to exercise their rights without 
 the use of the points and signals, their biU must 
 be dismissed, but without costs. The Powell 
 Dtiffryn Steam Coal Company v. The Taff Vale 
 Eailvay Company, 43 Law J. Eep. (n.s.) Chanc. 
 575; Law Eep. 9 Chanc. 331. 
 
 (J) Absence of negative words not regarded. 
 
 6. — In considering whether to grant or refuse 
 an injunction to restrain a breach of a particular 
 clause of an agreement, the Court will look to the 
 substance "of the act to be performed, and not 
 merely to the presence or absence of negative 
 words. The Wolverhampton and Walsall Railway 
 Company v. The London and North- Western Rail- 
 way Company, 43 Law J. Eep. (n.s.) Chanc. 131 ; 
 Law Eep. 10 Eq. 433, 
 
 A lease of a line of railway contained an agree- 
 ment by the lessee company to carry over it all 
 traffic between certain places, and to pay the lessor 
 company one-half the receipts in respect of such 
 traffic. The lease contained other provisions on 
 which no relief could have been obtained in equity, 
 and it contained no negative stipulation restricting 
 the lessee company from carrying the traffic in 
 question over other lines. On demurrer to a bill 
 by the lessor company, alleging that the lessee 
 company were carrying the traffic mentioned in the 
 agreement over other linos of their own, and pray- 
 ing for an injunction to restrain them, — Held, that 
 relief could be granted in such a case, and the 
 demurrer must be overruled. Ibid. 
 
 (c) To restrain proceedings in other Courts. 
 (1) To restrain action at law. 
 
 6. — An interim injunction to restrain the de- 
 livery of a cargo was obtained upon the usual 
 undertaking by the plaintiffs as to damages in a 
 suit instituted against the shipowners and the 
 shippers by merchants who claimed the goods upon 
 the ground that the bills of lading had wrongfully 
 been handed to the shippers instead of to them. 
 Afterwards, the indorsee of the bills of lading 
 brought an action at law against the shipowners 
 for damages for breach of contract, by reason of 
 the non-delivery of the goods. Subsequently the 
 merchants' bill was amended (without prejudice to 
 the injunction) by making the indorsee of the bills 
 of lading a defendant. The shipowners then in- 
 stituted a suit to restrain the action at law: — 
 Held, that inasmuch as the rights of all parties 
 would be determined in the first-mentioned suit, 
 and the indorsee of the bills of lading, as a party 
 to that suit, would have the benefit of the under 
 taking of the plaintiffs therein as to damages, the 
 action must be stayed, on the shipowners suffering 
 judgment therein to be dealt with as this Court 
 should direct. Laing v. Zeden, 40 Law J. Eep. 
 (n.s.) Chanc. 1 55. 
 
 7. — Written agreements relating to the working 
 of some quarries contained {inter alia) the follow 
 ing provisions — "That the defendants should 
 allow and pay to the plaintiffs for two years, from 
 the 7th of December, 1870, the sum of 400Z. for 
 each year, by equal quarterly sums of lOOZ. ; that 
 the sums of money which should be paid to the 
 plaintiffs under that clause, should be added to a 
 debt of 7,0351. then due from the plaintiffs, and 
 that the whole amount of such debt should bear 
 interest from time to time at the rate of 61. per 
 cent, per annum; that the said sum of I, 
 
 (meaning the 7,035/.) and all additions thereto, 
 whether by means of the two sums of iOOl. above- 
 mentioned, and all interest upon the said debt, 
 should be a first charge upon the purchase-money 
 which should become payable to the plaintiffs 
 under the sixth clause of the last agreement." 
 The defendants had advanced the above sum of 
 7,035/. and other moneys to the plaintiffs on their 
 personal account and also on the security of the 
 working of the quarries Which were managed by 
 the plaintiffs. The defendants considered the 
 workings were not successful; and in June, 1872, 
 oo2 
 
284- 
 
 INJUNCTION (B), 
 
 they sued the plaintiffs at law for theii- debt. The 
 plaintiffs then filed their hill in this suit for the 
 specific performance of the agreements, an account, 
 and an injunction to restrain the action. A motion 
 for the injunction -was made on the 1st of August, 
 tut refused by Wickens, V.C., mainly on the 
 grounds that there was no implied covenant by 
 the defendants not to sue for their debt before the 
 expiration of the two years fi^om the date of the 
 agreements, and that a parol understanding to the 
 contrary, relied on by the plaintiffs, could not be 
 allowed to control the written contract. On ap- 
 peal, however, to Hatherley, L.C., the injunction 
 was granted until the expiration of the two years, 
 and the costs of the two motions were ordered to 
 be costs in the cause ; with liberty to apply. Curteis 
 V. Fmning, 41 Law J. Eep. (n.s.) Chanc. 791- 
 
 8. — The plaintiffs in this suit were defendants 
 in two actions at law in respect of certain policies 
 of insurance. An order was made at law staying 
 the proceedings in one action till the other had 
 been tried. The defendants at law agreed to be 
 bound by the result of the first action, but the 
 plaintiffs at law were to be at liberty to proceed 
 with the second action if they failed in the first. 
 The bill in this suit was filed to restrain both 
 actions, but proceedings in the suit were stayed 
 till verdict was given in the first action. Ulti- 
 mately the Court of law decided the first action 
 in favour of the defendants at law. This suit was 
 then proceeded with to restrain the plaintiffs at 
 law from proceeding with the second action, and 
 for the delivery up of the policies, which were 
 the subject of both actions : — Held, that, as the 
 plaintiffs were liable to have the second action 
 brought against them, they were entitled to come 
 to this Court and to have the proceedings at law 
 restrained ; and that as they were clearly right 
 with respect to the subject-matter of the suit, the 
 whole of the costs of the suit must be paid by the 
 defendants. The London and Provincial Marine 
 Insurance Company v. Seymour, 43 Law J. Eep. 
 (n.s.) Chanc. 120 ; Law Eep. 17 Eq. 86. ' 
 
 9. — A plaintiff, claiming equitable rights under 
 an instrument, unsuccessfully attempted to assert 
 them in a suit in equity, alleging that he had no 
 rights which he could assert at common law, the 
 instrument being void at law. He afterwards 
 commenced an action at law, in which he claimed 
 common law rights under this instrument : — Held, 
 that ha-vang so pleaded in the suit in equity, he 
 put his legal rights under the control of the Court, 
 and the action being in respect of the same matter 
 must be stayed. Tredegar v. Windtts, 44 Law J. 
 Eep. (n.s.) Chanc. 268 ; Law Eep. 19 Eq. 607. 
 
 10. — Building contract providing that no pay- 
 ment was to be made without the architect's 
 certificate. Injunction to restrain an action at law 
 by the builders for a larger sura than was certified 
 by the architect, refused on the ground that the 
 fact that the certificate was conclusive could be 
 pleaded at law. Baron de Worms v. Mettier, Law 
 Eep. 16Eq. 654. 
 
 11, — The general rule that a Court of Equity 
 will not interfere to stay an action at law where 
 thero is a good defence at law, mxist depend upon 
 
 the particular circumstances of each case. Kempe 
 V. Tmker, 42 Law J. Eep. (n.s.) Chanc. 832 ; Law 
 Eep. 8 Chanc. 369. 
 
 As to granting an interlooutory injunetion. 
 [See infra Nos. 45-47.] 
 
 (2) To restrain proceedings in Probate Court. 
 
 12. — 0. executed a deed to carry into effect the 
 provisions of a draft will, believing the original 
 will had been mislaid ; afterwards, on receiving 
 information which led him to believe the ori- 
 ginal win had been intentionally cancelled by the 
 testator, he commenced proceedings in the Pro- 
 bate Court to obtain letters of administration. 
 On bill filed to restrain these proceedings it was 
 held, that C. covdd not be allowed to take pro- 
 ceedings in derogation of his own deed, and that 
 the validity of the deed could only be tried in 
 this Court. Wilcock v. Carter, 44 Law J. Eep. 
 (n.s.) Chanc. 253 ; Law Eep.'19 Eq. 327.— On ap- 
 peal, the order for an injunction was discharged, 
 the Court holding that it had jurisdiction, but 
 that on the construction of the deed there was 
 nothing inequitable in the proceedings by 0. Law 
 Eep. 10 Chanc. 441. 
 
 (3) 2o restrain proceedings in Police Court. 
 
 13. — Although there may be cases in which 
 this Court will interfere to restrain criminal pro- 
 ceedings taken by a plaintiff in equity against the 
 defendant to the suit in respect of the matters to 
 which the suit relates, yet the Court will not so 
 interfere where the remedies in the proceedings ■ 
 in the criminal Court are for a purely criminal 
 charge. Baull v. Browne, 44 Law J. Eep. (n.s.) 
 Chanc. 1 ; Law Eep. 1 Chanc. 64. 
 
 In a suit instituted against the late co-partners 
 of the plaintiff it was alleged that the defendants 
 had together arranged and carried out a scheme 
 for defrauding her of partnership assets, and she 
 sought to recover the assets so alleged to have 
 been misappropriated. After answers filed and 
 issue joined in the suit, the plaintiff commenced 
 criminal proceedings against the defendants in the 
 police court, on a charge of conspiracy to defraud 
 her in the matters to which her suit related. The 
 defendants moved to restrain the proceedings : — 
 Held, that the plaintiff's remedy in the police 
 court, which was the personal punishment of the 
 defendants, was so distinct from her remedy in 
 this Court, which was the recovery of the pro- 
 perty, that this Court would not restrain the 
 criminal proceedings, and that the discretion to 
 stay such proceedings rested with the magis- 
 tra"tes. Ibid. 
 
 ((Z) Light and air. 
 
 [See that title.] 
 
 Windows in party walls. [See Bristoi, 
 Impeovement Act.] 
 
 (e) Interference with water. 
 
 14, — Although a landowner will not in general 
 be restrained from drawing off subterranean 
 waters from adjoining lands, he will be restrained 
 
INJUNCTION (B). 
 
 285 
 
 if, in so doing, he draws off water flowing in a 
 defined surface channel. The compensation clause 
 in the Public Health Act, 1848, s. 144, will not 
 prevent a local board of health from being re- 
 strained by injunction from interfering with a 
 watercourse in a manner not authorised by the 
 Local Government Act, s. 68, art. 3. The Grand 
 Junction Canal Company v. Shvffar, Law Eep. 6 
 Chanc. 483. 
 
 15. — Where a bill is filed by the conservators 
 of a river to prevent interference with the water, 
 the Court, regarding them as a public body, will 
 give credit to their evidence that the interference 
 will be injurious. The Attomey-Generai m. The 
 Great Eastern Railway Company, Law Eep. 6 
 Chanc. 572. 
 
 16. — ^An injunction will be granted at the suit 
 of a canal company entitled to take water from a 
 stream to prevent abstraction of the water though 
 damage is only shewn to have taken place in an 
 exceptionally dry season. The Wilts and Berks 
 Canal Navigation Company v. The Swindon Water- 
 works Company, 43 Law J. Eep. (n.s.) Chanc. 393 ; 
 Law Eep. 9 Chanc. 451. 
 
 This decision was aifirmed, on appeal to the 
 House of Lords, Law Eep. 7 E. & I. App. 697. 
 
 17. — A waterworks company, by their special 
 Act, incorporating the ■Waterworks Clauses Act, 
 1847 (10 & 11 Vict. c. 17), were empowered to 
 construct a reservoir in a certain locality, and to 
 use the waters which flowed into a certain river, 
 but the Act gave the company no power of ac- 
 quiring the land eompulsorily, and did not provide 
 for the reservoir being of any particular construc- 
 tion ; it contained provisions for keeping up the 
 supply of water in the river. Another private 
 Act of the company, passed after the construction 
 of the reservoir, recognised it as an existing work, 
 and gave the company certain rights against mill 
 owners on the stream as regarded the quantity of 
 water, but saved all other rights. The company's 
 works fouled the river with mud, so much as to 
 make the water unfit for the purposes of the trade 
 of silk dyeing theretofore carried on at mills of 
 the plaintiff on the river bank : — Held, that there 
 was nothing in the Acts to take away the plaintiff's 
 right to have the water pure and in its natural 
 state, or to deprive her of her right of action at 
 law for the injury sustained thereby, and there- 
 fore (the damage having been proved to be 
 substantial), to avoid multiplicity of actions, the 
 plaintiff was entitled to an injunction restrain- 
 ing the nuisance. Clowes v. The Staffordshire 
 Potteries Waterworks Company, 42 Law J. Eep. 
 (n.s.) Chanc. 107 ; Law Eep. 8 Chanc. 126. 
 
 [And see next two cases.] 
 
 (/) Nuisance. 
 
 (1) Sewers. 
 
 18. — A sewage company was under covenant 
 with a local board to keep their own works in 
 working order, so as to admit the free flow of 
 sewage from sewers of the board. A demurrer 
 to a bill seeking to restrain the company from 
 causing or permitting sewage to remain in the 
 
 sewers of the board was overruled. The Nuneaton 
 Local Board of Health v. The General Sewage 
 Company, 44 Law J. Eep. (n.s.) Chanc. 661 ; Law 
 Eep. 20 Eq. 127. 
 
 19. — The Court of Chancery will grant an in- 
 junction to restrain a nuisance being committed 
 or continued by a metropolitan local board, not- 
 withstanding a month's notice of the proceeding 
 has not been given in accordance with section 106 
 of the Metropolis Local Management Acts Amend- 
 ment, 1862. The Attomey-Generai v. The Hackney 
 Board of Works, 44 Law J. Eep. (n.s.) Chanc. 
 545 ; Law Eep. 20 Eq. 626. 
 
 The plaintiff filed a bill to restrain a nuisance 
 without giving the defendants notice of his inten- 
 tion to take proceedings. The defendants by their 
 answer justified the nuisance, and insisted on their 
 legal rights. The Court on the evidence consi- 
 dered the nuisance proved, and held that the 
 nature of the answer precluded the defendants 
 from objecting to the want of notice, and entitled 
 the plaintiffs to the costs of the suit. Ibid. 
 
 A watercourse, whether called by the name of 
 " sewer " or " brook," cannot be allowed to re- 
 main in such a state as to be a nuisance to the 
 neighbourhood, or to be covered over and turned 
 into a sewer, so as to take away from the occu- 
 piers of adjoining lands any rights they may 
 have to use it as a watercourse. Ibid. 
 
 (2) Erection of national school. 
 
 20. — C. being entitled to a conveyance of a 
 piece of land, subject to a covenant by him with 
 E., his vendor, not to do or suffer anything to be 
 done which should be a nuisance to E. or his 
 tenants, &c., the occupiers of the adjoining pro- 
 perty put up for sale and sold the land in lots' 
 subject to a condition in the terms of the cove- 
 nant, and the purchaser of each lot entered into 
 a covenant with C. not to do or suffer anything to 
 be done which should be a " nuisance " to E. or 
 any of the tenants, &c., " of the adjoining pro- 
 perty or the houses to be built thereon." Upon bill 
 filed by several of the owners of the lots to re- 
 strain the establishment of a national parochial 
 school on one of the lots, — Held, first, that the 
 words "adjoining property" in the last-mentioned 
 covenant, meant the property adjoining the lots 
 purchased, and accordingly the owner of any lot 
 was entitled to enforce the covenant against the 
 owner of any other lot. Secondly, that the word 
 "nuisance" meant only a legal nuisance for which 
 an action would lie, and that the establishment of 
 a national school, although it would injure and 
 depreciate the adjoining property, was not a nui- 
 sance within the meaning of the covenant; but 
 the bill was dismissed vrithout costs, on the ground 
 that another site might have been chosen so as to 
 avoid annoyance. Harrison v. Good, 40 Law J. 
 Eep. (n.s.) Chanc. 294 ; Law Eep. 11 Eq. 338. 
 
 (3) Acquiescence. 
 
 21. — Where the owner of a house, the ground 
 fioor of which had been used as a stable for many 
 years, made alterations which caused the noise of 
 the horses to become a nuisance to his next- 
 
2 86 
 
 INJUKCTIO^f (B). 
 
 door neighbour : — Held, that the latter was not 
 deprived of his right to an injunction by the fact 
 that horses had been previously kept in the stable. 
 Ball V. Ray, Law Eep. 8 Chauo. 467. 
 
 22. — Noise caused by machinery having been 
 acquiesced in for more than five years, the Court 
 refused to grant an injunction, on the ground of 
 increase evidenced only by the sense of hearing, 
 it being proved on the other side that no new 
 machinery or change in the manner of working 
 had been introduced. Gaunt v. Fyimey, 42 Law 
 J. Eep. (k-.s.) Chanc. 122; Law Eep. 8 Ohanc. 8. 
 
 (4) Obstruction of street : right of reversioner 
 to sue. 
 
 23. — To entitle a reversioner to maintain a 
 suit for a private nuisance, the wrong complained 
 of must be of a necessarily permanent character. 
 Mott V. Schoolbred, 44 Law J". Eep. (n.s.) Chanc. 
 380 ; Law Eep. 20 Eq. 22. 
 
 Tlie plaintiff was entitled in reversion to two 
 houses in a street. The defendants carried on an 
 extensive business in a newly-built warehouse, at 
 which carts and vans were constantly loading and 
 unloading goods. The carts and vans obstructed 
 the carriage-way and occasioned a nuisance to 
 the tenants of the plaintiff's houses and their 
 lodgers, so that some of "the lodgers quitted, and 
 the apartments could not be let, except at a lower 
 value : — Held, that a suit for an injunction to re- 
 strain the nuisance could not be maintained, for 
 the injury complained of was not in itself of a 
 permanent character, and there was nothing to 
 lead to the inference that it would be permanent, 
 except the presumed intention of the defendants 
 to continue the nuisance. Ibid. 
 
 (6) " Visible " damage : smoke nuisance. 
 
 24. — A plaintiff seeking to interfere on the 
 ground of nuisance with a work carried on in a 
 normal manner must, in order to sustain his suit, 
 shew that he has incurred actual and substantial 
 or " visible " damage. The primary evidence of 
 such damage should be that of ordinary witnesses. 
 Scientific evidence should be resorted to, not to 
 establish the fact of the damage, but only to ex- 
 plain the causes of it. Salvin v. The North Brancc- 
 peth .Coal Company, 44 Law J. Eep. (n.s.) Chanc. 
 149 ; Law Eep. 9 Chanc. 705. 
 
 The Court will not in such cases send an expert 
 to report where such course would in fact be 
 giving a new trial on new evidence, and delegating 
 the judgment of the Court to that of the expert, 
 nor will it direct an issue where the state of 
 things may have been materially altered from 
 lapse of time since the institution of the suit. 
 Ibid. 
 
 (6) Railways Clauses Act. 
 
 25. — In the Eailway Clauses Consolidation 
 Act, 1845, the "powers aforesaid" of the 32nd 
 section, in exercise of which a railway company 
 may do certain specified acts upon lands of which 
 they have taken temporary possession, are exer- 
 ciseable for the purposes named in that section 
 only, and the words, "action for nuisance or other 
 
 injury," in the same section, include "suit." There- 
 fore where a railway was in course of construc- 
 tion at the rear of the plaintiff's shop, and the 
 railway company took temporary possession of 
 an adjoining piece of land not owned by the plain- 
 tiffs, and erected a mortar mill thereon, for the 
 purpose of making mortar to be used in the con- 
 struction of the railway, that not being one of the 
 purposes named in the 32nd section, — Held, that 
 an injunction would be granted to restrain the 
 railway company from working the mortar mill, so 
 as to be a nuisance to the plaintiffs. Fenwick v. 
 The East London Railway Company, 44 Law J". 
 Eep. (n.s.) Chanc. 602 ; Law Eep. 20 Eq. 544. 
 
 Held also, following The Queen v. The High 
 Wycombe RaAVuiay Company (36 Law J. Eep. (n.s.) 
 Q. B. 121 ; Law Eep. 2 Q. B. 310), that the 
 making of mortar was not an act necessary for 
 making the railway within the 16th section, for 
 the company might get mortar elsewhere, and it 
 was not an act without which the railway coold 
 not be made. Ibid. 
 
 (7) Prospectiiie nuisance. 
 
 26. — Where in a suit for injunction the exist- 
 ence of an actual nuisance had been proved, it was 
 held no objection to the bill that the nuisance was 
 prospective only until after the date of replica- 
 tion being filed. Vrnfreville v. Joh-nson, 44 Law J. 
 Eep. (n.s.) Chanc. 752 ; lyaw Eep. 10 Chanc. 580. 
 Nuisance by licensee of occupier : occupier 
 a proper party to suit. [See infra No. 
 41.] 
 
 (g) Interference with right of shooting. 
 
 27.— G-., owner of a farm of 180 acres, subject 
 to a right of shooting, which had been demised 
 for a term to P., staked out a road across the 
 farm, pulling down two hedges for the purpose, 
 and put up the farm for sale by auction in thir- 
 teen lots, some of which were described as eligible 
 for building purposes. The particulars men- 
 tioned the right of shooting, and stated that the 
 sale was subject to such right. On a biU for injunc- 
 tion by P. to restrain the sale, — Held, that it 
 did not appear that the sale must inevitably re- 
 sult in an injury to the plaintiff's right of shoot- 
 ing, and that accordingly the bill must be dis- 
 missed with costs, and an enquiry was directed as 
 to damages caused by the ex parte injunction. 
 Pattison v. Gilford, 43 Law J. Eep. (n.s.) Chanc. 
 524 ; Law Eep. 18 Eq. 259. 
 
 Principles on which Courts of equity act in 
 granting injunctions to restrain threatened acts 
 considered. Ibid. 
 
 (Ji) Trespass. 
 
 28. — Where the plaintiff's title is not dis- 
 puted, the Court will grant an injunction to re- 
 strain acts of trespass without requiring him first 
 to bring an action at law. Goodson v. Richardson, 
 43 Law J. Eep. (n.s.) Chanc. 790 ; Law Eep. 9 
 Chanc. 221. 
 
 If the plaintiff is guilty of no acquiescence or 
 delay, he will be entitled to a mandatory ijijune- 
 
INJUNCTION (B). 
 
 287 
 
 tion, though the works complained of may have 
 been completed before the filing of the bill. Ibid. 
 
 [And see Tbespass, 5-7.] 
 
 Motion ordered to stand till hearing. 
 [See infra No. 44.] 
 
 («) Secret preparation. 
 
 29. — After the death of Liutenaut Eobert 
 James — the inventor of a blister ointment, known 
 as Lieut. James's blister, the recipe for making 
 which was a valuable trade secret, but not patented, 
 while his successors in title were carrying on the 
 business of selling it — his nephew, B. J. James, 
 who had discovered the recipe under circum- 
 stances which did not make it a, breach of duty 
 to avail himself of his discovery, made and sold 
 the ointment under the name of the original in- 
 ventor, signed with the signature R. James, and 
 advertised his ointment as the only genuine : — • 
 Held, on bill filed against him by the successors 
 of the original inventor, that he was entitled to 
 make and sell the article as Lieut. James's blister, 
 but not to do anything which was calculated to 
 make the public think that he was the original 
 inventor or the successor of .the inventor, or to 
 represent that his was the only genuine prepara- 
 tion. James -v. James, 41 Law J. Eep. (n.s.) Chane. 
 353 ; Law Eep. 13 Eq. 421. 
 
 (i) Sale of goodwill. 
 
 30. — Although the fact that a man has sold the 
 goodwill of a business does not prevent him from 
 setting up again immediately in the same trade, 
 the Court will nevertheless restrain him from send- 
 ing special solicitations to the customers of the old 
 house asking them to deal with him at his new 
 place of business, and it will not justify his eon- 
 duct that he is not in any way holding himself out 
 as continuing to carry on the old business. La- 
 bouchere v. Dawson, 41 Law J. Eep. (n.s.) Chanc. 
 427; Law Eep. 13 Eq. 322. 
 
 (Z) Confidential communication. 
 
 31. — The plaintiffs, a telegram company in Lon- 
 don, made an arrangement with the defendants, 
 being two individuals in Australia, for the trans- 
 mission of messages, in which certain words were 
 used as short expressions of the names and ad- 
 dresses of the principal customers ; and the de- 
 fendants were described as the plaintiffs' agents. 
 In a little time the parties quarrelled, and one of 
 the defendants came to England to carry on an in- 
 dependent telegram business vrith his partner in 
 Australia, and sent circulars to the plaintiffs' cus- 
 tomers, mentioning that he had their cyphers. On 
 motion to restrain him from using the cyphers : — 
 Held, that there was nothing confidential in the 
 cyphers, and that he was entitled to use them. 
 Beater's Telegram Company v. Byron, 43 Law J. 
 Eep. (n.s.) Chanc. 661. 
 
 {m) Injurious document. 
 [See also supra No. 2.] 
 
 32.— An association formed to supply, through 
 an annual published registry, information as to 
 iron ships, to members and subscribers, and re- 
 serving the right to make periodical surveys of 
 ships registered, objected to certain alterations 
 made in a ship of their highest classification, in- 
 serted the words " class suspended" opposite her 
 name in their list, and refused to omit 
 those words or to withdraw her name from 
 the list: — Held, that there being no proof of 
 of malice, falsehood, or unfair dealing, the associa- 
 tion were entitled to publish their bond, fide opin- 
 ion, although it was injurious to the property of 
 the shipowners, and a motion by the shipowners 
 to restrain publication of the words "class sus- 
 pended," and to compel the withdrawal of the ship 
 from the list, refused with costs. Clover v. Ec/y- 
 den, 43 Law J. Eep. (n.s.) Chanc. 666 ; Law Eep. 
 17 Eq. 190. 
 
 («) Against public bodies. 
 
 33. — The Metropolitan Board of Works pur- 
 chased a metropolitan common. They agreed that 
 if within a stipulated time the common should not 
 be devoted to the public, having no part of it sold 
 or let on building or other lease, that the plaintiff, 
 who had been beneficially entitled to part of the 
 common, should repurchase his share. The board 
 prepared a scheme for the Inclosure Commissioners 
 under the above Act, which provided for the sale 
 or letting of a part of the common, which scheme 
 was promulgated by the Commissioners. The 
 Court restrained the Board of Works from pro- 
 moting such scheme. Telford v. The Metropolitan 
 Board of Works, 41 Law J. Eep. (n.s.) Chano. 
 589; Law Eep. 13 Eq. 574. 
 
 34. — When the Legislature imposes certain 
 conditions on a public body for the protection of 
 the public, that, body cannot break the conditions 
 and plead in excuse that they are unnecessary for 
 the protection of the public. The Workington 
 Local Board v. TTte Cockermouth Local Board ; and 
 The Attorney-General v. The Cockermouth Local 
 Board, a Law J. Eep. (n.s.) Chanc. 118; Law 
 Eep. 18 Eq. 172. 
 
 The statute 24 & 25 Vict. c. 61, s. 4, gives 
 power to a local board to make an outfall of drains 
 beyond their district, with a proviso that nothing 
 therein contained shall authorise them to pour any 
 noxious matter into any stream. On an informa- 
 tion to restrain a local board from pouring noxious 
 matter into a stream through an outfall beyond 
 their district, the local board tendered evidence to 
 shew that no damage was caused to anyone 
 thereby : — ^Held, that this was immaterial, and 
 that an injunction was a matter of course. Ibid. 
 
 35. — Decree for injimction to restrain a public 
 body, in the exercise of their staltutory powers, 
 from interfering with the cellar of a house in a 
 street of which they were lowering the roadway, 
 until compensation for the whole house was ascer- 
 tained and paid, and inquiry as to damages : — 
 Held, that the plaintiff was not entitled to compen- 
 sation for indirect injury to his trade through 
 diversion of traffic caused by the lowering of the 
 road-way, but only for direct structural injury. 
 
288 
 
 INJUNCTION (B), (D). 
 
 Bigg v. The Corporation of London, Law Rep. 15 
 Eq. 376. 
 
 Interference with steam ' or watercourse by 
 
 Local Beard of Hecdtk. [See supra 
 
 No. 14 and Public Health Act, 4.] 
 Nuisance by Metropolitan Local Board. [See 
 
 supra No. 19.] 
 Nuisance by Railway Company. [See supra 
 
 No. 25.] 
 Interference with watercoitrse under statii- 
 
 tory powers of Waterworks Compamy. 
 
 [See supra No. 17.] 
 
 (o) Inequitable use of powers by directors. 
 
 36. — Directors called the annual meeting of a 
 company earlier than usual to disqualify certain 
 transferees of shares from voting. The directors 
 were restrained from calling the meeting before 
 the transferees were qualified. Cannon v. TrasJc, 
 44 Law J". Eep. (n.s.) Ohanc. 772 ; Law Hep. 20 
 Eq. 669. 
 
 (0) Damases. 
 
 37. — Where an unlawful obstruction of an 
 ancient light had existed for nearly six years, the 
 Court being of opinion that before the passing of 
 Lord Cairns' Act (21 & 22 Vict. c. 27) a bill for 
 an injunction would have been dismissed, refused 
 to direct an inquiry as to damages under that Act. 
 Gaunt V. Fynney, 42 Law J. Eep. (n.s.) Chanc. 
 122 ; Law Rep. 8 Chanc. 8. 
 
 38. — Wherever a plaintiff would recover sub- 
 stantial damages at law he has a right to sue in a 
 Court of Equity, but there may be cases where the 
 Court of Equity will exercise the power conferred 
 on it by Cairns' Act, 21 & 22 Vict. o. 27, and give 
 damages instead of an injunction. But the Court 
 will not let the defendant gain an advantage in 
 this respect by refusing an interlocutory injunc- 
 tion, and merely putting him on an undertaking 
 to pull down if ordered at the hearing. Aynsley 
 V. Glover, 43 Law J. Rep. (n.s.) Chanc. 777 ; Law 
 Rep. 18 Eq. 544. 
 
 39. — The power conferred by the 21 & 22 Vict, 
 u. 27, s. 5, on the Court of Chancery, of directing 
 an inquiry as to damages, was not intended to be 
 exercised concurrently with the ancient jurisdiction 
 of the Court for granting an inquiry as to profits. 
 Therefore a plaintiff cannot obtain an inquiry both 
 as to damages and also as to profits. He must be 
 put to his election between the two inquiries. Be 
 Vitre V. Betts (H. L.), 42 Law J. Rep. (n.s.) Ohanc, 
 841 ; Law Rep. 6 E. & I. App. 319. 
 
 40. — A Court of Equity will not decree specific 
 performance of a mere agreement to advance 
 money, and therefore has no jurisdiction to award 
 damages for breach of such an agreement. Larios 
 V. Bonany y Gurety, Law Rep. 5 P. 0. 346. 
 
 (D) Pkaoticb in Suits foe Injunction. 
 
 (a) Parties. 
 
 41. — ^Where under license from the occupier of 
 lands the licensee does acts which amount to a 
 nuisance, the occupier may be made defendant in 
 a suit to restrain the nuisance, as he is bound to 
 
 sea that his property is so managed that others 
 are not injured. White v. Jameson, Law Rep. 1 8 
 Eq. 303. 
 
 (6) Injunction before bill filed. 
 
 42. — An application for an injunction having 
 been made on a day when, on account of the offices 
 of the Court being closed, the bill and affidavit in 
 support could not be filed, the Court granted the 
 injunction and directed the bill and affidavit to be 
 filed as on the day the offices were closed. Carr 
 V. Morice, 42 Law J. Rep. (n.s.) Chanc. 787 ; Law 
 Rep. 16 Eq. 125. 
 
 43. — In a pressing case the Court will grant an 
 injunction before bill filed. Thornloe v. Skoines, 
 42 Law J. Rep. (n.s.) Chanc. 788 ; Law Eep. 16 
 Eq. 126. 
 
 (c) Motion ordered to stand till the hearing. 
 
 44. — Motions, (1) to restrain a contractor with 
 the Government from continuing on Government 
 land after notice to quit given under the powers of 
 the contract, (2) by the contractor to restrain the 
 Secretary of State for War from preventing him 
 from completing the contract, ordered to stand to 
 the hearing of the respective suits. The East Lan- 
 cashire EaUway Company v. Hattersley (8 Hare, 
 72) considered. Kirk v. The Queen ; The Attor- 
 ney-General V. Kirk, Law Rep. 14 Eq. 558. 
 
 ((?) Interlocutory injunction. 
 
 45. — An injunction to restrain the alleged in- 
 fringement of a patent will not be granted on an 
 interlocutory application, unless it can be shewn 
 that there has been active user of the invention, 
 even where the patent has been in force for eight 
 years. Plimpton v. Malcolmson, 44 Law J. Rep. 
 (n.s.) Chanc. 257 ; Law Rep. 20 Eq. 37. 
 
 46. — In a suit to restrain the user of names in 
 trade in a fraudulent manner, the right to an inter- 
 locutory injunction is lost by a delay in filing the 
 bill of nine or ten months since the discovery of 
 the user. Isaacson v. Thompson, 41 Law J, Rep. 
 (ns.) Chanc. 101. 
 
 47. — An interlocutory injunction to stay pro- 
 ceedings at law will not be granted where in the 
 ordinary course of proceeding the whole subject 
 matter of the suit can be more speedily and satis- 
 factorily determined at law than in equity ; and 
 this notwithstanding the suit in equity may have 
 been commenced before the action at law. Deci- 
 sion of Malins, V.C, affirmed. Hoare v. Bremridge, 
 42 Law J. Rep. (n.s.) Chanc. 1 ; Law Rep. 8 
 Chanc. 22. 
 
 (e) Mandatory injunction. 
 
 48. — The Court will not refuse to grant a man- 
 datory injunction to compel the removal of new 
 buildings for the mere reason that the buildings 
 were completed before the bill was filed, or that 
 the damage admits of pecuniary compensation. 
 Smith V. Smith, 44 Law J. Rep. (n.s.) Chanc. 630 ; 
 Law Rep. 20 Eq. 500. 
 
 The Court has no more hesitation in granting a 
 mandatory injunction in a proper case than any 
 other injunction. The circumstances under which 
 
INJUNCTION (D)— INSPECTOESHIP DEED (A). 
 
 289 
 
 the Court 'will grant a mandatory injiinction and 
 those under ■which it will order an inquiry as to 
 damages, considered. Ibid. 
 
 49. — On a hill filed to compel the removal of 
 BO much of a large " shed as interfered -with the 
 lights of a chapel and school-room below it, and 
 to restrain the carrying on of the business of the 
 defendants as boiler makers so as to interfere with 
 the user of the chapel : — Held (affirming the de- 
 cision of Bacon, T.C.), that having regard to the 
 nature of the building, relief as prayed would be 
 granted at the hearing, though the shed was al- 
 lowed to be erected and completed and the works 
 carried on for some months without complaint. 
 Baxter v. Bower, 44 Law J. Eep. (n.s.) Chanc. 625. 
 
 A partial interference with lights by the owner 
 is no bar to a suit to prevent a subsequent inter- 
 ference by other persons. Ibid. 
 
 It is to be understood that an injunction is not 
 to be used oppressively, but the Court will not too 
 carefully limit its orders, but will leave any abuse 
 to be dealt with when it arises. Ibid. 
 
 " Air " is not to be coupled with " light " in an 
 injunction as a matter of common form. Ibid. 
 
 Injunction not dissolved hy amendment of 
 bill. [See Practice in EauiTT, 15.] 
 
 INNS OF COUBT. 
 
 A Court of Equity has no jurisdiction to restrain 
 an action at law by an Inn of Court against one of 
 its own members on his suretyship bond. The 
 proper tribunal is that of the Judges of the superior 
 Courts of England and Wales, in their visitatorial 
 capacity over the Inn. Neate v. Denman, 43 Law 
 J. Rep. (n.s.) Chanc. 409 ; Law Eep. 18 Eq. 127. 
 
 The biU in the suit prayed a full discovery of 
 all the matters in dispute between the plaintiff and 
 the society relating to the suit; the delivery up to 
 the plaintiflT for cancellation of the bond given by 
 him to the society on his call to the. bar; an in- 
 junction to restrain the defendants, the represen- 
 tatives of the surviving obligee of the bond, from 
 suing him at law upon it ; and a declaration that 
 he might be at liberty to retire from the Inn with- 
 out making any farther payment or entering into 
 any undertaking not to practise as a barrister in 
 the United Kingdom, the Colonies or India. The 
 defenda.nts demurred to the bill for want of 
 jurisdiction in the Court, and want of equity : — 
 Held, that the demurrer must be allowed. Ibid. 
 
 mained in the house for about two months, incur- 
 ring a considerable debt for the rent of the room 
 and for board and lodging. He kept the pianoforte 
 in his room, and the defendant did not know that 
 it belonged to any one except B. : — Held, first, 
 that the pianoforte, though not an article usually 
 taken to inns by travellers, was, if received by the 
 innkeeper, subject to his Uen. Secondly, that as 
 he received the pianoforte supposing it to belong 
 to B., he could maintain his lien upon it as against 
 the plaintiff. ThrelfaU v. Berwick, 41 Law J. 
 Eep. (n.s.) Q.B. 266 ; Law Eep. 7 Q. B. 711. 
 
 Affirmed on appeal, the Court holding that, 
 whether or not the innkeeper was bound, in the 
 first place, to take in the piano, having done so he 
 could maintain his lien upon it, as against the per- 
 son from whom it was hired. Thrrlfall v. Borwick 
 (Exch. Ch.), 44 Law J. Eep. (n.s.) Q. B. 87 ; Law 
 Eep. 10 Q. B. 210. 
 
 (J) lAamlity for loss of goods. 
 
 2. — The plaintiff put up at the defendants' 
 hotel, produced a bag of money to make a small 
 payment in the commercial room, went up to bed, 
 contrary to his usual habit did not lock his door 
 though there was a lock and key, left his money 
 in his trousers on a chair at the bedside, and went 
 to sleep. Some one entered and stole the money, 
 and the plaintiff brought this action to recoup this 
 loss : — Held, that there was evidence to go to, and 
 it was a proper question for, the jury, whether the 
 loss would or would not have happened if the 
 plaintiff had used the ordinary care that a prudent 
 man might reasonably be expected to have taken 
 under the circumstances. Oppenheim v. The 
 White Lion Hotel Company, 40 Law J. Rep. (n.s.) 
 C. P. 231 ; Law Rep. 6 C. P. 516. 
 
 3. — The salaried manager of a hotel belonging 
 to a company is not an innkeeper so as to be by 
 law responsible for the goods and property of the 
 guests, although the usual license under 1 Geo. 4, 
 c. 61, has been granted to him personally. Dixon 
 V. Birch, 42 Law J. Eep. (n.s.) Exch. 136 ; Law 
 Eep. 8 Exch, 135. 
 
 mSPECTOESHIP DEED. 
 
 (A) JUEISDICTION OF CoTTET Off BAUKBTJPTCT. 
 
 (B) ArTEB-AOaumED Peopeett. 
 
 (C) Peoof : Inteeest subseuuent to Bank ■ 
 
 BITPTCV. 
 
 (D) L1ABI1.1TT as Inspeotoes. 
 
 INNKEEPER. 
 
 {a) Lien on goods. 
 
 \b) lAoMlity for loss of goods. 
 
 (a) I/Un on goods. 
 
 1. — B. hired a pianoforte from the plaintiff for a 
 
 term of six months, and went with his wife and 
 
 sister to the defendant's hotel, where he took a 
 
 private sitting-room at a weekly rent, and re- 
 
 Digest, 1870-1875. 
 
 (A) JUEISMCTION OB CouET m Bankeuptct. 
 
 1. — The jurisdiction given to the Court of Bank- 
 ruptcy by section 197 of the Bankruptcy Act, 
 1861, applies to deeds registered under section 
 194 of the same Act, as well as to deeds registered 
 under section 193. Ex parte Clough; In re In- 
 gram, 41 Law J. Eep. (n.s.) Bankr. 46. 
 
 2. — The Court granted an injunction to restrain 
 the prosecution of an action in Ireland upon a 
 claim, which, if due, would be proveable under a 
 PP 
 
290 
 
 INSPECTOESHIP DEED (A)— INbUEANCB (B). 
 
 deed of inspection executed in December, 1869. In 
 re Tait and Company ; Ex parte Tait, 41 Law J. 
 Eep. (n.s.) Bankr. 32 ; Law Eep. 13 Eq. 311. 
 
 (B) Aptee-acqtjieed Phopeety. 
 
 3. — By a deed of inspectorship, registered un- 
 der tlie Bankruptcy Act, 1861, s. 192, it was pro- 
 vided that all the estate and effects of P., the 
 debtor, should be administered in .accordance with 
 the bankrupt law. At the date of the deed there 
 was in existence an agreement between railway 
 companies, to which P. was no party, by which it 
 was agreed that the contract for the execution of 
 • the works therein referred to should be let to P. 
 or his nomiiiee. P. afterwards, and during the 
 continuance of the inspectorship, nominated con- 
 tractors, and received from them a sum of 3,600'. 
 for so doing : — Held, that this sum was no part of 
 the estate and effects of the debtor at the date of 
 the deed ; also, that upon the construction of the 
 deed, after-acquired property was not included 
 therein. Ex parte Pierci/ ; In re Piercy, 43 Law 
 J. Eep. (n.s.) Bankr. 9 ; Law Eep. 9 Clianc. 33. 
 
 (C) Proof: Intebbst subsequent to Bank- 
 
 BUPTCY. 
 
 4. — A debtor executed a deed of inspectorship 
 under the provisions of the Bankruptcy Act, 1861, 
 and aftervpards under the Liquidation Act, 1868, a 
 scheme was settled under which the Court of Chan- 
 cery ascertained the value of the securities held by 
 the secured creditors, which value was to be taken 
 by these creditors in part discharge of their debts, 
 and they were to be at liberty to prove for the 
 deficiency : — Held, reversing the decision of Bacon, 
 V.C, that the value must be taken as a discharge 
 pro tanto of the principal and interest due at the 
 date of the deed, and not in discharge of any 
 subsequent interest, so that the balance only of 
 such principal and interest due at the date of the 
 deed could be proved under the deed. Imre Savin, 
 42 Law J. Eep. (n.s.) Bankr. 14 ; Law Eep. 7 
 Chanc. 760. 
 
 (D) Liability of Inspectubs. 
 
 5. — J- P. executed a deed of inspectorship 
 under the Bankruptcy Act, 1861, by which he as- 
 signed all his property (but not his business) to 
 trustees, upon trust for the benefit of his creditors. 
 The deed contained a covenant by J. P. to carry 
 on his business to the best of his ability under the 
 inspection and control of the trustees, to whom he 
 was to pay all moneys received by him ; a provision 
 that the trustees should be liable as against each 
 other for his own defaults only ; and an express 
 declaration that the deed was intended to operate 
 as a deed of inspectorship and composition under 
 the Act. The trustees derived no benefit under 
 the deed other than that which they shared in 
 common with the other creditors. After the deed 
 wns regibtered, the plaintiffs supplied goods upon 
 written orders expressed to be " for J. P.," to the 
 place where he had carried on his business pre- 
 viously to the execution of the deed, and where 
 the business was still being carried on under his 
 management. The trustees regularly supplied him 
 
 with money for the current expenses ■freekly in 
 advance, and they had no personal knowledge of 
 the orders given to the plaintiffs, who, on the other 
 hand, were not shewn to have had any knowledge 
 of the deed ; — Held, that the real intention of the 
 parties as appearing by the deed was that J", P. 
 should carry on the business as his own, subject 
 to the inspection and control of the trustees ; and 
 that the relation of master and servant or of 
 principal and agent did not exist between them 
 and him, and consequently that they were not 
 liable to the plaintiffs for the price of the goods 
 supplied on his orders. Easterbrook v. Barker, 40 
 Law J. Eep. (n.s.) O.P. 17 ; Law Eep. 6 C.P. 1. 
 
 INSUEANCE. 
 
 (A) Insurance Companies. 
 
 (B) Mutual Insurance Assoclation unbee' 
 
 Statute. 
 
 (C) Life Policy. 
 
 (n) Proviso avoiding policy if declaration 
 untrue. 
 
 (b) Limitation of liability of insurance 
 
 company. 
 
 (c) Policy effected by creditors. 
 
 (d) Mortgage of policy. 
 (c) Assignment; notice, 
 
 (D) Eiee Policy. 
 
 (as) Misdescription, 
 (b) Construction: risk. 
 
 (e) Subroffation. 
 
 [33 & 34 Vict. c. 61 ; 34 & 35 Vict. c. 58 
 amended. 35 & 36 Vict. c. 41.] 
 
 (A) Insurance Companies. 
 
 1. — Policy holders in the winding up of a life 
 assurance company held entitled to prove for the 
 sum which would be required in each case to pur- 
 chase a policy of the same amount at the same 
 premium in a solvent office. The decision of Lord 
 Cairns in Lancaster's case (Albert Arbitration), 
 holding that the measure of proof was the differ- 
 ence between the present value of the reversion to 
 the sum assured at the decease of the life and the 
 present value of the fiiture annual premiums, dis- 
 approved. In re the English Assurance, Company ; 
 Holdich's case, Law Eep. 14 Eq. 72. 
 [And see infra No. 4.] 
 Action by member for expidsion contrary to 
 rules of society. [See Action, 4.] 
 
 (B) Mutual Insurance Association under 
 Statute. 
 
 2. — A fund was established under a special Act 
 as a provision, upon the principle of a life insur- 
 ance, by officers of the Customs for their widows, 
 children and relatives. Under the Act, directors 
 of the fund were appointed, with power to frame 
 rules for the management of the fund, and with 
 discretion to admit nominees of the subscribers, 
 other than relatives, to the benefit arising out of 
 any subscriptions. By the Act a restriction wag 
 
INSUEANCE (B), (D). 
 
 291 
 
 placed on alienation of the benefit provided for 
 them by the fund, by mdcns, children and other 
 claimants without consent of the directors. By 
 the rules, each subscriber had power to direct 
 how his portion of the fund should be applied for 
 the benefit of his' widpw, children or relatives, or 
 his nominees, who should have been duly admitted 
 by the directors. A subscriber, a widower, made, 
 on the occasion of his daughter's marriage, an ap- 
 pointment of his share of the fund to the trustees 
 of his daughter's settlement, the trusts being for 
 his daughter for her life, remainder to lier hus- 
 band for life, remainder to the children of the 
 marriage. The trustees were never formally ad- 
 mitted under the rules, though their names were 
 sent in for that purpose by the settlor. The 
 daughter predeceased her father. On his death, 
 the directors paid his share into Court under the 
 Trustee Belief Act, one moiety of it being claimed 
 by the surviving son of the subscriber : — Held, 
 that the settlement on the daughter's marriage 
 was such a settlement for the benefit of his 
 daughter as the subscriber had a right to make, 
 and did not require the consent of the directors to 
 complete the title of the trustees to the fund, and 
 that therefore their formal admission by the di- 
 rectors as the nominees of the settlor was unne- 
 cessary, and, consequently, that the fund must be 
 paid to them. In re Fooock's Policy, 40 Law J. 
 Eep. (n.s.) Chanc. 681 ; Law Eep. 6 Chanc. 445. 
 
 (C) Life Policy. 
 
 (a) Proviso avoiding policy if declaration, untrue. 
 
 3. — A policy of insurance was granted by the 
 defendants to the plaintiff on the life of T., con- 
 taining a proviso that "if the declaration under 
 the hand of the plaintiff delivered at the defen- 
 dants' office as the basis of the insurance is not in 
 every respect true, and if there has been any mis- 
 representation, &c. . . . then the said insurance 
 shall be void : " — Held, that an inaccurate state- 
 ment of a material fact contained in the declara- 
 tion avoided the policy, though the statement was 
 made bonS. fide, and was not untrue to the know- 
 ledge of the plaintiff. Macdonald v. The Law 
 Union Fire and Life Insurance Company, 43 Law 
 J. Eep. (n.s.) Q. B". 131 ; Law Eep. 9 Q. B. 328. 
 
 (6) Limitation of liability of insurance company. 
 
 4. — Wherever under a policy of assurance there 
 is a contract that the assured are to look to the 
 assets and property of the company only, each 
 shareholder is (except as to the expenses of a 
 winding up) liable only to the extent of the 
 amount unpaid upon his shares. Lethbridge v. 
 Adams; Ex parte the Liquidator of The Interna- 
 tional Life Assurance Society, 41 Law J. Eep. 
 (n.s.) Chanc. 710; Law Eep. 13 Eq. 547. 
 
 (e) Policy effected by creditors. 
 
 5. — A debtor arranged with his creditors for 
 payment of his debts by instalments, to be fur- 
 ther secured by a policy of insurance on his life 
 to be effected by the creditors, who were to 
 pay the premiums, and to assign the policy to 
 the debtor on payment of their debts and all pre- 
 
 miums paid, with interest. All the instalments 
 except the last having boen paid, and another 
 premium on the pulicy being about to become due, 
 the creditors offered to assign it to the debtor on 
 being repaid the premiums piiid by them with in- 
 terest, but the offer was declined, and the creditors 
 paid the premium, and the debtor paid the last 
 instalment of his debts. Shortly afterwards 
 the debtor died, and his executrix filed a bill 
 claiming to be entitled to the sum assured on 
 payment to the creditors of the money paid by 
 them for premiums with interest. A demurrer for 
 want of equity was overruled by one of the Vice- 
 Chancellors, but allowed on appeal by the Lords 
 Justices. Lewis v. Kivg, 44 Law J. Eep. (n.s.) 
 Chanc. 239. 
 
 (d) Mortgage of policy. 
 
 6. — Where there are no funds to keep up mort- 
 gaged policies the mortgagee has a right to have 
 them sold. Ford v. Tynte, 41 Law J. Eep. (n.s.) 
 Chanc. 758. 
 
 [And see Moetqage, 6.] 
 
 (e) Assignment : iiotice. 
 
 Life policy : notice of assignment : what 
 notice sufficient to take policy out of or- 
 der and disposition of bankrupt. [See 
 
 BANKBUPTOy, Gr 18.] 
 
 Covenant to pay premiums on policy. [See 
 
 COYBNANT, 8.] 
 
 (D) FiBB Policy. 
 
 (a) Misdescription. 
 
 7. — P. & Co. effected a policy with an insurance 
 company, through D., an agent of the company, by 
 whom the premises insured were inspected. One 
 of the conditions of the policy was, that any ma- 
 terial misdescription of any of the property insured 
 should render the policy void. The buildings 
 were stated in the policy as built of brick and 
 slated; but on a fire occurring it was discovered 
 that one part of the buildings was roofed with 
 tarred felt. In the winding up of the company, 
 F. & Co. claimed 1,350?. under the policy. The 
 claim was resisted by the liquidator on the ground 
 of misdescription, and that D. was not the agent 
 of the company: — Held, that the misdescription 
 did not render the policy void, and was wholly 
 immaterial, and even if it had been material it had 
 been given to the company by D. as their agent, 
 and did not proceed from the assured at all. In 
 re The Universal Non-Tariff Fire Insurance Com- 
 pany ; Forbes's Claim, 44 Law J. Eep. (n.s.) 
 Chanc. 761 ; Law Eep. 19 Eq. 486. 
 
 (b) Construction : risk. 
 
 8. — By a floating policy goods in a specified 
 wharf were insured against loss by fire, but the 
 insurance was limited to goods which were " the 
 assured's own, in trust or on commission for which 
 the assured was responsible." Goods were de- 
 stroyed by fire at such wharf, which the assured, 
 to whom they had belonged, had sold to pur- 
 chasers, who had paid him for the same before the 
 pp2 
 
292 
 
 INSUEANCE (D)— INTEREST. 
 
 fire. The assured, However, held the wharfinger's 
 delivery warrants for such goods on behalf of such 
 purchasers, hut merely for the convenience of pay- 
 ing, if required to do so, the charges necessary to 
 clear the goods, such as custom-house dues and 
 rent payable by these purchasers : — Held, that at 
 the time of the fire the property in the goods 
 had passed to the purchasers, and that the goods 
 remained at their risk, and not at the risk of the 
 assured, who had no longer any interest in them, 
 or responsibility to the purchasers in respect of 
 them in case of fire ; and farther that, as the as- 
 surer's liability was expressly limited by such 
 policy to such goods as were not only held in trust 
 by the assured but for which he was responsible, 
 the goods were not covered by the policy. The 
 North British and Mercantile insurance Company 
 T. Moffatt, 41 Law J. Eep. (n.s.) C. P. 1 ; Law 
 Eep. 7 C. P. 25. 
 
 9. — A steamship was insured against fire as 
 ' ' lying in the V. docks, with liberty to go into 
 dry dock." She was taken along the Thames to a 
 proper dry dock, and on her return stopped in the 
 Tliames to put on part of her paddles, which had 
 been taken off to admit her into the dry dock, a 
 proceeding usual under the circumstances, and 
 during such stoppage was burnt : — Held (affirming 
 the decision below, 33 Law J. Rep. (n.s.) C. P. 
 85; 16 Com. B. Rep. (n.s.) 304), that this was 
 not a loss within the insurance. Pearson v. The 
 Commercial Union Assurance Company (Exch. 
 Ch.), 42 Law J. Rep. (n.s.) 0. P. 164; Law Rep. 
 8 C. P. 548. 
 
 (c) Subrogation. 
 
 10. — The defendant owned a warehouse at H., 
 which he had insured for about a third of its 
 Talue in several insurance offices, and which was 
 burnt down by the negligence of servants of the 
 corporation of H. On a motion in a suit insti- 
 tuted by the insurance companies to restrain the 
 defendant from suing the corporation for less than 
 the whole loss, and from compromising the action 
 to the prejudice of the plaintiffs, and from re- 
 fusing to allow the plaintiffs to sue the corpora- 
 tion in his name, he undertook to sue the corpo- 
 ration for the whole loss, and not to compromise 
 the action otherwise than bond fide : — Held, that 
 this undertaking gave the plaintiffs all the relief 
 to which they were entitled before the hearing. 
 The Commercial Union Insurance Company v. 
 Lister, 43 Law J. Eep. (n.s.) Chanc. 601; Law 
 Eep. 9 Chanc. 483. 
 
 Sale of goods: fire policy: interest of 
 buyer in seller's insurance. [See Sale 
 OF Goods, 20.] 
 
 INTEREST. 
 
 1. — Interest at il. per cent, was allowed on 
 money which had been paid on an order which was 
 reversed on appeal. The Merchant Banking Com' 
 pany of London y. Maud, 43 Law J. Eep. (s.a.) 
 Chanc. 861 ; Law Eep. 18 Eq. 669. 
 
 2. — Where a person borrows money for a 
 certain period, with interest at a certain rate down 
 to the day named, a contract for payment of interest 
 at that rate after the day named is not to be im- 
 plied. The principal and interest, if not then 
 paid, become a debt, and any allowance for deten- 
 tion or non-payment made by any tribunal before 
 which the payment may be soiight, is in the nature 
 of damages, not of interest. Cook r. Fowler (H.L.), 
 43 Law J. Eep. (n.s.) Chanc. 855 ; Law Eep. 7 
 E. & I. App. 27. 
 
 Although the rate of interest agreed on for the 
 time certain is usually adopted as the proper 
 measure of the damages for the subsequent delay, 
 the tribunal may look at all the circumstances of 
 the case, and award such a rate of interest as shall 
 appear fair and reasonable. Ibid. 
 
 Where the holder of a warrant of attorney to 
 enter judgment for a fixed sum on a day named, 
 with interest at the rate of 51. per cent, per month 
 and costs, did not enter up judgment, and did not, 
 the maker of the instrument having died, make 
 any definite claim against his debtor's estate for 
 the space of four years and upwards, — Held, that 
 the tribunal (one of the Vice- Chancellors) before 
 whom the claim at last came, was justified in 
 awarding by way of damages such a rate of interest 
 as the holder of the warrant of attorney would have 
 been entitled to, according to the ordinary rule of 
 the Court of Chancery, had he entered up judg- 
 ment on the day named in the defeasance to the 
 warrant of attorney, namely, at the rate of four 
 per cent. Ibid. 
 
 3. — It is not necessary in order to enable a jury, 
 under 3 & 4 Will. 4. c. 42, s. 28, to allow interest 
 upon a debt not payable at a time certain, that 
 the demand in writing should be of a specific simi, 
 it is sufficient to satisfy that enactment that the 
 demand be of what is due, with notice that the 
 debtor is required to pay interest thereon. Geake 
 v. Boss, 44 Law J. Eep. (n.s.) C. P. 315. 
 
 The plaintiff having for some years supplied 
 coal to an unregistered mining company, wrote a 
 letter to the defendant who was a shareholder, 
 containing the following passages :— " I feel it my 
 duty to write to you about my claim on this com- 
 pany. They owe me for balance of coal account 
 
 and interest over 1,100Z Now I must ask 
 
 you the plain question why is not my account paid ? 
 .... I must now give you notice that if my ac- 
 count with this mine be not settled on or before 
 the 1st day of November next, I shall instruct my 
 solicitor to take the necessary proceedings to 
 recover the money this company owes me :" — Held, 
 a sufficient demand within 3 & 4 Will. 4. e. 42, 
 s. 28, to justify a jury giving interest from the 
 date of such letter. Ibid. 
 
 [And see also Debtob and Ceeditoe, 6, 7; 
 Contract, 33 ; Peity Cotjncil, 43.] 
 
 Interest on advances by solicitor to client, 
 
 [See Attoeney, 37.] 
 During stay of proceedings on error. [See 
 
 Costs at Law, 14.] 
 On legacy. [See Infant, 5 ; Legacy, 34 ; 
 
 Limitations, Statute of, 13.] 
 
INTEEEST— INVENTIONS. 
 
 293 
 
 On costs of mortgagee added to his security. 
 
 [See MoETQAGE, 51.] 
 As between parties after dissolution. [See 
 
 Paktnbeship, 15.] 
 On deposit recovered hy purchaser. [See 
 
 Vendor and Pckchasbb, 28.] 
 
 INTEENATIONAIi LAW. 
 
 By the Treaty of Tientsin, Article XV., it is 
 provided that " eJ.1 questions in regaord to rights, 
 whether of property or persons, arising between 
 British subjects, shall be subject to the jurisdic- 
 tion of the British authorities." The appellant, a 
 British subject, on behalf of the Chinese Goveru- 
 ment, engaged the respondent, a British subject, 
 as a Professor at a Chinese College. In conse- 
 quence of representations made by the appellant 
 to the Chinese Government, the respondent was 
 dismissed. In an action by the respondent against 
 the appellant for false representation, — Held, first, 
 that the wrong complained of not being an act of 
 the Chinese Government, the action was properly 
 brought in the British Court at Shanghai ; secondly, 
 that communications made by the appellant to the 
 Chinese Government were privileged and so far 
 justified, as to rebut the inference of malice aris- 
 ing from defamatory statements. Hart v. Grwrn- 
 pach, 42 Law J. Eep. (n.s.) P. C. 25 : Law Kep. 
 4 P. C. 439. 
 
 Damage hy collision : ship belonging to 
 Khedive of Egypt: immunity from 
 arrest. [See Shutinq Law, F 1.] 
 
 INTEEPLEADEE. 
 
 (A) At Law. 
 
 (a) Equitable rights. 
 
 (J) Jurisdiction and practice of County 
 Court. 
 
 (B) In Equity. 
 
 (A) At Law. 
 (a) Equitable rights. 
 
 1, — Upon the hearing of an interpleader sum- 
 mons at chambers a Judge has power to recognise 
 equitable rights. Duncan v. Cashin, Law Eep. 1 
 C. P. 554, and Englebach v. Nixon, 44 Law J. Eep. 
 (n.s.) C.P. 396 ; Law Eep. 10 C. P. 645. 
 
 Furniture, which had been settled by a testator 
 on a married woman for her separate use, was re- 
 placed, as it were, out of new furniture bought by 
 her out of money forming her separate income, 
 and paid to her by her trustee. Such new furni- 
 ture being seized by the sheriff under an execution 
 against the goods of her husband was claimed by 
 the wife's trustee as part of the trust property : — 
 Held, that a Judge at chambers on an interpleader 
 summons by the sheriff had power to recognise 
 the equitable right of the wife, and to order the 
 sheriff to withdraw without directing an issue. 
 Ibid. 
 
 (J) Jurisdiction and practice of County Court. 
 
 2. — The plaintiff having claimed goods seized 
 under an execution from a County Court, an inter- 
 pleader summons issued under section 31 of the 
 County Court Act, 1867, and the plaintiff gave 
 particulars, but did not therein claim damages as 
 directed by Eule 175. His claim to the goods was 
 adjudicated upon by the County Court Judge, who 
 made an order which was in the plaintiff's favour 
 with respect to part of the goods. . An action was 
 subsequently brought by the plaintiff in the Court 
 of Exchequer against the execution creditor for 
 special damages resulting from the seizure of the 
 goods : — Held, that the claim of damages should 
 have been made at the time and in the manner 
 prescribed by the above-mentioned Act and Eule, 
 and that the order of the County Court Judge 
 being " final and conclusive," the action could not 
 be maintained. Death v. Harrison, 40 Law J. Eep. 
 (n.s.) Exch. 26 ; Law Eep. 6 Exch. 16. 
 
 [And see County Coubt, 21, 22.] 
 
 (B) In Equity. 
 
 3. — Stakeholders having a bill filed against 
 them by one set of claimants, and an action brought 
 by the others (the legal owners), who were only 
 made parties to the first biU by amendment after 
 the action was commenced, filed a bill to restrain 
 the action, not however making the first claimants 
 parties. The bill of the first claimants having 
 been dismissed, — Held (reversing the decision of 
 Bacon, V.C, 43 Law J. Eep. (n.s.) Chanc. 239), 
 that the bUl of the stakeholders against the 
 second claimants must be dismissed with costs, 
 and an inquiry as to damages under their under- 
 taking was directed. Laing v. Zeden, 43 Law J. 
 Eep. (n.s.) Chanc. 626 ; Law Eep. 9 Chanc. 736. 
 
 The only way in which a person- harassed by 
 two claims can protect himself is by an interpleader 
 proceeding. If he litigates with the parties sepa- 
 rately, he will have to bear the costs of the party 
 who is successful. Ibid. 
 
 [And see Fixtuees, 4.] 
 
 INTESTATES. 
 [See DisTBiBUTiONS, Statute of.] 
 
 [Provisions to increase the facilities for taking 
 out administration to intestates possessed of pro- 
 perty less than lOOZ. in value, and to reduce the 
 expenses attending the same. 36 & 37 Vict. 
 c. 52.] 
 
 [36 & 37 Vict. c. 52 extended to children of poor 
 intestate widows. 38 & 39 Vict. c. 27.] 
 
 INVENTIONS. 
 
 [See Patent.] 
 
 [The provisions of 13 & 14 Vict. e. 104, and 15 
 & 1 6 Vict. e. 6, extended so as to protect inven- 
 tions exhibited at international exhibitions in the 
 United Kingdom. 33 & 34 Vict. c. 27.] 
 
204 
 
 ISLE OF MAN— JtfDGMENT (A). 
 
 ISLE OF MAN. 
 
 Bates : rent-charge : rateabUity under local 
 
 statutes of Me of Man. [See Bate, 
 
 18.] 
 Mines : mining rights : Act of T]/nwald, 
 
 1703. [See Mines, 2.] 
 Investment allowed on land in, under Lands 
 
 Clauses Act. [See Lands Clauses 
 
 Act, 34.] 
 
 JEEVIS' ACT. 
 [See Justices' Jueisdiotion.] 
 
 JOINT TENANTS. 
 
 (A) When Joint Tenancy abises. 
 
 (B) Eights of Joint Tenants. 
 
 (A) When Joint Tenancy arises. 
 
 1. — A testator gave and devised Ms real and 
 personal estate to his wife for the use and benefit 
 of herself and all his children : — Held, reversing 
 the decision of one of the Vice- Chancellors, that 
 the "wife and children took as joint tenants, ifewill 
 V. Newill, 41 Law J. Eep. (n.s.) Chanc. 432 ; Law 
 Eep. 7 Chanc. 253. 
 
 2. — Grift to relatives after the death of A. and 
 B. : — Held, first, that relatives meant the persons 
 who would take under the Statutes of Distribution. 
 Secondly, that the class was to be determined at 
 the death of the testatrix. Third, that the mem- 
 bers of it took as joint tenants. Eagles v. Le 
 Breton, 42 Law J. Rep. (n.s.) Chanc. 362 ; Law 
 Eep. 15 Eq. 148. 
 
 3. — Under a will a copyhold estate became 
 vested in A. for life with remainder to B., C. and 
 D., as tenants in common for life, the ultimate re- 
 version being in C. and E. as co-heirs of the testa- 
 tor. During the life of A., B. and C. were in 
 occupation of the estate as tenants to A., and for 
 upwards of twenty years after her death they re- 
 mained in possession, and farmed the estate at 
 their equal expense : — Held, that B. and C. were 
 joint tenants as to the one-third share of which 
 they came into wrongful possession on the death 
 of A. Ward v. Ward, Law Eep. 6 Chanc. 789. 
 
 [And see Will, Construction, I 1-7.] 
 
 (B) Eiohts of J oint Tenants. 
 
 4. — A joint tenancy in ncome is severed as to 
 each instalment as it becomes payable, without 
 actual payment. Walmsley y. Foxliall, 40 Law J. 
 Eep. (n.s.) Chanc. 28. 
 
 5. — Shares registered in : he joint names of two 
 persons are their joint property, and on the death 
 of one of them the wliole liability in respect of the 
 shares accrues to the survivor, and the executors 
 
 of the deceased joint tenant are discharged. In 
 re The Maria Anna and Steimbank Coal and Coke 
 Company (Lim.), 44 Law J. Eep. (n.s.) Chanc. 
 423 ; Law Eep. 20 Eq. 585. 
 
 (C) 
 
 JUDGMENT. 
 
 (A) Execution. 
 
 (o) Sight to issue immediate execution. 
 
 (i) " Actual seizure " under Mercantile Law 
 
 Amendment Act, 
 (c) Bights of execution creditor. 
 
 (B) Chabqes on Land under 27 & 28 Vict. 
 
 c. 112. 
 (a) La/ads actually delivered in execution. 
 (6) Bemedies of creditor. 
 (c) Form of order for sale. 
 Charging Order on Shares or Stock. 
 
 (D) Committal of Debtor. 
 
 (E) Effect of Judgment against one of seve- 
 
 ral Wrong-doers. 
 
 (F) Foreign Judgment. 
 
 [The law as to Crown debts and judgments in 
 Ireland amended. 34 & 36 Vict. e. 72.] 
 
 (A) Execution. 
 
 (a) Bight to issue immediate execution. 
 
 1. — Judgment for 201. having been recovered 
 and signed against the defendant, a man of known 
 and undoubted wealth, the costs were taxed at 
 721,, and on the allocatur being given for that sum 
 about one o'clock in the day, the attorney's clerk, 
 who represented the defendant at the taxation, 
 asked the attorney's clerk attending for the plaintiff, 
 to grant time until a return of post in which to 
 pay the money. This the latter refused to do, and 
 he at once issued execution, which was levied at 
 four o'clock the same afternoon. A Master made 
 an order setting aside the^. fa. , and all proceedings 
 thereunder, with costs, on the ground that the 
 execution had been issued with unreasonable haste : 
 — Held, that such order was wrong, as the plaintiff 
 had a right to issue execution instanter, not being 
 bound to wait during the time asked for, and no 
 other indulgence of a more reasonable kind ha'snng 
 been craved. Smith v. Smith, 43 Law J. Eep. 
 (n.s.) Exch. 86 ; Law Eep. 9 Exch. 121. 
 
 (i) "Actual seizure ' 
 
 under Mercantile Law 
 Act. 
 
 2. — Such a seizure by a sheriJF of a debtor's 
 goods under an execution as would have been good 
 before the Mercantile law Amendment Act, 1856, 
 is an " actual seizure " within s. 1 of that statute; 
 and the expression " actual seizure " means no 
 more than " seizure.'' Gladstone v. Padwick, 40 
 Law J. Eep. (n.s.) Exch. 164 ; Law Eep. 6 Exch. 
 203. 
 
 Where premises, consisting of a mansion lioiise, 
 offices, gardens, farm and farm house, are in the 
 same county and in one and the same occupation 
 
JUDGMENT (A), (B). 
 
 295 
 
 as an entirety, a seizure by a sheriff, at the man^ 
 sion house, of part of the effects liable to the exe- 
 cution in the name of the -whole, is an " actual 
 seizure " within the statute of everything on the 
 premises liable to the execution, whatever the 
 extent of the premises, and however dispersed the 
 effects may be. Ibid. 
 
 Semble, per Bramwell, B. — Knowledge that a 
 writ of execution will probably at a certain time 
 be delivered to the sheriff, is not, when that time 
 arrives, notice that it has been delivered within 
 the statute. Ibid. 
 
 (c) Bights of execution creditor. 
 
 Rights of execution creditor as against trustee 
 in bankruptcy. [See Bankruptcy, G.] 
 
 Bailway Company : rights of judgment 
 creditor in possession under elegit. [See 
 lUlLWAT, 18, 19.] 
 
 Judgment creditor : leave to proceed with 
 execution after winding-up order. [See 
 Company, I 65.], 
 
 Enforcement of rule of Court: garnishee 
 order. [See Attachment, 4.] 
 
 Seizure by sheriff in execution after expira- 
 tion of tenancy: stat. 8 Ann. c. 14. 
 [See Landlord and Tenant, 14.] 
 
 Action against sheriff for not levying. [See 
 Sheriff, 3.] 
 
 (B) Chaeqes on Land under 27 & 28 Vict. 
 c. 112. 
 
 (b) Lands actually delivered in execution. 
 
 3. — Creditors instituted a suit for administra- 
 tion of the testator's estate, and obtained an 
 order for payment into Court by the defendant of 
 certain moneys in respect of the estate. The 
 moneys were not paid into Court. The plaintiffs 
 then procured a writ of sequestration, to be issued 
 against the defendant for contempt of Court ; and 
 the sequestrators thereunder seized his real and 
 personal estates. The plaintiffs then presented a 
 petition, praying for an order for the sale of the 
 defendant's real estate : — Held, that neither the 
 plaintiffs, nor the sequestrators, nor the Court, 
 were "creditors to whom the lands of the debtor 
 had been actually delivered in execution, within 
 the above statutes," and that the petition must 
 be dismissed with costs. Johnson v. Burgess, 42 
 Law J. Kep. (n.s.) Chanc. 400 ; Law Eep. 14 Eq. 
 398. 
 
 4. — An estate in remainder cannot be delivered 
 in execution by the sheriff. In re South, 43 Law 
 J. Eep. (n.s.) Chanc. 441 ; Law Eep. 9 Chanc. 
 369. 
 
 5. — To entitle a judgment creditor to a valid 
 charge on his debtor's real estate, under 27 & 28 
 Vict. c. 112, there must be actual delivery in exe- 
 cution under the writ of elegit. The Act makes 
 no distinction in that respect between heredita- 
 ments corporeal and incorporeal. Hatton v. Hay- 
 wood, 43 Law J. Eep. (n.s.) Chanc. 372 ; Law Eep. 
 9 Chanc. 229. 
 
 Where the estate of the judgment debtor is 
 equitable only and therefore incapable of delivery 
 
 in execution the creditor should obtain the decree 
 of the Court of Chancery vesting in him the estate 
 of the debtor, and this will be equivalent to 
 delivery in execution in the case of legal estates. 
 Ibid. 
 
 The plaintiff recovered a judgment at law 
 against the owner of the equity of redemption in 
 certain real estate. The judgment was diily regis- 
 tered, and a writ of elegit, also duly registered, 
 was issued against the lands of the judgment 
 debtor, and delivered to the sheriff tor execution, 
 but in consequence of the debtor's interest in the 
 lands being merely equitable, the sheriff was un- 
 able to execute the writ, and he accordingly 
 returned "nihil." The debtor subsequently became 
 bankrupt. A bUl having been filed by the judg- 
 ment creditor for a declaration that his judgment 
 constituted a valid charge on his debtor's equity of 
 redemption, a demurrer for want of equity was 
 allowed by one of the Vice -Chancellors, and upon 
 appeal the judgment was affirmed by the full 
 Court. Thornton v. Finch (4 Giff. 515 ; 34 Law 
 J. Eep. (n.s.) Chanc. 466) observed upon. Ibid. 
 
 (J) Bemedies of creditor. 
 
 6. — Where a judgment creditor has sued out a 
 writ of elegit, but cannot proceed in consequence of 
 the debtor's estate being mortgaged, his proper 
 course is to file a bill against the debtor and his 
 mortgagee for accounts, redemption and fore- 
 closure. Beckett v. Buckley, Law Eep. 17 Eq. 
 435. 
 
 7. — A railway company being indebted to the 
 contractor for its original line, in a sum of 6,734^., 
 obtained an Act of Parliament for the making of 
 an extension line, which Act authorised the raising 
 of 85,000i. by shares to be called " extension 
 shares " and of 28,0001. by mortgage, and enacted 
 that the works thereby authorised should for 
 financial purposes form a separate undertaking, 
 and that the capital and new shares should consti- 
 tute a separate capital, and that the money to be 
 raised by mortgage should be applied only to the 
 purposes authorised by the Act. The contractor 
 having obtained judgment for the amount due to 
 him, extended certain surplus lands acquired under 
 the extension Act, and then petitioned the Court 
 for a sale : — Held (affirming the decision of 
 Wickens, V. C), that the judgment creditor was 
 entitled to his order for sale ; for that, whatever 
 might be the equities of the shareholders inter se, 
 that could not affect the rights of the creditor to 
 have the lands sold to pay the debt due to him. 
 In re OgUvie, 41 Law J. Eep. (n.s.) Chanc. 336 ; 
 Law Eep. 7 Chanc. 174. 
 
 8. — A judgment creditor who has in 1872 sued 
 out an elegit, to which a return of nil has been 
 made by the sheriff, the legal estate in the debtor's 
 lands being vested in a mortgagee may, on a bill 
 filed against the debtor and the prior incum- 
 brancers, obtain a decree for a sale and receiver 
 of the rents of an equity of redemption of the 
 dehtor, subject to the rights of prior incumbrjineers. 
 He cannot obtain a declaration that he has a charge 
 or a decree for foreclosure. Wells v. Kilfin, 44 
 
296 
 
 JUDGMENT (B)-JURISDICTION AT LAW (A). 
 
 Law J. Eep. (n.s.) Chanc. 184; Law Eep, 18 Eq, 
 298. 
 
 (o) Form of order for sah. 
 
 9. — Form of order where, upon the petition of 
 a judgment creditor, a sale of land of a debtor 
 was directed in addition to the usual enquiries. 
 Howson V. Trant, 42 Law J. Eep. (n.s.) Chanc. 
 808. 
 
 (C) Chabgino Okdeb ok Shaees oe Stock. 
 
 10. — The declaration alleged that the plaintiff 
 having, on the 13th of February, 1872, recovered 
 judgment against S., on the plaintiff's application 
 a Judge's order nisi was made, on the 16th of 
 February, under 1 & 2 Vict. c. 110, s. 14, charg- 
 ing with the judgment debt certain shares in the 
 defendant company ; that the defendants, a public 
 company in England, were registered under the 
 Joint Stock Companies Acts ; that the shares were 
 then standing in the name of S. in his own right 
 within the meaning of section 14 ; that notice of 
 the order was afterwards on the same day given to 
 an authorised agent of the company ; that after 
 receiving the notice the company permitted a trans- 
 fer of the shares to F. ; and that after the shares 
 ceased to stand in S.'s name the order was made 
 absolute. The declaration then alleged that the 
 defendants became thereupon, under section 15 
 liable to the plantiff for such part of the value of 
 the shares as would satisfy the unpaid judgment 
 debt. The defendants pleaded on equitable grounds 
 that on the 28th of December, 1871, S. sold all his 
 interest in the shares for valuable consideration 
 to F., and executed a transfer thereof; that on the 
 17th of January, 1872, F. gave notice thereof to 
 the defendants, and requested them to register the 
 transfer ; that they returned the transfer, which 
 was not duly stamped, to F., that it might be duly 
 stamped ; that on the 19th of February they re- 
 ceived from F. the transfer duly stamped and 
 registered it ; and except as above the defendants 
 never permitted any transfer of the shares : — Held, 
 a good plea, since at the time the order nisi was 
 made the shares were not standing in the name of 
 S. in his own right within the meaning of 1 & 2 
 Vict. c. no, o. 14. Gill V. The Continental Gas 
 Union Company, 41 Law J. Eep. (k.s.) Exch. 176 ; 
 Law Eep. 7 Exch. 332. 
 
 (D) CoMMITTAI, OF DEBTOR. 
 
 11. — Where a judgment debt is not payable 
 by instalments there is no power tinder section 
 5 of the Debtors Act, 1869 (32 & 33 Vict. c. 62), 
 to commit the debtor more than once for default. 
 HorsnaU v. Bmce, 42 Law J. Eep. (n.s.) 0. P. 
 140 ; Law Eep. 8 C. P. 378. 
 
 [And see Deetoes Act, 14-18.] 
 
 (E) Effect of Judgment against one of 
 
 SEVEEAL WeONQ-BOEES. 
 
 12. — Judgment against one of two or more 
 joint wrong-doers is a bar to an action against 
 the others* for the same cause of action, although 
 
 such judgment be unsatisfied. Brinsmead v. Har- 
 rison, (Exch. Ch.), 41 Law J. Eep. (n.s.) C. P. 
 190 ; Law Eep. 7 C P. 547 : affirming the judg- 
 ment of the Court of Common Pleas, 40 Law J. 
 Eep. (n.s.) C. P. 281 ; Law Eep. 6 C. P. S84. 
 
 (F) FoEEiGN Judgment. 
 
 13. — A foreign judgment of a competent 
 Court cannot be impeached on appeal, unless 
 manifest error appears on the face of it, or it be 
 shewn to have been obtained by fraud or to be 
 wanting in the conditions of natural justice ; but 
 it cannot be applied to persons who were not par- 
 ties to the litigation, except where the judgment 
 is in rem. Messina v. Petroeocehino, 41 Law J. 
 Eep. (N.S.) P. C. 27; Law Eep. 4 P. C. 144. 
 
 Appointment of receiver in suit by judgment 
 creditor. [See Eeceivee, 1.] 
 
 Proofing joint creditor in ad/ministration 
 suit. [See Administeation, 3, 4.] 
 
 JUDICATOEE ACT, 
 
 [Additional rules of Court with scale of costs 
 and district registries. 12th August, 1876. See 
 44 Law J. Rep. (n.s.) Introd.] 
 
 [And see Supeeme Couet of Jxtdicatueb.] 
 
 JUDICIAL SEPAEATION. 
 [See DivoECE, E.] 
 
 JURISDICTION AT LAW. 
 
 (A) CouET OF Eeeoe. 
 
 (B) Teial at Bar. 
 
 (C) OvEE Action eemitted to County Couet. 
 
 (D) Breach of Promise op Maeeiage. 
 
 (E) Over Justices of the Peace. 
 
 (F) Ebfeeence to Aebitration. 
 
 [Powers conferred upon the Chief Justices of 
 the Courts of Queen's Bench and Common Pleas 
 and the Chief Barons of the Exchequer to adjust 
 from time to time the sittings of those Courts in 
 Banco, at Nisi Prius. 33 Vict. c. 6.] 
 
 (A) Couet of Eeeoe, 
 
 1. — A Court of Error has no larger power to 
 draw inferences than had the Court of original 
 jurisdiction. Where, in a special case, power for 
 the Court to draw inferences from the facts stated 
 is not reserved, neither the Court of first instance 
 nor the Court of Error can draw such inferences. 
 Latter v. White (H.L.), 41 Law J. Eep. (n.s.) 
 a. B. 342 ; Law Eep. 5 E. & I. App. 578. 
 
 2. — Upon an appeal to the Exchequer Chamber 
 from a decision of the Court below, mating abso- 
 lute a rule for a new trial, the respondent cannot 
 
JUJRISDICTION AT LAW (A)— JUEISDICTION IN EQUITY. 
 
 297 
 
 support that decision on the ground that the ver- 
 dict was against the -weight of evidence; for under 
 the Common law Procedure Act, 1854, the Court 
 of appeal has no jurisdiction to entertain that 
 question in any form. Morrison v. T!ie Universal 
 Marine Insurance Company (Exch. Ch.), 42 Law 
 J.Eep.(ir.s.)Exch. 116. 
 
 (B) Trial at Bab. 
 
 3. — An indictment found by the grand jury in 
 the Central Criminal Court for perjury committed 
 within the jurisdiction of that Court contained two 
 counts, in one of which the perjuries assigned 
 were in respect of an oath taken before a Com- 
 missioner in Chancery, sitting in the city of Lon- 
 don. In the other count the perjuries assigned 
 were in respect of an oath taken by the defendant 
 in the sessions house at Westminster, on the trial 
 of an ejectment in the Court of Common Pleas. 
 The indictment was removed into this Court by a 
 writ of certiorari, which, as required by 9 & 10 
 Vict. e. 24, s. 3, specified "Middlesex" as the 
 county in which it should be tried. On the appli- 
 cation of the Attorney-General it was ordered 
 that the trial should be at bar. This Court, in 
 Hilary Term, under statute 11 Geo. 4. & 1 Will. 4. 
 c. 70, s. 7, appointed for the trial the 23rd of 
 April, 1 873 (being a day in Easter Term), and 
 every day up to and inclusive of the 1st of No- 
 vember, 1873, being the day before the first day 
 of Michaelmas Term ; and further ordered, that, 
 in case the trial should not terminate on or before 
 the 1st of November, the further trial should be 
 adjourned till Michaelmas Term next, and be 
 thereafter continued at such times as the .Court 
 should then direct. The jury was taken from the 
 cotmty of Middlesex, and the trial at bar com- 
 menced. The Court did not sit continuously, 
 but adjourned not only over Sundays and holidays, 
 but also over days included in this period on which 
 it might have sat. In particular, there was an 
 adjournment from the 31st of October, 1873, to 
 the 17th of November, 1873, which was a day in 
 Michaelmas Term. The defendant's counsel ob- 
 jected to this last adjournment, and the Court 
 adjourned without consent. The trial having 
 been protracted, this Court in Michaelmas Term, 
 
 1873, made a second order, appointing every day 
 up to Michaelmas Term, 1874, for the trial. The 
 trial proceeded, and on the 28th of February, 
 
 1874, a day in the vacation before Easter Term, 
 the defendant was found guilty, and the Court 
 then passed upon him sentence of penal servitude 
 upon each count of the indictment : — Held, that 
 tlie proceedings were regular, and that the sen- 
 tence was properly pronounced. The Queen v. 
 Castro, 43 Law J. Eep. (n.s.) Q. B. 105 ; Law Eep. 
 9 Q. B. 350. 
 
 (C) Over Action eemittbd to County Couet. 
 
 4_ — Where an action commenced in a Superior 
 Court has been remitted to a County Court under 
 the County Courts Act, 1867, section 10, the Su- 
 perior Court has no longer jurisdiction to make 
 an order for costs under section 5. Moodie v. 
 Digest, 1870-1875. 
 
 Steward, 40 Law J. Eep. (n.s.) Exch. 26 ; Law 
 Eep. 6 Exch. 35. 
 
 (D) Breach op Promise of Maeeiage. 
 
 5.— The defendant, a British subject residing in 
 Germany, agreed to marry the plaintiff. The 
 agreement was made in Germany, and the mar- 
 riage was to take place in that country, though 
 no precise time for the ceremony was fixed. Sub- 
 sequently the defendant, while still in Germany, 
 wrote to the plaintiff giving back his promise 
 and withdrawing her own. The letter was re- 
 ceived by the plaintiff in England ; he wrote 
 refusing to accept her refusal, and urging her to 
 marry him. A writ out of this Court haiang 
 been personally served upon her, a Master made 
 an order, under section 18 of the Common Law 
 Procedure Act, 1852, that the plaintiff should be 
 at liberty to proceed in the action : — Held, that 
 the order was wrong, that the words " cause of 
 action," in the 18th section, mean the whole 
 cause of action, that the contract was made in 
 Germany, and that the breach occurred there 
 also ; the receipt of the letter written by the de- 
 fendant furnishing the plaintiff with evidence 
 that the defendant had renounced the relation of 
 betrothed persons. The Court declined to con- 
 cur with the opinion expressed by tlie Court of 
 Common Pleas in Jackson v. Spitial (39 Law J. 
 Eep. (n.s.) C.P. 321 ; Law Eep. 6 C. P. 642), and 
 adhered to its own decision in Allhuseii v. Malga- 
 r^o (37 Law J. Eep. (n.s.) Q. B. 169; Law Eep. 
 3 Q,. B. 340). Cherry v. Thompson, 41 Law J. 
 Eep. (n.s.) Q. B. 243 ; Law Eep. 7 Q. B. 573. 
 
 (E) OvEE Justices of the Peace. 
 [See Justice of the Peace.] 
 
 (P) Eefeeenoe to Arbitration. 
 
 Compulsory reference. [See Aebitea- 
 
 TION, 13.] 
 Setting aside award. [See Arbitration, 
 
 20, 23.] 
 Jurisdiction to impeach foreign judgment. 
 
 [See Judgment, 13.] 
 
 JUEISDICTION IN EQUITY. 
 
 (A) General Pkinciples governing Exercise 
 
 of Jurisdiction. 
 (a) Mistake, 
 {b) Where statutory remedy has not been 
 
 had recourse to. 
 (e) Asstimption of jurisdiction by , fictitious 
 issue. 
 
 (B) Concurrent Jurisdiction with other 
 
 Courts. 
 (a) With Courts of law. 
 
 (1) Fraud or misrepresentation. 
 
 (2) Money demand. 
 
 (3) Delivery up of bond. 
 
 (4) Ubd. 
 
 (5) Specific performance. 
 (A) With Com fj>f Bankruptcy. 
 
 QQ 
 
298 
 
 JURISDICTION IN EQUITY (A), <B). 
 
 (C) In bespeot of Pbesoks and Pbopebtt 
 
 OUT OF THE JUBISDIOTION. 
 
 (D) Over Pabticuiae Persons. 
 
 (ffl) Commissioners for Bedmition of National 
 Debt. 
 
 {h) Members of Inns of Cowt. 
 
 (e) Executor who has not proved or re- 
 nounced. 
 
 {d) Against Crown. 
 
 (e) Over persons in contempt. 
 
 (E) Under Particdlab Acts of Pabliament. 
 
 (F) In general. 
 
 (A) General Peinciples GOTEENma Exebcise 
 OF Jurisdiction. 
 
 (a) MistaJce. 
 
 1, — In cases of mutual mistake equity will 
 interpose to grant relief. Earl Beauchamp v. 
 Winn, La\r Rep. 6 E. & I. App. 223. 
 
 Relief will not be refused merely because circum- 
 stances have rendered it difficult to restore the par- 
 ties to their original condition. Ibid. 
 
 The maxim ignorantia juris neminem excusat 
 applies to ignorance of a well-known rule of law, 
 not to ignorance of the true construction of a 
 doubtful deed of grant. Ibid. 
 
 Acquiescence arising from ignorance of a man's 
 rights is not a bar to relief. Ibid. 
 
 [And see Mistake.] 
 
 (J) Where statutory remedy has not been had 
 recourse to. 
 
 2.— The Court of Chancery will not entertain a 
 suit to enforce the making or repairing railway 
 accommodation works, unless recourse has been 
 had in the first instance to justices, where by 
 Act of Parliament they have jurisdiction in the 
 matter. Hood v. The North-Eastem Bailway 
 Company, 40 Law J. Rep. (n.s.) Ohauc. 17 ; Law 
 Eep. 11 Eq. 116. 
 
 (c) Assumption of jurisdiction by fictitious issue. 
 
 3, — A special case was presented raising the 
 question whether, under an appointment, Mrs. P. 
 (deceased) had been tenant in tail or only tenant 
 for life of certain estates, the plaintiff (Mrs. P.'s 
 daughter) contending, first, that Mrs. P. was 
 tenant in tail, in which case the plaintiff was 
 now tenant in tail subject to her father's tenancy 
 by the curtesy ; second, that if Mrs. P. was only 
 tenant for life, she (the plaintiff) was entitled 
 now to the whole or part of an estate of inheri- 
 tance. The plaintiff's father was in possession 
 as tenant by the curtesy : — Held, that, under the 
 circumstances, the Court could not assume juris- 
 diction, on the ground that the plaintiff was enti- 
 tled to call for an account, or for the title deeds. 
 Key T. Key (4 De G-ex, M. & G. 73 ; 22 Law J. 
 Eep. (n.s.) Chanc. 641), and Forsbrook t. Fors- 
 brook (Law Rep. 3 Chanc. 93) considered. Pryse 
 V. Pryse, 42 Law J. Rep. (n.s.) Chanc. 253 ; Law 
 Rep.l5 Eq. 86. 
 
 (B) CONOUBEENT JURISDICTION WITH OTHER 
 COUBTS. 
 
 (a) With Courts of Law. 
 (1) Fraud or misrepresentation. 
 
 4. — A bill will lie by a shareholder to recover 
 from directors of a joint-stock company money 
 paid on felse representations, the jurisdiction of 
 Courts of common law in such cases being only 
 concurrent. Observations on dictum of Lord 
 Cairns, L. C, in Ogilvie v. Currie, 37 Law J. Rep. 
 (n.s.) Chanc. 541. HUl v. Lane, 40 Law J. Rep. 
 (n.s.) Chanc. 41 ; Law Rep. 11 Eq. 215. 
 
 5, — The Court will not grant an injunction to 
 restrain proceedings at law upon a judgment 
 obtained in a foreign Court on the ground that such 
 judgment was obtained by fraud, the Court of 
 Common Law having full jurisdiction to entertain 
 the question of fraud, and being the fittest tribunal 
 to try it. Ochsenbein v. Fapelier, 42 Law J. Rep. 
 (n.s.) Chanc. 861 ; Law Rep. 8 Chanc. 695. 
 
 [And see next case.] 
 
 (2) Money demand. 
 
 6. — A partner sued in equity for a money de- 
 mand, alleging by his bill that his co-partner had 
 released the debt, which was still due to the part- 
 nership : — Held, that the release created such a 
 difficulty in suing at law for the debt, that the bill 
 was not demurrable for want of equity. Piercy v. 
 Fynney,i(i Law J. Rep. (n.s.) Chanc. 464; Law 
 Eep. 12 Eq. 69. 
 
 [And see Mistake.] 
 
 (3) Delivery up of bond. 
 
 7. — A bill in equity will not lie to -have a bond 
 which has been satisfied delivered up. Binns v. 
 Fisher, 43 Law J. Eep. (n.s.) Chanc. 188. 
 
 (4) Ubel. 
 
 8. — The Court of Chancery has no jurisdiction 
 to restrain the publication of a libel. Fisher v. 
 The Appollinaris Company (Lim.), 44 Law J. Rep. 
 (n.s.) Chanc. 500 ; Law Rep. 10 Chanc. 297. 
 
 Where a person complaining of injury has a 
 choice of remedies by proceeding either civilly or 
 criminally, and elects to take criminal proceedings, 
 it is not against public policy to compromise such 
 proceedings. Ibid. 
 
 A prosecution instituted by the defendants 
 against the plaintiff under the Merchandise Marks 
 Act, 1862 (25 & 26 Vict. c. 88), was by agreement 
 compromised, and the plaintiff gave the defendants 
 a written apology, requesting them not farther to 
 continue proceedings against him, and authorising 
 them to make such use of the apology as they might 
 think necessary. Upon demurrer to a bill to 
 restrain the excessive publication of this apology, 
 — Held, reversing the decision of one of the Vice- 
 Chancellors, that the Court had no jurisdiction to 
 interfere. Ibid. 
 
 (6) Specific performance. 
 [See Specific Performance, 4.] 
 
JUEISDICTION IN EQUITY (B), (D). 
 
 299 
 
 (b) With Court of BanJerwptoy. 
 [See aJso Bankrtjptot, A.] 
 
 9.' — To a biU filed by an equitable mortgagee 
 against the trustee under liquidation of the mort- 
 gagor, seeking; a sale of the security, the defendant 
 demurred on the ground that the Court of Bank- 
 ruptcy Tras the proper tribunal. Demurrur 
 allowed by one of the Vice-Chancellors, but over- 
 ruled on appeal -with reluctance. White v. Sim- 
 mons, 40 Law J. Eep. (n.s.) Chanc. 689 ; Law Rep. 
 6 Chanc. 555. 
 
 10. — A Court of Equity will not interfere upon 
 any question arising out of a creditor's composition 
 deed, or other proceedings in bankruptcy, except 
 under special circumstances. Graham v. Winter- 
 son, 42 Law J. Eep. (n.s.) Chanc. 633 ; Law Rep. 
 16 Eq. 243. 
 
 A solicitor who has not been allowed costs in 
 bankruptcy is not entitled to file a bill or plaint in 
 a Court of Equity to recover them. Ibid. 
 
 11. — Although under the provisions of the Acts 
 of Parliament relating to bankruptcy in cases of 
 registered arrangement deeds the Court of Bank- 
 ruptcy is armed with powers, both legal and equi- 
 table, large enough to do complete justice, the 
 jurisdiction of a Court of Equity is not thereby 
 ousted, as between the trustee of a deed of arrange- 
 ment, and a third person who is a stranger to the 
 bankruptcy. Ellis v. Silber, 42 Law J. Rep. (n.s.) 
 Chanc. 666 ; Law Rep. 8 Chanc. 83. 
 
 Jurisdiction to set aside sale made in pro- 
 ceedinffs in Saniruptc^. [See Bank- 
 BUTTCT, A 12.] 
 
 (C) In eespbot op Persons and Peopeety out 
 
 OF THE JUEISDICTION. 
 
 12. — The subject-matter of the suit was a mine 
 in America, in which the plaintiff and the defend- 
 ants P. and B. (all Americans) were interested. 
 Various negotiations and contracts were made and 
 entered into between the parties, under or by 
 virtue of which an English company (limited) was 
 formed here to work the mine. P. came over to 
 this country to superintend the English company, 
 but B. remained throughout- in America. Disputes 
 arose, and a suit was instituted here to restrain P. 
 from selling certain shares of the English com- 
 pany; for an account; and for other relief. P. 
 did not object to the jurisdiction. An order was 
 made in the suit to serve process upon B. in 
 America, which was done : — Held, upon a motion 
 by B. to discharge such order, that as it did not 
 appeal that P. was B.'s agent, his not objecting to 
 the jurisdiction did not operate as a waiver by B. 
 of any objection which he (B.) might have to it, or 
 of his rights as an American citizen to be sued in 
 respect of an American contract, in the Courts of 
 his own country alone ; and the order was there- 
 fore discharged, with costs. Davis v. Park, 42 
 Law J. Rep. (n.s.) Chanc. 204 : affirmed, on appeal, 
 42 Law J. Rep. (n.s.) Chanc. 673 ; Law Eep. 8 
 Chanc. 862 n. 
 
 13. — The Court wUl specifically enforce against 
 a foreigner a contract of sale made abroad, if the 
 subject-matter of the contract is within its juris- 
 
 diction. Watson V. Cox, 42 Law J. Rep. (n.s.) 
 Chanc. 279 ; Law Rep. 15 Eq. 219. 
 
 And, therefore, where a contract was made 
 abroad for the sale of a foreign vessel to be de- 
 livered in this country, the Court granted an 
 interim injunction to restrain the removal of the 
 ship from an English port, allowing substituted 
 service of the notice of motion on the captain. 
 Ibid. 
 
 14. — The Court of Chancery will not entertain 
 a suit in respect of a foreign contract, in which 
 the parties are foreign subjects and the subject- 
 matter is in a foreign country, although the plain- 
 tiff's claim is in respect of moneys in the posses- 
 sion of a second defendant as stakeholder, and who 
 is within the jurisdiction. Matthaei v. Galitsin, 
 43 Law J. Rep. (n.s.) Chanc. 636 ; Law Eep. 18 
 Eq. 340. 
 
 15. — If a foreign government or state having 
 notice of a suit instituted in this country for the 
 administration of a fund in which it is entitled to 
 claim an interest, does not appear, and submit its 
 rights to the jurisdiction of the Court, the Court 
 will proceed in its absence. Larivihe v. Morgan, 
 41 Law J. Eep. (n.s.) Chanc. 746 ; Law Rep. 7 
 Chanc. 550. 
 
 In November, 1870, the French Government in- 
 structed their bankers in London to open a special 
 credit in favour of the plaintiff for 40,000^., to be 
 paid to him rateably as certain goods contracted to 
 be supplied by the plaintiff should be delivered. 
 Part of the contract was performed, and a propor- 
 tionate part of the money was paid to the plaintiff, 
 but a dispute having arisen as to the rest of the 
 contract, the plaintiff filed his bill against the 
 bankers and the French Republic, for a declaration 
 and performance of the trusts of the residue of the 
 40,000^. The French Eepublie did not appear : — 
 Held, that the Court had jurisdiction over the 
 fund, and in the absence of the French Republic 
 would proceed to ascertain, as it best could, the 
 rights of the parties who appeared. Ibid. 
 
 16. — The Court declined to entertain a suit in 
 which the plaintiffs were natives of India, the 
 subject-matter was in India, and the defendant 
 was capable of being sued in India. Doss v. The 
 Secretary of State for India, Law Rep. 19 Eq. 609. 
 17. — The Court has jurisdiction to make a fore- 
 closure decree in respect of lands situate out of 
 the jurisdiction. Paget v. Ede, 43 Law J. Rep. 
 (n.s.) Chanc. 571 ; Law Eep. 18 Eq. 118. 
 
 As to service on parties out of jurisdiction 
 and substituted service. [See Peacticb 
 IN Equity, 124-129.] 
 
 (D) OVBE PAETICXJLAE PeESONS. 
 
 (a) Commissioners for Eed/uction of National Debt. 
 18. — The Court has jurisdiction under 5 Vict, 
 c. 5, s. 4, to restrain the Commissioners for the 
 Eeduction of the National Debt from paying or 
 transferring an annuity payable by them. Watts 
 V. Watts, 40 Law J. Eep. (n.s.) Chanc. 388. 
 
 (5) Members of Irms of Court. 
 
 19. — A Court of Equity has no jurisdiction to 
 restrain an action at law by an Inn of Court against 
 Q<j2 
 
300 
 
 JURISDICTION IN EaUITY (D)— JUSTICE OF THE PEACE. 
 
 one of its own members on his suretyship bond. 
 The proper tribunal is that of the Judges of the 
 superior Courts of England and Wales, in their 
 visitatorial capacity over the Inn. THeate v. Dewman, 
 43 Law J. Eep. (n.s.) Chane. 409; Law Eep. 18 
 Eq. 127. 
 
 (c) Executor who has iwt proved or renounoed. 
 
 20. — AVhere a person named executor, though 
 he has not proved the will nor acted, has not re- 
 nounced probate, he cannot be sued by his coadju- 
 tor at law for a debt due from him to the estate, 
 and therefore he can properly be sued in equity. 
 Morkj/ V. White, 42 Law J. Eep. (n.s.) Chanc. 
 880; Law Eep. 8 Chanc. 731. 
 
 A person named executor, alleged to be a debtor 
 to the estate, was inade defendant to a biU for 
 administration, and answered it, stating that he 
 had not acted, and purporting to disclaim. After- 
 wards he renounced probate, and on the bill being 
 amended to state how he was indebted to the estate, 
 he pleaded the renunciation: — Held, that he was 
 originally properly made a defendant, and that the 
 jurisdiction having once attached, still remained 
 after the renunciation. Ibid. 
 
 (d) Against Crown. 
 
 Jurisdiction to make foreclosure decree against 
 Crown. [See Mobtgaqe, 43.] 
 
 («) Over persons in contempt. 
 
 [See Pbacticb in Equity, M ; and Debtoes 
 Act, 2, 3.] 
 
 (E) Under Pabtioulab Acts of Paeliament. 
 
 To award damages under 21 ^ 22 Vict. u. 
 
 27, s. 2. [See Injunction, 37-40.] 
 Under Lands Clauses Consolidation Act. 
 
 [See that title.] 
 Under Trustee Act. [See Trustee, E.] 
 Under Trustee Belief Act. [See Trustee, 
 
 D.] 
 To award costs under special Act. [See 
 
 Costs in Equity.] 
 
 (F) In geneeai. 
 
 I?i suits for injunction. [See Injunction.] 
 
 To appoint receiver. [See Eeceiver.] 
 
 To set aside unconscionable bargains. [See 
 Usury.] 
 
 To set aside transactions on ground of fraud 
 or undue influence. [See Fraud, Un- 
 due Influence.] 
 
 In suit hy a garnishee under attachment out 
 of Lord Mayors Cowrt. [See London.] 
 
 In partition suits. [See Paetition.] 
 
 To rectify register of company under Com- 
 panies Act, 1862. [See Company, 
 1)64.] 
 
 In winding up cases. [See Company, I 
 56-59.] 
 
 In respect of infants. [See Infant ; Parent 
 AND Child.] 
 
 In patent cases. [See Patent.] 
 
 On petition for opinion of Court mtder Lord 
 
 St. Leonard^ Act. [See Practice in 
 
 Equity, 102.] 
 Jurisdiction to order sale by wuction by chief 
 
 clerk. [See Practice in Equity, 117- 
 
 120.] 
 To set aside award. [See Aebitbation, 22.] 
 
 JUEY. 
 
 [33 & 34 Vict. c. 77, as to payment of jurors, 
 repealed. 34 & 36 Vict. c. 2.] 
 
 [The Acts as to juries in Ireland amended. 35 
 & 36 Vict. c. 25 ; 36 & 37 Vict. c. 27 ; 37 & 38 
 Vict. c. 28.] 
 
 [Eegulse Generales, Michaelmas Term, 1870, 
 relating to trials in London and Middlesex, and at 
 the assizes. 40 Law J. Eep. (n.s.) 0. L. 1.] 
 
 Expenses. 
 
 1, — The payment of fees to justices' clerks " for 
 notice to parish officers to retnrn and verify jury lists, 
 and for allowance of list and return thereof," are 
 not expenses properly incurred within the meaning 
 of 7 & 8 Vict. c. 101, s. 60, and a rule to quash 
 the disallowance of the same in the overseers' 
 accounts by the Poor Law auditor was discharged. 
 The Qiieen v. Overseers of Haslingfield, 43 Law J. 
 Eep. (n.s.) Q. B. 38 ; Law Eep. 9 0,- B. 203. 
 
 Semble — that if the fees had been payable to 
 the overseers, the amount ought to have been 
 allowed to them out of the poor-rate. Ibid. 
 
 View by jury. 
 
 2 . — It is competent for the judge presiding at 
 the trial of a criminal offence to permit the jury 
 to view the locus in quo at any time during the 
 trial, and it is discretionary with him to take such 
 precautions as he may deem necessary as to the 
 persons to accompany them, and with regard to 
 the communications which they may receive from 
 such persons or others. The Queen v. Martin, 41 
 Law J. Eep. (n.s.) M. 0. 113 ; Law Eep. 1 C. C. E. 
 378. 
 
 QuEere-^whether if any evidence be given irregu- 
 larly to the jury at the view, and that fact be duly 
 examined into by the Court and ascertained, it be 
 a matter to be placed upon the record, and the 
 subject of a writ of error, or be ground for a case 
 for this Court or for an application to the Home 
 Secretary for remission of the sentence. Ibid. 
 
 Quaere, also, whether this Court has jurisdiction 
 to award a venire de novo in the case of a mistrial. 
 Ibid. 
 
 JUSTICE OF THE PEACE. 
 
 (A) Jurisdiction of Justices. 
 
 («) Joint information : several convictions, 
 {ft) Order for payrmnt of money. 
 (c) Claim of right, 
 {d) In particular cases. 
 
JUSTICE OF THE PEACE (A). 
 
 301 
 
 (B) QuAETER Sessions. 
 
 (a) Signature to notice of appeal 
 
 (b) Power to make rules. 
 
 (o) Power to order justices to pay costs. 
 {d) Appeal to, referred to arbitration. 
 (e) Power to state case to Superior Court. 
 (J) Table of fees, 
 {g) Adjournment. 
 (A) lAcensing. 
 
 (C) JUBISDICTION AMD PeAOTICB OP StIPEEIOB 
 
 CotTBT. 
 
 (a) Time for certiorari. 
 
 (i) Amendment of order of justices. 
 
 (c) Case stated. 
 
 (d) Power to order justices to pay costs. 
 
 (e) Mandamus. 
 
 [The practice of the Courts of Law witli respect 
 to the review of the decisions of justices of the 
 peace amended. 35 & 36 Vict. c. 26.] 
 
 (A) Jtjkisdiciioh of Justices. 
 
 (a) Joint information : several convictions. 
 
 1. — Upon the hearing of a joint information 
 against two persons for using a gun on Sunday, for 
 the purpose of killing game, such persons have no 
 right to insist that the charge should be heard 
 separately against each, so that each might call 
 the other as a witness on his behalf. Nor is there 
 anything wrong in drawing up separate convictions, 
 ordering the payment of separate penalties by the 
 persons against whom the joint information has 
 been laid. The Queen y. Littlechiid ; The Queen v. 
 fies?op,40LawJ.Eep. (n.s.)M. 0. 137; Law Eep. 
 6 Q. B. 293. 
 
 (6) Order for payment of money. 
 
 2. — The adjudication of two justices under the 
 Lands Clauses Act (8 Vict. c. 18), s. 22, as to the 
 value of an interest in lands required for the 
 execution of an undertaking within that Act, in 
 respect to which no agreement has been come to 
 between the promoters and the party entitled to 
 sell as to the value thereof, is not an order for the 
 payment of money within 11 & 12 Vict. e. 43, s. 
 1 1 ( Jervis' Act), and the summons to hear and de- 
 termine such question of compensation is not out 
 of time if issued after six months from the notice 
 to treat given by the promoters of the undertak- 
 ing. The Queen v. Hannay, 44 Law J. Eep. (n.s.) 
 M. C. 27. 
 
 (c) Claim of right. 
 
 3. — A bond fide claim of right under ordinary 
 circumstances suffices to render a conviction by 
 justices for any criminal offence improper; for 
 they cannot try the existence of a right bond fide 
 set up in answer to a criminal charge brought 
 before them. But although where there must be 
 a mens rea to constitute an offence, an honest claim 
 of right, however absurd, will frustrate a summary 
 conviction, yet, where the absence of mens rea is 
 not necessarily a defence, the person who sets up 
 a claim of right must shew some ground for its 
 assertion, and if he fails to do so, is liable to be 
 convicted of the offence charged against him. 
 
 Watkins v. Mayor, 44 Law J. Eep. (n.s.) M, C. 
 164;- Law Eep. 10 0. P. 662. 
 
 An information was preferred against the ap- 
 pellant for killing a rabbit, contrary to 1 & 2 "Will. 
 4. c. 32, s. 30. It was proved that E. claimed to 
 be lord of the manor of A., and a vritness stated 
 that the manor had belonged to two persons, who 
 were predecessors in title to E. A deputation 
 was also produced, which appeared to have been 
 duly enrolled by the clerk of the peace of the 
 county, by which S. was appointed gamekeeper 
 for and within the manor of A. The witness also 
 stated that he had known the common of A. forforty 
 years, and had always believed it to be part of the 
 manor of A., and that E. had allowed him to shoot 
 over the common. The appellant went by direc- 
 tion of his father on to the common of A., and 
 there shot a rabbit. The father had previously 
 acquired the lease of some land near the common, 
 and had built a house on it. He claimed in respect 
 of this land, as one of the commoners, a right of 
 killing rabbits on the common, but no evidence was 
 adduced that any of the commoners had ever claimed 
 or exercised a right of killing rabbits on the com- 
 mon. The claim to kiU rabbits was made by the 
 appellant and his father bond fide, and the justices 
 having convicted the appellant, — Ileld, first, that 
 there was evidence that the manor of A. existed, 
 that the common of A. was within it, and that E. 
 was the lord of it ; secondly, that as the appellant 
 had given no sufficient evidence of a right justify- 
 ing him in killing the rabbit, he was properly 
 convicted, although he bond fide believed himself 
 to be entitled to shoot the rabbit. Ibid. 
 
 4. — The respondent was the owner, at a place 
 above the flow of the tide, of the soil of a river 
 which had been made navigable under several 
 Acts of Parliament, which did not affect the right 
 to the soil. The public had for many years fished 
 in the river, and on the respondent setting up a 
 notice prohibiting this, the appellant, in order to 
 raise the question of the right of the public, fished 
 there, and was summoned under 24 & 25 Vict. 
 c. 96, s. 24, for fishing in water where there was a 
 private right of fishing. He claimed a right, as 
 one of the public, to fish : — Held, that such a right 
 could not be acquired, and therefore the claim did 
 not oust the jurisdiction of the justices. Har- 
 greaves v. Biddams, 44 Law J. Eep. (n.s.) M. C. 
 178; Law Eep. lOQ.B. 582. 
 
 Jurisdiction of justices, when ousted by claim 
 of right. [See Hiohwat ; Maijcious 
 Injuet, 2.] 
 
 ((?) In particular cases. 
 
 Summary jurisdiction under Master and 
 Servant Act, 1867. [See Mastee and 
 Sbevant, E.] 
 
 Jurisdiction as to licensing. [See Alehouse.] 
 
 Jurisdiction on bastardy siimmons. [See 
 Bastakdy.] 
 
 Jurisdiction on information for neglect to 
 supply water to cattle on transit by rail. 
 [See Animals, 3.] 
 
 As to. abatement of nuisance, [See Nui- 
 sance, 3-8.] 
 
302 
 
 JUSTICE OF THE PEACE (B), (0). 
 
 (B) Qtjaeteb Sessions. 
 
 (a) Signature to notice of appeal. 
 
 5. — By 12 & 13 Vict. c. 45, s. 1, in every case 
 of appeal (except as thereinafter mentioned) to the 
 General or Quarter Sessions of the Peace, the 
 notice of appeal " shall be in writing signed by 
 the person or persons giving the same, or by his, 
 her or their attorney, on his, her or their behalf," 
 &c. : — Held, that a notice of appeal signed, in the 
 name of the appellant, by a clerk to the appellant's 
 attorney, by the authority of the appellant, and 
 afterwards acknowledged by him, was sufficiently 
 signed. The Queen v. The Jtistices of Kent, 42 Law 
 J. Eep. (U.S.) M. C. 112 ; Law Eep. 8 Q. B. 305. 
 
 (6) Power to make rules. 
 
 6. — Upon appeal to quarter sessions from the 
 refusal of a license at the special licensing sessions 
 it appeared that the preliminaries introductory to 
 an appeal required by 9 Geo. 4. c. 61, s. 27, had 
 been observed, but that the appeal had not been 
 entered and the grounds of appeal deposited with 
 the clerk of the peace three clear days before the 
 first day of the sessions, pursuant to a rule or 
 standing order of the sessions. The Court there- 
 upon refused to allow the appeal to be entered, 
 and made an order on the appellant for costs : — 
 Held, that the order of sessions must be quashed, 
 for the rule was one which they had no power to 
 make inasmuch as it did not merely relate to the 
 practice of the sessions, but added to the condi- 
 tions prescribed by the statute with regard to 
 appeals. The Queen v. Pawlett, 42 Law J. Eep. 
 (n.s.) M. C. 157 ; Law Eep. 8 Q. B. 491. 
 
 (c) Power to order justices to pat/ costs. 
 
 1. — Upon an appeal to quarter sessions under 
 34 & 35 Vict. c. 32, b. 3, the quarter sessions have 
 no power to order the justices who wrongftdly con- 
 victed the appellant to pay costs. The Queen v. 
 Goddall, 43 Law J. Eep. (n.s.) M. C. 119 ; Law 
 Eep. 9 Q. B. 557. 
 
 (d) Appeal to, referred to arbitration. 
 
 8. — On reference to arbitration of an appeal at 
 quarter sessions under 12 & 13 Vict. c. 45, s. 13, 
 no mention being made of costs, the appeal having 
 been regularly adjourned from sessions to sessions, 
 on the award being made, the subsequent sessions 
 have no power to award any costs either of the re- 
 ference or appeal, their duty being simply to enter 
 the award as the judgment of the Court. The 
 Queen v. The Justices of Middlesex. The West 
 London Extension Railway Company y. The Fnlham 
 Union Assessment Committee, 40 Law J. Eep. (n.s.) 
 M. 0. 109 ; Law Eep. 6 Q. B. 220. 
 
 Power as to costs. [See Aebiteation, 31.] 
 
 (e) Power to state case to Superior Court. 
 
 9. — Upon an application to enter and respite an 
 appeal, the Court of Quarter Sessions has no 
 power to state a special case ; and the Court of 
 Queen's Bench will take no notice of the facts of 
 a case so stated. The Queen v. The London and 
 
 North-Western Railway Company, 43 Law J. Eep. 
 (n.s.) M. C. 67 ; Law Eep. 9 Q. B. 153, sub rum. 
 The Queen v. Sutton Coldfidd. 
 
 if) Table of fees. 
 
 10. — In an action brought under 26 Geo. 2. 
 c. 14, 6. 2, to recover a penalty against a clerk to 
 justices of the peace for extorting excessive fees 
 from the plaintiff, the venue is local by 31 Eliz. 
 c. 5, s. 2 ; for 26 Geo. 2. o. 14, s. 2, gives a right 
 of action for the penalty to any person, and not to 
 the party grieved alone. Lewis v. Davis, 44 Law 
 J. Eep. (n.s.) Exch. 86 ; Law Eep. 10 Exch. 86. 
 
 Semble — per Blackburn, J., Mellor, J., and 
 Archibald, J., that the power given by 26 Geo. 2. 
 c. 14 to justices of the peace from time to time 
 to make a table of fees may be exercised, although 
 no table was made in 1753 as required by the 
 statute. Ibid. 
 
 {g) Adjourn/ment. 
 
 11. — An adjournment of quarter sessions to a 
 subsequent sessions is a continuation of the origi- 
 nal sessions. Therefore, where, at the general 
 quarter sessions holden in October, an appeal 
 under 32 & 33 Vict. c. 27, and 9 Geo. 4. ^. 61, s. 27, 
 was dismissed with costs, but the amount of such 
 costs was not ascertained by the clerk of the peace 
 until the sessions holden by adjournment in No- 
 vember, — Held, that an order of sessions for the 
 payment by the appellant of such ascertained 
 amount of costs was good. Bavmsley v. Hutchwp- 
 son, 40 Law J. Eep. (n.s.) M. C. 97 ; Law Eep. 6 
 Q. B. 305. 
 
 {h) lAcensing. 
 
 Discretion of justices as to granting music 
 
 and dancing licenses. [See Public 
 
 Entebtainment.] 
 Sloppily up or diverting highway : time for 
 
 giving notice of appeal. [See High 
 
 WA.T, 7.] 
 
 (C) Jueisdiction and Peactice of Supebiob 
 
 CoiTET. 
 
 (a) Time for certiorari. 
 
 12. — The general rule that application for a 
 writ of mandamus to the quarter sessions to enter 
 continuances and hear an appeal must be made 
 not later than the term following the sessions at 
 which the refusal was made, does not apply to an 
 application to remove into this Court an order of 
 sessions for the purpose of getting it quashed. 
 The Queen v. The Justices of Breoknoohshire, 42 
 Law J. Eep. (n.s.) M. C. 135. 
 
 (5) Amendment of order of justices. 
 
 13. — The mother of a bastard child, born on 
 the 27th of May,_ 1870, applied on the 11th of 
 August to M., a justice, who issued a summons 
 against T., the alleged father. Several successive 
 summonses were issued, and in March, 1871, T. 
 was served with a summons'to appear before the 
 justices on the 11th of April. The mother and 
 T. attended, but the mother withdrew the sum- 
 
JUSTICE OF THE PEACE (C)— LAND TAX. 
 
 303 
 
 mons and on the same day applied to B., another 
 justice, who issued a summons requiring T. to 
 appear on the 26th of April. On that day an 
 order was made, which recited the application to 
 M., adjudged T. to be the father of the child, and 
 ordered him to pay 2s. 6d. per week, commencing 
 from the 11th of August, 1871, on which day the 
 mother had applied to M. : — Held, that section 7 of 
 12 & 13 Vict. c. 46 gave the Court no power to 
 amend tliis invalid order, by alleging the applica- 
 tion to B. instead of the application to M., or by 
 making the payments to begin from the 1 1th of 
 April, 1871, instead of from the 11th of August, 
 1870. The Queen v. Tomlinsoii, 42 Law J. Eep. 
 (n.s.) M. C. 1 ; Law Eep. 8 Q. B. 12. 
 
 (c) Case stated. 
 
 14. — On a case stated under 20 & 21 Vict. c. 43, 
 the Court will decide a point of law arising on the 
 case, though such point was not raised before the 
 justices. Knight v. HalUviell, 43 Law J. Eep. 
 (n.s.) M.C. 113 ; Law Eep. 9 Q.B. 412. 
 
 ((^ Fower to order justices to fay costs. 
 
 15. — ^By the Criminal Law Amendment Act 
 (34 & 36 Vict. c. 32), s. 3, an appeal to sessions is 
 given against any conviction under the Act. By 
 sub-section 2 the appellant shall, within seven 
 days after the cause of appeal has arisen, give 
 notice to the other party and to the Court of sum- 
 mary jurisdiction of his intention to appeal, and 
 of the ground thereof. By sub-section 6 the Court 
 of Appeal may make such order as to costs to. be 
 paid by either party as the Com-t thinks just. The 
 defendants, having been convicted under the Act, 
 gave notice of appeal to the prosecutor and the 
 justices at petty sessions, and made the justices 
 and prosecutor respondents. The justices did not 
 appear, and the conviction was quashed. In draw- 
 ing up the order of sessions directing the respon- 
 dents, or some of them, to pay the appellant's 
 costs, the justices were named as respondents : — 
 Held, that a rule to strike out so much of the order 
 as ordered the justices to pay costs, must be made 
 absolute, as it was quite clear that under the cir- 
 cumstances there was no power to order them to 
 pay costs. The Queen v. GoodaU, 43 Law J. Eep. 
 (N.S.) M. C. 119 ; Law Eep. 9 Q. B. 5S7. 
 
 (c). Mandamus. 
 
 16. — Where justices refused to proceed with an 
 information against a person under the Licensing 
 Act, 1872, 35 & 36 Vict. e. 94, s. 11, for having an 
 untrue statement on his premises as to his license 
 to sell liquor, the Court refused to grant a rule 
 under 11 & 12 Vict. c. 44, s. 8, calling upon the 
 justices to proceed ^ with the case, and held that 
 the remedy was by mandamus. The Queen v. 
 Percy and others, Justices of Cumberland, 43 Law 
 J. Eep. (n.s.) M. C. 46 ; Law Eep. 9 Q. B. 64. 
 
 LAND DEAINAGE. 
 
 A drainage board appointed under 24 & 25 
 Vict. c. 133, with all the powers of Commissioners 
 of Sewers, incurred an expenditure of more than 
 IjOOOZ. in and about the obtaining plans and sur- 
 veys of the lands within their district, and esti- 
 mates for executing the works which they proposed 
 to carry out. The proprietors of more than one- 
 half the necessary area of the land within the 
 district duly declared their unwillingness that the 
 works should be completed. The defendants made 
 a rate on the occupiers, including the plaintiff, of 
 lands in the district, according to the quantities 
 and qualities of their estates, for the costs, charges 
 and expenses incurred in causing plans and esti- 
 mates of the works to be prepared. The plaintiff 
 was assessed as the occupier of houses, gardens, 
 and orchards, as well as of land : — Held, that 
 under section 38, the rate was good as a general 
 rate upon the occupiers, and that the expenses 
 were not such as ought to be defrayed out of a 
 special rate upon the owners. Griffiths v. The 
 Longdon and Eversfield Drainage Board, 41 Law 
 J. Eep. (n.s.) Q.B. 25; Law Eep. 6 Q.B. 738. 
 
 LAND EEGISTEY. 
 
 [Amendment of the Land Registry Act, 1862. 
 Power to owners of freehold and leasehold lands 
 to apply for registration with absolute or posses- 
 sory title. Provisions as to dealings with regis- 
 tered lands, &c. Institution of land registries. 
 Section 7 of the Vendor and Purchaser Act (as to 
 tacking and abolition of protection by the legal 
 estate) repealed as from the date thereof except 
 as to anything duly done thereunder before the 
 present Act. 38 & 39 Vict. c. 87.] 
 
 1. — When the registered owner of -land has 
 granted a first mortgage with the statutory power 
 of sale, and has also granted subsequent mort- 
 gages, a purchaser from the first mortgagee is 
 entitled to be registered with an indefeasible title, 
 just as if the subsequent mortgages had not been 
 granted, and he had purchased from the mortgagor 
 and mortgagee together. In re Bichardson's Pur- 
 chase, 40 Law J. Eep. (n.s.) Chanc. 616 ; Law Eep. 
 12 Eq. 398. 
 
 The order made in this case varied. In re 
 Bichardson's Purchase, 41 Law J. Eep. (n.s.) 
 Chanc. 221 ; Law Eep. 13 Eq. 142. 
 
 2. — When a mortgagor has registered his title 
 under the Transfer of Land Act as an indefeasible 
 title, subject to a mortgage, a purchaser from the 
 mortgagee having entered his conveyance on the 
 register, but not having registered his title as in- 
 defeasible, can have the entries of the mortgagor's 
 title removed from the register under section 34. 
 In re Winter, 42 Law J. Eep. (n.s.) Chanc. 318; 
 Law Eep. 15 Eq. 166. 
 
 LACHES. 
 
 Exoneration of surety by laches of creditor. 
 [See Pbincipal and Agent, 14.] 
 
 LAND TAX. 
 
 Under 42 Geo. 3. c. 116, s. 100, providing that 
 sale moneys of lands sold to redeem the tax on any 
 
804 
 
 LAND TAX— LANDLOED AND TENANT (A). 
 
 lands may be applied in discharge of incumbrances 
 on the lands, or in the purchase of other lands, — 
 Held, that the sale moneys of part of the glebe 
 lands of a vicarage cotdd not be applied in improv- 
 ing the vicarage house. In re the Miher Stowey 
 Vicarage, Law Eep. 17 Eq. 156. 
 
 LANDED ESTATES COURT. 
 
 Where parties in the character of incumbrancers 
 have obtained an order for sale from the Landed 
 Estates Court in Ireland, and the money has been 
 brought into Court, and on appeal the Court de- 
 cides that such parties are not incumbrancers, the 
 Court of Appeal has power to order payment of 
 the money to the persons properly entitled. Qrier 
 V. Grier, Law Eep. 5 E. & I. App. 689. 
 
 LANDLOED AND TENANT. 
 
 [For cases as to construction of leases or agree- 
 ments for leases, see Lkase.] 
 
 (A) The Tenancy. 
 
 (a) Constitution of tenancy: new tenancy 
 
 after determination of prior tenancy. 
 (6) nature of tenancy. 
 
 (1) Tenancy from year to year, subject to 
 agreement void as lease. 
 
 (2) Grant of right of shooting. 
 (e) Notice to quit. 
 
 (B) Eent. 
 
 (a) Payment before due. 
 (A) Distress for. 
 
 (1) What goods may be taken in distress. 
 
 (2) Effect of, on proceedings by landlord. 
 
 (3) Where tenant bankrupt. 
 (i) Excessive seizure. 
 
 (6) Special power to distrain on lands not 
 
 included in the tenancy. 
 (6) Seizure by sheriff: 8 Anne, c. 14, s. 1. 
 (0) Valuation between Octgoins and In- 
 coming Tenant. 
 
 (D) WAitRANT OF Possession bt Landlohb. 
 
 (E) Enceoachment by Tenants. 
 
 (E) Implied Duties aeising eeom the Eela- 
 
 TION of LANDLOED AND TENANT. 
 
 (Gr) Eight to Moneys undee Fiee Policy. 
 
 [The law relating to the occupation and owner- 
 ship of land in Ireland amended. 33 & 34 Vict, 
 c. 46.] 
 
 [The Landlord and Tenant Act (Ireland) ex- 
 plained and amended as to the purchase of their 
 holdings by tenants. 35 & 36 Vict. o. 32.] 
 
 (A) The Tenancy. 
 
 (a) Constitution of tenancy : new tenancy after 
 determination of prior tenancy. 
 
 1. — Wherever a tenancy for years comes to an 
 end either by efflux of time, or by the death or 
 end of title of the lessor, so that either he or his 
 
 representative, or any independent owner of the 
 demised hereditament, can without notice eject the 
 tenant, and the person entitled to eject leaves the 
 tenant in possession, and receives rent from him 
 without explanation or stipulation, the person 
 receiving the rent is to be assumed to have created 
 a tenancy upon the terms on which the tenant held 
 in the demise originally made to him ; and the 
 holding to be presumed is as of a tenancy from 
 year to year according to the former holding of 
 the tenant, and therefore commencing at a time 
 corresponding to that from which he originally 
 held. Kelly v. Patterson, 43 Law J. Eep. (n.s.) 
 C. P. 320 ; Law Eep. 9 C. P. 681. 
 
 Certain premises had been let by the tenant in 
 fee on a lease expiring at Midsummer, 1866: at 
 that date the defendant was in occupation as ten- 
 ant from year to year to the intermediate lessee, 
 on a demise commencing at Michaelmas ; the ten- 
 ant in fee let the premises on a'fresh lease to the 
 plaintiff, commencing at Midsummer, 1866 : the 
 defendant continued in occupation and paid rent 
 to the plaintiff. Notice to quit at Midsummer was 
 given by the plaintiff to the defendant, who re- 
 fused to leave the premises. The plaintiff having 
 sued in ejectment : — Held, that the plaintiff having 
 allowed the defendant to hold over, and having 
 received rent as from year to year without expla- 
 nation or stipulation, the inference was that there 
 had been a tacit agreement that the defendant 
 should hold from year to year according to the 
 terms of his former tenancy, that is to say, from 
 Michaelmas to Michaelmas, that the notice to quit 
 at Midsummer was wrong, and that the plaintiff 
 must be non-suited. Ibid. 
 
 2. — Where, at the expiration of a lease, the 
 landlord verbally agrees with the tenant for a new 
 lease, and the tenant remains in possession and 
 does any act referable to the verbal agreement, 
 there is a part performance of the agreement which 
 takes it out of the Statute of Frauds and entitles 
 the tenant to specific performance. Williams v. 
 Evam, 44 Law J". Eep. (n.s.) Chanc. 319; Law 
 Eep. 19 Eq. 547. 
 
 (i) Nature of tenancy. 
 
 (1) Tenancy from year to year subject to agreement 
 void as lease. 
 
 3. — When a tenant enters a house under an 
 unsealed agreement to let for a term of more than 
 three years, and occupies and pays rent till the 
 end of the term, he is during the whole term ten- 
 ant from year to year, subject to all those stipula- 
 tions in the agreement which are applicable to 
 such a tenancy, and may be sued for the breach of 
 any of them, e.g. one binding him to paint in the 
 last year of the term. Martin v. Smith, 43 Law 
 J. Eep. (n.s.) Exch. 42 ; Law Eep. 9 Exch. 50. 
 
 (2) Grant of right of shooting. 
 
 4. — Under an ordinary grant of the exclusive 
 right of shooting over an estate the tenant has no 
 right to prevent the landlord from cutting down 
 trees in the proper course of management of the 
 estate, even though the result of the cutting wiU 
 
LANDLOED AND TENANT (A), (B). 
 
 306 
 
 be prejudicial to the shooting. Decision of Hall, 
 V.C., reversed. Geams v. Baker, 44 Law J. Eep. 
 (n.s.) Chanc, 334 ; Law Eep. 10 Chanc. 356. 
 
 (e) Notice to quit. 
 
 6. — ^A notice to quit served at a tenant's house 
 upon his servant is sufficient to sustain ejectment 
 notwithstanding that such notice never reached 
 the tenant's hands The sole question to be con- 
 sidered is whether the servant was the agent of 
 the tenant to receive the notice. Tanham v. 
 Nicholson, Law Eep. 5 E. & I. App. 561. 
 
 [And see supra No. 1, and Lease No. 24.] 
 
 (B) Eent. 
 
 (a) Payment before due. 
 
 6. — The defendant, a tenant, prepaid his rent 
 to L., his landlord, who afterwards mortgaged his 
 reversion to the plaintiff; one B. brought eject- 
 ment against the defendant as being entitled under 
 a mortgage previous to the tenancy, but nothing 
 came of it ; the plaintiff wrote to the defendant 
 saying B. no longer had any title, and asking for 
 the rent ; the defendant answered, saying he did 
 not understand the application, and asking for par- 
 ticulars ; no reply was made, but subsequently the 
 action was brought for the rent : — Held, that 
 though the plaintiff could not recover rent prepaid 
 and accruing due before his letter, yet there was 
 a sufficient notice within 4 Anne, c. 16, s. 10, and 
 he was entitled to recover rent paid before but 
 accruing due after the letter. Cook v. Cfuerra, 41 
 Law J. Eep. (n.s.) C. P. 89 ; Law Eep. 7 C. P. 132. 
 
 (J) Distress for. 
 
 (1) What goods may he taken in distress. 
 
 [The goods of lodgers protected in certain cases 
 against distresses for rent due by the intermediate 
 landlord to the superior landlord. 34 & 36 "Vict. 
 e. 79.] 
 
 7. — Goods warehoused in the ordinary course 
 of business at a furniture depository are privileged 
 from distress for rent. MUes v. Furber, 42 Law 
 J. Eep. (n.s.) Q.B. 41 ; Law Eep. 8 Q.B. 77. 
 
 The plaintiff warehoused furniture at a deposi- 
 tory in London, and obtained a receipt signed on 
 behalf of " The London Depository Company, 
 Limited." The business of the depository had 
 some years previously been carried on in the same 
 premises by the company, but previously to the 
 deposit they had, under the powers of their ar- 
 ticles of association, assigned the goodwill of their 
 business to B., with liberty to carry on the busi- 
 ness in their names, and granted him a lease of 
 the premises. At the time of the deposit the 
 name of the company was painted over the pre- 
 mises ; and the plaintiff believed that the business 
 was carried on by them, and did not know that 
 B. was their tenant. The company having dis- 
 trained the plaintiff's furniture for rent due from 
 B., — Held, fijst, that the furniture was privileged 
 from distress for rent ; secondly, that even if it 
 had not been so privileged, the company having 
 induced the plaintiff to believe that the business 
 Digest, 1870-X875. 
 
 was carried on by them could not, in another cha 
 racter, distrain upon his goods. Ibid. 
 
 8. — Sale by auction of the plaintiff's goods on 
 premises occupied by the plaintiff and another 
 (who owed rent to the landlord), and under con- 
 ditions of sale which provided that each lot was 
 to be considered as delivered at the fall of the ham- 
 mer, and to remain at the purchaser's risk. The 
 landlord having, after the sale, threatened to dis- 
 train on the goods not removed, the auctioneer 
 paid the rent; — Held, that as the loss if the 
 landlord had distrained would have fallen on the 
 purchasers, the auctioneer was not justified in 
 making the payment, so as to be entitled to de- 
 duct the amount from the sum realised by the 
 sale of the goods. Sweeting v. Turner, 41 Law J. 
 Eep. (n.s.) a.B. 58 ; Law Eep. 7 Q. B. 310. 
 
 Distress and seizure of chattels in partner- 
 ship : attornment by mortgagors. [See 
 Pabtneeship, 7.] 
 
 (2) Effect of, on proceedings by landlord. 
 
 9. — A distress for rent, suspends the right of 
 the landlord to recover the rent by action, so long 
 as the goods distrained continue in his hands as 
 a pledge unsold. Lehain v. Philpott, 44 Law J. 
 Eep. (n.s.) Exch. 226 ; Law Eep. 10 Exch. 242. 
 
 10. — Where a landlord brought ejectment 
 against his tenant on the 21st of July, claiming 
 as from that day, and after action, distrained for 
 rent due on the 24th of June previous, — Held, 
 that he might still rely, in the action of ejectment, 
 on a forfeiture accruing before the 24th of June. 
 Qrimwood v. Moss, 41 Law J. Eep. (n.s.) C.P. 
 239; Law Eep. 7 C.P. 360. 
 
 (3) Where tenant bankrupt. 
 
 11. — A landlord's distress for rent is not liable 
 to be restrained as " an execution or other legal 
 process " within the Bankruptcy Act, 1869, o. 13. 
 Ex parte the Birmingham and Sta^ordshire Gas- 
 light Company ; In re Fanshaw and Yorston, 40 
 Law J. Eep. (n.s.) Bankr. 52 ; Law Eep. 11 Eq. 
 615. 
 
 ■ 12. — A landlord distrained for one year's arrear 
 of rent on goods of a debtor in the hands of a 
 receiver appointed by the Court of Bankruptcy. 
 On an application by the receiver to the County 
 Court Judge for an injunction, the landlord was 
 restrained from proceeding with the distress, and 
 was also committed for contempt of Court. On 
 appeal, it was held that the landlord could distrain 
 as against the receiver without the leave of the 
 Court, and further that the position of a receiver 
 in Bankruptcy is not the same as that of a receiver 
 in Chancery. Ex parte Till ; In re Mayhew, 42 
 Law J. Eep. (n.s.) Bankr. 84 ; Law Eep. 16 Eq. 97. 
 
 (4) Excessi/ve seizure, 
 
 13. — A declaration alleged that the plaintiff 
 was tenant to the defendant of a house, and the 
 defendant wrongfully distrained for certain ar- 
 rears of rent on goods of the plaintiff of much 
 greater value than the said arrears and of the 
 charges of the distress and appraisement and sale, 
 EE 
 
306 
 
 LANDLOBD AND TENANT (B), (F). 
 
 although part of the said goods was of sufficient 
 value to have satisfied the said arrears and charges, 
 and thereby made an unreasonable distress con- 
 trary to the statute. There was a second count 
 for money had and received. The plaintiff, before 
 the distress, had assigned the goods seized to trus- 
 tees, for the benefit of his wife. The plaintiff, his 
 wife, and one of such trustees resided in the house : 
 91. was in arrear for rent, when the defendant 
 distrained for 181. for rent in arrear and the costs, 
 and seized goods to the value of lOOl. The plain- 
 tiff offered to pay 91. and costs and charges. This 
 offer was refused, and the money distrained for, 
 and costs and charges were paid under protest. 
 The plaintiff suffered annoyance from these pro- 
 ceedings : — Held, that the declaration disclosed a 
 good cause of action, and that there was sufficient 
 evidence of an interest in the goods, on the part 
 of the plaintiff, to go to the jury in respect of the 
 first count ; and that the plaintiff was entitled to 
 recover the excess of the money paid under pro- 
 test, and damages for the annoyance he had suf- 
 fered. Fell V. WTiittaker, 41 Law J. Rep. (n.s.) 
 a. B. 78 ; Law Eep. 7 Q. B. 120. 
 
 (6) Special power to distrain on lands not inclvded 
 in the tenancy, 
 
 [See Lease 22.] 
 
 (6) Seizure by sheriff. 
 
 14. — Statute 8 Anne, c. 14, by section 1, pro- 
 vides that no goods or chattels being in or upon 
 any messuage, lands or tenements which are or 
 shall be leased for life, &c., shall be liable to be 
 taken by virtue of any execution, unless the party 
 at whose suit the execution is sued out shaU before 
 the removal of such goods from off the premises 
 pay to the landlord, &c., all such sum or sums of 
 money as shall be due for rent, &c., provided the 
 said arrears of rent do not amount to more than 
 one year's rent, and in case they do, the judgment 
 may be executed after paying one year's rent : — 
 Held, that the provision in the above section ap- 
 plies only to a case where there is a subsisting 
 tenancy ; and therefore where the sheriff seized 
 goods after the tenancy had been determined he 
 was held not liable to an action for selling the 
 goods upon the land without paying over a year's 
 arrears of rent to the landlord. Cox v. Leigh, 43 
 Law J. Eep. (n.s.) Q,. B. 123 ; Law Eep. 9 Q. B. 333 . 
 
 (C) Valuation between OuTaoiNO Am) In- 
 coming Tenant. 
 
 15. — ^Where an agreement was made between 
 an incoming and an outgoing tenant by which 
 valuers were appointed, with the consent of the 
 landlord, to value as between them certain til- 
 lages for which by the custom of the country the 
 outgoing tenant was entitled to be paid by the 
 landlord or the incoming tenant : — Held, that 
 this agreement was subject to the right of the 
 landlord to be paid arrears of rent due from 
 the outgoing tenant, and that the incoming tenant 
 having paid the amount of the valuation (which 
 was less than the arrears of rent due) to the 
 
 landlord was not liable Tto be sued for such 
 amount by the outgoing tenant. The outgoing 
 tenant, having under his lease a right of con- 
 verting the straw on the ferm into manure with 
 his cattle until the 25th of March next after the 
 expiration of the term, gave up such right to 
 the incoming tenant, whose cattle, in converting 
 such straw, ate a portion of it, which was in- 
 cluded in the valuation and valued at 33^. : — 
 Held, that the outgoing tenant could recover 
 this sum from the incoming tenant. Stafford v. 
 Gardner, Law Eep. 7 C. P. 242. 
 
 (D) Wabbant of Possession by Landlokd. 
 
 16. — A warrant of possession obtained under 
 19 & 20 Vict. c. 108, s. 50, bya landlord proceed- 
 ing in the County Court against his tenant, but 
 not against the person actually in possession, is 
 not conclusive against the latter, who may not- 
 withstanding the warrant bring an action of 
 tresspass against the landlord, if the landlord 
 had not in fact a right to the possession of the 
 premises. Hudson v. Walker, 41 Law J. Eep. 
 (n.s.) Exch. 51 ; Law Eep. 7 Exch. {nom. Hodson 
 V. Walker). 
 
 So held by Channell, B., and Pigott, B. ; contra 
 by Martin, B. Ibid. 
 
 (E) Enoboachment bt Tenant. 
 
 17. — Where a tenant takes in and encloses ad- 
 joining land during his tenancy, the presumption 
 of law that he does it for his landlord, so that the 
 land gained by such encroachment will have to be 
 given up at the end of the tenancy as part of the 
 originally demised premises, is not rebutted by 
 the fact that the landlord expressly assented to 
 the enclosure being made; and where such pre- 
 sumption exists the Statute of Limitations, 3 & 
 4 Will. 4. c. 27, s. 7, does not apply until the 
 original tenancy has ended. Whitmore v. Hum- 
 phries, 41 Law J. Eep. (n.s.) 0. P. 43 ; Law Eep. 
 7 C. P. 1. 
 
 (F) Implied Duties arising fbom the Eela- 
 TioN OP Landloed and Tenaht. 
 
 18. — A., the tenant for life of an estate, in 
 1868 leased to B. a farm adjoining plantations in 
 which yew trees were growing, and which the 
 lessor reserved to himself. In March and Sep- 
 tember, 1869, sheep belonging to B. died from 
 having eaten of the yew that protruded through 
 the fence surrounding the plantations and clip- 
 pings of yew that had been thrown over the fence 
 by A.'s gardener. A. died in February, 1870; 
 B. continued to hold the farm as the tenant of the 
 trustees of the will by which the estate was set- 
 tled. In September and October, 1870, four steers 
 belonging to B. got over a ditch, which happened 
 to be nearly dried up, on to land in the hands of 
 the trustees, and died from eating yew there. A 
 bill for the administration of A.'s estate was filed 
 in February, 1871, and B. brought in under the 
 decree a claim against A.'s executors for damages 
 on account of the loss of his sheep and cattle 
 so poisoned ; the claim iu respect of the steers 
 
LANDLOED AND TENANT (F)— LANDS CLAUSES CONSOLIDATION ACT (A). 307 
 
 being made in this suit by arrangement : — Held, 
 that the claim for the losses which occurred in A.'s 
 life, if ever sustainable, was one in respect of an 
 injury to property coming within statute 3 & 4 
 Will. 4. 0. 42, s. 2, and was made too late. But 
 semble, that it could not in any case have been 
 sustained, for there is no implied warranty on 
 the part of the lessor that his land is free from 
 noxious plants. And as to the claim for the loss 
 of the steers, held there was no obligation thrown 
 by the law upon a landlord as between himself 
 and his tenants to keep up his fences, and there- 
 fore the trustees were not liable — reversing the 
 decision of the Master of the Kolls, Erskine v. 
 Jdeane (42 Law J. Eep. (n.s.) Chanc. 395 ; Law 
 Eep. 8 Chanc. 759 ».). ErsHne \.Adeane; Ben- 
 net's Clam (No. 1), 42 Law J. Eep. (n.s.) Chanc. 
 835 ; Law Eep. 8 Chane. 766. 
 
 (Gr) Eight to Moneys under Fike Policy. 
 
 19. — Where a lessee having an option of pur- 
 chase exercised it, — ^Held, that the lessor could 
 not insist on having moneys received in respect 
 of a fire policy effected by the lessee applied in 
 reinstating the premises. The lessor had, unknown 
 to the lessee, himself insured the premises, and 
 on their destruction by fire the policy moneys 
 were apportioned : — Held, that the lessor was 
 not entitled to retain for his own benefit the mo- 
 neys received under his policy. Beynard v. Arnold, 
 Law Eep. 10 Chanc. 386. 
 
 Lease of shop in Scotland. [See Scotch 
 
 Law, 29.] 
 Scotch agricultural lease. [See Scotch 
 Law, 30.] 
 
 LANDS CLAUSES CONSOLIDATION ACT. 
 
 (A) PUECHASE AND TAKING OF LaNDS. 
 
 (o) Power to take lands. 
 
 (1) For fiihlic improvements. 
 
 (2) Certificate of subscription of capital 
 conclusive. 
 
 (6) Notice to treat. 
 
 (1) Abandonment of notice. 
 
 (2) Description of tenants interest. 
 (c) Specific performance against railway 
 
 company, 
 
 (1) Compidsory purchase. 
 
 (2) Purchase by agreement. 
 ((Z) Vendor's lien. 
 
 («) What lands company can be compelled 
 to take. 
 
 (B) Eights op Lando-wkees in respect to 
 
 Compensation. 
 
 (b) Interest created after notice to treat. 
 (i) Lands imjwrimisly affected. 
 
 (c) Inju/ry from severance. 
 
 {d) "Turmel under cul-de-sac forming pub- 
 lic way. 
 
 (e) Principle of assessing compensation for 
 land devoted to religious purposes. 
 
 (/) Eight of action in respect cf rights of 
 common. 
 
 (g) Bight of landoumer to interest. 
 
 (C) Assessment of Compensation. 
 (a) By justices or jury. 
 
 (1) Computation of tenant's interest. 
 
 (2) Time for issuing summons. 
 (i) Arbitration. 
 
 (1 ) Tiinefor making offer. 
 
 (2) Powers of umpire : reference by 
 
 consent. 
 
 (3) Setting aside award. 
 
 (D) Application of Compensation. 
 (a) Be-investment in land. 
 
 (1) New buildings, repairs, and im- 
 provements. 
 
 (2) Land in the Isle of Man. 
 
 (3) In leaseholds. 
 
 (4) Becouping sums laid out on build- 
 
 ings by rector. 
 (6) Payment out. 
 
 (1) Person absolutely entitled. 
 
 (2) To tenant in tail, 
 
 (3) To vendors under specific perform- 
 ance decree. 
 
 (4) To cestuis que trust attaining 
 vested interests. 
 
 (c) Interim investment. 
 
 (1) Bight to dividends. 
 
 (i) Tenant for life of leaseholds. 
 (ii) Disused burial ground. 
 
 (2) Payment to charity. 
 
 (3) East India Stock, 
 {d) Practice as to petitions. 
 
 (1) Service. 
 
 (2) Two funds. 
 
 (E) SupEEFLtroTJS Lands. 
 
 (F) Costs. 
 
 (a) Tenant for life. 
 (A) Of reinvestment. 
 
 (1) Bedemption of land-tax. 
 
 (2) Purchase-money of leaseholds. 
 
 (3) Purchase under open contract. 
 
 (4) Costs of mortgagees and annui- 
 tants. 
 
 (5) Apportiomnent between different 
 
 (6) Costs unnecessarily incurred. 
 
 (c) Investment. 
 
 (1) On mortgage. 
 
 (2) Costs incurred by tenant for life. 
 
 (d) Veposit under S5th section. 
 
 (1) Men on, for costs. 
 
 (2) Costs of abortive proceedings. 
 
 (e) Vendors lien for costs of arbitration. 
 If) Special Act, 
 
 (A) Pdechase and Taking of Lands. 
 
 (a) Power to take lands, 
 
 (1) For public improvements. 
 
 1. — A corporation being, as the sanitary autho- 
 rity for a city, duly empowered to take certain 
 lands specified in the schedule to their provisional 
 order, for the purpose of public improvements, 
 served notice to treat in respect thereof upon the 
 B B 2 
 
308 
 
 LANDS CLAUSES CONSOLIDATION ACT (A). 
 
 trustees of a charity, who were the owners of the 
 lands. The lands comprised in the notice were 
 more than were actually required for the purpose 
 of the works : — Held, that the cases deciding 
 that a railway company cannot take compulsorily 
 more land than is actually required for its works 
 did not apply to a corporation taking lands for 
 public improvements, and that the corporation 
 were entitled to take compulsorily the whole of 
 the lands comprised in the notice. Quiiiton v. The 
 Mai/or, Aldermen and Burgesses of Bristol, 43 
 Law J. Eep. (n.s.) Chano. 783 ; Law Rep. 17 Eq. 
 624. 
 
 Observations upon Qalloway v. The Mayor of 
 London (2 De Gex, J. & S. 213, 639 ; on app. 35 
 Law J. Eep. (n.s.) Chane. 477). Ibid. 
 
 (2) Certificate of subnoription of capital 
 conclusive. 
 
 2. — A certificate of two justices under section 
 17 of the Lands Clauses Consolidation Act, or of 
 one police magistrate under 2 & 3 Vict. e. 71, s. 
 14, that the capital of a company is all subscribed, 
 being made sufficient evidence by the Lauds 
 Clauses Act, is conclusive on all landowners with 
 whom the company deals, unless it be proved to 
 have been obtained by fraud. Th^ Ystalyfera 
 Iron Company v. The Neath and Brecon Bailway 
 Company, 43 Law J. Eep. (n.s.) Ohanc. 476 ; Law 
 Eep. 17 Eq. 142. 
 
 (J) Notice to treat. 
 (1) Abandonment of notice. 
 
 3. — Where a railway company duly serve a 
 potice to treat before the expiration of the time 
 limited for their compulsory powers, they cannot 
 be considered to have abandoned that notice dur- 
 ing such time as their power to execute their 
 works continues, and this time includes not only 
 the period limited in the company's original Act 
 for the completion of the works, but any subse- 
 quent extension of such period under any Act of 
 which the landowner has notice. The Ystalyfera 
 Iron Company v. The Neath and Brecon Bailway 
 Company, Law Eep. 17 Eq. 142. 
 
 4. — In 1856 the G. W. and B. Company took 
 possession of a piece of land, a portion of which, 
 undefined by boundaries, belonged to F, Such 
 possession was taken without F.'s consent, and 
 without compliance with the provisions of the 84th 
 and 85th sections of the Lands Clauses Consoli- 
 dation Act, 1845 (8 & 9 Vict. c. 18), and F. being 
 unable to define the boundaries of her land, the 
 company continued in possession, and constructed 
 a railway on the land without F.'s consent, and 
 refused to pay her anything in respect of her land. 
 In 1868, the plaintiff claiming title under F., 
 brought an action of ejectment against the com- 
 pany, and recovered judgment, and possession was 
 delivered to him by the sheriff under a writ of 
 possession. The company, however, continued to 
 run their trains over the land, and the plaintiff 
 filed a bill against them for an injunction, to re- 
 strain the trespass. Thereupon, the company 
 served the plaintiff with notice of their intention 
 
 to summon a jury for the purpose of ascertaining 
 the value of the land, under a notice to treat 
 served upon F. in 1856, but which notice had 
 until then been treated by both parties as non- 
 existent, and the plaintiff filed a second bUl for 
 an injunction to restrain the company from sum- 
 moning a jury ; — Held, reversing the decision of 
 one of the Vice-Chancellors, that the plaintiff was 
 entitled to both injunctions. Held also, that the 
 case did not come within the 124th section of the 
 Lands Clauses Consolidation Act, relating to in- 
 terests omitted by mistake or inadvertence to be 
 purchased. Stretton v. The Great Western and 
 Brentford Bailway , 40 Law J. Eep. (n.s.) Chanc. 
 50; Law Eep. 6 Chano. 751. 
 
 (2) Description of tenant's interest. 
 
 5. — Agreement by landlord (himself a lease- 
 holder) with tenant to lease premises at a certain 
 rent payable quarterly, and not to give the tenant 
 notice to quit so long as the -rent was paid. A 
 railway company contracted to purchase the 
 tenant's interest, which was described as " held 
 for any term at tenant's option, but not beyond 
 the term of the landlord," which was specified : — 
 Held, that the tenant's interest was sufficiently 
 described. In re King's Leasehold Estates ; Ex 
 parte the East of London Bailway Company, Law 
 Eep. 16 Eq. 521. 
 
 (c) Specific performance against railway company. 
 
 (1) Compulsory pwrchase. 
 
 6. — Notice by a railway company to take land 
 under their compulsory powers, and the subse- 
 quent fixing of the purchase and compensation 
 money by arbitration together constitute a con- 
 tract for sale and purchase, which the Court wiU 
 enforce at the instance of the vendor. And where 
 the lands so contracted for are leasehold the com- 
 pany must enter into the usual covenants by the 
 purchaser to indemnify the vendor against the 
 rents and covenants reserved and contained in 
 the lease. Harding v. The Metropolitan Bailway 
 Company, 41 Law J. Eep. (n.s.) Chanc. 371 ; Law 
 Eep. 7 Chanc. 154. 
 
 7. — A corporation gave notice to take part of 
 premises under compulsory powers. Being re- 
 quired to take the whole they gave notice of 
 application for the appointment of a surveyor to 
 assess the value of both the part and the whole. 
 They subsequently gave notice of abandonment of 
 both notices : — Held, that specific performance of 
 a contract to take the whole would not be decreed 
 against them. Grierson v. The Cheshire Lines Com- 
 mittee, 44 Law J. Eep. (n.s.) Chanc. 35 ; Law 
 Eep. 19 Eq. 83. 
 
 (2) Purchase hy agreement. 
 
 8. — Where a railway company, who were liable 
 under two previous agreements wi th a landowner 
 to execute certain works, entered into a substi- 
 tuted agreement whereby an estimate was to be 
 made and submitted to the landowner's agent " for 
 approval, in case of differences the amount to be de- 
 termined by B. :" — Held, that the submission of the 
 
LANDS CLAUSES CONSOLIDATION ACT (A), (B). 
 
 309 
 
 estimate to the( agent was of the essence of the con- 
 tract, and that the agent having died and the per- 
 formance of the contract having become impossible, 
 specific performance of the works would be decreed 
 according to the original agreements. The com- 
 pany to pay interest from taking possession. 
 Mrth V. The Midland Railway Oom/pany, 44 Law 
 J. Eep. (N.s.)Ghanc. 313 ; LawEep. 20 Eq. 100. 
 
 {d) Vendor's lien. 
 For unpaid furchase-money. [See Rail- 
 way CosiPANT, 16, 17; Vend OB AND 
 
 PtTEOHASER, 18, 19.] 
 
 (e) What lands company can be compelled to 
 take. 
 
 9. — A piece of land two and a half acres in 
 extent, with a smaU cottage built upon it, was 
 occupied by a market gardener, and used for the 
 purposes of trade ; a company ran their tunnel 
 under the hous-e, and so that the line of the tunnel 
 severed a portion of the laud from the rest : — 
 Held, that the owner of the land was not entitled, 
 under section 92 of the Lands Clauses Act, 1845, 
 to compel the company to take the whole of the 
 land, but that he was entitled to compel them to 
 take the whole cottage, with so much of the land 
 as was used for ornament or otherwise in imme- 
 diate connection with the cottage, and also the 
 severed portion of the land, notwithstanding that 
 the tunnel did not interfere with access. Falkner 
 v. The Somerset and Dorset Railiuay Company, 
 42 Law J. Eep. (n.s.^ Ohanc. 851 ; Law Eep. 16 
 Eq. 468. 
 
 The premises were within the municipal bounda- 
 ries of a town, but not surrounded by houses : — 
 Held, that they were not in a town within the 
 meaning of section 93. Ibid. 
 
 (B) Eights of Landowners in respect to 
 
 SOMPENSATION. 
 
 (a) Interest created after notice to treat. 
 
 10. An interest in property created after the 
 
 service of a notice to treat is not a subject for 
 compensation. In re the Marylelone [Stingo Lane) 
 Improvement Act, 1868 ; Ex parte Edwards, 40 
 Law J. Eep. (n.s.) Chanc. 697 ; Law Eep. 12 Eq. 
 389. 
 
 (i) Lands injurinusly affected. 
 
 ]j_ — ^Where an,Act of Parliament with compul- 
 sory powers incorporates the whole of the Lands 
 Clauses Act, a right to compensation is without 
 any other enactment conferred upon the persons 
 interested in lands injuriously affected by the 
 exercise of such powers :— So held, by the Court 
 of Exchequer Chamber, supporting Ferrar v. The 
 Commissioners of Sewers of London, 38 Law J. 
 Eep. (n.s.) Exoh. 17, 102. The Queen v. The 
 Vestry of St. Luke's, Chelsea, 41 Law J. Eep. 
 (n.s.) ft. B. 81 ; Law Eep. 7 Q. B. 148: affirming 
 the decision of the Court of ftueen's Bench, 40 
 Law J. Eep. (n.s.) ft. B. 305 ; Law Eep. 6 ft. B. 672. 
 
 By the Chelsea Improvement Act, 8 & 9 Vict. c. 
 cxliii. the Lands Clauses Act, 1848, is incorporated 
 
 by these words, " So much of the Lands Clauses 
 Consolidation Act, 1845, as is applicable and as is 
 not modified by this Act, or as is not inconsistent 
 with the provisions hereof, shall apply to the im- 
 provements by this Act authorised to be made, 
 and shall be read as forming part of this Act." By 
 sections 124, 127, compensation is expressly given 
 where projections made before the passing of the 
 Act are ordered to be removed, and where a house 
 taken down to be rebuilt is ordered to be set back 
 to the line of street. By section 104 power is 
 given to alter the level of streets, but there is no 
 provision as to compensation: — Held, notwith- 
 standing the absence of any such provision, that 
 the lessee of a house injuriously affected by the 
 raising of the level of a street under the powers of 
 section 104 was entitled to compensation. Ibid. 
 
 12. — ^Where works are constructed under the 
 authority of an Act of Parliament, and by their 
 construction, apart from the user of them, there is 
 a physical interference with any right, public or 
 private, which the owner or occupier of any land 
 or house is entitled to make use of in connection 
 with his property, and which right gives an addi- 
 tional marketable value to such property, apart 
 from any uses the particular occupier might put 
 it to, there is a title to compensation, if by reason 
 of such interference the property as a property is 
 permanently lessened in value. The Metropolitan 
 Board of Works v. McCarthy (H.L.), 43 Law J. 
 Eep. (n.s.) C. p. 385 ; Law Eep. 7 E. & I. App. 
 243. 
 
 Chamberlain v. The West End of London and 
 Crystal Palace Railway Company, 2 B. & S. 606, 
 617 ; 36 Law J. Eep. (N.s.)ft. B. 206 ; and Beckett 
 V. The Midland Railway Company, 37 Law J. Eep. 
 (n.s.) C. p. 11 ; Law Eep. 3 C. P. 82, approved. 
 Ibid. 
 
 The injury must have been actionable but for 
 the statute. Ibid. 
 
 The plaintiff carried on business in premises con- 
 sisting of a house, warehouse, stables, &e., near a 
 draw-dock leading into the river Thames. The dock 
 was free and public, but was principally used by the 
 plaintiff and certain other persons whose premises ' 
 were in proximity to it. A roadway existed between 
 the edge of the dock and the plaintiff's premises, 
 which had an enhanced market value by reason of 
 their proximity to the dock. The defendants in 
 making an embankment, under their private Acts, 
 filled up and destroyed the dock ; and thereby the 
 plaintiff's premises became diminished in value in 
 the market :— Held, affirming the judgment of the 
 Court of Exchequer Chamber (42 Law J. Eep. 
 (n.s.) C. p. 81 ; Law Eep. 8 C. P. 191), and the 
 Court of Queen's Bench (Law Eep. 7 C. P. 508), 
 that the plaintiff was entitled to compensation 
 under 8 & 9 Vict. c. 18, s. 68, as his land had been 
 injuriously affected by the defendants' works. 
 
 13. — A special Act, incorporating the Lands 
 Clauses Consolidation Act, 1845, empowered the 
 Eailway Clearing Committee to acquire certain 
 land, and to pull down the louses standing thereon, 
 and to build on their site a building for the pur- 
 poses of the clearing system : — Held, that the Act 
 empowered the committee to build in such a man- 
 
310 
 
 LANDS CLAUSES CONSOLIDATION ACT (B). 
 
 ner as to obstruct the ancient lights of an adjoin- 
 ing owner, giving him compensarion as for lands 
 injuriously aiiected. The Duke of Bedford v. 
 Dawson, 44 Law J. Eep. (n.s.) Chanc. 549 ; Law 
 Eep. 20 Eq. 363. 
 
 14. — A railway company under the powers of 
 their special Acts constructed a bridge and foot- 
 way across a river, at a distance of about six 
 hixndred yards from the landing-place of an an- 
 cient ferry, but without any physical interference 
 with the passage of the ferry-boats. The bridge 
 when completed was opened to foot-passengers on 
 payment of tolls, and also used for conveyance of 
 merchandise by the company's trains, causing a 
 serious diminution in the profits of the ferry : — 
 Held, that the owner of the ferry was entitled to 
 compensation under the Eailways Clauses Con- 
 solidation Act, 1845, s. 6, as being a person in- 
 terested in land (which included a hereditament 
 such as a ferry) injuriously aifected by the com- 
 pany's worts, for the injury to the ferry was the 
 direct and immediate result of the construction of 
 the bridge for the use of passengers. Brand v. 
 The Hammersmith Railway. Company, 38 Law J. 
 Eep. (n.s.) Q,. B. 265, distinguished. The Queen 
 V. The Oamhrian Railways Company, 40 Law J. 
 Eep. (n.s.) Q. B. 169; Law Eep. 6 Q.B. 422. 
 
 15. — -When lands are injuriously affected by 
 the construction of works authorised by an Act of 
 Parliament, the owner is entitled to compensation 
 if an easement appurtenant to the lauds is taken, 
 just as he would be if part of the lands was taken. 
 The Duke of Buecleugh and Qiieensbury v. The 
 Metropolitan Board of Works (H. L.), 41 Law J. 
 Eep. (n.s.) Exch. 137; Law Eep. 6 E. & I. App. 
 418. 
 
 16. — Where a railway company took lands from 
 an owner who, on other lands, had built a reser- 
 voir for the purpose of supplying cotton-mills to 
 be erected on the lands taken : — Held, that he was 
 entitled to compensation for loss of prospective 
 profits to be derived from supplying the water to 
 the proposed mills, and that the umpire rightly 
 received evidence as to such profi.ts. Bipley v. 
 The Cheat Northern Railway Company, Law Eep. 
 J Chanc. 435. 
 
 17. — The sections of the Lands Clauses Con- 
 solidation Act, 1846, relating to the purchase of 
 lands, are incorporated in the Elementary Educa- 
 tion Act, 1870, for all purposes, and their appli- 
 cation is not confined to cases where the relation 
 of vendor and purchaser exists. Therefore the 
 remedy of a person whose lands are injuriously 
 affected by the works of the School Board, but no 
 part of whose land is taken, is by proceeding for 
 compensation under section 68 of the Lands Clauses 
 Act, and not by bill for an injunction. Clark v. 
 The School Board for London, 43 Law J. Eep. 
 (n.s.) Chanc. 421 ; Law Eep. 9 Chanc. 120. 
 
 Macey v. The Metropolitan Board of Works (33 
 Law J. Rep. (n.s.) Chanc. 377) approved of and 
 followed. Ibid. 
 
 18. — Diversion of part of a stream by a water- 
 works company whose special Act incorporates the 
 Waterworks Clauses Act, 1847, is not such a 
 "taking or using" as to give an owner of pro- 
 
 perty on the bank of the stream whose property is 
 injured by the diversion a right to require the 
 company to purchase his portion of the stream, 
 under sections 84, 85 of the Lands Clauses Con- 
 solidation Act, 1846, but merely gives a right to 
 compensation for " injuriously affecting " his lands, 
 under section 68 of that Act. Decision of Jessel, 
 M.R. (44 Law J. Eep. (n.s.) Chanc. 235 ; Law Eep. 
 19 Eq. 291) affirmed. Bush v. The Trowbridge 
 Water Company, ii Law J. Eep. (n.s.) Chanc. 646 ; 
 Law Eep. 10 Chanc, 469. 
 
 19. — Statutory compensation cannot be claimed 
 by reason of the noise or smoke of trains, whether 
 part of the claimant's lands be taken or not. No 
 claim can be made in respect of damage for which 
 the claimant would not have had an action if the 
 Railway Act had never passed, and the damage 
 must be done by the construction of the works, 
 and not afterwards. The City of Glasgow Union 
 Railway Company v. Hunter, Law Eep. 2 ScApp. 7 8 . 
 
 (c) Injury from severance. 
 
 20. — The plaintiffs, a volunteer corps, obtained 
 leases of different plots of land for the erection of 
 a rifle range of 800 yards. Immediately behind 
 the butts was a field occupied by A., and beyond 
 that some marsh land, which werre required by the 
 rifle corps for the purpose of making provision for 
 the safety of the public during the time the butts 
 were in use. The plaintiffs obtained a lease of 
 this land, but only made a verbal agreement with 
 A. for the use of his land during the rifle practice, 
 in consideration of an annual payment of 49i. 
 The defendants under their compulsory powers 
 took portion of the marsh land occupied by the 
 plaintiffs, and so used it as to put a stop to the 
 use of the rifle range. At an inquisition under 
 the Lands Clauses Act, ss. 38, 60, the jury as- 
 sessed the value of the land taken, and damage 
 for the injury to the rifle range : — Held, that there 
 might be an injury from severance within the 
 meaning of the Act, although the premises were 
 not immediately contiguous, and that the fact 
 that the plaintiffs had only a precarious interest 
 in the field only affected the quantum of com- 
 pensation to be awarded to them. Holt v. The 
 Gaslight and Coke Company, 41 Law J. Eep. 
 (N.s.) Q. B. 351 ; Law Eep. 7 Q,. B. 728. 
 
 {d) Tmvnel under cul-de-sac forming public way. 
 
 21. — In 1871 the plaintiff became the pur- 
 chaser in fee simple of certain hereditaments, 
 described in the deed of conveyance as " all that 
 piece of ground with the sixteen messuages there- 
 on." The houses were divided into two blocks by 
 a cul-de-sac or passage open at one end only, 
 which had been dedicated to the use of the public 
 for twenty years, but the soil of which the plain- 
 tiff claimed as his private property by virtue of 
 his conveyance. The defendants, a railway com- 
 pany, being about to tunnel under this cul-de-sac, 
 gave the plaintiff a notice to treat in respect of 
 three houses on each side of it, but not in respect 
 of that part of the cul -de-sac which lay between 
 them, the company contending it was a public way 
 or street : — Held, that the c>3-de-sac was a public 
 
LANDS CLAUSES CONSOLIDATION ACT (B), (C). 
 
 311 
 
 way or street, and that the company were entitled 
 to tunnel under it without paying the plaintiff any 
 compensation. Soiuik v. The East London Eailway 
 Company, 42 Law J. Eep. (n.s.) Chano. 477 ; Law 
 Kep. 16 Eq. 108. 
 
 (c) Principle of assessing compensation for lands 
 devoted to religious uses. 
 
 22. — ^By the Metropolis Improvement Act, 
 1863, the Metropolitan Board of Works were, for 
 the purpose of making a new street, empowered to 
 take portions of the graveyards attached to certain 
 parish churches. The plaintiff, the rector, claimed 
 compensation under the Lands Clauses Consolida- 
 tion Act, 1846 (incorporated with the Metropolis 
 Improvement Act, 1863), in respect of the lands 
 so taken, of which he was the owner : — Held, that 
 he was entitled to be compensated for the loss 
 which he suffered, but that he was not entitled to 
 be compensated upon the principle of treating the 
 lands as secularised, and therefore as being of 
 greater value than they were while in his hands, 
 and while they were appropriated to spiritual 
 purposes. Stebbimg v. The Metropolitan Board of 
 Works, 40 Law J. Eep. (n.s.) Q. B. 1 ; Law Eep. 
 6 Q. B. 37. 
 
 (/) Bight of action in respect of rights of common. 
 
 23. — ^Where the right in the soil of land sub- 
 ject to rights of common has been conveyed to the 
 promoters of an undertaking by the lord of the 
 manor under the Lands Clauses Act (8 Vict. c. 18), 
 s. 100, but the compensation payable to the com- 
 moners has not been ascertained in the manner 
 provided by the Act, any such commoner whose 
 rights of common have been disturbed by the 
 works of the promoters may maintain an action 
 against them, and is not confined to proceedings 
 for compensation under the Lands Clauses Act. 
 Stoneham v. The London, Brighton, and South 
 Coast Bailway Company, 41 Law J. Eep. (n.s.) 
 Q. B. 1; Law Eep. 7a.B. 1. 
 
 {g) Eight of landowner to interest. 
 
 24. — When a railway company under their sta- 
 tutory powers enter into possession of land before 
 assessment of the price, interest is payable on the 
 amount subsequently ascertained from the date of 
 the company's taking possession. Bhys v. The Dare 
 Valley Baihuay Company, Law Eep. 19 Eq. 93. 
 
 (C) Assessment of Compensation. 
 
 (a) By Justices orjwry. 
 
 (1) Computation of tenants interest. 
 
 25. — Thfe Holbom Valley Improvement Act, 
 1867, which empowers the mayor, &c., of London 
 to acquire certain houses, &c., incorporates the 
 London Improvement Act, 1847, which empowers 
 the mayor, &c., to take after six months' notice, 
 to treat for the purchase, and in case of dispute to 
 issue their precept to impanel a jury to assess the 
 compensation, and directs persons in possession to 
 give it up after six months' notice, and also incor- 
 porates the 121st section of the Lands Clauses 
 
 Consolidation Act, 1846, which directs that where 
 the tenant's interest does not exceed a tenancy 
 for a year, or from year to year, the compensation 
 shall be assessed by justices. The mayor, &c., 
 gave a tenant notice that they intended to take 
 his house, that they were willing to treat in respect 
 thereof, and that he must quit in six months : — 
 Held, that for the purpose of determining whether 
 his compensation was to be assessed by a jury or 
 by justices, the length of his interest must be 
 computed from the date of the notice, and not 
 from the expiration of the six months. Tyson v. 
 The Lord Mayor of London, 41 Law J. Eep. (n.s.) 
 C.P. 6; Law Eep. 7 C.P. 18. 
 
 (2) Time for issuing summons. 
 
 26. — The adjudication by justices of assessment 
 of compensation under section 22, for lands in 
 respect of which no agreement has been come to, 
 is not an order for payment of money within 1 1 & 
 12 Vict. c. 43, s. 11, and the summons to deter- 
 mine such question may be issued more than six 
 months after the notice to treat. The Queen v. 
 y, 44 Law J. Eep. (n.s.) M. C. 27. 
 
 (6) Arbitration. 
 
 (1) Time for making offer. 
 
 27. — A company, on the 22nd of June, 1870, 
 gave notice to F. under section 18 of the Lands 
 Clauses Consolidation Act, 1845, that they re- 
 quired to take certain land, his property, and of 
 their willingness to treat for the purchase thereof. 
 On the 16th of August, F. sent to the company a 
 claim for 28,100?. On the 18th of August, the 
 company gave him notice, under the 38th section, of 
 their intention to cause a jury to be summoned to 
 settle the sum to be paid by them, and also that 
 they offered to pay 15,2Z11. On the 27th, F. sent 
 to the company a notice signifying his desire that 
 ithe question of compensation should be settled by 
 arbitration, and also agreeing that the valuer em- 
 ployed by him should meet the valuer of the com- 
 pany. The valuers did meet, but failed to settle 
 the amount. On the 26th of October, F. received 
 notice from the company that they had appointed 
 their arbitrator, and that they were willing to pay 
 the sum of 17,000?. On the 7th of November, F. 
 sent notice of the appointment of his arbitrator. 
 The two arbitrators appointed an umpire, who 
 made his award, settling the sum of 16,400?. as the 
 sum to be paid by the company : — Held, that the 
 company had a right to make their second offer of 
 17,000?., and that, inasmuch as the sum awarded 
 was less than that sum, the company were not 
 bound under the 34th section to bear the costs of 
 F., incident to the arbitration. In the matter of 
 an Arbitration between Earl Fitzhardinge and The 
 Gloucester and Berkeley Canal Company, 41 Law 
 J. Eep. (n.s.) Q. B. 316; Law Eep. 7 Q. B. 776. 
 
 (2) Towers of umpire : reference by consent. 
 
 28. — An umpire appointed to ascertain the 
 amount of compensation under the Lands Clauses 
 Consolidation Act, 1846, has no power to state a 
 special case for the opinion of a superior Court ; 
 
312 
 
 LANDS CLAUSES CONSOLIDATION ACT (C), (D). 
 
 and if by consent of the parties the time for 
 making the award be extended and power to sit 
 with the arbitrators be conferred upon the umpire, 
 a reference under the foregoing statute will not 
 become a reference by consent within the meaning 
 of the Common Law Procedure Act, 1854, s. 5. 
 Rhodes v. The Airedale Drainage Commissioners, 
 43 Law J. Eep. (n.s.) C. P. 323 ; Law Eep. 9 C.P. 
 508. 
 
 Submission to arbitration made a rule of 
 Cowrt. [See Arbiteation, 2.] 
 
 (3) Setting aside award. 
 
 29. — Although it has been held that an arbi- 
 tration under the Lands Clauses Consolidation 
 Act is not a submission by consent within the 
 meaning of the Common Law Procedure Act, 
 nevertheless, when an award is made a rule of 
 Court under section 36 of the Lands Clauses Con- 
 solidation Act, the Court has the same jurisdiction 
 with respect to setting it aside and enforcing it 
 as in other cases ; that is to say, the jurisdiction 
 conferred by the 9 & 10 Will. 3. c. 15, is let in. 
 In re Harper and The Great Eastern Bailway 
 Company, 44 Law J. Eep. (n.s.) Chanc. 507 ; Law 
 Eep. 20 Eq. 39. 
 
 It follows, therefore, that a motion to set aside 
 the award must be made before the end of the 
 term next after the publication of the award. 
 Ibid. 
 
 When an arbitrator appointed under the Lands 
 Clauses Act, and having power to assess the 
 amount of damage, but no power to decide the 
 question of liability, made an award containing an 
 order for payment, but the recitals shewed the 
 extent of the arbitrator's authority, — Held, that 
 this was an error of form only, and that the award 
 could not be set aside on account of it. Ibid. 
 
 (D) Application of Compensation. 
 
 (tt) He-investment in land. 
 
 (1) New buildings, repairs, and improvements. 
 
 30. — Money paid into Court under the Lands 
 Clauses Consolidation Act, 1845, may, with the 
 consent of the remainder-men, be expended on the 
 erection of new buildings on the settled estates, 
 but may not be expended on the repairs of or im- 
 provements to the mansion-house or other build- 
 ings already erected thereon. In re LeigKs Estates, 
 40 Law J. Eep. (n.s.) Chanc. 687 ; Law Eep. 6 
 Chanc. 887. 
 
 31. — Money to be invested in land under a 
 public or private Act, or a settlement, will be 
 ordered to be employed in the erection of new 
 buildings on the settled land, but not in repairs or 
 permanent improvements which do not place new 
 buildings on the land. Drake v. Trefusis, Law 
 Eep. 10 Chanc. 364. 
 
 32. — Money paid into Court by a railway com- 
 pany in respect of glebe lands was ordered to be 
 applied towards necessary additions and improve- 
 ments of the rectory house ; the fund to be paid 
 out to the bishop's secretary, he undertaking to 
 apply it. Ex parte The Sector of Claypole, 42 Law 
 J. Eep. (n.s.) Chane. 776 ; Law Eep. 16 Eq. 574. 
 
 33.— A tenant for life petitioned that funds in 
 Court should be laid out in improvements : — 
 Held, that the remainder-men were entitled to be 
 heard and ought to be served. In re 
 Estate, 40 Law J. Eep. (n.s.) Chanc. 442. 
 
 (2) Land in the Isle of Man. 
 
 34. — Money paid into Court under the Lands 
 Clauses Act, 1845, was allowed to be re-invested 
 in the purchase of land in the Isle of Man. In re 
 Taylor's Estate, 40 Law J. Eep. (n.s.) Chanc. 454. 
 
 (3) In leaseholds. 
 
 35. — Upon the petition of the trustees of a 
 freehold chapel taken by a railway company, the 
 purchase-money was ordered to be invested in the 
 purchase of a leasehold chapel in the vicinity, 
 there being a diiEculty in obtaining a suitable 
 freehold site for a new chapel, and the price 
 agreed to be paid for the leasehold chapel being 
 less than its actual value. In re Eehoboth Chapel, 
 44 Law J. Eep. (n.s.) Chanc. 375 ; Law Eep. 10 
 Chanc. 180. 
 
 (4) Recouping stuns laid out on buildings by rector. 
 
 36. — A railway company took part of the glebe 
 land belonging to a, rectory. The patron of the 
 living and the bishop agreed with the rector that 
 the purchase-money, when paid by the company, 
 should be applied in paying part of the expense 
 of rebuilding the rectory house, which was in a 
 ruinous condition, the remainder of the money 
 required being borrowed from Queen Anne's 
 Bounty. The company neglected for some years 
 to pay the money, and in order to complete the 
 rebuilding the rector advanced a sum equal to the 
 purchase-money himself. The company having 
 paid the purchase-money, the rector, the patron, 
 and the bishop petitioned that it might be paid to 
 the rector to recoup his advance : — Held, that the 
 Court had no power under section 69 of the 
 Lands Clauses Act to direct such an application 
 of the money. Williams v. The Aylesbury and 
 Buckingham Railway Company, 43 Law J. Eep. 
 (n.s.) Chanc. 825 ; Law Eep. 9 Chanc. 684. 
 
 (6) Payment out. 
 (1) Person absolutely etititled. 
 
 37. — ^Where the purchase-moneys of property 
 subject to a trust for sale for the benefit of infant 
 cestuis que trust and taken by a railway company 
 were paid into Court by the company under the 
 Lands Clauses Consolidation Act, 1845, the Court 
 upon a petition by the trustees for sale and cestuis 
 que trust for payment out^to the trustees for sale, 
 declined to treat the trustees for sale as persons 
 " absolutely entitled " within the 69th section of 
 the Act, and ordered the fund to be carried over 
 to the separate account of the . infants, directing 
 the di\'idends to be paid to the trustees. In re 
 Reaston's Estate, 41 Law J. Eep. (n.s.) Chanc. 
 832 ; Law Eep. 13 Eq. 564. 
 
 38. — Where the occupant of land taken by a 
 railway company under the Lands Clauses Acts, 
 had a possession which would have ripened into a 
 
LANDS GLAUSES CONSOLIDATION ACT (D), (E). 
 
 313 
 
 title by adverse possession, but for the dealings 
 with the company, the Court alloTved the purchase- 
 money to be paid to such occupant, hi re Evans, 
 42 La-w J. Eep. (n.s.) Chano. 3S7. 
 
 To trustees of charity. [See Pbactice in 
 Equity, 99.] 
 
 (2) To tenant in tail. 
 
 39. — Purchase-money of land compulsorily 
 taken paid in under the Lands Clauses Act will 
 not be paid out to a tenant in tail untU a dis- 
 entailing deed has been executed by him. In re 
 Bialen's Will, Law Eep. 16 Eq. 479. 
 
 (3) To vendors under specific performance decree. 
 
 40. — A railway company were ordered to pay 
 money to vendors under a decree for specific per- 
 formance ; they paid the money into Court instead. 
 On petition of the vendors, the money was paid 
 out to them. Galliers v. The Metropolitan Rail- 
 way Company, 40 Law J. Eep. (n.s.) Chanc. 544; 
 Law Eep. 11 Eq. 410. 
 
 (4) To aestuis que trust attaining vested interests. 
 
 41. — ^Land devised on trust for sale when the 
 youngest of a class attained twenty-one, the pro- 
 ceeds to be divided amongst the class, was taken 
 under the Lands Clauses Act, and the purchase- 
 money paid into Court. On petition by the trus- 
 tees and some only of the cestuis que trust, after 
 the youngest of the class had attained twenty- 
 one : — Held, that the company had no right to 
 object to an order for the payment of their re- 
 spective shares to the petitioning cestuis que trust, 
 and to insist on the payment out of the whole to 
 the trustees. In re Sowry, Law Eep. 8 Chanc. 
 736. 
 
 (c) Interim investment. 
 
 (1) Sight to dividends. 
 
 (i) Tenant for life of leaseholds. 
 
 42. — The testator bequeathed leaseholds held 
 of an ecclesiastical corporation, giving certain life 
 interests with remainder over. He directed his 
 trustees, two years or sooner before the time for 
 renewal, to bring a sufBcient part of the rents 
 into a fund to keep the estates always renewed. 
 It was the practice to renew the leases every four- 
 teen years, but it was not obligatory on the cor- 
 poration to do so ; they ceased to do so about 
 ] 866. Previously to that, notice had been given 
 by a railway company to take the property. The 
 purchases were completed, and the price paid into 
 Court, and invested in consols. The investment 
 gave a diminished income : — Held, that the tenants 
 for life were only entitled to the income of the 
 fund. No costs allowed to or against the railway 
 company. Itt re Wood's Estate, 40 Law J. Eep. 
 (n.s.) Chanc. 59 ; Law Eep. 10 Eq. 672. 
 [And see Tenant toe Life.] 
 
 (ii) Disused burial ground. 
 
 Compensation for disused burial ground: 
 right to dividends. [See Bubiai,, 2, 3.] 
 Digest, 1870-1875. 
 
 (2) Payment to charity. 
 
 43. — On petition for investment of proceeds of 
 charity lands under the Lands Clauses Act, order 
 made for pajTuent to the secretary for the time 
 being, there being no treasurer. In re ~ ' ' 
 ton's Charity, Law Eep. 18 Eq. 658. 
 
 (3) East India stocJc. 
 
 44. — Purchase-money paid into Court for lands 
 taken under the Lauds Clauses Act is cash under the 
 control of the Court, and may be invested in East 
 India 4 per Cent. Stock. In re Fryer's Settlement. 
 Fryer v. The Salisbury and Dorset Junction Sail- 
 way Company, Law Eep. 20 Eq. 468. 
 
 {d) Practice as to petitions. 
 
 (1) Service. 
 
 45. — On petition by a tenant for life under the 
 Lands Clauses Act for interim investment and 
 payment of the dividends to him, persons having 
 charges on the inheritance prior to the life estate, 
 need not be served, and their costs will not be 
 allowed as against the company. In re Morris's 
 Settled Estates, Law Eep. 20 Eq. 470. 
 
 Service of remainder-men. [See supra 
 No. 33.] 
 
 (2) Two funds. 
 
 46. — Where two funds had been paid into 
 Court under the Lands Clauses Act, and dealt 
 with in different branches of the Court, leave was 
 given to present one petition in both matters in 
 one branch of the Court. In re Lord Arden's Es- 
 tates, Law Eep. 10 Chanc. 445. 
 
 [And see infra Nos. 56-59.] 
 
 (E) SupEEFLuous Lands. 
 
 47. — Lands acquired by a railway company, 
 under their compulsory powers, which at the ex- 
 piration of the time prescribed by s. 127 of 8 & 9 
 Vict. e. 18, are not required for the permanent 
 purposes of the undertaking, are superfluous lands 
 within the meaning of that section, though they 
 may within that time have been used for tempo- 
 rary purposes of the undertaking. The Great 
 Western Sailway Company v. May (H.L.), 43 Law 
 J. Eep. (n.s.) Q. B. 233 ; Law Eep. 7 E. & I. App. 
 283, reported in the Court of Exchequer Chamber, 
 42 Law J. Eep. (n.s.) Q,. B. 6 ; Law Eep. 8 Q. B. 
 26 ; and in the Court of Queen's Bench, 41 Law 
 J. Eep. (n.s.) a.B. 104; Law Eep. 7 Q. B. 364. 
 
 The employment of such lands by the depositing 
 upon them earth and spoU, from a neighbouring 
 cutting, which is allowed and intended to remain 
 there without being of any further use to the 
 railway, is, after the depositing of such earth and 
 spoil has ceased, a user for a temporary purpose. 
 Ibid. 
 
 If superfluous lands are not sold within the pre- 
 scribed time, they, at the expiration of that time, 
 vest in the owners of the adjoining lands, and no 
 act is necessary on the part of such owners indi- 
 cating their acceptance of such lands. Ibid. 
 
 Where lands had so vested in the adjoining 
 SS 
 
314 
 
 LANDS CLAUSES CONSOLIDATION ACT (E), (F). 
 
 owners at the expiration of the time prescribed by 
 the 127th section, an Act of Parliament, passed 
 in the following year, extending the time for the 
 sale of superfluous lands belonging to the com- 
 pany, was held not to apply to those lands, though 
 they were at the passing of the Act in the os- 
 tensible possession of the company, or their les- 
 sees, being used as market gardens. Ibid. 
 
 Where lands are included in the plans and 
 books of reference scheduled to the company's 
 Act, and are purchased after a notice from the 
 company to treat, they are liable to vest in the 
 owners of adjoining lands as superfluous lands, 
 although they may not be included within the 
 limits of deviation delineated on the company's 
 plans, and although they piay have been pur- 
 chased at a price settled by private agreement 
 and without arbitration. Ibid. 
 
 Semble — if, at the expiration of the ten years 
 mentioned in the 127th section, or of the time 
 prescribed by the special Act, the company can 
 aver and prove that the lands, though not at that 
 time employed for the permanent purposes of the 
 undertaking, are yet required and are intended to 
 be applied for such permanent purposes ; or that 
 at that time they are still being employed, or are 
 likely to be required', as a place for the continuous 
 depositing of spoil or for the correlative purpose 
 of making and carrying away of ballast or bricks 
 for the purposes of the railway, such lands would 
 not be liable to vest as superfluous lands in the 
 owners of adjoining lands. Ibid. 
 
 If lands are not liable to vest at the expiration of 
 the time mentioned in the 127th section, they are 
 entirely exempt from the provisions of the Act 
 applicable to the sale or to the vesting of super- 
 fluous lands. Ibid. 
 
 48. — The clauses as to superfluous lands in the 
 Lands Clauses Consolidation Act (Scotland), which 
 are similar to those in the English Act, do not 
 apply to lands acquired by voluntary agreement 
 for extraordinary purposes. The City of Glasgow 
 Union BaUway Company v. The Caledonian Bail- 
 way Company, Law Eep. 2 Sc. App. 160. 
 
 49. — Lands acquired by a, railway company 
 under their Act and ever since retained bond fide 
 for the purposes of the Act in the belief that they 
 will be required at some future time for such pur- 
 poses, and with the intention of so applying them, 
 are not " superfluous lands" within section 127 of 
 the Lands Clauses Act, 1845, though they have 
 never been actually used for the purposes of the 
 Act during the time specified in that section. 
 Betts V. The Great Easta-n Bailway Company, 43 
 Law J. Eep. (n.s.) Exch. 4; Lav/ Eep. 8 Exch. 
 294. 
 
 Sv/rplus lands : powers of railway company 
 to deal with under special Act. [See 
 Eailway, 6.] 
 
 (F) Costs. 
 
 (a) Tenant for life. 
 
 50.— The tenant for life of a settled estate is 
 not entitled to throw upon the estate his costs of 
 opposing in Parliament a, bill brought in by a 
 
 public company for taking part of the estate. But 
 he is entitled to charge the estate with the costs, 
 charges, and expenses properly incurred by him in 
 or about an arbitration entered into between him 
 and the company under the provisions of the 
 Lands Clauses Consolidation Act regarding the 
 value of the land, on the ground that under the 
 Act he is made the fiduciary agent for such pur- 
 poses on behalf of the estate. In re Berkdei/s 
 Will, 44 Law J. Eep. (n.s.) Chanc. 3 ; Law Eep. 
 10 Chanc. 57. 
 
 And see infra No. 63. 
 
 (6) Of reinvestment. 
 
 (1) Bedemption of land-tax. 
 
 51. — When lands have been taken by a railway 
 company under its compulsory powers, and the 
 purchase-money has been paid into Court, the 
 costs of appl3ring the money in redemption of 
 land-tax on other parts of the vendor's property, 
 are costs payable by the Company under section 
 80 of the Lands Clauses Act. In re Bethlem Hos- 
 pital, 44 Law J. Eep. (n.s.) Chanc. 406 ; Law Eep. 
 19 Eq. 457. 
 
 (2) Pwrchase-TTtoney of leaseholds. 
 
 52. — Where all parties interested were sui 
 juris, a railway company was ordered to pay the 
 costs of investing the purchase-money of a lease- 
 hold in freehold estate. In re Farkm's Estate, 41 
 Law J. Eep. (n.s.) Chanc. 473 j Law Eep. 13 Eq. 
 495. 
 
 (3) Purchase imder open contract. 
 
 53. — On re -investment under the Lands Clauses 
 Act, under a contract throwing upon the pur- 
 chasers costs which under an open contract would 
 be borne by the vendor, the costs to be paid by 
 the railway company will be limited to those 
 which in an open contract would be purchasers' 
 costs. Ex parte the Governors of Christ s Hospital, 
 Law Eep. 20 Eq. 605. 
 
 (4) Costs of mortgagees and anmiitants. 
 
 54. — Whenever there is a simple petition for 
 the re-investment of purchase-money in land the 
 proper course is to serve such persons as morf> 
 gagees and annuitants with a copy of the petition, 
 and to pay them 40s. for costs, with an intimation 
 that if they appear at the hearing they will pro- 
 bably not get their costs. Unless this is done, 
 such persons will be entitled to their costs. 
 In re Gore Langton's Estates, 44 Law J. Eep. (n.s.) 
 Chanc. 405; Law Eep. 10 Chanc. 328. 
 
 55. — And this rule was applied where pay- 
 ment out was directed to persons entitled, subject 
 to incumbrances, but a sum sufficient to cover the 
 costs of an affidavit of service was allowed to the 
 petitioners in addition. In. re Halstead United 
 Charities, Law Eep. 20 Eq. 48. 
 
 (6) Apportionment between different companies. 
 
 56. — Laiids were taken by four railway com 
 panies, two of which were absorbed by the third, 
 the Great Western Company. The purchase- 
 
LANDS CLAUSES CONSOLIDATION ACT (F). 
 
 315 
 
 moneys in respect of their three purchases were 
 paid by the Great Western Company to three 
 separate accounts, namely, of itself and of the 
 two original companies : — Held, that the costs of 
 re-investment of the whole must be borne in 
 moieties by the Great "Western Company and the 
 fourth company. In re the Maryport Railway Act 
 (32 Law J. Eep. (sr.s.) Chano. 81 1) disapproved of . 
 Ex parte Corpus Christi College, O^ord, 41 Law 
 J. Eep. (n.s.) Chano. 170 ; Law Eep. 13 Eq. 334. 
 
 57. — The rule that the costs of re-investment 
 in land of funds paid in for the purchase of lands 
 under the Lands Clauses Act by several com- 
 panies must be borne by them equally, does not 
 apply where there is great inequality in the 
 amounts, and in such a case they will be appor- 
 tioned rateably. Ex parte Bishop of London (2 D. 
 F. & J. 15) considered. Ex parte Governors of 
 St. Bartholomew's Hospital, Law Eep. 20 Eq. 369. 
 
 (6) Costs unnecessarily incurred. 
 
 58. — Parts of certain settled estates were taken 
 by two companies, and the purchase-money paid 
 into Court under the Lands Clauses Act. Two 
 separate petitions for re-investment in land were 
 presented by the tenant for life of the estates, and 
 served on certain portion trustees and persons 
 having charges on the estates. At the hearing of 
 the petitions the counsel for the petitioner and 
 respondents held separate briefs on each petition : 
 — Held, affirming the decision of one of the Vice- 
 Chancellors (44 Law J. Eep. (n.s.) Chanc. 198) — 
 that the companies must pay the costs of 
 one petition only. In re Gore Langton's 
 Settled Estates; In re the Bath Act, 1870; 
 In re the Bristol and North Somerset Railway 
 Company, 44 Law J. Eep. (n.s.) Chanc. 405 ; Law 
 Eep. 10 Chanc. 328. 
 
 59. — ^Where, owing to a mistake of the peti- 
 tioner, the tenant for life, in not originally serving 
 the remainder-men, there have been two hearings 
 of a petition in the Court below, public bodies 
 who paid the money into Court and did not object 
 to an improper order being made in the absence 
 of the remainder-men, will only have to pay so 
 much costs as would have been incurred if there 
 had been only one hearing, and that amount will 
 be divided equally between them. In re Leigh's 
 Estates, 40 Law J. Eep. (n.s.) Chanc. 687 ; Law 
 Eep. 6 Chano. 887. 
 
 (c) In/vestment. 
 (1) On mortgage. 
 
 go, — The Court ordered the interim invest- 
 ment of purchase-money on mortgage of real 
 estate at the cost of the company. In re Flemon's 
 Trusts, 40 Law J. Eep. (n.s.) Chano. 86 ; Law Eep. 
 10 Eq. 612. 
 
 There having been a prior investment in the 
 funds, it was held that the costs of no subsequent 
 investment in land were to be borne by the com- 
 pany. Ibid. 
 
 gi, — Where purchase-money paid in under the 
 Lauds Clauses Act had been invested in consols, 
 the company were ordered to pay the costs of an 
 
 application for its re-inveslment on mortgage, 
 without any condition as to the costs of future 
 applications. In re Blyth's JVwsis, Law Eep. 16 
 Eq. 468. 
 
 62. — In an order for investment on mortgage 
 of purchase-money under the Lands Clauses Act, 
 it is not now the practice to insert a direction that 
 the company are not to be required to pay the 
 costs of a subsequent investment. In re Sewart's 
 Estate, Law Eep. 18 Eq. 278. 
 
 (2) Costs incurred by tenant for life. 
 
 63. — Where a railway company served notices 
 to treat for certain lands, but abandoned their 
 undertaking as to part of the lands, and costs, &c., 
 were incurred by the tenant for life before the 
 abandonment, as well as subsequent costs in an 
 unsuccessful attempt to obtain compensation : — 
 Held, on petition for investment of a fund in 
 Court, the proceeds of the lands taken, that the 
 costs, &c., might be properly paid out of the fund 
 before investment. In re Strathmore Estates, Law 
 Eep. 18 Eq. 338. 
 
 (d) Deposit under 85th section. 
 
 (1) Lien on, for costs. 
 
 64. — A landowner has no claim against a fund 
 deposited as security under section 85 of the 
 Lands Clauses Consolidation Act, for his costs 
 under the Act. Ex parte Neath and Brecon Rail- 
 way Company, 43 Law J. Eep. (k.s.) Chanc. 277 ; 
 Law Eep. 9 Chanc. 263. 
 
 (2) Costs of abortive proceedings. 
 
 65. — Section 80 of the Lands Clauses Act, 
 1845, applies where a deposit has been made 
 under the 85th section. £x parte Morris, 40 
 Law J. Eep. (n.s.) Chano. 643 ; Law Eep. 12 Eq. 
 418. 
 
 A company having deposited the probable value 
 of the land entered into possession under the 85th 
 section. Subsequently an agreement was come to 
 by which the company agreed to pay a certain 
 price and all costs properly incurred imder the 
 Lands Clauses Act : — Held, that costs of abortive 
 proceedings before the jury summoned under the 
 85th section, and other costs, should be taxed and 
 paid under the 80th section. Ibid. 
 
 66. — After a fund which represents purchase- 
 money paid by a railway company has been in- 
 vested and transferred to an account not entitled 
 in the matter of the railway company, the lia- 
 bility of the company to pay costs ceases in 
 respect of any subsequent investment or petition 
 for payment of the fund. Fisher v. Fisher, 43 
 Law J. Eep. (n.s.) Chanc. 262; Law Eep. 17 
 Eq. 340. 
 
 ( e) Lien for costs of arbitration. 
 
 67. — When land is taken by a railway com- 
 pany under the Lands Clauses Act, and the price 
 is settled by arbitration, the costs of the arbitra- 
 tion and award payable to the vendor under sec- 
 tion 34 of the Act do not stand on the same 
 footing as the purchase-money, and the vendors 
 8 s2 
 
316 
 
 LANDS CLAUSES CONSOLIDATION ACT (F)-^LAECENY (A). 
 
 havo no lien on the land for such costs. Ferrers 
 v. The Stafford and Uttoxeter Sailway Company, 
 41 Law J. Eep. (n.s.) Chano. 362 ; Law Eep. 13 
 "Eq. 624. 
 
 (/) Special Act. 
 Costs of re-investment under special Act. 
 [See Costs in Eotity, 32.] 
 
 LARCENY. 
 
 (A) "What amounts to Larceny. 
 
 (ffi) Taking money paid rnider a mistake by 
 a Post-office clerk. 
 
 (b) Taking and depositing rabbits, and sub- 
 
 sequently removing them. 
 
 (c) Forcibly taking warrants from bailiff of 
 
 Court. 
 
 (d) Money obtained by servant on pretence 
 
 of paying fellow servant. 
 
 (e) Wrongful refusal to return change out of 
 
 (B) Indictment. 
 
 (C) Notice of Action under Larceny Act, 
 
 1861. 
 
 (A) What amounts to Larceny. 
 
 (o) Taking money paid under a mistake by a Post- 
 office clerk. 
 
 1. — The prisoner was a depositor in a post-office 
 savings bank, in which a sum of eleven shillings 
 stood to his credit. He gave notice to withdraw 
 ten shillings, stating the numher of his deposi- 
 tor's book, the name of the post-office, and the 
 amount to be withdrawn. A warrant for ten 
 shillings was duly issued to the prisoner, and a 
 letter of advice sent to the post-office to pay the 
 prisoner ten shillings. He went to the post- 
 office, and handed in his depositor's book and 
 his warrant to the clerk, who, instead of referring 
 to the proper letter of advice, referred by a mis- 
 take to another for 81. 16s. lOd., and placed that 
 sum upon the counter. The clerk entered that 
 amount as paid in the prisoner's book and stamped 
 it, and the prisoner took up the money and went 
 away. "When the mistake was discovered, the 
 prisoner was brought back, and then said that he 
 had burnt his depositor's book. The prisoner was 
 charged with larceny of the 81. 16s. lOd. The 
 jury found that the prisoner had the animus 
 furandi at the moment of taking up the money 
 from the counter, and the prisoner was con- 
 victed : — Held, by a majority of the Judges, that 
 the conviction was right. The Queen v. Middle- 
 ton, 42 Law J. Rep. (n.s.) M. C. 73 ; I-aw Eep. 
 2 0. C. R. 38. 
 
 The Queen v. Prince (38 Law J. Rep. (n.s.) 
 M. 0. 8 ; Law Rep. 1 0. 0. R. 150) distinguished by 
 the majority ; but held to be undistinguishable by 
 Martin, B., Bramwell, B., Brett, J., and Cleasby, 
 B. Ibid. 
 
 Held, by Cookburn, O.J., Blackburn, J"., Mel- 
 
 lor, J., Lush, J., Grove, J., Denman, J., and 
 Archibald, J., that assuming the clerk to have an 
 authority equal to, and to represent, the Post- 
 master-General, and to have meant that the pri- 
 soner should take up the money, though he only 
 so meant because of a mistake which he made as 
 to the identity of the prisoner with the person 
 really entitled to the money, the prisoner being 
 aware of the mistake, and taking up the money 
 animo furandi, was guilty of taking and stealing 
 the money. Ibid. 
 
 And also, that, although the clerk, and there- 
 fore the Postmaster-General, intended that the 
 property in the money should belong to the pri- 
 soner, yet as he so intended in consequence of a 
 mistaJie as to his identity, and the prisoner knew 
 of the mistake, and had -the animus furandi at 
 the time, the prisoner was guilty of larceny. 
 Ibid. 
 
 Held, by Bovill, C.J., Kelly, C.B., and Keating, 
 J., that the clerk had no property in the money 
 or power to part with it to the prisoner, hut only 
 possession ; that the authority of the clerk was a 
 special authority not pursued, and that on that 
 ground only the conviction should stand. Ibid. 
 
 By Pigott, B., that possession of the money was 
 never given by the clerk" to the prisoner, who 
 while it lay on the counter and before he got 
 manual possession of it, conceived the animus 
 furandi, and took it, and therefore it was larceny. 
 Ibid. 
 
 Martin, B., BramweU, B., Brett, J., and Cleasby, 
 B., dissentientes, held that the money was not 
 taken invito domino, and that there was no trespass 
 involved in the taking by the prisoner, and there- 
 fore there was no larceny. Ibid. 
 
 Held by Bramwell, B., and Brett, J., that the 
 authority of the clerk extended to authorise him 
 to part with the possession and property of the 
 larger sum. Ibid. 
 
 (b) Taking and depositing rabbits, and subse- 
 quently removing them. 
 
 2. — Poachers killed rabbits on Crown land, put 
 some in bags and some in bundles, strapped them 
 together by the legs, and concealed them in a 
 ditch on the same land, as a place of deposit till 
 they could conveniently remove them, before eight 
 o'clock in the morning. The prisoner at about a 
 quarter to eleven o'clock on the same day went 
 with two others to the ditch, and began to remove 
 the rabbits. The prisoner knew of the manner in 
 which the rabbits had been killed. It was to be 
 taken as fact that the poachers had no intention 
 to abandon the wrongful possession of the rabbits : 
 — Held, that the killing and placing the rabbits 
 in the ditch, and subsequently removing them, 
 constituted one inseverable act of taking and car- i 
 rying away, and therefore there was no larceny. 
 The Queen v. Tomnley, 40 Law J. Rep. (n.s.) M. C. 
 144; Law Eep. 1 C. C. R. 316. 
 
 (e) Forcibly taking warrants from bailiff of 
 Court. 
 
 3. — A warrant of execution on each of two 
 judgments against the prisoner in two plaints 
 
LAECENY (A)— LEASE. 
 
 317 
 
 in the County Court had issued against liim, under 
 which a levy had been made by the high bailiff of 
 the Court, and the warrants were handed to the 
 under bailiff, who was then left in possession of 
 the prisoner's goods. The prisoner, a day or two 
 afterwards, forcibly took the warrants out of the 
 deputy baUiff's hands, kept them, and then 
 ordered him away as having no longer authority 
 to remain there, and on his refusal to leave, 
 forcibly turned him out of the house in which the 
 goods were. For these acts the prisoner was in- 
 dicted, and convicted upon an indiotment framed 
 upon the 24 & 25 Viet. c. 96, s. 30, which charged 
 in the first count a stealing of the warrants of exe- 
 cution, and in the second a taking of the same from 
 a person having the legal custody of the same for 
 a fraudulent purpose : — Held, that the facts did 
 not afford any evidence of a larceny of the docu- 
 ments, but did disclose a fraudulent purpose within 
 the meaning of the statute, and that the convic- 
 tion must be supported on the second count. The 
 Queen v. Bailey, 41 Law J. Eep. (n.s.) M. C. 61 ; 
 Law Eep. 1 C. C. E. 347. 
 
 (d) Money obtained by servant on pretence of 
 paying fellow servant. 
 
 4. — It was the duty of the prisoner, as confi- 
 dential foreman of tie prosecutor over his work- 
 men, to enter weekly on a pay-sheet the amount 
 due to each workman for the week's wages, and 
 having presented this pay-sheet to the cashier, and 
 the total amount due to the several workmen 
 having been reckoned up, he would obtain the 
 total amount from the cashier to pay thereout 
 the amount due respectively to the workmen. The 
 prisoner, intending at the time to defraud his 
 master, falsely represented on the pay-sheet that 
 \l. 10s. 4<?. was due to a certain workman, 
 whereas, in truth, a sum of \l. 8s. was due to 
 him, and having obtained the total amount for the 
 week from the cashier, whtch included such 
 larger sum, fraudulently appropriated the diffe- 
 rence of 2s. 4£?. to his own use : — Held, that he 
 was guilty of larceny of the 2s. id. The Queen 
 V. Cooie, 40 Law J. Eep. (n.s.) M. C. 68 ; Law 
 Eep. 1 C. C. E. 296. 
 
 The Queen v. Thompson (L. & C. 233 ; 32 Law J. 
 Eep. (n.s.) M. C. 57) discussed. Ibid. 
 
 (e) Wrongfvi refusal to return change out of 
 money paid. 
 
 5. — The prisoner was the daughter of the pro- 
 prietor of a " merry-go round," and was in charge 
 thereof; and the price of a ride thereon was one 
 penny for each person . The prosecutrix got into 
 the machine and handed to the prisoner a sove- 
 reign in payment of the ride, asking for the 
 change. The prisoner gave the prosecutrix 
 eleven-pence, and the merry-go-round being about 
 to start, said she would give her the rest of the 
 change when the ride was over. The prosecutrix 
 assented to this, and about ten minutes after, 
 when the ride was over, foxmd the prisoner at- 
 tending to a shooting gallery, and asked her for 
 her change, when the prisoner replied that she 
 
 had only received a shilling from her, and de- 
 clined to give any more. The indictment charged 
 the prisoner with stealing nineteen shillings in 
 money of the moneys of the prosecutrix. The 
 prisoner was convicted of stealing the nineteen 
 shillings: — Held, by a majority of the Judges, 
 that the conviction was wrong and must be 
 quashed. The Queen v. Bird, 42 Law J. Eep. 
 (N.s.) M. 0. 44. 
 
 (B) Indictment. 
 
 Amendjnent of indictment for larceny : variance : 
 pleadings. [See Indictment, 2.] 
 
 (C) Notice oe Action undee Lakceny Act, 
 1861. 
 
 Notice of action : 
 theft was 
 Action, 11.] 
 
 for believing that 
 committed. [See 
 
 LEASE. 
 
 (A) Aqbeement eoe Lea.se. 
 
 (a) Usiial clauses. 
 
 (i) Agreement for sub-lease by reference to 
 original lease. 
 
 (c) Option as to term of lease. 
 
 (d) /Separable contract for building leases. 
 
 (e) Collateral parol agreement. 
 
 (B) Lease. 
 
 (o) Sessrvation of right to kill game. 
 
 (4) General words: implied contract as to 
 
 lights. 
 (c) Bates, taxes, and assessments. 
 {d) Repairs. 
 
 (1) As between landlord and tenant. 
 
 (2) As respects injury to stranger. 
 (e) Covenant not to assign. 
 
 (1) Breach of covenant. 
 
 (2) Eight of landlord to refuse consent 
 
 to assignment. 
 (/) Covenants as to user of premises. 
 
 (X) To use as post-office. 
 
 (2) Not to permit sale by auction, 
 {g) Compensation for goodwill of alehouse, 
 (h) Power of distress. 
 (i) Power of re-entry. 
 
 (1) Severance of reversion, 
 
 (2) Demand of rent. 
 (X) Forfeiture : waiver. 
 Q) Notice to quit. 
 
 (m) Unsealed lease not binding on assignee 
 
 of reversion, 
 (n) Variation of lease by collateral parol 
 
 (G) DiSCLAIMEB IN BANKEUPTCY. 
 
 (D) Eenewajbij) Leaseholds. 
 
 (E) Assignment. 
 
 (F) SUBEENDBB. 
 
 (o) Bights of sub-lessee, 
 (b) By trustee in bankruptcy as against 
 purchaser of fixtures. 
 
318 
 
 LEASE (A), (B). 
 
 (A) Aqeeement foe Lease. 
 (a) Usual clauses. 
 
 1, — A proviso for re-entry on non-observance 
 of the lessee's covenants is not a usual clause in a 
 mining lease, to be inserted in the absence of ex- 
 press stipulation. Hodgkinson v. Crowe, 44 Law 
 J. Rep. (n.s.) Chano. 680 ; Law Eep. 10 Chanc. 
 622. 
 
 2. — Clauses of forfeiture on bankruptcy or 
 composition, and in restraint of alienation, with- 
 out the consent of the lessor, are not included in 
 the words " usual and customary mining clauses," 
 contained in an agreement for a lease. Hodgkinson 
 V. Orowe, 44 Law J. Eep. (n.s.) Chanc. 238 ; Law 
 19 Eq. 591. 
 
 (h) Agreement for sub-lease by reference to 
 oric 
 
 3. — Where an assignee of a lease, which con- 
 tained six covenants and a proviso for re-entry 
 on breach of any of them, but no covenant not to 
 underlet, agreed with the defendant for a sub- 
 lease, the sub-lease to contain an extract of the 
 covenants in the original lease, and not to be 
 parted with or underlet without the sub-lessor's 
 consent : — Held, that the agreement for the sub- 
 lease could not be read as having the proviso for 
 re-entry attached to the new stipulation not to 
 underlet, and that such proviso could not be im- 
 plied. Shaw V. Coffin (14 C. B. N. S. 372) fol- 
 lowed. Crawley v. Price, Law Eep. 10 Q,. B. 302. 
 
 4, — A lease of mines was granted by S to W., 
 his executors, administrators, and assigns (de- 
 scribed as the " lessee or lessees "), W. covenant- 
 ing that the lessee or lessees would not assign 
 or underlet without the consent of S., his heirs or 
 assigns. There was a proviso of re-entry in case 
 they did so. W. died, and his executor agreed, 
 with the consent of S., to underlet a part of the 
 property comprised in the lease to B., the under- 
 lease to contain " the like provisions and condi- 
 tions" as were contained in the original lease. 
 W-'s interest in the original lease was then as- 
 signed to C, subject to the agreement with B. 
 A question was raised by C, as underlessor, 
 whether the lease to B. ought to be so framed as 
 to require the consent of the original lessor or of 
 the underlessor to any assignment or underlease 
 by B. : — Held (reversing the decision of Bacon, 
 V. C, 43 Law J. Eep. (n.s.) Chanc. 382 ; Law 
 Eep. 1 7 Eq. 549), that the lease must be so framed 
 as to require only the consent of the underlessor, 
 and also that upon the true construction of the 
 original lease, the consent of S. was not required 
 to any assignment or underlease made by an 
 underlessee of whom S. had approved. Held also, 
 that the original lessor could not, by the terms of 
 a license to underlet, enlarge the proviso for re- 
 entry reserved by the original lease. WUliainson 
 V. Williamson, 43 Law J. Eep. (n.s.) Chanc. 738 ; 
 Law Eep. 9 Chanc. 729. 
 
 (c) Option as to term of lease. 
 
 5. — It is a settled rule of law that an agree- 
 ment for a lease for seven or fourteen years means 
 
 a lease for fourteen years determinable by the 
 lessee, but not by the lessor at the end of seven 
 years. Powell v. Smith, 41 Law J. Eep. (n.s.) 
 Chanc. 734 ; Law Eep. 14 Eq. 85. 
 
 ' A land agent having no power to grant leases 
 without reserving to his principal the power of 
 determining them at the expiration of every seven 
 years, entered into an agreement for a grant to 
 an intending tenant of a lease for seven or four- 
 teen years. The tenant was put into possession of 
 the farm, and took the stock on it from the out- 
 going tenant at a valuation. The lessor, who did 
 not know the rule of law above mentioiied, re- 
 fused to grant a lease without reserving to him- 
 self the right to terminate it at the end of seven 
 years, as well as giving such right to the tenant : 
 — Held, that the lessor was not entitled to have 
 a power of determining the lease at the end of 
 seven years, for his ignorance of the law was no 
 excuse, and he could not repudiate his agent's act 
 after letting the plaintiff take possession of the 
 farm on the faith of it. . Ibid. 
 
 (d) Separable contract for building leases. 
 6. — Where the conditions of an agreement be- 
 tween landlord and builder, whereby the landlord 
 agrees to grant leases of successive plots of land 
 as the houses upon each of them are built to a 
 certain stage, are by the terms of the contract 
 separable, there is no rule of equity to prevent 
 them from being separately enforced by way of 
 specific performance. Therefore, where the as- 
 signee of the builder's interest had completed the 
 houses upon some only of the plots agreed_ to be 
 built upon, — Held, reversing the decision of 
 Wickens, V.C., upon bill for specific performance, 
 that he was entitled to the leases of those plots, 
 even though disclaiming aU interest in the remain- 
 ing plots. Wilkinson v. Clements, 42 Law J. Eep. 
 (n.s.) Chanc. 38 ; Law Eep. 8 Chanc. 96. 
 
 (e) As to variation of lease by collateral parol 
 
 [See infra, 27, 28.] 
 Specific performance of agreement for lease, 
 [See Specific PEEFOEMiNCE, 10.] 
 
 (B) Lease. 
 
 (a) Beservation of right to kill game. 
 
 [See Game, A.] 
 
 (6) General words : implied contract as to 
 
 7. — A lease of a house for twenty-one years 
 was made by the defendant to the plaintiff, by a 
 deed containing general words including "lights." 
 At the date of the lease, the defendant was enti- 
 tled, as under-lessee, for a term of which rather 
 more than four years were then unexpired, to cer- 
 tain premises adjoining the house so leased to the 
 plaintiff, and over which light found access to 
 the said house. Nine years after the date of the 
 lease, the defendant having purchased the fee of 
 these adjoining premises, commenced building 
 thereon so as to interfere vrith the light of the 
 plaintiff's house. In a suit by the plaintiff for 
 
LEASE (B). 
 
 319 
 
 an inj auction to restrain the defendant from so 
 building as to interfere with the light thns coming 
 to his house, — Held, that no warranty or bargain 
 could be implied from the general words that the 
 plaintiff should have the access of light over the 
 defendant's premises unimpeded for a longer time 
 than that for which the defendant was, at the 
 date of the lease, entitled to the said adjoining 
 premises, and the plaintiff's bill was dismissed 
 with costs. But held, that during the period for 
 which the defendant was entitled as under-lessee 
 to the adjoining premises, he could not lawfully 
 have interfered with the plaintiff's light coming 
 across the said adjoining premises. Booth v. Alcock, 
 42 Law J. Eep. (n.s.) Chanc. S57 ; Law Eep. 8 
 Chanc. 663. 
 
 (c) Sates, taxes, and assessments. 
 
 8. — A. let land to B. at a specified rent, pay- 
 able without any deduction, except level tax, pro- 
 perty tax, and land tax ; B. covenanted to pay 
 all taxes and assessments, except such specified 
 taxes ; A., besides being owner of the land, was 
 owner of the tithe rent-charge thereon : — Held, 
 that B. was not liable in an action on such cove- 
 nant for no^ paying the tithe rent-charge in addi- 
 tion to the specified rent. Jeffrey v. Neale, 40 
 Law J. Eep. (n.s.) C.P. 191 ; Law Rep. 6 C.P. 
 240. 
 
 9. — By a - lease, the tenant agreed to pay the 
 rent, " without any deduction in respect of any 
 taxes, rates, assessments, or charges whatsoever, 
 the landlord's property tax only excepted : " — 
 Held, that the tenant was bound to pay the tithe 
 rent-charge imposed upon the demised heredita- 
 ments. Lockwood V. Wilson, 43 Law J. Eep. (n.s.) 
 C.P. 179. 
 
 10. — The lessee of a house which was demised 
 for twenty-one years at an annual rent covenanted 
 with his lessor during the term " to bear, pay, 
 and discharge the sewers rate, tithes, rent-charge 
 in lieu of tithes, and all other taxes, rates, assess- 
 ments, and outgoings whatsoever, which at any 
 time or times during the said demise should be 
 taxed, rated, charged, assessed, or imposed upon 
 the said demised premises, or any part thereof, or 
 upon the landlord or tenant in respect thereof, or 
 on the rent thereby reserved (except as afore- 
 said.)" Under section 10 of the Sanitary Act, 
 1866, the local board of the district were em- 
 powered to require the owner of the house to 
 connect the house-drains with a main-sewer belong- 
 ing to the board, and on his default to do the 
 work, and recover the expenses from the owner in 
 a summary manner. The local board having, 
 during the demise, required the connection to 
 be made, — Held, that the lessee was bound by 
 his covenant to pay the expense of making it. 
 Crosse v. Eaw, 43 Law J. Eep. (n.s.) Bxch. 144 ; 
 Law Eep. 9 Exch. 209. 
 
 {d) Bepairs. 
 (1) As between landlord and tenant. 
 11. — Where a railway company give the lessee 
 for years of a house notice to treat, an award is 
 
 made, and eventually a conveyance executed, and 
 thereupon possession given to them, such lessee 
 is liable to his , landlord at all events up to that 
 time, on a covenant to repair and keep in repair, 
 and the measure of damages is the diminution of 
 the market value of the reversion at that time. 
 Mills V. The Guardians of the East London Union, 
 42 Law J. Eep. (n.s.) C. P. 46 ; Law Eep. 8 C. P 
 79. 
 
 12. — Notice of want of repair is necessary be- 
 fore a lessor can be sued on his covenant to repair 
 the interior of the demised premises. So held by 
 Bramwell, B., and Channell, B. ; contra by Martin, 
 B. Makvn v. Watkinson, 40 Law J. Eep. (n.s.) 
 Exch. 33 ; Law Eep. 6 Exch. 25. 
 
 Breach of covenant to repair : damages : 
 injwry done to reversion : repairs done hy 
 landlord before action. [See Damaoes, 
 14.] 
 
 (2) As respects injury to stranger. 
 
 13. — Lease of a house to a tenant who cove- 
 nanted to repair. Damage to a passer-by having 
 been occasioned by reason of the insecure state of 
 the coal-plate of the tenant's cellar, which was in- 
 secure at the time of the demise : — Held, that the 
 tenant was liable, and not the landlord. 
 V. Bickmore, Law Eep. 8 C. P. 401. 
 
 14. — As between landlord and tenant who is 
 under covenant to repair, the tenant and not the 
 landlord is liable for damage to a stranger occa- 
 sioned by the premises being insecure for want of 
 repair, notwithstanding such want of repair ex- 
 isted at the time of the demise. Gwinnel v. Earner, 
 Law Eep. 10 C.P. 658. 
 
 (e) Covenant iiot to assign. 
 (1) Breach of covenant. 
 
 15. — Where one of two parties, who were as- 
 signees of a lease which contained a covenant by 
 the lessee for himself and his assigns not to assign 
 without the lessor's consent, assigned to his co- 
 partner on the dissolution of the partnership : — 
 Held, a breach of the covenant. Varley v. Cop- 
 pard. Law Eep. 7 C. P. 505. 
 
 16. — The plaintiff demised to the defendant 
 certain land upon condition that the defendant 
 should not, without the plaintiff's consent in 
 writing, underlet any part of the land or permit 
 any other person to occupy it. The plaintiff had 
 power to re-enter for breach of the conditions. 
 The defendant, without the plaintiff's consent, 
 underlet for a definite period, some of the land 
 which he held of the plaintiff. The latter was 
 informed of the imder-tenaucy, but he subsequently 
 received rent and also levied a distress. He after- 
 wards brought ejectment, alleging that the lease 
 had been forfeited by reason of the occupation of the 
 under-tenant : — Held, that the under-tenancy was 
 a breach of the condition not to underlet, and could 
 not be treated as a breach of the condition not to 
 permit another person to occupy; that there was 
 no continuing breach ; that the breach of the con- 
 dition not to underlet had been waived by accept- 
 ance of rent and the distress, and that ejectment 
 
320 
 
 LEASE (B). 
 
 could not be maintained. Walrond v. Hawkins, 
 44 Law J. Bep. (n.s.) C. P. 1 16 ; Law Eep. 10 C.P. 
 342. 
 
 (2) Sight of landlord to refuse consent to assignment. 
 
 17. — The plaintiff was tenant of a messnage 
 which the defendant had by deed demised to him 
 for a term of years. The lease contained, first, a 
 covenant by the lessee not to let the premises 
 without the consent of the lessor, " such consent 
 not being arbitrarily withheld ; " second, a proviso 
 for re-entry if the lessee underlet without the 
 consent of the, lessor, stipulating " but such con- 
 sent is not to be arbitrarily withheld." The lessor 
 refused his consent to an underlease because there 
 was a probability that the premises would be 
 compulsorily purchased by a public body, who, 
 having obtained statutory powers so to do, had 
 already bought some houses near. The lessee sued 
 his lessor, declaring upon a covenant by the de- 
 fendant not to arbitrarily withhold his consent, 
 and alleging as a breach an arbitrary refusal : — ■ 
 Held, that there was no such covenant by the lessor 
 expressed or implied in the above-mentioned 
 clauses of the lease ; and, per Kelly, C.B., and 
 Pollock, B., moreover, that the refusal of consent 
 was not arbitrary. Treloar v. Bigg, 43 Law J. 
 Eep. (n.s.) Exch. 95 ; Law Eep. 9 Exch. 151. 
 
 [As to insertion of covenant against assignment 
 i n unilerlease under agreement referring to original 
 lease, see supra No. 4.] 
 
 (/) Covenants as to user of premises. 
 
 (1) To use as post-office. 
 
 18. — In a lease to the Postmaster-General and 
 his successors, the Postmaster-General covenanted 
 that he and his successors would, during the term, 
 " use the premises as a post-offtce for the parish 
 and district of Clifton, and should not use the 
 same for any other purpose." The premises were 
 used for receiving excise duties, and granting ex- 
 cise licenses under 32 & 33 Vict. i;. 14, 6. 18: — 
 Held, that ejectment could not be brought upon a 
 proviso on re-entry on breach of covenant, as there 
 could be no reasonable doubt that the parties to 
 the lease had contemplated that there would be 
 from time to time alterations in the business 
 transacted by the defendants, and the sale of ex- 
 cise licenses was so far analogous to the business 
 of the post-office that it could not be said to be a 
 breach of the covenant. Wadham v. The Post- 
 master-General, 40 Law J. Eep. (n.s.) Q,. B. 310 ; 
 Law Eep. 6 a B. 644. 
 
 (2) Not to permit sale by auction. 
 
 19. — The plaintiff demised a house to C, who 
 covenanted not to permit or suffer any sale by 
 auction to take place on the premises. C. subse- 
 quently granted a bill of sale under seal assigning 
 his goods in the house as security for a loan, and 
 empowering the grantees to sell them by auction 
 on the premises in default of repayment. He next 
 mortgaged the house by an under-lease to the 
 defendant, and, finally, executed a deed of assign- 
 ment conveying all his estate to trustees for his 
 
 creditors ; he nevertheless remained in possession. 
 The grantees of the bill of sale sold the goods by 
 auction on the premises. The plaintiff brought 
 an action of ejectment, and, in compliance with a 
 Judge's order, delivered particulars of the follow- 
 ing breaches of covenant, upon which she relied as 
 causing a forfeiture of the lease, namely, first, 
 non-payment of rent accrued since the day of the 
 sale ; secondly, the permitting and suffering a sale 
 by auction to take place on the premises. Pur- 
 suant to an order under the Common Law Proce- 
 dure Act, 1852, s. 212, and the Common Law 
 Procedure Act, 1860, s. 1, the arrears of rent were 
 tendered to the plaintiff, and being refused were 
 paid into Court, whereupon the proceedings on 
 the first breach were stayed, but the action went 
 to trial on the second. The jury found that C. 
 permitted the sale : — Held, that he had power to 
 do so, notwithstanding the conveyance of Ms estate, 
 and, having done so, had committed an act of for- 
 feiture which was not waived by the plaintiff 
 stating in the particulars of breaches, the non- 
 payment of subsequent rent. Toleman v. Porthnry 
 (Exch. Ch.), 41 Law J. Eep. (n.s.) Q. B. 98 ; Law 
 Eep. 7 Q. B. 344/ 
 
 {g) Compensation for goodwill of alehouse. 
 
 20. — A lease for years of an alehouse granted 
 to the plaintiff provided that, " at the expiration 
 or other sooner determination of the said term 
 hereby created, all such sum and sums of money 
 as shall or can be procured for the goodwill of the 
 business of a licensed victualler, in respect of the 
 said premises, from an incoming tenant, shall be 
 received by and belong to " the plaintiff. The 
 term having expired, the defendant, who was 
 owner of the reversion and executrix of the lessor, 
 let the house upon lease to a fresh tenant, by 
 whom she was paid 1,300^. as premium : she re- 
 ceived nothing for goodwill from the new lessee, 
 and she was willing that the plaintiff should get 
 fromhim compensationforthe goodwill. The plain- 
 tiff sued the defendant to recover 1,300Z. : — Held, 
 that an action was maintainable imder the proviso, 
 but that the sum of 1,300Z. was not to be taken as 
 the amount payable by virtue thereof to the plain- 
 tiff; that the value of the goodwill of the alehouse 
 was to be fixed by ascertaining what sum would 
 be paid by an incoming to an outgoing tenant in 
 respect thereof. Llewellyn v. Butherford, 44 Law 
 J. Eep. (n.s.) C.P. 281 ; Law Eep. 10 C.P. 456. 
 
 (A) Power of distress. 
 
 21. — A proviso in a lease of a seam of coal under 
 certain lands therein described, empowered the 
 lessor to distrain for rent the chattels, effects, 
 goods, &c., employed upon or under the said lands, 
 in connexion with the working of the coal, as well 
 within the limits of the said lands, as also in, or 
 under or about any other lands in which there 
 should be any pits or openings, through which the 
 coal demised should be for the time being in course 
 of working by the lessees, their executors, admin- 
 istrators and assigns, and for that purpose to enter 
 into and upon such other lands : — Held, that such 
 a proviso or covenant could not attach to land in 
 
LEASE (B). 
 
 321 
 
 which the lessor had no interest, and that he could 
 not by virtue of it distrain on any " such other 
 lands " after an assignment of the lessees' interest 
 therein. Daniel \. Stepney, 41 Law J. Eep. (n.s.) 
 Exeh. 208 ; Law Rep. 7 Exoh. 327. 
 
 Reversed on appeal, the Court holding that 
 whether or not the power of distress was valid, 
 the plaintiffs taking as assignees with notice were 
 bound. Daniel y. Stepney, Law Rep. 9 Exch. 185. 
 
 (i) Power of re-entry. 
 
 (1) Severance of reversion. 
 
 22. — Lease of 5a. 2e. 20p. of ground at a rent 
 of lOOl. with a proviso empowering the lessor 
 upon giving three mouths' notice to resume pos- 
 session of " any portion" of the demised premises, 
 and providing that if any portion were resumed the 
 rent should be reduced at the rate of 201. per acre. 
 The lessor subsequently by deed conveyed his rever- 
 sion to the use of himself and another as tenants in 
 common, and shortly afterwards the tenants in 
 common served notice of their intention to resume 
 the whole of the lands : — Held, that they had a 
 right to resume the whole (although the sum to be 
 allowed in debate did in that event exceed the 
 entire rent), that actual entry was not necessary 
 under the notices, and that the severance of the 
 • reversion did not destroy their right. Liddy v. 
 Kennedy, Law Rep. 5 E. & I. App. 134. 
 
 (2) Demand of rent. 
 
 23. — By an agreement under which premises 
 were let at a rent payable on the usual quarter- 
 days, a right of re-entry was reserved to the land- 
 lord if default shoiild be made " in payment of 
 the rent or any part thereof within twenty-one 
 days after the same shall become due (being de- 
 manded) : — Held, that to entitle the landlord to 
 bring ejectment on such a, right of re-entry there 
 must be a demand of the rent after sucb twenty- 
 one days have elapsed, and a demand made during- 
 such twenty-one days was not sufficient. Phillips 
 V. Bridge, 43 Law J. Rep. (n.s.) C. P. 13; Law 
 Rep. 9 C. P. 49. 
 
 (Je) Forfeiture: waiver. 
 
 As to waiver of forfeitwe. [See No. 19.] 
 
 [And see Landloed and Tenant, 10.] 
 
 (?) 'Notice to quit. 
 
 24, — ^The defendant became tenant to the plain- 
 tiff under an agreement dated the 20th of Decem- 
 ber, 1872, by which certain premises were let to 
 him, " for one year certain, and so on from year to 
 year, until half a year's notice to quit be given, 
 by or to either party, at the yearly rent of 501., 
 payable quarterly, the first payment to be made 
 on the 25th of Maxch next: — Held, that the 
 tenancy commenced from the 25th of December, 
 1872, and therefore a half year's notice to quit, 
 expiring on the 25th of December, 1874, was a 
 good notice to put an end to the tenancy. Samdell 
 V. Franklin, 44 Law J. Eep. (N.s.) 0. P. 216 ; Law 
 Eep. 10 C.P. 377. 
 
 Digest, 1870-1875. 
 
 25. — Service of a notice on a servant living at 
 the house of a lessee who promised to give it to 
 him on his return home in a few days held suffi- 
 cient. Liddy v. Kenmiy, Law Eep. 5 E. & I. 
 App. 134. 
 
 [And see Landlobd and Tenant, 5.] 
 
 (m) Unsealed lease not binding on assignee of 
 reversion. 
 
 26. — The principle, that the assignee of a re- 
 version is not bound by. the terms in a lease not 
 under seal, applies where the demise is of three 
 windows in a factory, with the stipulation that the 
 lessor shall provide steam-power. Smith v. 
 Eggingtmi, 43 Law J. Rep. (n.s.) C.P. 140; Law 
 Eep. 9 C.P. 145. 
 
 The question whether the assignee of a rever- 
 sion has adopted the terms of the demise entered 
 into by his assignor, is one of fact, and is to be 
 disposed of by the jury. Ibid. 
 
 B. demised, by an instrument not under seal, 
 three windows in a factory to the plaintiffs and 
 stipulated to supply steam-power. B. at the time 
 of the demise was mortgagor in possession. His 
 mortgagees sold to the defendant, who did not 
 accept rent from the plaintiffs, but continued to 
 supply steam-power. Subsequently a dispute arose 
 as to the terms upon which the plaintiffs should 
 continue tenants of the defendant, who thereupon 
 cut off the steam-power. The plaintiffs having 
 sued the defendant for cutting off the steam-power, 
 — Held, that no action would lie against the de- 
 fendant. Ibid. 
 
 (») Variation of lease by collateral parol 
 agreement. 
 
 27. — A. leased a farm to B. ; before taking it, 
 B. complained to A. of the quantity of game upon 
 it, and A. thereupon told B. that he was about to 
 kill and to keep down the game, and to dismiss 
 most of his keepers, and discontinue letting the 
 shooting, but said that he did not wish this 
 arrangement to be inserted in the lease. The lease 
 was accordingly dravm up and executed, without 
 containing any reference to A.'s undertaking, but it 
 reserved to A., his friends and agents, the game 
 and right of sporting over the farm. The shoot- 
 ing was afterwards re-let during B.'s lease, and a 
 large head of game kept up. A. died, and in a 
 suit to administer his estate, B. brought in as a 
 creditor a claim on account of damage done to his 
 crops by the game : — Held, that the evidence 
 established the fact that there had been a parol 
 agreement collateral to the lease, and upon the 
 faith of which the lease had been executed, that 
 siich agreement was valid, and B.'s claim must be 
 admitted. ErsMne v. Adeane — Bennett's Claim 
 (No. 2), 42 Law J. Rep. (n.s.) Chanc. 849; Law 
 Rep. 8 Chanc. 756. 
 
 28. — The Goldsmiths' Company entered into 
 an agreement with the plaintiffs to grant them a 
 long lease of ground on which they were about to 
 erect new buildings. The agreement contained a 
 proviso that nothing therein should give the plain- 
 tiffs any rights of light and air over certain 
 adjoining ground and buildings. A form of lease 
 T T 
 
322 
 
 LEASE (B,\ (P). 
 
 was annexed to the agreement, and the lease was 
 afterwards granted according to the form, and 
 contained an express demise of "lights;" but 
 there was no proviso in the lease similar to the 
 one in the agreement. The Goldsmiths' Company 
 afterwards demised the adjoining ground to the 
 defendants, who commenced building so as to in- 
 tercept the plaintiffs' light. On motion by the 
 plaintiffs for an injunction, — Held, refusing the 
 motion, that the lease must be read as if the pro- 
 viso in the agreement was inserted in the lease. 
 Salaman v. Glover, 44 Law J. Eep. (n.s.) Chanc. 
 551 ; Law Eep. 20 Eq. 444. 
 
 (0) Disclaimer in Bankeuptcy. 
 
 29. — ^A lessee of a messuage and premises for 
 a term of years assigned the unexpired residue to 
 one who was afterwards adjudicated bankrupt 
 under the Act of 1869. The trustee in bankruptcy 
 disclaimed the lease under section 23 of that Act : 
 — Held, that the lessor could maintain an action 
 on the covenants in the lease against the lessee 
 for the rent which became due between the adju- 
 dication and the disclaimer. Smyth v. North, 41 
 Law J. Eep. (n.s.) Exch. 103 ; Law Eep. 7 Exch. 
 242. 
 
 Semble — per Martin, B., and Pigott, B., that 
 the Court of Bankruptcy having made no order as 
 to the possession of the property disclaimed, this 
 action would be maintainable for rent due after the 
 disclaimer ; Contra, per Bramwell, B. Ibid. 
 
 30. — By an indenture of lease G-. demised a 
 house to P. for a term of years at an annual rent. 
 The lease contained various stringent covenants on 
 the part of the lessee, and the usual proviso for 
 re-entry on breach of covenant. By an agreement 
 in writing, and in consideration of a premium, P. 
 agreed to under-let part of the house to T, at an 
 annual rent. The agreement contained covenants 
 on the part of the under-lessee less stringent than 
 the lessee's covenants in the original lease, and 
 there was no proviso for re-entry. P. subsequently 
 became bankrupt, whereupon his assignees, under 
 section 23 of the Bankruptcy Act, 1869, and 
 Bankruptcy Eule 28, 1871, executed a disclaimer 
 of his interest in the original lease. G. having 
 declined to admit T.'s tenancy, a bill was filed by 
 T. against G. for the execution of a lease in accord- 
 ance with the terms of the agreement for an 
 under-lease, but was dismissed with costs. Taylor 
 V. GUlott, 44 Law J. Eep. (n.s.) Chanc. 740 ; Law 
 Eep. 20 Eq. 682. 
 
 Quffire — whether, if the case had been one of an 
 under-lease of the whole of the property com- 
 prised in the original lease, and the covenants in 
 the lease and under-lease had been identical, the 
 under-lease would have remained unaffected by 
 the disclaimer. Ibid. 
 
 (D) Renewable Leaseholds. 
 Senewable leaseholds : tenant for life and 
 remainderman. [See Tenant foe Liee, 
 18-20.] 
 
 (E) AssisnmeNt. 
 81. — A lessee of a farm for an Unexpired term 
 at a yearly rent payable quarterly, gave up pos- 
 
 session to the defendant, under an invalid assign- 
 ment of the unexpired residue of the lease. The 
 defendant entered, occupied, and paid the reserved 
 rent quarterly to the lessor for the lessee. The 
 lessor never accepted or objected to the defendant 
 as his tenant. The defendant quitted on a quarter- 
 day without giving the lessee any notice to quit : 
 — Held, that a promise by the defendant to in- 
 demnify the lessee against the rent for any period 
 after the defendant had ceased to occupy, could 
 not be inferred as a matter of law. Crouch v. 
 Tregoning, 41 Law J. Eep. (n.s.) Exch. 97 ; Law 
 Eep. 7 Exch. 88. 
 
 32. — The plaintiff being lessee of certain pre- 
 mises assigned his lease to A. B., who assigned to 
 the defendants, who committed breaches of cove- 
 nant and then assigned over. The plaintiff was 
 subsequently sued by the lessor for the breaches 
 of covenant committed while the defendants were 
 assignees, and was compelled to pay: — Held 
 (afirming the decision of the Court of Exchequer), 
 that the plaintiff was entitled to recover from the 
 defendants the amount he had been compelled to 
 pay to his lessor. Moide v. G-arrett (Exch. Ch.), 
 41 Law J. Eep. (n.s.) Exch. 62 ; Law Eep. 7 Exch. 
 101. 
 
 Covenants for title and quiet enjoyment. 
 
 [See Covenant, 6, 7.] 
 Notice of power of distress over lands not 
 
 comprised in the demise. [See supra 
 
 No. 22.] 
 
 (F) Stjeeendee. 
 
 (ffl) Sights of sub-lessee. 
 
 33. — The principle that a voluntary surrender 
 by a lessor cannot affect the interest of his under- 
 lessee maintained and applied. Under a revocable 
 license a licensee is entitled to notice of revoca- 
 tion and a reasonable time to remove his goods. 
 Cornish v. Stubbs (39 Law J. Eep. (n.s.) C. P. 
 202 ; Law Eep. 5 C. P. 334) followed. MeUor v. 
 Watkins, Law Eep. 9 Q. B. 400. 
 
 (i) By trustee in bankruptcy as against pur- 
 chaser of fixtures. 
 
 34. — A trustee in liquidation of the affairs of 
 the tenant for years of leasehold premises upon 
 which were certain fixtures, sold the fixtures by 
 auction, and subsequently, without any formal dis- 
 claimer, surrendered the premises to the landlord 
 prior to the expiration of the term and before the 
 purchaser of the fixtiires had removed them. The 
 landlord having let the premises with the fixtures 
 thereon to an incoming tenant, — Held, that the 
 purchaser was nevertheless entitled to the fixtures, 
 as the trustee, having sold them to him, could not 
 deprive him of his right by afterwards surrender- 
 ing the lease. Saint v. PiUey, 44 Law J. Eep. 
 (n.s.) Exch. 33 ; Law Eep. 10 Exch. 137. 
 
 Lease of shop in Scotland. [See Scotch 
 
 Law, 29.] 
 Scotch agricultural lease. [See Scotch 
 
 Law, 30.] 
 
LEGACY (A), (B). 
 
 323 
 
 LEGACY. 
 
 (A) Who take as Legatees. 
 
 (a) Misdescription of leffaiee : evidence. 
 (i) Legacy to executor. 
 
 (B) What Peopebty passes. 
 
 (a) Share of leaseJiolds held in partnership. 
 
 (b) Railway shares. 
 
 (e) Shares standing in specified names : falsa 
 demonstratio. 
 
 (d) Securities for money. 
 
 (e) Money due. 
 
 (/) Legacy for infant's maintenance. 
 
 (C) What Intebest Legatee takes. 
 
 (a) Separate iise with direction to settle. 
 (J) Absolute gift by implication. 
 
 (c) Gift cum onere. 
 
 (D) Vested oe Contikgent. 
 
 (E) Specific, Demonstrative, oe Genekal. 
 (E) CuirnLATivE ob Substitutional. 
 
 (G) Conditionai,. 
 
 (a) Non-compliance through ignorance. 
 (J) Impossible condition. 
 
 (H) Ai>EMPTION AND SATISFACTION. 
 
 (a) By advancement to child. 
 
 (b) Legacy for particular purpose. 
 (o) Gy't of balance. 
 
 (d) Payment of debt. ■ 
 
 (e) Conversion of property specifically 
 
 (/) Adeemed devise : intermediate rents. 
 (I) Peepetuity. 
 (K) Inteeest on Legacy. 
 (L) Legacy Feee of Duty. 
 (M) What Peopeety is Applicable to the 
 Payment of Legacies. 
 
 (A) Who take as Legatees. 
 
 («) Misdescription of legatee : evidence. 
 
 1. — A legacy was given ty a testatrix " to the 
 treasurer for the time being of the fund for the 
 relief of the -widows and orphans of the clergy of 
 the diocese of Worcester, to be applied by him for 
 the benefit of that charity." There were two 
 societies, one for the clergy and orphans of the 
 archdeaconry of Worcester, the other for that 
 of Coventry. They were both founded in 1777. 
 Before 1837 the archdeaconry of Worcester con- 
 stituted the whole diocese of Worcester, and the 
 former society had a name referring to the diocese 
 of Worcester. In 1848 its name was changed so 
 as to refer only to the archdeaconry of Worcester. 
 Both societies claimed the legacy: — Held, over- 
 ruling one of the Vice-Chancellors, that the legacy 
 was a gift to a society and not a trust for widows 
 and orphans, and that parol evidence was admis- 
 sible to determine which was entitled. And held, 
 further, that evidence shewing that the testatrix's 
 father and mother had for a large number of years 
 been a subscriber to the Worcester society, and 
 that the testatrix after the death of the survivor 
 of them had continued the subscription until her 
 own death, was decisive in favour of the clainl of 
 
 the Worcester society, there being no evidence 
 that she or any member of her family had sub- 
 scribed to the Coventry society. In re Kilverfs 
 Trusts, 41 Law J. Eep. (n.s.) Chauc. 351 ; Law 
 Eep. 7 Chane. 170. 
 
 _2. — A will and three codicils of a testator had 
 been proved. The will contained a gift of 2,500^. 
 each to the York and Leeds Hospitals, the second 
 codicil reciting the gifts in the will added 1,600?. 
 to each of these gifts, the third codicil purported 
 to revoke the last will, except a gift therein of 
 1,000?. to St. Catherine's College, which it pur- 
 ported to confirm. The will contained no such 
 gift. By the third codicil the testator gave 25Z. to 
 W., describing him as curate of Holy Trinity 
 Church. W. had never been curate of Trinity 
 Church : — Held, that the will which had been ad- 
 mitted to probate was revoked by the third codicil, 
 although inaccurately referred to, that the inter- 
 vening codicils were not revoked, that St. Cathe- 
 rine's College was entitled to the legacy of 1,000^., 
 which the testator purported to confirm by the 
 third codicil. That W. was entitled to the legacy 
 of 25?., although wrongly described, and that 
 neither the instructions for the will nor any evi- 
 dence of intention could be adduced to shew that 
 he was not the person for whom the legacy was 
 intended. Farrer v. St. Catherine's College, Cam- 
 bridge, 42 Law J. Eep. (n.s.) Chanc. 809 ; Law 
 Eep. 16 Eq. 19. 
 
 3. — A bequest of 10?. and furniture was made 
 to each of the three children of W. and E. B. 
 They had four children : — Held, that each of the 
 four was entitled to 10?. and a share of the furni- 
 ture. Perkins v. Fladgate, 41 Law J. Eep. (n.s.) 
 Chanc. 681 ; Law Eep. 14 Eq. 54. 
 
 [And see Will, Consteuction, G 4-6.] 
 
 (6) Legacy to executor. 
 
 4. — Legacy " as a remembrance " to testator's 
 "friend" P. whom he appointed executor, but 
 who did not act: — Held, that P. was entitled 
 without proving as executor. Bubb v. Yeherton, 
 Law Eep. 13 Eq. 131. 
 
 Charitable legacies. [See Will, Consteuc- 
 tion, H 1-3 ; Chaeity, 12-24.] 
 
 (B) What Peopeety passes. 
 
 (ffi) Share of leaseholds hdd in partnership, 
 
 5. — By his wiU the testator bequeathed all his 
 share of the leasehold premises in which his busi- 
 ness was carried on to his partner L. The lease- 
 hold premises were assets of the partnership 
 between the testator and L. held by them as joint 
 tenants. The partnership assets proved insuffi- 
 cient to pay the .partnership debts. The estates 
 of both partners being, however, solvent, — Held, 
 that L. was not entitled to the value of the tes- 
 tator's share of the leasehold premises out of his 
 general estate, but that the bequest in fact con- 
 ferred no benefit on him. Farquhar v. Haddon, 
 41 Law J. Eep. (n.s.) Chanc. 260 ; Law Eep. 7 
 Chanc. 1. 
 
 T T 2 
 
324 
 
 LEGACY (B), (E). 
 
 (A) Railway shares. 
 
 6. — A bequest of the testator's shares in a 
 railway "will carry his railway stock. Oakes t. 
 Oakes (9 Hare, 666) overruled. MorriceT. Aylmer, 
 44 Law J. Eep. (n.s.) Chano. 212 ; Law Eep. 10 
 Chane. 148 ; aifirmed, on appeal to the House of 
 Lords, Law Eep. 7 E. & I. App. 717. 
 
 (c) Shares standing in specified names : falsa 
 demonstraiio. 
 
 7. — Gift of " all my shares in the P. Company, 
 now standing in the names of H. L. and A. B." 
 (the testator): — Held (there being no shares 
 standing in both names) to carry shares stand- 
 ing in the name of A. B. as executor of H. L., 
 and to which the testator was beneficially 
 entitled, as well as shares standing in his name in 
 his own right. Coltman v. Gregory, 40 Law J. 
 Hep. (n.s.) Chanc. 352. 
 
 {d) Securities for money, 
 
 8. — Banker's deposit notes in the following 
 form — " Eeceivedof A. B. 150Z. to aecount for or on 
 demand " are not " securities for money " so as to 
 pass under a bequest in a will of all the testator's 
 "bonds, promissory notes and other securities for 
 money and the money secured thereon." Hopkins 
 V. Abbott, 44 Law J. Eep. (n.s.) Chane. 316 ; Law 
 Eep. 19 Eq. 222. 
 
 (c) Money due. 
 
 9. — Bequest of " all and every sxim or sums of 
 money which may be due to me at my decease : " 
 — Held, to pass a sum of money recovered byway 
 of damages in an action by the testator's executor 
 for a breach of covenant committed by a lessee of 
 the testator in the testator's lifetime. Bide v. 
 Sarrison, 43 Law J. Eep. (n.s.) Chanc. 86 ; Law 
 Eep. 17 Eq. 76. 
 
 [And see Will, Consteuction, D 13-19.] 
 
 (/) Legacy for infants maintenance.'] 
 
 [And see Infant.] 
 
 10. — Legacy to trustees to be expended by them 
 for the benefit and advancement of an infant as 
 they should think fit : — Held, on the infant's at- 
 taining twenty-one that he was absolutely entitled 
 to the balance unapplied. Furley v. Hyder, 41 
 Law J, Eep. (n.s.) Chanc. 583. 
 
 Articles in or about house and premises. [See 
 Will, Construction, D 10.] 
 
 Furniture. [See Will, Consteuction, 
 D12.] 
 
 Personal estate and effects. [See Will, Con- 
 STKUCTION, D 20.] 
 
 (C) What Interest Legatee takes. 
 [And see Will, Constbuction, I.] 
 
 (a) Separate use with direction to settle. 
 
 11. — A testator by will dated the 2nd of July, 
 1870, gave a legacy to a married woman for her 
 separate use without power of anticipation, and 
 
 directed that " for the purpose of securing to her 
 the separate enjoyment without power of antici- 
 pation against any husband for the time being, 
 the trustee should settle the legacy in such man- 
 ner as would carry out the said purpose." Pre- 
 viously to the date of the will the legatee had 
 been judicially separated from her husband, and 
 had ever since lived apart from him : — Held, that 
 she was entitled to have the legacy paid to her. 
 Munt V. GVynes, 41 Law J. Eep. (n.s.) Chanc. 639. 
 
 (6) Absohite gift by implication,. 
 
 12. — A legacy was directed to be held on trust 
 for D., "should he survive my sister T. ; should 
 he not survive her nor attain his twenty-first 
 year," over : — Held, an absolute gift by implica- 
 tion to D. at twenty-one. In re Thomson! s Trusts, 
 Law Eep. llEq. 146. 
 
 (o) Gift cum onere. 
 
 13. — Shares in a company were given, together 
 with other property, and were onerous : — ^Held, 
 that the legatees could repudiate the shares, and 
 take the rest of the gift. Aston v. Wood, 43 Law 
 J. Eep. (n.s.) Chanc. 715. 
 
 [And see Will, Constbuction, D 5 ; E 4.] 
 
 (D) Vested ob Contingent. 
 
 14. — A testator bequeathed money in trust for 
 A. for life, and after her decease for the children 
 of A., when and as they should attain the age of 
 21 years; but if A. should die without lawful 
 issue, then over : — Held, that the gift to the child- 
 ren of A. was contingent upon their attaining the 
 age of 21 years. Bree -v. Perfect (1 Coll. C.C. 128) 
 not followed. Kidman v. Kidman, 40 Law J. 
 Eep. (n.s.) Chanc. 359. 
 
 Where a legacy is severed from the residue, for 
 the benefit of a tenant for life and a remainder- 
 man, the residuary legatees cannot claim the in- 
 come accruing after the death of the tenant for 
 life, though the remainderman has not yet attained 
 a vested interest in the legacy. Ibid. 
 
 (E) Specific, Demonstbative, ob Geneeal. 
 [And see Will, Consteuction, D 6, 14, 16 ; F.] 
 
 15. — A testator after stating by his will that 
 he was contingently entitled to a sum of 6,600?. 
 stock, or the securities representing the same, gave 
 to his son " the sum of 2,000Z. consols, part thereof, 
 or a sum equal thereto, to be transferred or paid 
 to him when the same should be received by his 
 executors : " — Held, that this was a specific legacy 
 of part of the 5,6002. stock, and was adeemed, the 
 testator having received the stock and converted 
 it into money during his lifetime. Oliver v. Oliver, 
 40 Law J. Eep. (n.s.) Chanc. 189; Law Eep. 11 
 Eq. 506. 
 
 16. — A testator made a general and absolute 
 bequest of his personalty, followed by a specific 
 devise of realty for payment of his debts. The 
 realty so specifically devised being insufficient for 
 the payment of debts, — Held, that the residuary 
 real estate must contribute with the personalty. 
 
LEGACY (E), (G). 
 
 325 
 
 Powell Y. Riley, 40 Law J. Eep. (n.s.) Chanc. 533 ; 
 Law Eep. 12 Eq. 175. 
 
 17. — A maiTied woman having a testamentary 
 power of appointment orer a certain settled sum 
 of stock by her will appointed the stock, " or the 
 stocks or funds which might at her death repre- 
 sent such trust funds," to certain legatees : — Held, 
 that the legacies were specific, not general. Davies 
 T. Fowler, 43 Law J. Eep, (n.s.) Chanc. 90 ; Law 
 Eep. 16 Eq. 308. 
 
 Testatrix not having exhausted the whole of 
 the stock, appointed the residue thereof to trustees 
 upon trust to sell and divide the proceeds, after 
 payment thereout of her debts and funeral and 
 " testamentary expenses," between her nephews 
 and nieces : — Held, that the gift of the residue was 
 "also specific, but that the probate duty was charge- 
 able exclusively on the residue. Ibid. 
 
 18. — ^A testatrix bequeathed all " her " money 
 which should be " invested " at her decease to a 
 trustee upon trust, in the first place to pay there- 
 out her debts and funeral and testamentary ex- 
 penses, and in the next place to pay to her nephew 
 H., for his life, " the sum of 3,000Z. invested in 
 Indian security." At the date of her will the tes- 
 tatrix had bonds of the East Indian Loan of the 
 value of 3,000Z., but these were redeemed by the 
 Indian Government before' her death, and at her 
 death she had no money invested in Indian secu- 
 rities : — Held, that the legacy was demonstrative, 
 and not specific. Mytton v. Mytton, 44 Law J. 
 Eep. (n.s.) Chanc. 18 ; Law Eep. 19 Eq. 30. 
 
 19. — A gift of " aU my shares and stock " in a 
 win made since the Wills Act, 1 Vict. c. 26, is a 
 specific gift. Such a gift in a will made before 
 the Act would have been a specific gift of all the 
 shares and stock possessed by the testator at the 
 date of his will, and the effect of the Act is to 
 import into the gift all the stock and shares ac- 
 quired by the testator before his death. Botham,- 
 ley V. Sherson. 44 Law J. Eep. (n.s.) Chanc. 689 ; 
 Law Eep. 20 Eq. 304. 
 
 Apportionment of dividends. [See Appor- 
 tionment, 6, 6.] 
 
 (F) Cdmuiative or Substitutionai. 
 
 20. — A testator made two codicils to his will. 
 By the second he gave to five legatees, named in 
 the first codicil, legacies of the same amount that 
 they took under- the first codicil, and to three lega- 
 tees, named in the first codicil, legacies of half the 
 amount they took under the first. By the first he 
 gave a legacy to one legatee not named in the 
 second, and by the second a legacy to one legatee 
 not named in the first. By each codicil he gave 
 to his servants one year's wages, but by the second 
 he directed that this gift was to be liberally inter- 
 preted. The legacies given by the second codicil 
 were to be free of legacy duty ; there was no such 
 provision regarding the legacies given by the first 
 codicil. The la.nguage of both codicils was almost 
 identical, and they both commenced with the 
 words, "This is a codicil to the will of" &c. : — 
 Held (affirming a decision of Bacon, V.C, 40 Law 
 J. Eep. (n.s.) Chanc. 709 ; Law Eep. 12 Eq. 525), 
 
 that the legacies given by the second codicil were 
 cumulative and not substitutionary. The Duhe of 
 St. Albans v. BeauolerJc (2 Atk. 636) ; aniHeming 
 V. ClutterbucTc (1 Bligh, N.S. 479), commented on. 
 Wilson V. O'Leary, 41 Law J. Eep. (n.s.) Chanc. 
 342 ; Law Eep. 7 Chanc. 448. 
 
 The testator gave a legacy to his " servant and 
 friend" S. He also bequeathed a year's wages to 
 all his servants : — Held, by Bacon, V.C, that S. 
 took under the bequest to servants, as well as the 
 legacy to himself individually. Ibid. 
 
 21. — A testator having executed his will in 
 duplicate, subsequently executed on the same day 
 two codicils, almost in identical words, giving by 
 each a legacy of 5,000Z. to D. for life, remainder 
 to her children, with remainder over. He then 
 deposited one codicil with D., the other with his 
 solicitor. A short time afterwards he executed a 
 ftiither codicil, whereby he confirmed his will, 
 " except so far as the same is altered by a codicil 
 thereto, dated the 2nd day of April, 1868, which 
 last mentioned codicil " he thereby confirmed. In 
 1871 he took away from his solicitor the codicil 
 he had deposited with him and handed it to D., 
 and, at his death, D. was in possession of both. 
 Both were admitted to probate : — Held, that the 
 codicils were merely duplicates of each other, and 
 that D. was only entitled to one legacy of 6,000?. 
 Whyte V. Whyte, 43 Law J. Eep. (n.s.) Chanc. 
 104; Law Eep. 17 Eq. 50. 
 
 (G) CoNBrrioNAi,. 
 (a) Non-compliance through ignorance. 
 
 22. — A testator bequeathed a sum of stock in 
 trust for, and for the benefit of, A. B., adding, that 
 if A. B. did not do certain specified acts within a de- 
 finite time a portion of the stock was to fall into the 
 testator's residuary estate, and be disposed of ac- 
 cordingly in favour of other persons. A. B. was 
 not aware of the conditions imposed upon him, 
 and did not comply with them within the required 
 period : — Held, that the residuary legatees were 
 entitled to the portion of the stock. In re Hodges' s 
 Trust, 42 Law J. Eep. (n.s.) Chanc. 452 ; Law Eep. 
 15 Eq. 92. 
 
 23. — Gift of legacy with direction that the same 
 should lapse if not duly claimed within three 
 months. The legatee having had no notice of the 
 legacy, and not having heard of the testator's death 
 till two years afterwards, did not claim : — Held, 
 nevertheless, that the legacy lapsed. Powell v. 
 Bawle, Law Eep. 18 Eq. 243. 
 
 (J) Impossible condition. 
 
 24. — A testator bequeathed personal estate to 
 University College, London, for the purpose of 
 founding in it a new professorship of archaeology, 
 for the regulation of which professorship he pro- 
 posed preparing a code of rules and regulations 
 which he intended to authenticate under his hand ; 
 and he directed his executors to communicate to 
 the college the fact of the bequest, and a copy of 
 the rules and regulations, the acceptance of which 
 was to be signified by the college within twelve 
 months after such communication, and he declared 
 
326 
 
 LEGACY (G), (H). 
 
 that if the college should decline or refuse to ac- 
 cept the rules, or should not within the said twelve 
 months signify their acceptance of the same, the be- 
 quest should be wholly null and void. The testator 
 died without having authenticated any code of 
 rules and regulations : — Held, reversing the deci- 
 sion of one of the Vice-Ch'ancellors, that the col- 
 lege were entitled to the legacy. Yates v. The 
 XJmuersity College, London, 42 Law J. Eep. (n.s.) 
 Ohano. 666 ; Law Eep. 8 Chanc. 454 : affirmed, on 
 appeal to the House of Lords, 45 Law J. Eep. 
 (n.s.) Chanc. 137; Law Eep. 7E. &I.App. 438. 
 
 (H) Ademption and Satisfaction. 
 (a) By advancement to child. 
 
 2 5 . — Bequest of legacies of 500Z.each to testator's 
 threesonsT.,J.,audP. andtohisdaughter200Z.,with 
 a direction that neither of his sons whom he should 
 have advanced in his lifetime should be entitled to 
 receive his said legacy without bringing the ad- 
 vances into hotchpot, and bequest of residue to 
 testator's "four sons, C, T., J., and P., and the 
 daughter. The testator had before the date of his 
 will, made advances exceeding 700?. to C, and 
 after the date of his will had advanced 5001. and 
 S801. to T. : — Held, that the advances toC. should 
 not be taken into account against him ; but that, 
 as to T., the 6001, must go against his legacy and 
 the SSOl. against his share of residue. In re Pea- 
 oocJc's Estate, Law Eep. 14 Eq. 236. 
 
 26. — A testator by will gave specific estates to 
 trustees for each of his children for life, remainder 
 to their issue in tail with cross-remainders. He 
 gave each tenant for life power to appoint an an- 
 nuity not exceeding one-third of the estates speci- 
 fically devised to him or her to a husband or wife 
 surviving. After directing payment of his debts 
 he gave the residue of his real and personal estate 
 to the trustees to divide between his children, and 
 hold on the same trusts as the specifically devised 
 estates. On the marriage of a daughter subse- 
 quent in date to his will, he by the marriage set- 
 tlement covenanted to pay to the trustees a sum 
 of 4,000?. to be held upon trusts as to half for the 
 wife for life, half for the husband for life, the 
 whole for the survivor with remainder to the 
 children of the marriage, and in default for the 
 settlor absolutely. At the same time he made a 
 gift of \,000l. to the husband absolutely, which 
 was recited in the marriage settlement as being 
 part of her portion of 5,000?. : — Held, first, that 
 the referential trusts of the residue included all 
 the powers given over the specifically devised es- 
 tates and gave powers to each tenant for life to 
 appoint an annuity of one-third of the income of 
 his or her share of residue, as well as of the spe- 
 cifically devised estate to a husband or wife sur- 
 viving. Held, also, that the covenant to settle 
 4,000?. was pro tanto an ademption of the- share 
 or residue taken by the daughter, but that the 
 1,000?. paid to the husband was not. Cooper v. 
 Macdonald (No. 1), 42 Law J. Eep. (n.s.) Chanc. 
 533 ; Law Eep. 16 Eq. 258. 
 
 27. — Where a father after giving by his will a 
 portion to his child advanced to such child a por- 
 
 tion without any deed or instrument, such provi- 
 sion in the absence of circumstances negativing 
 the presumption, was held an ademption pro tanto. 
 Leighton v. Leighton, 43 Law J. Eep. (n.s.) Chanc. 
 594 ; Law Eep. 18 Eq. 468. 
 
 The occasion of a subsequent advancement satis- 
 fying or adeeming a previous one need not be the 
 marriage of the child or any other occasion calling 
 specially for the advancement of the child. Ibid. 
 
 28. — The presumption that a legacy or a gift 
 of residue is adeemed or satisfied by a subsequent 
 advancement made by the testator to the legatee, 
 arises only in the case of children or persons to- 
 wards whom the testator stands in loco parentis. 
 Therefore, if a testator has placed himself in loco 
 parentis to one member only of a family, there can 
 be no presumption as against that one that a pro- 
 vision made for him in common with the others 
 by the testator's will is satisfied or adeemed by a 
 subsequent advancement to him by the testator in 
 his lifetime. FowTces v. Pascoe, 44 Law J. Eep. 
 (n.s.) Chanc. 367; Law Eep. 10 Chanc. 343. 
 
 Observations on Pym v. Loc&yer, 5 M. & C. 29. 
 Ibid. 
 
 (6) Legacy for particular pierpose. 
 
 29. — A testator by his will gave his wife a 
 legacy of 200?. to be paid within ten days after 
 his decease. Subsequently, during his last illness, 
 he, at the request of his wife, who did not know 
 the contents of his will, gave her 200?. that she 
 might have a sum of money upon his death which 
 she could control without the executor's inter- 
 ference : — Held (affirming the Master of the 
 Eolls), that_ the legacy was not satisfied by the 
 gift, the case not coming within the rule that 
 where a testator gives a legacy for a particular - 
 purpose, and afterwards accomplishes the purpose, 
 the legacy is satisfied. Pankhurst v. Howell, 
 Law Eep. 6 Chanc. 136. 
 
 (e) Gift of balance. 
 
 30. — A gift of a balance due to the testator from 
 his partnership at a particular date was held to be 
 adeemed, pro tanto, by drawings made before his 
 death, and partly before the date of the will. 
 Aston V. Wood, 43 Law J. Eep. (n.s.) Chanc. 
 715. 
 
 (i) Payment of debt. 
 
 31. — Testator by his will said, " Whereas there 
 is due to me from my son 1,440?. or thereabouts, 
 secured by bills or notes or otherwise, I release 
 my said son from the payment of any interest up 
 to the time of my death, and I direct that he 
 shall have time for payment of the said sum by 
 paying one-sixth in every year next after my 
 death." He afterwards made a codicil, whereby 
 he confirmed his will. The son paid the debts 
 due at the date of the will, amounting to about 
 1,440?., and afterwards incurred fresh debts to 
 the amount of about 1,300?., which were due at 
 the date of the codicil and at the death of the 
 testator: — Held, that the legacy was specific, 
 that it was adeemed by payment of the debt, and 
 
LEGACY (a)-LEGACY AND SUCCESSION DUTY (B). 
 
 327 
 
 that the confirmation of the "will by the codicil 
 did not give the sou any benefit in respect of the 
 debts then due. Sidney v. Sidney, 43 Law J. 
 Eep. (n.s.) Chano. 16 ; Law Eep. 17 Ec[. 65. 
 
 (e) Conversion of property spedficaUy hegueathed. 
 [See supra Nos. 15, 18.] 
 
 (/) Adeemed devise : intermediate rents. 
 
 32. — Where a testator had specifically devised 
 certain lands, but such lands were contracted to 
 be sold in his lifetime, so that the devise was 
 adeemed, — Held, that the rents received between 
 the death of the testator and the conveyance of 
 the property passed to the devisee. iVatts v. 
 Watts, 43 Law J. Eep. (n.s.) Chane. 77; Law 
 Eep. 17 Eq. 217. 
 
 (I) Perpetuity. 
 
 33. — Testatrix by will gave money to be applied 
 in building almshouses "when land should be 
 given for the purpose : " — Held, that the gift was 
 bad as tending to a perpetuity. Chamherlayne v. 
 Broekett, 41 Law J. Eep. (n.s.) Chanc. 789. 
 
 [And see Wiix, OoNSTErcTiON, E.] 
 
 (K) Inteeest on Leqacy. 
 
 34. — A testator by his will directed that cer- 
 tain pecuniary legacies thereby given should be 
 paid out of the proceeds of sale of his real estate. 
 The testator's estate became the subject of an 
 administration suit, upon the further considera- 
 tion of which the question arose from what time 
 the interest on the said legacies was payable : — 
 Held, that the interest ran from a year after the 
 testator's death. Tv/rner v. Buck, 43 Law J. Eep. 
 (n.s.) Chanc. 583; Law Eep. 18 Eq. 301. 
 
 (L) Legacy Eeee of Duty. 
 
 35.— Gift of legacies, duty free, with a direction 
 that the duty should be paid out of the testator's 
 residue. There being no residue available for 
 payment of the duty, — Held, that the gift of the 
 duty failed pro tanto, and that the legatees must 
 bear the duties themselves. Wilson v. O'Leary, 
 Law Eep. 17 Eq. 419, 
 
 (M) What Peopebty is applicable to the 
 Payment op Legacies. 
 
 [See Ajomenistration.] 
 
 LEGACY AND SUCCESSION DUTY. 
 
 (A) Legacy Duty. 
 
 (a) Money to he laid owl in land. 
 (i) Legitimated child of foreigner. 
 (c) Foreign domicU : estate pur autre vie. 
 
 (B) Succession Duty. 
 (fi) When payable. 
 
 (1) Testator domiciled abroad. 
 
 (2) Assignees of inawed person. 
 
 (3) Accumulations (if income. 
 
 (b) Secession: alienation by remainder- 
 
 man to corporation. 
 
 (c) Charge of, upon proceeds of sale. 
 
 {d) Value of succession: allowance in re- 
 spect of annuity. 
 (C) Double Duty. 
 
 (A) Legacy Duty. 
 
 (a) Money to be laid out in land. 
 
 1. — Testator, who died in 1800, by his will di- 
 rected a fund in Consols to be laid out in the 
 purchase of land, and settled in succession on cer- 
 tain persons and their issue male, with remainder 
 to his own right heirs. S. became entitled by in- 
 heritance to the fund, and on her death E. 
 became entitled thereto as heir to S. The fund 
 never was laid out in the purchase of land, nor 
 in any way dealt with by S., or those from whom 
 she inherited it : — ^Held, aflBrming the judgment 
 below, 40 Law J. Eep. (n.s.) Exch. 198 ; Law 
 Bep. 6 Exch. 286, that under the 36 Geo. 3. c. 62, 
 s. 19, the rate of legacy duty payable by E. was 
 the same as would have been payable on a legacy 
 bequeathed to him by S. Be Lancey v. The Queen 
 (Exch. Ch.), 41 1,aw J. Eep. (n.s.) Exch. 64 ; Law 
 Eep. 7 Exch. 140. 
 
 (J) Legitiinated child of foreigner. 
 
 2. — A testator of English birth, but domiciled 
 in Erance, gave, by his will, shares in the proceeds 
 of converted real estate in England to his two 
 daughters, who were not born in wedlock, but had 
 been legitimated according to the law of Erance : 
 — Held, that the status of the daughters in Eng- 
 land must be their status according to the law of 
 Prance, i.e., that of legitimate " children " and not 
 of " strangers in blood," and that legacy duty at 
 the rate of ll. per cent, was payable upon the 
 shares taken by them under their father's will — 
 Observations on Birtwhistle v. Vardill (2 CI. & F. 
 671 ; 7 01. & F. 895). Skottowe v. Young, 40 
 Law J. Eep. (n.s.) Chanc. 366 ; Law Eep. 11 Eq. 
 474. 
 
 (c) Foreign domicil : estate pur autre vie. 
 
 3. — Legacy duty is payable on an annuity for 
 lives (including the testator's) charged on land in 
 the United Kingdom, and bequeathed by a person 
 having a foreign domicil. — ^Decision of Bacon, V.C, 
 (41 Law J. Eep. (n.s.) Chane. 116; Law Eep. 12 
 Eq. 464) reversed. Chaifield v. Berchtoldt, 41 
 Law J. Eep. (n.s.) Chanc. 265 ; Law Eep. 7 Chanc. 
 192. 
 
 (B) Succession Duty. 
 
 (ffl) Whenpayable. 
 
 (1) Testator domiciled abroad. 
 
 4. — When a testator domiciled abroad directs 
 a part of hisresiduary personal estate which is to 
 be invested in English securities in the names of 
 English trustees to be set apart to answer a life 
 annuity, and on its determination to fall into the 
 
328 
 
 LEGACY AND SUCCESSION DUTY (B). 
 
 residue, the increase of benefit accruing on the 
 death of the annuitant to the residuary legatees 
 is not a succession -witkin the operation of section 
 5 of the Succession Duty Act. Callanane v. 
 Campbell, 40 Law J. Eep. (n.s.) Chanc. 195 ; 
 Law Eep. 11 Eq. 378. [But see next case.] 
 
 6. — A testator domiciled abroad, directed his 
 residuary personal estate to be invested in English 
 Government securities, and a part thereof to be 
 set apart to answer a life annuity on the deter- 
 mination of which it was to fall back into the 
 residue for the benefit of the residuary legatees, 
 and the fund was appropriated and invested in 
 Consols accordingly ; — Held, that the increase of 
 benefit accruing to the residuary legatees upon 
 the death of the annuitant was a succession within 
 section 5 of the Succession Duty Act, 16 & 17 
 Vict. c. 51. — Callanane v. Campbell (40 Law J. 
 Eep. (n.s.) Chanc. 195 ; Law Eep. 11 Eq. 378) re- 
 versed, and InreBadarfs Trusts (39 Law J. Eep. 
 (n.s.) Chanc. 645) supported. The Attorney-General 
 V. Campbell (H.L.), 41 Law J. Eep. (n.s.) Chanc. 
 611 ; Law Eep. 5 E. & I. App. 524. 
 
 6. — L. having his domicil in Sydney, by mar- 
 riage settlement made in England, assigned to 
 trustees a sum in Consols and a policy on his life 
 in an English assurance ofSce and covenanted to 
 pay to them a sura of 1 ,OO0Z. within three years 
 from the date of the settlement. The trust funds 
 were settled upon the usual trusts, for the hus- 
 band for life, wife for life, remainder for the 
 children of the marriage, and L. by his will left 
 all his property, principally situated in Sydney, to 
 English trustees, upon trust for his wife for life 
 and after her death for his children. L. died at 
 Sydney before the moneys covenanted to be paid 
 to the trustees were payable. His wife died three 
 months afterwards, after the moneys covenanted to 
 be paid by Mr. Lyall became due, but before the 
 policy moneys were due. There was one child of 
 the marriage. None of the property of the testator 
 was transmitted to England until after the death 
 of his wife : — Held, that succession duty was pay- 
 able on all the funds comprised in the settlement, 
 but not on any of the funds that passed by the 
 will. The Attorney-General v. Campbell (last 
 case) commented upon. Lyall v. Lyall, 42 Law 
 J. Eep. (n.s.) Chanc. 195 ; Law Eep. 16 E(j. 1. 
 
 Duty on benefits taken under a will and a set- 
 tlement distinguished. Ibid. 
 
 (2) Assignees of injured person. 
 
 1. — Trustees of an assurance company held to 
 be assignees of an assured person within the 
 meaning of section 17 of the 16 & 17 Vict. c. 96, 
 and that no succession duty was payable as be 
 tween the subscriber and them. In re Maclean's 
 Trusts, 44 Law J. Eep. (n.s.) Chanc. 146 ; Law 
 Eep. 19 Eq. 275. 
 
 (3) Accumulations of income. 
 
 8. — A testator by his will, dated in March, 
 1850, devised real estates to trustees to accumu- 
 late the rents for twenty-one years from his death, 
 and then to convey and assign the same respec- 
 
 tively to the person who should then be the heir 
 male of his body ; in deiault of such, to the heir 
 general of his body ; and in default of such, to his 
 heirs general. The testator died, a bachelor, in 
 June, 1850. Thetestator'sheir general died inl865. 
 In 1871, the then heirs general succeeded to the 
 estates and the accumulations of income : — Held, 
 that they must pay the duty. The Attorney- Ge- 
 neral V. Gell (3 Hurl. & C. 615 ; 34 Law J. Eep. 
 (n.s.) Exch. 145) followed. Bing v. Jarman, 41 
 Law J. Eep. (n.s.) Chanc. 835 ; Law Eep. 14 Eq. 
 357. 
 
 (J) Succession : alienation by remainderman to 
 corporation. 
 
 9. — Testatrix by will, made in 1839, devised 
 real property to one for life, and after his death 
 to a remainderman in fee, and died in 1841. The 
 remainderman, a cousin of the testatrix, died in 
 1870, having previously sold his reversion in fee 
 to a corporation. The tenant for life died in 
 1872 : — Held, on an information against the cor- 
 poration, first,, that the corporation, upon the 
 death of the tenant for life, were " successors " 
 within sections 2 and 27 of the Succession Duty 
 Act, 1853, and were liable to pay succession duty 
 upon the full value. Secondly, that if necessary, 
 the Court would have decided the death of the 
 remainderman to be immaterial, and the rate of 
 duty to be the same as would have been payable 
 by him if he had survived the tenant for life with- 
 out selling, but that at all events the Crown had 
 made out a primd, facie case to duty at that rate, 
 since the Crown need not prove the death of the 
 remainderman, nor who was his heir ; and that if 
 events had happened by which the duty would be 
 less, the corporation must prove them. The Soli- 
 citor-General V. The Law Reversionary Interest So- 
 ciety, 42 Law J". Eep. (n.s.) Exch. 146 ; Law Eep. 
 8 Exch. 233. 
 
 (c) Charge of, upon proceeds of sale. 
 
 10. — Estates subject to a jointure rent-charge 
 were settled subject to a power of sale, with trusts 
 for reinvestment of the purchase-.money in lands to 
 be settled to the like uses, and were sold under the 
 power of sale : — Held, afSrming the decision of 
 one of the Vice-Chancellors, that the charge of 
 succession duty that would become payable on the 
 extinction of the jointure was shifted by section 
 32 of the Succession Duty Act, 16 & 17 Vict. c. 51,' 
 from the lands sold to the purchase-money, and 
 the lands on which it might be re-invested, and 
 therefore the purchaser was not entitled to require 
 it to be paid for. Sugdale v. Meadows, 40 Law 
 J. Eep. (n.s.) Chanc. 140 ; Law Eep. 6 Chanc. 501. 
 
 (d) Value of succession ; allowance in [respect of 
 annuity. 
 
 11. — Where a person in possession of property 
 as tenant for his life joins with the person next 
 entitled as tenant in tail and opens the entail, 
 reserving a joint power of appointment over the 
 estate, and by means of that power settles an 
 annuity upon the tenant in tail for their joint 
 lives, and the tenant for life afterwards dies, the 
 
LEGACY ASl) SUCCESSION DUTY (B)— LEGITIMACY DBCLAEATION ACT. 329 
 
 tenant in tail being alive, the value of that an- 
 nuity must be taken and allowed as a deduction, 
 under the 38th section of the Act of 1863, froni 
 the value of the succession of the tenant in tail 
 upon which duty is to be paid. — So held, follow- 
 ing the decisions of this House in The Attorney- 
 Gremral v. Lord Braybrooke, 9 H. L. Gas. 160 ; 31 
 Law J. Rep. (n.s.) Exch. 177, and The Attorney- 
 Cteneral v. Fhyer, 9 H. L. Cas. 477 ; 31 Law J. 
 Eep. (n.s.) Exch. 404. The Commissioners of In- 
 land JSevenue v. Harrison (H. L.), 43 Law J. Eep. 
 (n.s.) Exch. 138 ; Law Rep. 7 E; & I. App. 1. 
 
 Decisions of the House of Lords upon questions 
 of law, as the construction of statutes, and espe- 
 cially of fiscal Acts, are binding upon the House 
 in subsequent cases. Ibid. 
 
 12. — Entailed estates were by a disentailing 
 deed conveyed to such uses as a father, the 
 tenant for life, and his son the tenant in tail, 
 should jointly appoint. By indenture of even date 
 made between the father and son, a lady, whom 
 the son was about to marry, and trustees, the 
 father and son acting under the powers of the 
 disentailing deed conveyed the estates to trustees 
 by way of mortgage to secure 20,000?., and the 
 father covenanted with the trustees that he would, 
 so long during his life as the said sum of 
 20,000Z. should remain due to the trustees, pay, 
 them interest on the same, or so much thereof 
 as for the time being should remain due, at three 
 per cent, per annum. And it was declared that 
 the trustees should stand possessed of the 
 20,000i. and the interest thereon on the trusts 
 of the marriage settlement of the son, viz., on 
 trusts for him for life voth the usual trusts 
 over for wife and children. The marriage took 
 place, and the son received under the mortgage 
 and settlement deeds the yearly sum of 6001. 
 (being interest at three per cent, on the 20,000Z.) 
 until the death of his father. The son then suc- 
 ceeded to the estates and the annuity of 600?. 
 ceased: — Held (Cleasby, B., dissentitnte), fol- 
 lowing Lord Braybrooke v. The Attorney- General 
 (9 H. L. Cas. 150; 31 Law J. Rep. (n.s.) Exch. 
 177), that in the assessment of the succession 
 duty payable under 16 & 17 Vict. t. 51, the son 
 was entitled by section 38 to an allowance in 
 respect of the annuity which he had been 
 "bound to relinquish" or had been "deprived 
 of" within the meaning of that section. Le 
 Marehant v. The Commissioners of Inland Hevenue, 
 44 Law J. Rep. (n.s.) Exch. 216; Law Rep. 10 
 Exch. 292 : affirmed, on appeal, 45 Law j. Rep. 
 (n.s.) Exch. 257 ; Law Rep. 2 Exch. Div. 185. 
 
 (C) Double Dtjty. 
 13, — ^Where an interest in personal property 
 has been transmitted before it has ripened into 
 enjoyment, it matters not whether the person 
 onginally entitled died before or after the com- 
 mencement of the Act, only one duty is payable 
 on any succession to such property, whether such 
 duty be legacy or succession duty. If the duty 
 be succession duty and the interest has passed 
 through more than one successor, then under sec- 
 tion 14 the duty payable shall he the highest that 
 DtoEST, 1870—1875. 
 
 would have been paid by any of such successors. 
 If the duty be legacy duty, then under section 18, 
 no succession duty of any kind is payable. Attor- 
 ney General v. Litledale (H. L.), 40 Law J. Rep. 
 (n.s.) Exch. 241 ; Law Eep. 5 E. & I. App. 290. 
 
 The successor from whom duty is payable is 
 the person who, on the happening of the death, 
 eventually becomes beneficially entitled in posses- 
 sion ; that which was conferred upon any previous 
 successor was only an expectant interest not a suc- 
 cession. The interest of an executor, not being 
 beneficial, is not a succession within section 2, nor 
 within section 15; for section 16 imposes no new 
 duty, only a duty in substitution for that imposed 
 by section 2. Ibid. 
 
 By a marriage settlement, made in 1829, funds 
 were settled in such wise that in May, 1863, when 
 the Succession Duty Act came into operation, there 
 was an estate for life still in being, and a reversion 
 expectant thereon, which was vested in the legal 
 personal representatives of H. D., who had been 
 originally entitled to the reversion, and had died 
 in 1833. H. D. being so entitled, had by her will 
 bequeathed the trust funds to the respondents, as 
 her executors, in trust for her brother and nephew, 
 and the legacy duty payable by her legatees was 
 at a higher rate than the succession duty would 
 have been if payable on the succession of the tes- 
 tatrix, H. D., from the settlor under the settle- 
 ment of 1829 :— Held, that the interest of H. D. 
 was not a succession but only an expectant in- 
 terest ; the true successors from whom duty was 
 payable were the beneficial owners, deriving their 
 title through the will of H. D. That the succes- 
 sion being subject to legacy duty, no succession 
 duty was payable ; and the trustees of the settle- 
 ment of 1829 having by mistake paid a succession 
 duty of 1 per cent, on the succession, the estate 
 being liable in the hands of the executors to a 
 payment of legacy duty at the rate of 3 per cent., 
 the executors were only chargeable with the 
 difference between the 3 per cent, chargeable and 
 the 1 per cent, paid, namely, 2 per cent, on such 
 parts of the settled funds as were subject to the 
 will of H. D. That if the successors^had derived 
 from H. D. otherwise than by will, and had been 
 therefore subject to succession duty instead of 
 legacy duty, then one duty would have been pay- 
 able at the highest rate at which it could have 
 been payable either by the successors or by H. D., 
 if she had survived the particular life. Ibid. 
 
 LEGITIMACY DECLARATION ACT. 
 
 (A) Peesumption of Mabbiaoe. 
 
 (B) DoHicii.. 
 
 (C) Claim to Baeonbtcy. 
 
 (D) Evidence. 
 
 (A) PBESinrPTION OF Maemase. 
 
 1. — Decision as to the amount of evidence re- 
 quired in order to presume a marriage where a 
 UU 
 
330 
 
 LEGITIMACY DECLABATION ACT (A)— LIBEL. 
 
 man and woman have long lived together as man 
 and -wife, and have been so treated by their friends 
 and neighbours. Lyle v. Ellwood, 44 Law J. Eep. 
 (n.s.) Chane. 164; Law Eep. 19 Eq. 98. 
 
 (B) DOMICIL. 
 
 2. — A petition was filed by the son, a minor, by 
 his guardian, under 21 & 22 Viot. c. 93, for a 
 declaration of his legitimacy. The marriage of 
 his parents took place in 1864. In 1856 his 
 mother went through a ceremony of marriage with 
 one Hawkins, who was previously married, and 
 whose wife was then living. The petition con- 
 tained a prayer that this marriage of 1856 might 
 be declared null and void, in which event the 
 legitimacy of the petitioner would follow as a 
 matter of course. Hawkins was cited to see pro- 
 ceedings. The mother was not cited, but was ex- 
 amined as a witness at the hearing, when it was 
 admitted that the petition could not bp sustained 
 under the Legitimacy Declaration Act, the domicile 
 of the petitioner being Australian and not English, 
 and there being no property in England which 
 could be affected by the decree. The Court de- 
 clined to treat the proceedings as if instituted for 
 a declaration of the nullity of the marriage of 
 1 856, and dismissed the petition. Johnstonp, v. 
 The Attorney- General, 43 Law J. Eep. (n.s.) P. & 
 M. 3. 
 
 Qusere — could the petitioner institute a suit for 
 a declaration of the nullity of the marriage cere- 
 mony had between his mother and Hawkins pre- 
 viously to her marriage with his father. Ibid. 
 
 (C) Claim to Baeonetoy, 
 
 3. — A petition under the Legitimacy Declara- 
 tion Act — the prayer of the petitioner being for a 
 declaration that he was a natural bom subject of 
 the Queen, and that his paternal grandfather, C. 
 F., was lawfully married to M. E. in 1773, and 
 that he was the jiatural and law&l son of his 
 father, who was one of the children of the marriage 
 of his paternal grandfather with M. E. — contained 
 an allegation to the effect that the petitioner, as 
 the natural and lawful grandson of C. P., and the 
 natural and lawful son and heir-at-law of E. F., 
 his father, was a baronet of the United Kingdom 
 of &reat Britain and Ireland, by the death of his 
 cousin, the sixth baronet, who died in September, 
 1873. The allegation was ordered to be struck 
 out as irrelevant to the petition. Frederick v. 
 The Attorney- General, 43 Law J. Eep. (k.s.) P. & 
 M. 32 ; Law Eep. 3 P. & D. 196. 
 
 (D) Evidence. 
 
 4. — Asserted marriage between A. and B. in 
 1773. In 1800, C, their eldest son, claimed cer- 
 tain property, to which, if legitimate, he was 
 entitled, but which was then in the possession of 
 D., his maternal uncle. D. answered, saying that 
 he should be ready to defend any action which C. 
 might bring, and communicated the fact that the 
 claim had been made to E., the paternal uncle of 
 C. C. replied that his object was to establish his 
 legitimacy, and did not follow up the claim to the 
 
 property by any suit or action, In a proceeding 
 under the Legitimacy Declaration Act to establish 
 the fact of marriage between A. and B., — Held, 
 that a "controversy" had arisen in 1800 between 
 C. and D. upon the very question involved in the 
 litigation, and that declarations by members of 
 his family subsequent to 1800 were inadmissible 
 in evidence as made post litem motam. Frederick 
 V. The Attorney-General, 44 Law J. Eep. (n.s.) P. 
 & M. 1 ; Law Eep. 3 P. & D. 270. 
 
 A deed, dated 1803, to which members of the 
 family were parties, was tendered in evidence for 
 the purpose of proving by means of the recitals in 
 the deed declarations by them, but was rejected on 
 the ground that the declarations were made post 
 litem nu)tam. It was then tendered as evidence of 
 conduct or a solemn act done by the parties : — 
 Held, that it was inadmissible in evidence for the 
 purpose for which it was tendered. Ibid. 
 
 Evidence of declaration by members of the 
 family subsequent to 1800 as to statements made 
 by other members of the family concerning the 
 marriage prior to lis mota was also tendered and 
 rejected as falling within the principle of declara/- 
 tions made fost litem motam. Ibid. 
 
 A deed, of date 1826, made between D. and 
 other parties, was tendered and received in evi- 
 dence, for the purpose of shewing that the property 
 claimed by C. had been dealt with adversely to 
 his family from the death of B., his mother, down 
 to the present time. Ibid. 
 
 Semble— that the Court has no power under the 
 Legitimacy Declaration Act to condemn in costs 
 a party who is cited, and who is unsuccessful in 
 his opposition to the declaration prayed for in the 
 petition. Ibid. 
 
 LEX LOCI. 
 
 [See Colonial Law, 1 ; Foeeign Law ; Inter- 
 national Law ; Conflict or Laws ; Domicil.] 
 
 LIBEL. 
 
 (A) What is actionable. 
 
 (a) Disparagement of tradesman. 
 (6) Innuendo. 
 
 (B) Publication. 
 
 (C) Peivlleged Communications. 
 (a) Fublic meeting. 
 
 (h) Public interest; Admiralty Minute. 
 (c) Military court of enquiry, 
 {d) Bishop's charge. 
 
 (e) Communication between agents at parlia- 
 mentary election. 
 
 (D) Peactice and Pleading in Action fob 
 
 Libel. 
 (a) Married woman having protection order. 
 (J) Evidence in support of declaration. 
 
 (c) Plea of justification. 
 
 (d) Interrogatories. 
 
 (E) Belief in Equity. 
 
 (F) Cbiminai Information. 
 
LIBEL (A), (0). 
 
 331 
 
 (A) What is actionabi:b. 
 (a) IHspwragmnent of tradesman. 
 
 1. — To publisli of a tradesman falsely and 
 ■without lawful occasion, that the goods in ■which 
 he trades are inferior in quality to similar goods 
 in -which his rivals trade, is actionable if special 
 damage results. Young v. Macrae (32 Law J. Eep. 
 (n.s.) Q. B. 6, 8 ; 3 B. & S. 264, 269) distinguished. 
 The Western Counties Manure Company v. Lawes' 
 Chemical Manure Company, 43 Law J. Eep. (n.s.) 
 Exch. 171 ; Law Eep. 9 Exoh. 218. 
 
 2. — Declaration, that the plaintiffs carried on 
 the business of manufacturers of bags, and in such 
 business invented, manufactured and sold great 
 numbers of a bag called " The Bag of Bags," and 
 the defendant maliciously printed and published 
 of and concerning the plaintiffs in their business, 
 in a periodical called the " Tomahawk," the words 
 following : — " Novelty and enough. Let us [mean- 
 ing the defendant] premise our remarks that they 
 are not a planned advertisement, and then let us 
 declare that Messrs. J. & K. [meaning the plain- 
 tiffs] have introduced and largely advertised an 
 article of their manufacture as the Bag of Bags. 
 As we have not seen the Bag of Bags, we cannot 
 say that it is useful, or that it is portable, or that 
 it is elegant. All this it may be, but the only point 
 we can deal with is the title, which we thiii very 
 silly, very slangy, and very vulgar, and which has 
 been forced upon the notice of the public ad 
 nauseam ": — Held, on demurrer, by the majority of 
 the Court (Mellor, J., and Hannen, J.), that the 
 declaration was good, on the ground that it was a 
 question for the jury whether the article did not 
 merely criticise the title of the bag, but contained 
 a personal imputation on the plaintiffs. By Lush, 
 J., that there was no evidence of a libel for the 
 jury, as there was nothing in the article which 
 conveyed an imputation on the plaintiffs, or the 
 manner in which they conducted their business. 
 Jenner v. A'Bec&ett, 41 Law J. Eep. (n.s.) Q. B. 
 14; Law Eep. 7a.B. 11. 
 
 3. — There is no such prima facie presumption of 
 the validity of a patent as to entitle a patentee by 
 publishing threats of proceedings for infringement 
 to injure a rival's trade, without by substantive 
 proceedings establishing the validity. Rollins v. 
 Hinks, 41 Law J. Eep. (n.s.) Chanc. 358 ; Law 
 Eep. 13 Eq. 355. 
 
 (J) Innuendo. 
 
 4. — In an action for libel it is the duty of the 
 Judge to determine, upon the evidence adduced at 
 the trial, whether the words complained of are 
 reasonably capable of the defamatory meaning 
 ascribed to them by the innuendoes, and if they are 
 not, he is bound to withdraw the case from the 
 jury and to direct either a nonsuit or a verdict for 
 the defendant. Hunt v. Groodiahe, 43 Law J. Eep. 
 (N.s.) C. P. 54. 
 
 5. — An action will not lie in respect of words 
 published, if an ordinary reader would not under- 
 stand them in a defamatory sense, and they cannot 
 be made actionable by being alleged to bear a 
 meaning which the evidence does not support. 
 
 Mulligan v. Cole, 44 Law J. Eep. (n.s.) Q. B. 153 ; 
 Law Eep. 10 a. B. 849. 
 
 6.-^Where a local paper, by the mistake of the 
 proprietor's servants, inserted a dissolution of 
 partnership under the head of " first meeting under 
 the Bankruptcy Act:" — Held, in an action for 
 libel against the proprietor in which the innuendo 
 in the declaration was that the plaintiff was bank- 
 rupt, that the innuendo was good, and a rule for 
 arrestof judgment on the ground that the declara- 
 tion disclosed no cause of action, and for a new trial 
 on the ground of excessive damages, was refused. 
 Shophsao'd Y. Whittaker, Law Eep. 10 C. P. 502. 
 
 (B) Publication. 
 
 7. — Sending defamatory matter by a post-office 
 telegram is an authorised publication which pre- 
 vents a communication from being privileged 
 though made bond fide and under circumstances 
 which otherwise would have made it privileged. 
 Williamson v. Frere, 43 Law J. Eep. (n.s.) C. P. 
 161; Law Eep. 9 C.P. 393. 
 
 (C) Peivilegeu Communications. 
 (ffl) Public 'meeting. 
 
 8. — Comments made without express malice 
 upon the behaviour of persons attending a public 
 meeting fall within the rule of privilege and are 
 not actionable, even although the persons go to 
 the meeting in a private capacity. Davies v. 
 Duncan, 43 Law J. Eep. (n.s.) C. P. 185 ; Law Eep. 
 9 C. P. 396. 
 
 The plaintiff went with two friends to a public 
 meeting, held for the purpose of hearing a candi- 
 date at a parliamentary election, and of discussing 
 political questions connected with it. The plain- 
 tiff and his friends, whose object in going to the 
 meeting was merely to listen to the proceedings, 
 dissented from the political views expressed 
 thereat, and a disturbance occurred which resulted 
 in their leaving the meeting under the protection 
 of the police. A newspaper, represented by the 
 defendants, commented in disparaging terms upon 
 the conduct of the plaintiff and his friends, and 
 used language capable of meaning that two of 
 them were intoxicated, and that they were given 
 into the custody of the police for misconduct, 
 The plaintiff having sued for a libel, at the trial, 
 the Judge directed the jury that the comments 
 upon the behaviour of the plaintiff and his friends 
 were privileged if made in a fair spirit, and that 
 it was for the jury to say whether the alleged 
 libel imputed intoxication, and also misconduct 
 requiring the interference of the police : — Held, a 
 proper direction. Ibid. 
 
 (b) Public interest ; Admiralty minute. 
 
 9.— The Board of Admiralty having ordered 
 the defendant, the Queen's Printer, to print a board 
 minute relating to their proceedings in naval ship- 
 building, which contained a letter of the Comp- 
 troller of the Navy in reference to plans of the 
 plaintiff submitted to the board, the defendants 
 sold copies to the public ; the plaintiff brought 
 his action of libel against the defendant, averring 
 utr 2 
 
332 
 
 LIBEL (0), (E). 
 
 that a statement in such letter that the plans de- 
 rived no weight from his antecedents meant that 
 his plans -were -worthless, and were calculated to 
 injure him in his profession; no actual malice was 
 imputed: — Held by the majority (Willes, J., 
 Byles, J., and Brett, J.) of the Court [dissentiente 
 Grove, J.), that the plaintiff was rightly nonsuited 
 on the ground that every man has a right to discuss 
 freely, if honestly and without malice, any subject 
 in which the public are generally interested, and 
 that -what the defendant had done merely amounted 
 to this. Henwood v. Harrison, 41 Law J. Rep. 
 (n.s.) C. p. 206 ; Law Eep. 7 C. P. 606. 
 
 (c) Military cowrt of enquiry. 
 
 lO. — A military man givin? e'S'ideuce before a 
 military Court of enquiry -which has do power to 
 administer an oath, is entitled to the same protec- 
 tion as that enjoyed by a witness on oath in an 
 ordinary jndicial proceeding. Dawhins v. Lord 
 Eokeby, (H. L.) 45 Law J. Rep. (n.s.) C. L. 8 ; Law 
 Eep. 7 E. & I. App. 744 : affirming the decision of 
 the Court of Exchequer Chamber, 42 Law J. Rep. 
 (n.s.) Q. B. 63 ; La-w Rep. 8 Q,. B. 255. 
 
 No evidence, -whether written or oral, given by 
 him in the course of the enquiry and relative to 
 the enquiry, can be made the foundation of an 
 action at la-w ho-wever strong the presumption may 
 be that such evidence was not only untrue but 
 -was also known to be untrue by him who gave it 
 or even that it was dictated by malice. For the 
 correctness of this presumption must always be a 
 question until resolved by a jury, and public policy 
 requires that witnesses should give their evidence 
 freely and openly and -without fear of being 
 harassed by a civil action on an allegation, whether 
 true or false, that they have spoken from malice. 
 Ibid. 
 
 Where a witness before such a Court handed in 
 a -written statement voluntary and unasked after 
 his examination was concluded, — Held, that e-yi- 
 dence that the statements in such paper" were 
 untrue and were made maliciously, was wholly 
 inadmissible. Ibid. 
 
 {d) Bishop's charge. 
 
 11. — The charge of a bishop to his clergy in 
 convocation contained defamatory matter in re- 
 pect of a layman in the diocese who had publicly 
 attacked the conduct of the bishop, and the charge 
 by authority of the bishop was afterwards pub- 
 lished in a local newspaper : — Held, that both the 
 charge and the publication were privileged com- 
 munications, if made bonAfde, and for the purpose 
 of -rindicating the conduct of the bishop. Laughton 
 V. The Bishop of Sodor and Man, 42 Law J. Eep. 
 (n.s.) p. C. 11 ; Law Eep. 4 P. C. 495. 
 
 (e) Communication between agents at parlia- 
 mentary election. 
 
 12. — Shortly before a Parliamentary election 
 the agents of F. and B., the rival candidates, 
 mutually undertook that there should be no cor- 
 rupt practices by either party during the contest. 
 On the day of polling, the defendant, H., one of 
 
 the agents, -wrote to the other complaining that 
 bribery was going on, and, at an interview sought 
 by the latter, gave the name of the plaintiff as a 
 briber. The day after the election, which resulted 
 in the return of B., the following letter -was 
 -written by H. in conjunction -with the other de- 
 fendant, who was chairman of B.'s committee, and 
 signed by both of them — " We certify that we 
 have discovered that Mr. D. (the plaintiff) and 
 Mr. R., two of the prominent members of Mr. F.'s 
 committee, have been personally guilty of offering 
 \l. 10s. to a voter for his vote, and 11. 10s. for 
 every vote he could procure for Mr. F. The 
 elector referred to has been personally examined 
 by one of us, and the evidence -which he is pre- 
 pared to give is clear and distinct." This letter 
 was sent to F.'s agent, and by him handed to the 
 chairman of F.'s committee, and the plaintiff 
 having brought an action for libel in respect of 
 its contents, — Held, that no such relations existed 
 between the parties as to make the letter a privi- 
 leged communication. Dickeson v. Hilliard, 43 
 Law J. Rep. (n.s.) Exch. 37 ; Law Rep. 9 Exch. 
 79. 
 
 Privileged communication : communications 
 to Chinese Government. [See Inter- 
 national La-w.] 
 
 (D) Peactioe and Pleading in Action fob 
 Libel. 
 
 [And see Production, 6.] 
 
 (a) Married woman having protection order. 
 
 13. — A -woman who has been deserted by her 
 husband, and has obtained a protection order un- 
 der 20 & 21 Vict. c. 85, o. 21, may maintain an 
 action for libel -without joining her husband. 
 Eamsden v. Brearley, 44 La-w J. Eep. (n.s.) Q. B. 
 46 ; Law Eep. 10 Q. B. 147. 
 
 (6) Evidence in support of declaration. 
 14. — In an action of libel it is a fatal variance 
 if the defamatory words set out in the declaration 
 are materially qualified in the proof by words not 
 in the declaration, although the words so qualified 
 be stiU libellous. Where secondary e-vidence is 
 given of a libellous document the witnesses must 
 prove the actual -words used, a.nd not merely their 
 impression of them. Rainy v. Bravo, Law Eep. 
 4 P. 0. 287. 
 
 (c) Plea of Justification. 
 
 15. — The general practice of the Court now is, 
 in actions of libel, to allo-w pleas of justification in 
 a general form -with a hberal allo-wance of parti- 
 culars. Qourley v. Plimsoll, 42 La-w J. Eep (n.s.) 
 C. P. 121 ; La-w Rep. 8 C. P. 362. 
 
 (d) Interrogatories. 
 [See Practice at La-w, 14.] 
 
 (E) Relief in Equity. 
 16. — Circumstances under which an injunction 
 to restrain the publication or sale of a book as 
 
LIBEL (E)— LIGHT AND AIR (C). 
 
 333 
 
 libellous, will or will not be granted. Mulkorn v. 
 Ward, 41 Law J. Kep. (n.s.) Chane. 464; Law 
 Rep. 13 Eq. 619. 
 
 Eight to file bUl of discovery with a view to 
 action of libel. [See Discoveey, 2.] 
 
 Jurisdiction of Court of Chancery to re- 
 strain publication of a libel. [See In- 
 
 JTTNCTION, 1.] 
 
 (F) Ckiminal Information. 
 
 17. — In order to obtain leave to file a .criminal 
 information, the affidavits must connect the person 
 complained of with the offence by legal evidence. 
 The Queen t. Stanger, 40 Law J. Rep. (n.s.) Q,. B. 
 96 ; Law Rep. 6 Q. B. 352. 
 
 Therefore, where a rule nisi had been granted, 
 calling upon S. to shew cause why an information 
 should not be exhibited against him for publishing 
 a libel in a newspaper, and the affidavits simply 
 shewed that copies of the newspaper had been pur- 
 chased at the publishing office of the paper, that by 
 a foot-note printed at the end of the copies S. was 
 stated to be the printer and publisher of them, 
 and that the deponent believed that he, S., was 
 the printer and publisher, the Court discharged 
 the rule on the objection that the affidavits were 
 insufficient. Ibid. 
 
 Quaere, — whether, under such circumstances, 
 recourse can be had to the affidavits used in 
 shewing cause, to supply the defect in those for 
 the prosecution. Ibid. 
 
 LIEN. 
 
 Lien of attorney for costs. [See Attoenet, 
 39-52 ; Divorce, 86, 87.] 
 
 Lien of bankers on deposited securities. 
 [See Banker, 5-8, 10.] 
 
 Lien of depositary of policy for premiums. 
 [See Debtor and Creditor, 3.] 
 
 Lien in respect of bill of exchange drawn 
 against cargo. [See Bill of Ex- 
 change, 11.] 
 
 Lien of innkeeper. [See Innkeeper, 1.] 
 
 Vendor's lien. [See Sale, 23 ; Vendor 
 AND Purchaser, 18, 19.] 
 
 Winding-up of company : business carried 
 on by liquidator: general lien under 
 agreement previous to winding- up. [See 
 Company, I 70.] 
 
 LIGHT AND AIR. 
 
 (A) Effect of Prescription Act. 
 
 (B) Construction of Grant. 
 
 (C) Suit foe Injunction to restrain Inter- 
 
 ference WITH Light and Air. 
 (o) When maintainable. 
 
 (1) Enlargement of windows by plain- 
 
 tiff. 
 
 (2) Angle of forty-five degrees. 
 
 (3) Amount of injury. 
 
 (6) Personal inspection by Judge. 
 
 (A) Effect of Prescription Act. 
 
 1. — The right of an owner of ancient lights is 
 to prevent his neighbour from obstructing the 
 access of sufficient light and air to such an extent 
 as to render his house substantially less comfort- 
 able and enjoyable, and the Prescription Act (2 
 & 3 Will. 4. c. 71) has not altered the nature of 
 the right or the principle on which it is to be de- 
 termined, whether it has been infringed, but has 
 merely substituted a statutory title for an as- 
 sumed grant. The City of London Brewery Cortir 
 pany v. Tennant, 43 Law J. Rep. (n.s.) Chanc. 
 457 ; Law Rep. 9 Chanc. 212. 
 
 2. — An injunction will be granted to restrain 
 the erection of a building so as to obstruct light 
 and air, if the party applying can shew that the 
 deprivation of light and air will be such as to 
 render his house uncomfortable, or as would 
 enable him in an action at law to obtain substan- 
 tial damages. The nature of the right to light 
 and air has not been altered by the Prescription 
 Act. Kelh V. Pearson, Law Rep. 6 Chanc. 809. 
 
 [And see No. 4 infra, and Easement, 6, 6.] 
 
 (B) Construction of Grant. 
 
 3. — A grant of lights by the general words in a 
 lease or other conveyance, followed by the ordi- 
 nary covenant by the grantor for the quiet enjoy- 
 ment of the premises, confers on the grantee, as 
 against the grantor and those claiming under him, 
 a, right of no greater extent than the ordinary 
 right to light which is acquired by twenty years' 
 user. A plaintiff, therefore, who claims under 
 such a grant, and who complains of an interfe- 
 rence with the access of light to his premises, 
 must, in order to sustain his case, shew that a 
 substantial injury has been or will be done to 
 him. — Decision of the Master of the Rolls re- 
 versed. Leech v. Schweder, 43 Law J. Rep. (n.s.) 
 Chanc. 487 ; Law Rep. 9 Chane. 462. 
 
 Lease : constru/)tion : implied contract : ac- 
 cess of light over adjoining premises 
 demised to lessor after acquisition of 
 fee by lessee. [See Lease, 7.] 
 
 (C) Suit for Injunction to restrain In- ^ 
 
 TERFERENCB WITH LiGHT AND AlH. 
 
 (ffi) When maintainable. 
 (1) Enlargement of windows by plaintiff. 
 
 4.— The Prescription Act (2 & 3 "Will. 4. c. 71) 
 has not taten away any of the modes of claiming 
 easements which existed before the statute. 
 Aynsley v. Glover, 44 Law .T. Rep. (n.s.) Chanc. 
 523 ; Law Rep. 10 Chanc. 283 : af&rming the de- 
 cision of the Master of the Rolls, 43 Law J. Rep. 
 (n.s.) Chanc. 777 ; Law Rep. 18 Eq. 544. 
 
 The right to light and air is not lost by enlarg- 
 ing the windows of the dominant tenement. 
 Ibid. 
 
 A plaintiff coming to the Court to restrain in- 
 terference with his ancient lights by building is 
 entitled to an injunction, and not merely to da- 
 mages, if he files his bill before the building is 
 commenced. Ibid. 
 
33i 
 
 LIGHT AND AIE (C)— LIMITATIONS, STATUTE OF (A). 
 
 In a light and air case it is immaterial that the 
 plaintiffs are using the premises affected for a pur- 
 pose for which light and air are unnecessary. It 
 is sufficient that the premises are capable of 
 being used for purposes requiring light and air. 
 Ibid. 
 
 (2) Angle of forty-five degrees. 
 
 5. — An owner of a house in a narrow street 
 will, as a general rule, be restrained from raising 
 it to a height which will obstruct the access of 
 light below the angle of forty-five degrees to an- 
 cient windows opposite. Hackett v. Baiss, Law 
 Eep. 20 Eq. 494. 
 
 (3) Amount of injury. 
 
 [See supra Nos. 1, 2, 3.] 
 
 Injunction to restrain infringement of right 
 to Ught. [See Lease, 28.] 
 
 {b) Personal inspection by Jtidge. 
 
 6. — A Judge of the Court of Chancery ought 
 not to make a personal inspection of buildings in 
 order to ascertain whether a material diminution 
 of light and air is caused in any case. Leech v. 
 Schweder, 43 Law J. Eep. (isr.s.) Ohanc. 232; Law 
 Eep. 9 Chanc. 463. 
 
 LIGHTING AND WATCHING EATE. 
 
 1.— By 3 & 4 Will. i. c. 90, s. 33, the Lighting 
 and Watching Act, the " owners and occupiers of 
 houses, buildings and property (other than land), 
 rateable to the relief of the poor," shall be rated 
 at and pay a rate in the pound three times greater 
 than that at which the owners and occupiers of 
 land shall be rated and pay for the purposes of 
 the Act. The appellants were the occupiers of a 
 canal and towing path, and of a dry dock used in 
 connection with it : — Held, that they were occu- 
 pierS'Of "land" within the meaning of the Act, 
 and therefore that they were rateable at the 
 lower amount only. Peto v. West Ham (28 Law 
 J. Eep. (n.s.) M. C. 240) discussed. The Queen v. 
 The Company of Proprietors of the Neath Canal 
 Navigation, 40 Law J. Eep. (n.s.) M. C. 193 ; Law 
 Eep. 6 Q,. B. 707, nom. The Queen t. The Overseers 
 of Neath. 
 
 2.— By 3 & 4 Will. 4, c. 90, s. 33, which regu- 
 lates lighting and watching, the owners and occu- 
 piers of houses, buildings and property (other 
 than land), rateable to the relief of the poor, are 
 to be rated at and pay a rate in the pound three 
 times greater than that which the owners and 
 occupiers of land shall be rated at and pay for 
 the purposes of the Act. The appellants were 
 owners of a line of railway : — Held, that they 
 were occupiers of " land " within the meaning of 
 the Act, and rateable at the lower amount. — Peto 
 v. West Ham (28 Law J. Eep. (n.s.) M. C. 240 ; 
 2 E. & E. 144) and The Queen v. Neath (last case) 
 considered. The Queen v. The Midland Bailway 
 Company, 44 Law J. Eep. (n.s.) M. C. 137 ; 
 Law Eep. 10 Q. B. 389. 
 
 LIMITATIONS, STATUTE OF. 
 
 (A) When the Statute opeeatks as a Bar. 
 {a) Adverse possession. 
 
 (1) By tenant for life under will. 
 {2) By trustee. 
 (J) Eent. 
 
 (1) Heriot. 
 
 (2) Person urrongfully claiming. 
 (6) Tenancy at mill : trust. 
 
 {d) Express trust. 
 
 {e) Concealed fraud : bond fide purchaser 
 
 for value. 
 (/) Mortgagor and mortgagee, 
 (g) Interest on legacy, 
 {h) Partners : fiduciary relation. 
 (J) Debtor and creditor, 
 (k) Private Act for restraining alienation. 
 
 (B) When the Statute begins to kun. 
 (n) Successive disabilities. 
 
 (b) As against remainderman. 
 
 (1) Waste. 
 
 (2) Tenant in tail creating base fee. 
 
 (c) Tenancy at will. 
 
 {d) Encroachment by tenant, 
 {e) Breach of duty by bailee. 
 (/) As against solicitor to promoters of com- 
 pany. 
 
 (C) How the Statute mat be baeeed. 
 (a) What ackrwwledgment sufficient. 
 
 (J) Acknowledgment by one joint mortgagee. 
 (c) What amounts to a promise to pay. 
 {d) Payment of interest and part payment. 
 
 (D) Set-off of Debt baebed by Statute. 
 
 [No claim of a cestui que trust against his trus- 
 tee for property held on an express trust to be 
 held barred by any Statute of Limitations after 
 the 2nd of November, 1874. 36 & 37 Vict. c. 
 66, s. 25.] 
 
 [Parts of 3 & 4 Will. 4. c. 27, repealed. No 
 land or rent to be recovered but within twelve 
 years after the right of action accrued (sec- 
 tion 1). In cases of future estates, time 
 limited to six years from time when the person 
 entitled to particular estate was out of posses- 
 sion (section 2). So in cases of disability, the 
 time to be six years from the termination of the 
 disability (section 3), thirty years being the maxi- 
 mum (section 5), and no time being allowed for ab- 
 sence beyond seas (sect. 4). The twelve years' limit 
 also applied to the case of a mortgagor as against 
 mortgagee in possession, and to remainderman 
 after an estate tail as against the grantee of the 
 tenant in tail (sections 7, 8). The time for reco- 
 vering charges and arrears of interest not to be 
 enlarged by express trusts for raising them (sec- 
 tion 10). Act to commence on the 1st of January, 
 1879. 37 & 38 Vict. c. 87.] 
 
 (A) Wheee the Statute opeeates as a Bab. 
 
 (a) Adverse possession. 
 
 .{\)By tenant for life under will. 
 
 1. — A person named in a will as tenant for life 
 of lands which the testator has no power to devise, 
 
LIMITATIONS, ■ STATUTE OF (A). 
 
 335 
 
 and who enters into possession under the will, is 
 thereby estopped from disputing the validity of 
 the will as against those in remainder nnder it, 
 and setting up a title in fee by reason of posses- 
 sion for twenty years ; and a purchaser from sueh 
 person is in no better position. Board v. Board, 
 43 Law J. Rep. (n.s.) Q. B. 4 ; Law Rep. 9 
 a. B. 49. 
 
 (2) By trustee. 
 
 2. — Testator by his will, dated in 1824, de- 
 vised all his real estate, and also all other his 
 estate and effects of which he might be possessed 
 at the time of his decease, to trustees, one of whom 
 was his wife, upon trust, to pay the rents to 
 his wife for life, with remainders over. After 
 the date of his will the testator purchased a free- 
 hold estate. On his death, his widow became sole 
 trustee of the will, and entered into possession of 
 the testator's after-acquired real estate as well as 
 the devised estate, under the belief that the whole 
 of" the testator's real estate passed by his will. 
 After having been in possession for upwards of 
 twenty years, she was informed that she had ac- 
 quired a good title to the after-acquired estate 
 by adverse possession, whereupon she sold it to a 
 purchaser for value : — Bill filed by a remainderman 
 under the will to oust the purchaser, dismissed. 
 Paine v. Jones, 43 Law J. Rep. (n.s.) Chanc. 787 ; 
 Law Rep. 18 Eq. 220. 
 
 (J) Bent. 
 (1) Heriot. 
 
 3. — Notwithstanding the definition of rent in 
 section 1, neither heriot service nor heriot custom 
 are vidthin sections 2, 3, 34, and 42 of 3 & 4 Will. 
 4, c. 27. The word " rent " in those sections must 
 be construed agreeably to the context. A lord's 
 right to a heriot is not lost because his prede- 
 cessor failed to demand it when due, and it has 
 consequently not been demanded for twenty years 
 and upwards. The seizure of a heriot is not an 
 entry or distress, or an' action to recover rent 
 witlun the statute. Lord Zouche v. Valbiao, 44 Law 
 J. Rep. (n.s.) Exch. 109 ; Law Rep. 10 Exch. 172. 
 
 (2) Persons wrongfully claiming. 
 
 4. — The operation of the Statute of Limita- 
 tions is not affected by the fact that the person 
 really entitled to the land has been in possession 
 as agent for another. The possession of the agent 
 is possession of the principal, and cannot preserve 
 any adverse rights of the agent. In the 9th sec- 
 tion of the Statute of Limitations, 3 & 4 Will. 4, 
 e. 27, s. 9, the expression, "vprongfully claiming," 
 merely means not rightfully claiming, and has no 
 reference to the motive of the claimant. Claim by 
 a person whose right to land was barred by the 
 Statute of Limitations for arrears of rent received 
 within six years of the time of the claim, and 
 prior to the period at which the claimant's right 
 to the land was barred, disallowed. Williams v. 
 Pott, 40 Law J. Rep. (n.s.) Chanc. 775; Law Rep. 
 12 Eq. 149. 
 
 {d) Tenancy at wUl : trust. 
 
 5. — S., being seised in fee of land abutting on 
 the convex side of an arc formed by the course of 
 the Thames, entered into an agreement of the 
 23rd of June, 1769, whereby he covenanted with 
 A. to grant leases to him, for ninety- nine years 
 from 1768, of messuages, which A. covenanted to 
 erect on the land. A., and persons having in- 
 terest in neighbouring property, contemplated 
 making an embankment along the chord of the . 
 aforesaid arc, so as to gain from the river the land 
 inside the curve. They therefore obtained an 
 Act (11 G-eo. 3, c. 34), which, after reciting that 
 the promoters had " very valuable freehold and 
 leasehold interest in houses, wharfs, and grounds 
 next adjoining the river," empowered them to 
 make the embankment in front of their respec- 
 tive houses, &c., and enacted (section 2) that the 
 soil of the river so to be enclosed in front of such 
 respective houses, &c,, should vest, and the same 
 was_ thereby vested, in the owner or owners, pro- 
 prietor or proprietors, of such adjoining house, 
 &c., respectively, according to his or their re- 
 spective estates, trusts, or interests. Having 
 erected houses according to the agreement, A. 
 duly received leases thereof. The embankment 
 was contemporaneously made, and A. also built on 
 the ground reclaimed. The leases, which expired in 
 
 1867, did not include that land; but A. and his 
 representatives retained possession of it until the 
 present day, without any demise to or acknow- 
 ledgment, by them. The plaintiffs, who derived 
 their title from S., brought ejectment for the re- 
 claimed land : — Held, that they were entitled to 
 recover, for that the Embankment Act vested the 
 fee-simple in S., subject to the interests created 
 by the agreement, and A., having had a right in 
 equity to demand leases for ninety-nine years from 
 
 1868, the occupation of the reclaimed land, al- 
 though at law merely a tenancy at will, had been 
 that of cestuis que trusts in possession, and there- 
 fore the title of the plaintiffs was not barred by 
 the Statute of Limitations (3 & 4 Will. 4, e. 27). 
 The proviso in section 7 of that statute applies to 
 actual direct trusts, and is not limited to express 
 trusts. Drummond v. Sant, 41 Law J. Rep. (n.s.) 
 Q. B. 21 ; Law Rep. 6 Q. B. 763. 
 
 {d) JEscpress trust. 
 
 6. — A mortgage of real estate made by way of 
 a conveyance to a trustee, upon trust to sell at 
 discretion, and out of the proceeds of sale to pay 
 the mortgage debt and to pay the surplus moneys 
 to the mortgagor, does not constitute an express 
 trust in favour of the mortgagor within the 25th 
 section of the Statute of Limitations, 3 & 4 Will. 
 4, c. 27. Locking v. Parker, 42 Law J, Rep. 
 (n s.) Chanc. 257 ; Law Rep. 8 Chanc. 30. 
 
 7.— Between 1822 and 1828 A. executed seve- 
 ral deeds of mortgage and further charge to B. 
 by way of demise for terms of years to secure 
 loans. By deed dated the 1 1th of February, 1829, 
 in consideration of a sum of 5601. then advanced 
 by B., and the other moneys owing on the previous 
 mortgages, A., at the request of B., conveyed the 
 estates comprised in the previous mortgages and 
 
336 
 
 LIMITATIONS, STATUTE OF (A). 
 
 other estates to C. in fee upon trust, in case of 
 repayment of the bSOl. on the 11th of August 
 then next, and of the other moneys then charged 
 on the property, to reeonvey the same to A., his 
 heirs or assigns. But in default of payment, 
 upon trust that 0. should enter into possession of 
 the property, and at his sole authority sell the 
 same, and hold the sale moneys, upon trust, after 
 paying off the sums owing to B., and a sum of 
 ISOl. to another incumbrancer, to pay the surplus 
 unto A., his executors, administrators, or assigns. 
 That deed did not assign the terms. B. entered 
 into possession in 1832, and continued in possession 
 till his death in 1860. He devised the property 
 to the defendants in trust for sale, and they had 
 remained in possession ever since. C. accepted 
 and acted in the trusts : — Held, affirming the de- 
 cision of the Court below (41 Law J. Eep. (n,s.) 
 Chanc. 544), on a bill filed by the heir-at-law of 
 A. against the devisee of B., that the deed of 
 1829 vested the property in C. upon an express 
 trust within section 25 of the Statute of Limita- 
 tions, that B. could not set up the terms, and that 
 the possession of B. was the possession of C, his 
 trustee, and that consequently the right of the 
 heir-at-law of A. was not barred by section 28 of 
 the statute. Loclcing v. Parker, 42 Law J. Eep. 
 (n.s.) Chanc. 237 ; Law Rep. 8 Chanc. 30. 
 
 8. — Devise of land on trust for sale, the pro- 
 ceeds to be deemed personalty. The land having 
 remained unsold for fifty years, — Held, an ex- 
 press trust, and that a bill by a residuary legatee 
 for execution of the trust was maintainable. 
 Fawsey v. Barnes (20 Law J. Eep. (n.s.) Chanc. 
 393) distinguished. Mutlow v. Bigg, Law Eep. 
 18 Eq. 246 : reversed, on further evidence, 45 
 Law J. Eep. (n.s.) Chanc. 282; Law Eep. 1 
 Chanc. Div. 385. 
 
 9. — The Bombay Civil Eund was formed to 
 provide retiring pensions for civil servants, and 
 annuities and portions for their widows and chil- 
 dren. The fund was constituted by the subscrip- 
 tions of the members and by a grant from the 
 Government. It was managed by a committee, 
 the members of which resided in Bombay, and by 
 the rules the property of the fund was vested in 
 the committee of managers as trustees. In fact, 
 however, the funds were always in the hands of 
 the Government as a floating debt due to the 
 association. A suit having been instituted by the 
 representatives of the widow of a member of the 
 association, against the trustees of the fund and 
 the Secretary of State for India, claiming pay- 
 ment of an annuity which they alleged ought 
 to have been paid to her in her lifetime, — Held, 
 that there was no fiduciary relation between the 
 trustees of the fund and a person making a claim 
 against the fund, and that therefore the plaintiffs 
 could only recover the arrears of the annuity which 
 accrued due within six years before the filing of 
 the bill. Edwards v. Warden, 43 Law J. Eep. 
 (n.s.) Chanc. 644 ; Law Eep. 9 Chanc. 496. 
 
 10. — A debt from solicitors to a client in re- 
 spect of moneys received is not an express trust 
 within the Statutes of Limitation. Watson v. 
 Woodman, Law Eep. 20 Eq. 721. 
 
 (e) Concealed jraud : lond fide 'purchaser for 
 
 11.— The plaintiff alleged in his biU that his 
 father married A. in 1797. Three weeks before 
 the marriage his mother A. had borne a son B., 
 but the fact of his having been born before wed- 
 lock was carefully concealed, and he was brought 
 up as a legitimate son and heir-apparent to his 
 father's title and estates, to which he eventually 
 succeeded. B. married C. in 1823, before his 
 father's death, and he died in 1842, leaving D. 
 his eldest son and heir. In 1866 the plaintiff, who 
 was the eldest son bom after the marriage of his 
 father to A., discovered the fact of B.'s illegiti- 
 macy, and also that that fact was known to B., 
 and also to the father of C. upon the negotiation 
 for the marriage of B. and C. He prayed a de- 
 claration of his title, and an account of rents and 
 profits against D. Upon demurrer under section 26 
 of the Statute of Limitations, — Held (affirming 
 Malins, V. C), that the bill sufficiently alleged a 
 concealed fraud, which the plaintiff could not 
 with reasonable diligence have known sooner ; 
 that C. must be taken to have had notice of B.'s 
 illegitimacy through the communication thereof to 
 her father upon the negotiation for a settlement 
 on her marriage with B. ; and that her son D., 
 claiming through the same marriage settlement, 
 was equally affected with the same notice. Vane 
 V. Vane, 42 Law J. Eep. (n.s.) Chanc. 299 ; Law 
 Eep. 8 Chanc. 383. 
 
 By a " honS, fide purchaser " in section 26 is 
 meant a purchaser for actual value, not merely a 
 donee taking a gift under the form of a pur- 
 chaser. Ibid. 
 
 Whether the defence of a hand, fide purchaser 
 without notice is properly raised by demurrer or 
 by plea — quaere. Ibid. 
 
 (/) Mortgagor and mortgagee. 
 
 12. — Where a demise for a term of 1,000 years 
 by way of mortgage is created in land, and no 
 payment of principal or interest or acknowledg- 
 ment is made for more than twenty years, and 
 the mortgagor and those claiming under him re- 
 main in possession of the premises without in- 
 terruption, the title of the mortgagee under the 
 mortgage is thenceforth barred, therefore a pay- 
 ment of arrears of interest and the principal to 
 the mortgagee under a decree in the foreclosure 
 suit, after that time has elapsed, does not revive 
 the title in the mortgagee, and an ejectment does 
 not then lie to recover the possession. Hemming v. 
 Blanton, 42 Law J. Eep. (n.s.) C. P. 158. 
 
 (g) Intereit on legacy. 
 
 13. — Testator gave a fund to his executrix for 
 life, subject to the immediate payment thereout of 
 a legacy to be divided amongst the children of 
 W.P., to whom he alsogave the fund afterthe death 
 of the executrix. He died in 1847. One of W. P.'s 
 children, of whom there had been five, was last 
 heard of in 1845. The executrix, M. W., re- 
 tained one-fifth of the legacy. She became luna- 
 tic in 1851, whereupon the fund was carried to 
 
LIMITATIONS, STATUTE OJF (A), (B). 
 
 337 
 
 an account entitled " the account of M. W. and 
 the children of W. P.," and the income of the 
 whole was applied for the benefit of the lunatic. 
 To a petition presented in 1871 by the four sur- 
 viving children, for payment of the fifth share, 
 which remained unpaid out of the fund, and for 
 the payment of the interest thereon out of an- 
 other fimd belonging absolutely to the lunatic, it 
 was objected that the Statute of Limitations was 
 a bar : — Held, that the statute was no bar to the 
 claim for the principal, but was a bar to the 
 claim for more than six years' interest. In re 
 Walker, 41 Law J. Eep. (n.s.) Chanc. 219 ; Law 
 Eep, 7 Chanc. 120. 
 
 (A) Partners : fiduciary relation. 
 
 14. — Wbere the remedy in equity is corre- 
 spondent to a remedy at law, and the latter is 
 subject to a limitation in point of time, by the 
 Statute of Limitations, through being included 
 within the words of the statute, a Court of Equity 
 there acts in analogy to the statute, and adopts 
 the enactment of the statute as its own rule of pro- 
 cedure. But if any proceeding in equity be in- 
 cluded within the words of the statute, there a 
 Court of Equity, like a Court of Law, acts in obe- 
 dience to the statute. Knoxy. Gye (H.L.), 42 Law 
 J. Eep. (n.s.) Chanc. 234 ; Law Eep. 5 E. & I. App. 
 666. 
 
 G. and T. were partners. T. died in 1 854. In 
 1861 G. got in a considerable sum that was due to 
 the partnership estate. In 1864 W., the repre- 
 sentative of T., filed a bill against G. for an ac- 
 count : — Held, that W.'s right had accrued on the 
 death of T. ; that it was barred in equity by the Sta- 
 tute of Limitations, the enactment of which the 
 Court of Equity would adopt as its rule, and 
 that the fact that the surviving partner got in a 
 partnership asset after the six years from the death 
 of T., but within six years of the filing of the 
 bUl, did not prevent the application of the rule, or 
 entitle the representative of T. to reopen the ac- 
 count, the asset being one which would have been 
 comprehended in the original account, the right 
 to which had been barred by statute. Ibid. 
 
 Held also, dissentiente the Lord Chancellor 
 (Lord Hatherley), that although a surviving part- 
 ner and the representatives of his deceased part- 
 ner may sue one another in eqiiity, it is a mistake 
 to apply the word " trust " to the relation which 
 exists between them. Ibid. 
 
 (i) Debtor and creditor. 
 
 15. — Testator died owing a debt of \00l. His 
 widow, who was tenant for life under his will of 
 both his real and personal estate, took possession 
 accordingly, and paid interest on the debt for 
 some years, and then ceased to pay any interest. 
 After an interval of rather more than six years 
 from the last payment of interest, the testator's 
 will was proved in consequence of proceedings taken 
 by the creditor ; and shortly after the grant of 
 probate the creditor filed a bill for administration 
 of the real and personal estate of the testator : — 
 Held, that his debt was barfed by the Statute of 
 Digest, 1870-1875. 
 
 Limitations, and the bill must be dismissed with 
 costs. Boatwright v. Boatwright, 43 Law J. Eep. 
 (n.s.) Chanc. 12; Law Eep. 17 Eq. 71. 
 
 {k) Private Act for restraining alienation. 
 
 16.— By a private Act of 2 & 3 Philip & Mary, 
 entitled " An Act concerning the restitution of 
 the heirs male of Sir E. N. Knight," who had been 
 attainted in 31 Hen. 8, and restored in 34 & 35 
 Hen. 8, certain lands were limited to certain mem- 
 bers of the N. family in succession in tail male, 
 with limitation over to Queen Mary, her heirs 
 and successors, provided that " no feoffment, dis- 
 continuance, fine, or recovery, with voucher or 
 otherwise, or any other act or acts thereupon to 
 be made, done, suffered, or acknowledged of the 
 premises or parcel thereof by the said N.'s or 
 any of them, or by any of the heirs male of their 
 several bodies, should bind or conclude in right, 
 or put from entry Queen Mary, her heirs and 
 successors, or any of the heirs in tail, or any to 
 whom the premises or any parcel thereof should 
 descend, revert, remain," &e. In 1781 the then 
 tenant in tail in possession of the entailed lands, 
 as heir male of the body of E. N., granted a lease 
 for three lives of part of the entailed lands. The 
 last of the three lives expired in 1832, since which 
 time no rent had been paid to the tenants in 
 tail, nor had their titles been acknowledged in 
 any way :— Held, by ChanneU, B., and Cleasby, 
 B., that the present heir in tail male of E. N. 
 was not barred by 3 & 4 Will. 4, c. 27 ; contra 
 by Bramwell, B. The Earl of Abergavenny v. 
 Brace, 41 Law J. Eep. (n.s.) Exch. 120 ; Law 
 Eep. 7 Exch. 145. 
 
 (B) When the Statote besins to btjn. 
 {a) Successive disabilities. 
 
 17. — The operation of the 16th section of 3 & 
 4 Will. 4, 0. 27, which preserves to a person who, 
 at the time his title to land accrues, is under any 
 of the disabilities therein mentioned, the right to 
 make an entry or bring an action to recover the 
 land for ten years after he shall have ceased to 
 be under any such disability, is not confined to 
 oases where the same cause exists throughout the 
 period of disability, but extends to all cases 
 where the disability is continuous throughout, 
 though it arise from different causes at different 
 times of its existence. Borrows v. Ellison, 40 
 Law J. Eep. (n.s.) Exch. 131 ; Law Eep. 6 Exch. 
 128. 
 
 (J) As against remainderman. 
 (1) Waste. 
 
 18. — Where after legal waste has been com 
 mitted, time has run so as to bar the legal re- 
 medy in respect thereof, the remedy in equity 
 is also barred. In a case of legal waste in cut- 
 ting timber committed by a tenant for life, the 
 Statute of Limitations begins to run as against 
 the remainderman from the time of the waste 
 being committed, or at all events from the time 
 when the proceeds of the timber became money 
 in the hands of the wrongdoer, and not fcom the 
 XX 
 
LIMITATIONS, STATUTE OF (B), (C). 
 
 timu when the estate in remainder falls into pos- 
 session. Higginhotham v. Hawkins, 41 Law J. 
 Eep. (n.s.) Chanc. 828 ; Law Eep. 7 Chanc. 676. 
 
 (2) Tmant in tail creating base fee. 
 
 19. — "Where a tenant for life with remainder 
 (in the events which happen) to himself in tail, 
 executes an assurance which, for want of the pro- 
 tector's consent, creates only a hase fee, time does 
 not run under the 23rd section of the Statute of 
 Limitations, to make such assurance effectual 
 against the reversions, so long as any estates 
 coming between his estate for Ufe and estate in 
 tail are in existence. Mills v. Capel, 44 Law J. 
 Eep. (n.s.) Chanc. 674 ; Law Eep. 20 % 692. 
 
 (c) Tenancy ai will. 
 
 20.— By section 7 of 3 & 4 Will. 4. o. 27, "the 
 right of the person entitled, subject to a tenancy 
 at will, to make an entry or bring an action to 
 recover the land, shall be deemed to have first 
 accrued either at the determination of such tenancy, 
 or the expiration of one year next after the com- 
 mencement of such tenancy, at which time such 
 tenancy shall be deemed to have determined : " — 
 Held, that the right accrues ultimately at the end 
 of a year from the commencement of the tenancy 
 at will, though it may accrue sooner by the actual 
 determination of the tenancy. Say v. Day, 40 
 Law J. Eep. (n.s.) P. C. 35 ; Law Eep. 3 P. 0. 
 751. 
 
 In May, 1842, a father let his son into possession 
 of certain land. The son continued to occupy the 
 land as tenant at will until 1864. In 1852 the 
 son, with the knowledge of his father, let portions 
 of the land on weekly and yearly tenancies, and 
 received rent for the same : — Held, that the right 
 of entry under the statute accrued at the end of 
 the first year from the creation of the tenancy, and 
 that the right of entry in the father was barred 
 by the uninterrupted occupation by the son for 
 twenty years. Ibid. 
 
 [And see supra No. S.] 
 
 (d) Encroachment by tenant. 
 
 21. — Where a tenant takes in and encloses ad- 
 joining land during his tenancy, the presumption 
 of law that he does it for his landlord, so that the 
 land gained by such encroachment will have to be 
 given up at the end of the tenancy as part of the 
 originally demised premises, is not rebutted by the 
 fact that the landlord expressly assented to the 
 enclosure being made ; and where such presump- 
 tion exists the Statute of Limitations, 3 & 4 WiU. 
 4. c. 27, s. 7, does not apply until the original 
 tenancy has ended. Whitmore v. Humphries, 41 
 Law J. Eep. (n.s.) C. P. 43 ; Law Eep. 7 C. P. 1. 
 
 (e) Breach of dmty by baiiee. 
 
 22. — Where a person, entrusted with a chattel 
 for safe custody to be restored to the owner when 
 required, is sued in detinue for breach of duty in 
 detaining it after demand, the Statute of Limita- 
 tions is no bar to such action if the same be brought 
 within six years after demand and refusal, although 
 
 more than six years have elapsed since the person 
 so entrusted with the article has wrongfully parted 
 with possession of it.- WUMnson v. Verity, 40 
 Law J. Eep. (n.s.) 0. P. 141 ; Law Eep. 6 0. P. 
 206. 
 
 (/) As against solicitor to promoters of company. 
 
 23. — A solicitor and parliamentary agent not 
 being promoters of a company expended moneys 
 in procuring an Act in 1859 ; the railway was not 
 constructed and the company had no assets : — ^Held, 
 that the claims of the solicitor and agent were not 
 barred, as the Statute of Limitations did not run 
 until the company had assets. In re Kensington 
 Station Act, Law Eep. 20 Eq. 197. 
 
 (C) How THE Statute may be Baeeed. 
 (a) What aclmowledgement sufficient. 
 
 24. — In order to take a case out of the Statute 
 of Limitations, there must be either (1) an acknow- 
 ledgment of the debt from which a promise to 
 pay is to be implied, or (2) an unconditional pro- 
 mise to pay, or (3) a conditional promise to pay, 
 and evidence that the condition has been performed. 
 Semble — a letter stated to be " without prejudice " 
 cannot be relied upon as an acknowledgment. In 
 re the River Steamer Company ; Mitchells Claim, 
 Law Eep. 6 Chanc. 822. 
 
 25. — In 1846 L. gave B. and S. a promissory 
 note for 500Z. The note was made payable three 
 months after date to " D. F. B. or-S. M., his wife." 
 In 1866, after the death of B., and on the applica- 
 tion of S. M., L. wrote his name, and the date 
 1866, on the back of the note : — Held, a sufficient 
 acknowledgment within the above statute ; and 
 that the debt, therefore, was not barred. Bourdin 
 V. Greenwood, 41 Law J. Eep. (n.s.) Chanc. 73 ; 
 Law Eep. 13 Eq. 281. 
 
 (6) Acknowledgment by one joint mortgagee. 
 
 26. — Two joint mortgagees of lands who 
 appeared on the face of the mortgage deed to be 
 trustees of a settlement, had been in possession 
 of the mortgaged property for more than twenty 
 years, but within twenty years before *the institu- 
 tion of a redemption suit one of them had acknow- 
 leged in writing the mortgagor's title: — Held, 
 that such recognition by one of the joint mort- 
 gagees did not operate as an acknowledgment 
 within the statute, and that the equity of redemp- 
 tion was barred — affirming the decision of Malins, 
 V.C. Richardson v. Yowige, 40 Law J. Eep. (n.s.) 
 Chanc. 338 ; Law Eep. 6 Chanc. 478. 
 
 (o) What amounts to a promise to pay. 
 
 27. — A promise by letter as follows : " Your 
 account has not escaped our memory, and as soon 
 as we can get our affairs arranged we wiU see you 
 are paid ; perhaps in the meantime you will let your 
 clerk send an account : " — Held, a promise suffi- 
 ciently unconditional to take the case out of the 
 Statute of Limitations. Chasemore v. Turner, 
 Law Eep. 10 Q. B. 600 : reversed, on appeal, 45 
 Law J. Eep. (n.s.) Q. B. 66. 
 
LIMITATIONS, STATUTE OF (C)— LOCOMOTIVE. 
 
 339 
 
 28. — Upon a plaint brought in the County 
 Court within six years before this action to recover 
 two years' interest due upon a promissory note, 
 made for the payment of a principal sum and 
 interest, against the representatives of the de- 
 ceased maker of the note, the defendants in the 
 plaint, being also defendants in the present action, 
 pleaded the Statute of Limitations, in answer to 
 wliich plea an acknowledgment within six years 
 was given in evidence and judgment was given for 
 the plaintiff, and the defendants thereupon paid 
 into Court the amount of the judgment : — Held, 
 that to this action brought to recover the principal 
 and further interest thereon two years after such 
 payment into Court and more than six years after 
 the acknowledgment proved in such plaint, such 
 payment did not necessarily imply a promise to 
 pay the principal, and therefore was no evidence 
 of an acknowledgment to pay the debt vrithin six 
 years, so as to take the case out of the Statute of 
 Limitations (21 Jac. I.e. 16, see. 3). Morgan v. 
 Eowlands, 41 Law J. Kep. (n.s.) Q. B. 187 ; Law 
 Eep. 7Q.B. 493. 
 
 {d) Fayment of interest mid part payment. 
 
 29. — C. H. mortgaged freeholds and leaseholds 
 in 1822. He devised and bequeathed his residtiary 
 estate upon trust to pay his debts, including mort- 
 gage debts, and afterwards on trust for T. H. 
 A. H., who was beneficial tenant for life under the 
 will of C. H., in a moiety of a freehold not com- 
 prised in the mortgage and was also interested in 
 the residue under the will of T. H., paid interest 
 on the mortgage down to her death in 1859 : — 
 Held, that such payment prevented the Statutes 
 of Limitation being a bar to the mortgagee's pro- 
 ceeding, either against the property comprised in 
 the mortgage or on the covenant for repayment 
 against the estate of C. H. Fears v. Laing, 40 
 Law J. Eep. (n.s.) Chanc. 225 ; Law Kep. 12 Eq. 
 41. 
 
 30. — In 1827 an agreement was entered into 
 between J. H. and M. H.,^ by which the payment 
 of a sum of 1,000Z. was to be secured bv the bond 
 of H. M., the 1,0002. to be applied thus— 7602. of 
 it was to be paid to certain parties in certain 
 events, and 260Z. of it to other parties in other 
 events. The bond, with two obligees, was in the 
 same year duly executed by M. H., and trusts 
 were by a separate deed declared of the 1,000Z, 
 accordingly. The 750Z. was paid by instalments, 
 and ultimately discharged in full in 1854. The 
 2502. was not paid. The obligor died. In 1872 
 the parties interested in the 2502. filed a creditor's 
 bill to enforce its payment, and to administer the 
 obligor's estate. They contended that the full dis- 
 charge of the 7502., in 1854, was a satisfaction 
 protantoot the 1,0002., and that their claim to the 
 balance, namely, the 2602., was not therefore 
 barred by the statute : — Held, that the limits of 
 the plaintiff's legal and equitable rights were com- 
 mensurate ; that the causes of action in respect 
 of the two sums of 7502. and 2502. were distinct ; 
 that the payment of the 7502. was not on account 
 of the 2502. ; that the claim to that sum was 
 therefore barred by the statute ; and that the bill 
 
 must be dismissed vidth costs. Ashlin v. Lee, 44 
 Law J. Eep. (n.s.) Chanc. 174 : affirmed, on appeal, 
 44 Law J. Eep. (n.s.) Chanc. 376. 
 
 (D) Set-off of Debt bakeed by Statute. 
 
 31. — A debt due to an intestate's estate from 
 one of the nex1>of-kin, barred by the Statute of 
 Limitations, was set off against his share in the 
 estate. White v. Cordwell, 44 Law J. Eep. (n.s.) 
 Chanc. 746 ; Law Eep. 20 Eq. 644. 
 
 LIMITED OWNEES' EESIDENCES. 
 
 [The erection of mansion houses, &c., to be 
 deemed " improvements " within the Improvement 
 of LandAct, 1864 (27 & 28 Vict. c. 114). 34 & 35 
 Vict. c. 84.] 
 
 LIS PENDENS. 
 
 On an application under 30 & 31 Vict. c. 47, 
 s. 2, by the defendant in a suit which had been 
 registered as a Us pendens, and subsequently by 
 consent dismissed for want of prosecution, the 
 Court ordered the registration to be vacated upon 
 production of afiidavit of service of the notice of 
 motion upon the solicitor of one of two plaintiffs 
 who could not be found, and upon the solicitor of 
 the trustee in bankruptcy of the other plaintiff. 
 Jervis v. Berridge, 44 Law J. Eep. (n.s.) Chanc. 
 164. 
 
 Duty of attorney to register lis pendens. 
 
 [See Attoenet, 23.] 
 Effect of registration of administration suit 
 
 as lis pendens. [See Administeation, 
 
 40.] 
 
 LOCKE KING'S ACT. 
 [See Administeation.] 
 
 LOCOMOTIVE. 
 
 The enactment in 24 & 25 Vict. c. 70, s. 7 — 
 which provides that if a locomotive engine 
 in being driven over a bridge carrying a 
 highway over a stream, damages the bridge 
 so as to render it unsafe for traffic, " none of the 
 proprietors, undertakers, directors, conservators, 
 trustees, commissioners or other person interested 
 in or having the charge of such navigable river, 
 canal or railway, or other the tolls thereof, or of 
 such bridge or arch, shall be liable to repair or 
 make good any damage so occasioned, &c. ; but 
 every such damage shall be forthwith repaired to 
 the satisfaction of the proprietors, imdertakers, 
 directors, conservators, trustees, commissioners or 
 other person, as aforesaid, respectively interested 
 in or having the charge oJF such river, &c., by and 
 at the expense of the owner, &e., of such locomo- 
 XX 2 
 
310 
 
 LOCOMOTIVE— LONDON (B). 
 
 tive at the time of the happening of such damage" 
 — does not apply to public bridges repairable by 
 the inhabitants of a county so as to relieve them 
 from their liability at common law to repair, and 
 render the owner of the locomotive liable to an in- 
 dictment for the non-repair of such a bridge so 
 damaged by such locomotive. And a conviction 
 of the owner in such a case upon such an indict- 
 ment -was quashed. The Queen v. Kitchener, 43 
 Law J. Eep. (n.s.) M. C. 9 ; Law Eep. 2 0. C. E. 
 88. 
 
 Locomotive steam plough : exemption from 
 toll. [See Turnpike, 2.] 
 
 LONDON. 
 
 (A) Smaii, Debts Court : Eemoval of Eegis- 
 
 TRAE. 
 
 (B) City op London Ooubt. 
 
 (C) Lord Mayor's Court : Jurisdiction. 
 
 (a) New trial. 
 
 (6) Leave to appeal. 
 
 (c) Attachment. 
 
 {d) Dishorwwr of bill or cheque within the 
 
 City. 
 (c) Sale of goods, 
 (f) Application for prohibition. 
 
 (A) Small Debts Court : Eemoval of Eegisteae. 
 
 1. — By the 15 Vict. c. Ixxvii. s. 1 1, the chief clerk 
 of the London (City) Small Debts Court is to be 
 appointed by the Mayor, Aldermen, and Commons, 
 and it shall be lawful for them, in ease of the 
 clerk's inability or misbehaviour, or for any other 
 cause which may appear reasonable to them, the 
 Mayor, Aldermen and Commons, to remove such 
 clerk. By the 28 & 29 Vict. c. 99, s. 4, the juris- 
 diction exercised by the Judges of the Metropo- 
 litan County Courts is conferred upon the Judges 
 of the City Court, except the power of appointing 
 officers, and the title of the chief clerk of the City 
 Court is changed to registrar, and by section 21 
 it is enacted that that Act and the 9 & 10 Vict. 
 c. 95 and any Act amending or altering the same, 
 shall be read and construed as one Act, as if the 
 several provisions in the said Acts referred to were 
 repealed and re-enacted in that Act. By the 9 & 
 10 Vict. c. 95, s. 24, the appointment of the clerks 
 of the County Courts and also their remqval for 
 inability or misbehaviour is vested in the Judges 
 of such Courts subject to the approval of the Lord 
 Chancellor, and by the 13 & 14 Vict. c. 61, s. 4, 
 the power to appoint is left as before, but the 
 power to remove is vested in the Lord Chancellor 
 solely. Charges had been informally made against 
 the registrar of the above-mentioned City Court, 
 and the same were investigated by a committee of 
 the Common Council, who reported that the duties 
 of the ofiice had not been properly discharged by 
 the registrar. The evidence taken on the enquiry 
 was printed and supplied to the members of the 
 Common Council and to the registraj, and at a 
 council afterwards held, it was resolved that the 
 
 registrar should shew cause on a day named why 
 he should not be removed from his office. The 
 registrar shewed cause by counsel, who argued 
 that the only charge specifically made against him 
 was too vague, being that he had not properly dis- 
 charged the duties of his office ; and that the evi- 
 dence adduced before the committee did not support 
 either the more definite charges informally brought 
 against him, or the vague charge made by the 
 report of the committee. He declined to adduce 
 further evidence. The Council then removed the 
 registrar from his office, and appointed the defend- 
 ant in his place ; — Held, first, that the County 
 Court Acts did not affect the jurisdiction to remove 
 conferred by section 11 of 15 Vict. c. 77. Second, 
 that although the charge of improperly discharg- 
 ing his duties might of itself have been too vague, 
 still as, by the course of the enquiry, the registrar 
 had been made acquainted with the particular 
 heads of accusation on which the general charge 
 was founded, and evidence had been adduced in 
 support of such heads, and matters were thereby 
 charged, which, if proved, might seem to the 
 Mayor, Aldermen and Commons, reasonable cause 
 for his removal, and he had had every opportunity 
 of meeting such evidence, it was not competent for 
 any Court of Common Law, or for this House 
 sitting to review the decision of such Court, to in- 
 terfere with the conclusion arrived at on the evi- 
 dence, or the consequent judgment pronounced by 
 the Court of Common Council in the exercise of 
 the jurisdiction conferred upon them by the Act. 
 Osgood V. Nelson (H. L.), 41 Law J. Eep. (n.s.) 
 Q B. 329 ; Law Eep. 6 E. & I. App. 636. 
 
 (B) City of London Court. 
 
 2. — A document purporting to be the order of 
 a Judge at chambers for the removal of a cause 
 for trial in a County Court, and stamped with the 
 Judge's signature according to the usual practice, 
 is binding upon the County Court Judge, and he 
 cannot enquire into the circumstances under which 
 it was made. Blades v. Lawrence, 43 Law J. Eep. 
 (n.s.) Q,. B. 133 ; Law Eep. 9 Q. B. 374. 
 
 Upon hearing a rule under 19 & 20 Vict. e. 108, 
 s. 43, calling upon the Judge of the City of London 
 Court to shew cause why he should not hear and 
 determine the case which had been ordered to be 
 tried in the Court under the County Courts Act, 
 1867, 30 & 31 Vict. c. 142, s. 7, it appeared that 
 on the day fixed for the hearing of the ease, the 
 Judge of the City of London Court asked to see 
 the order transfeAing the cause, and, finding that 
 the order had been made by the Master and after- 
 wards stamped by the Judge's clerk at chambers 
 with the signature "G. Honyman," he declined to 
 hear the case, stating that he had made a rule of 
 practice by which, before such a, case could be 
 heard, proof must have been given that the order 
 was made by the Judge of the Superior Court : — 
 Held, first, that the Judge of the City of London 
 Court was wholly unjustified in the course which 
 he took, as he had no right to enquire into the 
 validity of the order of the Judge of a Superior 
 Court, such order being on the face of it properly 
 
LONDON (B), (C). 
 
 341 
 
 authenticated ;, secondly, that the proceeding by 
 rule as provided by 19 & 20 Vict. o. 108, s. 43, 
 applied to the Judge of the City of London Court. 
 Ibid. 
 
 (C) LoKD Mayok's Coubt : Jubisdiotion. 
 
 (o) New trial. 
 
 3. — The 10th section of the Mayor's Court of 
 London Procedure Act, 1857 (20 & 21Vict. c. clvii.), 
 enables either party to a suit in that Court, if 
 leave be given to him by the Judge on the trial; 
 to move in any of the Superior Courts to enter a 
 verdict or nonsuit, as the case may be, and gives 
 the Superior Court power to make such order 
 therein as it may think proper, and directs judg- 
 ment to be entered accordingly ; — Held, that the 
 disposal by the Superior Court of a rule to enter 
 a nonsuit moved for under that section, does not 
 take a-way the jurisdiction of the Judge of the 
 Mayor's Court to entertain an application for a 
 new trial. Leheau v. The General Steam Naviga- 
 tion Company, 42 Law J. Eep. (n.s.) C. P. 76 • 
 LawEep. 8 C.P. 129. 
 
 (i) Leave to appeal. 
 
 4.— The Lord Mayor's Court Act, 20 & 21 Vict. 
 c. clvii. ss. 8, 10, provides that in certain cases a 
 party may appeal, if he give notice within two 
 days of the decision, and give security ; and that, 
 " if upon the trial " the Judge gives him leave to 
 move in a Superior Court, he may move within the 
 time limited for like motions in such Court, At 
 the conclusion, on a Thursday, of a trial in the 
 Lord Mayor's Court, the Judge refused to give the 
 plaintiff, who was nonsuited, leave to move, but 
 on the ensuing Monday on application made to him 
 granted such leave : — Held, by the majority of the 
 Court (Bovill, C.J., Keating, J., and Grove, J.), 
 that he had no power to do so, because, even if 
 there had been no refusal (which per Bovill, C.J., 
 determined the time), the leave must be given 
 within a reasonable time, and that would be two 
 days ; but per Brett, J., four days is a reasonable 
 time, and the refusal did not curtail it. FolJcard 
 V. The Metropolitan Eailway Company, 42 Law J. 
 Eep. (n.s.) C. p. 162 ; Law Eep. 8 C. P. 470. 
 
 (c) Attachment. 
 
 5. — The plaintiffs, merchants in London and 
 Madras, issued an attachment out of the Lord 
 Mayor's Court, to attach moneys in the hands of 
 B. for a debt due from V., of Madras. B. pleaded 
 a prior attachment by S., a foreign creditor, and 
 so the action of the plaintiffs in the Lord Mayor's 
 Court was defeated. The plaintiffs filed a bill 
 alleging that the prior attachment was not for a 
 bond fide debt, and praying for an account and 
 payment of their debt:— Held, that this Court 
 had jurisdiction to decide the matter, and the 
 Court being of opinion that no debt was due to S., 
 directed payment to the plaintiffs of the debt due 
 to them. Shand v. Su Suisson, 43 Law J. Eep. 
 (n.s.) Chanc. 508 ; Law ^ep. 18 Eq. 283. 
 
 Custom of foreiffn attachment. [SeeAiTACH- 
 KENT, 9, 10.] 
 
 (a!) Dishonoiir of bill or cheque within the City. 
 
 6, — The defendant, for valuable consideration, 
 indorsed to the plaintiff a cheque for lOl., payable at 
 abank in the City of London : the cheque was 
 dishonoured upon presentation; the indorsement 
 was at S., in Yorkshire. The plaintiff ha-ring 
 sued in the Mayor's Court, London, to recover the 
 amount of the cheque, the defendant's attorney 
 applied to this Court for a prohibition: — Held, 
 that the dishonour of the cheque within the- City 
 of London did not give the Mayor's Court jurisdic- 
 tion, that a prohibition ought to issue, and that 
 the applicant for the same was entitled to costs. 
 Eobinson v. Emanuel, 43 Law J. Eep. (n.s.) C. P. 
 244; Law Eep. 9 C.P. 414, and Qmrtly v. 21m- 
 mins. Law Eep. 9 C.P. 416, n. 
 
 7. — In an action in the Mayor's Court, Loudon, 
 upon a bill of exchange for less than 501. by 
 indorsee against acceptor, the defendant pleaded to 
 the jurisdiction of the Court ; at the trial the bill 
 was produced and was found to be payable at Smith, 
 Payne & Smiths ; a witness proved that Smith, 
 Payne & Smiths carried on business in the City. 
 There was no evidence where the bill w£is drawn, 
 accepted, or indorsed : — Held, that the plea to the 
 jurisdiction admitted merely the dishonour of tlie 
 bill somewhere, that the above circumstances con- 
 stituted no proof of dishonour vrithin the City of 
 London, and that there was no evidence that part 
 of a cause of action accrued to the plaintiff within 
 the jurisdiction of the Mayor's Court, pursuant to 
 the Mayor's Court of London Procedure Act, 1857 
 (20 & 21 Vict. c. clvii.), s. 12. Sewell v. Cheetham, 
 43 Law J. Eep. (n.s.) C. P. 239 ; Law Eep. 9 C. P. 
 420. 
 
 (e) Sale of goods. 
 
 8. — Where an order for goods is given outside 
 the City of London, to be delivered to a carrier 
 (named and paid by the buyer), within the City ; 
 and the goods having been delivered accordingly, 
 an action in the Lord Mayor's Court is brought 
 for their price, the cause of action must be deemed 
 to have arisen in part out of the jurisdiction of the 
 Lord Mayor's Court, and a prohibition will be 
 issued to restrain the action. Gold v. Turner, 
 LawEep. 10 C.P. 149. 
 
 (/) Application for prohibition. 
 
 9. — In order to allow the Mayor's Court of Lon- 
 don to entertain a suit, the cause of action must 
 have arisen within its jurisdiction, even although 
 the amount in dispute is less than 501., and the 
 defendant carries on business in the City of Lon- 
 don. An attorney is sufficiently a stranger to the 
 suit in the Mayor's Court to entitle him to ap- 
 ply for a prohibition, although the defendant 
 himself can only raise an objection to the juris- 
 diction by plea (20 & 21 Vict. c. clvii. s. 15). 
 r V. Harris, 43 Law J. Eep. (n.s.) C. P. 208. 
 
 [And see supra Nos. 6, 8.] 
 
342 
 
 LOED'S DAY— LUNATIC (B). 
 
 LOED'S DAY. 
 
 [See Stinday.] 
 
 1. — A company constructed a large building 
 with tanks for the exhibition of marine fish and 
 animals, and in the same building they had a 
 museum, a reading-room, and a restaniant. The 
 building was open on Sundays, when a band 
 played at a stated time, and the public were ad- 
 mitted at sixpence each : — Held, by the Court of 
 Queen's Bench, that this building was a place of 
 public entertainment or amusement within the 21 
 Geo. 3. c. 49, s. 1. Terry v. The, Brighton A(jua- 
 riwm Company, 44 Law J. Eep. (n.s.) M. C. 173 ; 
 Law Eep. 10 Q. B. 306. 
 
 2. — The band and the newspapers in the read- 
 ing-room were afterwards suppressed : — Held, by 
 the Court of Exchequer, that the place was still 
 within the Act. Warner v. The Brighton Aqua- 
 rivmi Company, 44 Law J. Eep. (n.s.) M. C. 175 ; 
 Law Eep. 10 Exeh. 291. 
 
 LUNACY. 
 
 [General Orders, 23rd December, 1872. 
 Law J, Eep. (n.s.) Chano. ad init.'] 
 
 See 42 
 
 LUNATIC. 
 
 (A) JuEiSDicTioN IN Lunacy. 
 (a) Lunatic foreigner. 
 
 (6) Appointment of new trustee. 
 
 (B) Peactice in Lunacy. 
 
 (a) Sale or lease of Ivnatic's estate. 
 
 (b) Costs and allowances cut of estate. 
 
 (c) Summary powers as to realty where 
 
 estate small, 
 {d) Attending proceedings. 
 
 (C) Peopeety or Lunatic. 
 
 (a) Conversion. 
 
 (b) Eights of presumptive next-of-kin. 
 
 (c) Lien mi lunatic's legacy for past main- 
 
 tenance. 
 
 (D) Suits and PEocEEDmos by and agadtst 
 
 Lunatics. 
 
 (a) Suit by lunatic partner for dissolution. 
 
 (b) Lunatic not so found by inquisition. 
 
 (E) Maintenance of Cbiminax Lunatic 
 
 (F) Maintenance of Pauper Lunatic. 
 
 (A) JuEisDicTioN m Lunacy. 
 
 («) Lunatic foreigner. 
 
 1, — Where a Portuguese, whose family and 
 property (with a trifling exception) were in Por- 
 tugal, became lunatic in England : — Held, that 25 
 & 26 Vict. c. 86, s. 3, did not take away the power 
 of the Court here to direct an enquiry when the 
 lunacy commenced, but that in this case the 
 enquiry ought not to be directed, as it was not 
 required for the purpose of the proceedings in 
 
 England, and would probably be treated in Por- 
 tugal as affecting unheard parties. In re Sotto- 
 major, Law Eep. 9 Chanc. 677. 
 
 (A) Appointment of new trustee. 
 
 2. — The Lords Justices sitting in Lunacy have 
 jurisdiction, under the Trustee Acts, to appoint 
 a new trustee of a creditors' deed registered under 
 the Bankruptcy Act, 1861, in the place of a trus- 
 tee who has become of unsound mind. In re 
 Donisthorpe ; In re Thompson's Trusts, 44 Law 
 J. Eep. (n.s.) Chanc. 536 ; Law Eep. 10 Chanc. 65. 
 
 (B) Peactice in Lunacy. 
 (a) Sale or lease of lunati(^s estate. 
 
 3. — Order made on petition to carry out an 
 agreement by committee of a lunatic's estate (with- 
 out the sanction of the Master) to let a lunatic's 
 property for a term of years, the petition being 
 presented by the intended lessee. In re Wynne, 
 Law Eep. 7 Chanc, 229. 
 
 Sale of ecclesiastical lease: lunatic inter- 
 ested: application to be in Chancery. 
 [See Trust, E 2.] 
 
 (J) Costs and allowances out of estate. 
 
 4. — Cost of repprt of Commissioners in Lunacy 
 directing an enquiry as to the state of mind of a 
 person confined in an asylum, and costs of the 
 enquiry, which resulted in his being declared of 
 sound mind, ordered' to be paid out of the supposed 
 lunatic's estate. In re C — {an alleged lunatic), 
 Law Eep. 10 Chanc. 75. 
 
 5. — Where a wealthy lunatic had made two 
 wills before he was found lunatic, the Court, with- 
 out giving any opinion whether a biU to perpetuate 
 testimony as to their validity would lie, ordered 
 that such costs as the Master should think proper, 
 of a bill to be filed with his approbation for that 
 purpose, should be paid out of the lunatic's estate. 
 In re Tayleur, Law Eep. 6 Chano. 417- 
 
 6. — Leave given to the committee of a lunatic's 
 estate, who was also heiress-at-law and sole next- 
 of-kin, to contribute 250^. out of the lunatic's 
 surplus income to a charitable object approved by 
 the Master in Lunacy. In re Strickland, Law Eep. 
 6 Chanc. 226. 
 
 (c) Summary powers as to realty where estate small. 
 
 7. — Where in the case of a, small estate it is 
 desired to deal with a lunatic's realty, without in- 
 curring the expense of an inquisition, the proper 
 course is to proceed under the summary powers of 
 section 120 of the Lunacy Regulation Act, 1853. 
 Half hide v. Eobinson, 43 Law J. Eep. (n.s.) Chanc. 
 398 ; Law Rep. 9 Chanc. 373. 
 
 {d) Attending proceedings. 
 
 8. — Although there were special circumstances, 
 the Court declined to make a precedent for allow- 
 ing persons named in the wills of lunatics to 
 attend proceedings in Lunacy. In re Scarlett, 
 Law Rep. 8 Chanc. 739. 
 
LUNATIC (C), (D). 
 
 S43 
 
 (C) Peopebtt op Lunatic. 
 
 (a) Conversion. 
 
 9. — A., B., C. and D. were tenants in common 
 in fee of certain real estate. A., B. and 0. sold 
 and demised portions thereof and the mines there- 
 under, and covenanted that D., who was of 
 nnsound mind, should confirm the transactions as 
 to her shares therein. Subsequently C. became of 
 unsound mind, and A. and B. together, and after 
 the death of B. A. alone, by indentures (which 
 confciined covenants with respect to C. and D.'s 
 share, similar to the above-mentioned covenant 
 concerning D.'s share), sold or in consideration of 
 sums payable by instalments granted mining leases 
 of other portions of the property. In 1861 A. 
 died, and in 1862 C. and D. were found lunatics 
 by inquisition, and their committee filed a bill 
 against A.'s personal representative for an account 
 of the shares of C. and 1). in the purchase-money 
 received in respect of these transactions. This 
 suit was compromised by an agreement, whereby 
 the defendant undertook to pay the plaintiff a 
 certain sum in satisfaction of C.'s claim, and the 
 same sum in satisfaction of D.'s claim. This com- 
 promise was confirmed by the Court, and an order 
 was made authorising the committee to concur in 
 
 ' the sales and leases, directing that the sums 
 named in the agreement should be paid into Court 
 to the credit of C. and D. respectively, and a 
 part of each carried to " the real estate account," 
 and a part to " the mineral account." In 1867 
 D. died leaving C, her heiress-at-law and sole 
 next-of-kin, and both sums were carried to the 
 credit of her estates. After the death of C. in 
 1874, her heir-aHaw and personal representative 
 each filed a petition, claiming the sums standing 
 to her credit to the real estate account and to the 
 
 . mineral account: — Held, that the 6rder of the 
 Court was made under section 124 of the Lunacy 
 Eegulation Act, 1853, that the mining leases were 
 in fact sales, and that consequently all the funds 
 in question must be treated as real estate, except 
 as to so much of them as was received in respect 
 of the sales in which C. had concurred before she 
 became of unsound mind. In re Mary Smith, 
 Law Eep. 10 Chanc. 79. 
 
 (4) Rights of presumptive next-of-kin. 
 
 10. — The presumptive next-of-kin of a living 
 lunatic have no interest in his personal estate, and 
 the Court will not during his life, upon the appli- 
 cation of an assignee of the expectant share of 
 such presumptive next-of-kin, make any order re- 
 straining prospectively the payment out of Court 
 of such expectant share. In re Piggott (3 Mao. 
 & Gr. 268) overruled. In re Wilkinson, 44 law 
 J. Eep. (n.s.) Chanc. 328 ; Law Rep. 10 Chanc. 73. 
 
 (c) Lien on lunatics legacy for past maintenance. 
 
 11. — Where a legacy given by a will for the 
 benefit of a person of unsound mind (not so found 
 by inquisition) was paid to her brothers : — Held, 
 that they were entitled to retain it in payment of 
 expenses incurred by them for her maintenance 
 
 in past years, as against the county, at the expense 
 of which she had been maintained for the last 
 twelve years. The brothers undertook to main- 
 tain her in future, but, semble, they woidd have 
 been entitled without doing this. In re Cribson, 
 Law Eep. 7 Chanc. 62. 
 
 (D) Suits and Peoceedings by and against 
 
 LtTBTATlOS. 
 
 (a) Suit by lunatic partner for dissolution. 
 
 12. — A partner who has become incurably in- 
 sane may obtain a decree for dissolution of the 
 partnership on this ground, and although he has 
 not been found lunatic by inquisition, may insti- 
 tute a suit for dissolution by his next friend, al- 
 leging that the lunatic is incurably insane, and 
 that the dissolution is for the benefit of the luna- 
 tic, and the Court will entertain the suit, in order 
 to protect the property of the lunatic. Jones v. 
 Lloyd, 43 Law J. Eep. (n.s.) Chanc. 826 ; Law 
 Eep. 18 Eq. 265 ; and Fisher v. Melles, Law Eep. 
 18 Eq. 268 n. 
 
 A bill was filed by the plaintiff (described as a 
 person of unsound mind, not so found) by his next 
 friend, stating that the plaintiff and the defend- 
 ant had entered into partnership for fourteen 
 ,years, determinable by notice at the end of seven ; 
 that the plaintiff had -since become incurably in- 
 sane ; that since he had become insane the de- 
 fendant had given notice to determine the part- 
 nership, and also had attempted to withdraw the 
 notice ; and that dissolution would be for the 
 benefit of the lunatic:— Held, on demurrer, first, 
 that the notice to dissolve having been given to 
 the insane partner could not be withdrawn. Se- 
 condly, that, independently of this, on the allega- 
 tions that the plaintiff was incurably insane, and 
 that it was for his benefit that the partnership 
 should be dissolved, the Court would entertain 
 the suit, as it was necessary that the property 
 of the lunatic should be protected; but quaere, 
 whether a final decree could be made without an 
 application in lunacy. Ibid. 
 
 (i) Lunatic not so found by inquisition. 
 
 13. — A suit instituted by a next friend on be- 
 half of a person of unsound mind, not so found by 
 inquisition, becomes absolutely paralysed by a 
 change in the status of the plaintiff. If he be- 
 comes of sound mind there is no pretext for the 
 continued intervention of the next friend ; if he 
 is found a lunatic by inquisition, and is thus placed 
 under the protection of the Crown, the.suit should 
 be continued only with the sanction of the Court 
 in Lunacy. BeaU v. Smith, 43 Law J. Eep. (n.s.) 
 Chanc. 245 ; Law Eep. 9 Chanc. 85. 
 
 Every proceeding taken in the suit after the in- 
 quisition, whether or not a committee has been 
 appointed, is irregular and void and a contempt 
 of the Court in Lunacy. Ibid. 
 
 Liability of solicitors to refund costs. Ibid. 
 
 14. — AVTiere the medical officer of an asylum 
 refused to allow service of a bill on a lunatic who 
 was not so found by inquisition the Court allowed 
 
314 
 
 LUNATIC (D), (P). 
 
 substituted service on the medical officer, ^-i..,.^ 
 r. Wilson, 43 Law J. Eep.(N.a.) Chanc.469: Law 
 Rep. 16 Eq. 676. 
 
 (E) Maintenance of Oeiminal Lunatic. 
 
 15. — Where the keeper of a private asylum re- 
 ceived an insane prisoner by virtue of a warrant 
 of a Seeretaryof State under 3 & 4 Vict. c. 54, 
 and the guardians of a union during thirteen 
 years paid him for maintenance a certain weekly 
 sum, which was a reasonable sum in that behalf: 
 ■ — Held, that the inference was, that either there 
 had been an order of justices for payment of such 
 sum or an arrangement to pay the said, or a rea- 
 sonable sum during the time the lunatic was kept, 
 and that as the lunatic was not removed, and the 
 keeper could not turn him out, the guardians were 
 bound to pay the keeper at the same rate. Peffge 
 V. The Guardians of the Lampeter Union, 41 Law 
 J. Rep. (n.s.) C. p. 204 ; Law Rep. 7 0. P. 366. 
 
 But this was reversed on appeal by the Court 
 of Exchequer Chamber, holding that no inference ' 
 could be drawn, either that there had been an 
 order of justices under 3 & 4 Vict. u. 54, ss. 2, 3, 
 for payment of that sum, or that an arrangement 
 had been made to pay that sum, or a reasonable 
 sum, so long as the lunatic should be kept. Pecige 
 V. T/ie Guardians of the Lampeter Union (Exch. 
 Ch.), 43 Law J. Rep. (n.s.) C.P. 181 ; Law Rep. 
 9 C.P. 373. 
 
 16. — E. was tried and convicted of a murder 
 committed within a borough having a separate 
 Court of quarter sessions, and having a contract 
 with the justices of the county in which the 
 borough was situate, in pursuance of section 31 
 of the Prison Act, 1865, to receive and maintain 
 in the county prison aU prisoners maintainable at 
 the expense of the borough. After conviction E. 
 was confined in such county prison. While so 
 confined she was found to be insane? and was re- 
 moved under a warrant of the Secretary for the 
 Home Department to the Criminal Lunatic Asylum 
 at Broadmoor : — Held (in the Exchequer Chamber, 
 aflSrming the decision of the Queen's Bench, 41 Law 
 J.Rep.(N.s.)M.C.57;LawR6p. lOa.B. 166), that 
 the visiting justices of the county were the pro- 
 per justices to enquire into and ascertain the place 
 of the last legal settlement of E. in pursuance of 
 3 & 4 Vict. c. 54, s. 2. The Queen v. The Justices 
 of Lewes, 41 Law J. Rep. (n.s.) M. C. 176; Law 
 Rep. 10Q.B. 579. 
 
 _ 17.— The Act 39 & 40 Geo. 3. c. 94, s. 1, pro- 
 vides for the detention of persons charged with 
 treason, murder, or felony, and acquitted on the 
 ground of insanity at the time of the commission 
 of the offence. By 9 Geo. 4. o. 40. s. 54, where 
 any person is in custody as an insane person by 
 order of any Court, or by his Majesty's order sub- 
 sequent thereto, " it shall be lawful for two jus- 
 tices of the county where such person is in custody 
 to enquire into and ascertain the place of the last 
 legal settlement, and the circumstances of such 
 person ; and, if it shall not appear that he is pos- 
 sessed of sufficient property which can be applied 
 to his maintenance, it shall he lawful for such 
 two justices to make an order upon such parish 
 
 of settlement to pay such weekly sum for his 
 maintenance in such place of custody as the Sec- 
 retary of State shall from time to time direct ; " 
 with a proviso that the overseers of the parish of 
 adjudged settlement may appeal against such order 
 to the Quarter Sessions, "in like manner and 
 under like restrictions and regulations as against 
 any order of removal, giving reasonable notice 
 thereof to the clerk of the peace, who shall he 
 respondent in such appeal." By 3 & 4 Vict. c. 54, 
 s. 1, a criminal becoming insane during imprison- 
 ment may be detained. By section 2, justices of 
 the peace may enquire into the settlement of such 
 prisoner and make orders on the parish where 
 he is settled for his maintenance ; and by section 
 3, persons charged with misdemeanours and ac- 
 quitted on the ground of insanity may be kept in 
 custody. By section 5, an appeal to quarter ses- 
 sions is given to the overseers of the parish or 
 guardians against the decision of the justices as 
 to the settlement with the like restrictions, &c., 
 as in 9 Geo. 4. e. 40, s. 54. By section 7, so 
 much of 9 Geo. 4. c. 40, a. 54, as relates to the 
 direction to the Secretary of State, is repealed, 
 and power is given to two justices to " direct the 
 overseers of the parish in which they shall ad- 
 judge such insane person to be settled, or the 
 guardians, &c., to pay such weekly sum for the 
 maintenance of such person as they or any such 
 two justices shall direct." By 8 & 9 Vict. c. 126, 
 s. 1, the Act 9 Geo. 4. e. 40, is entirely repealed. 
 A woman indicted for murder was acquitted on 
 the ground of insanity, and ordered to he detained 
 in custody during her Majesty's pleasure. While 
 she was in Newgate an order of justices was made, 
 adjudging her settlement, and ordering the guar- 
 dians of the union to pay 14s. a week while she 
 remained in the Criminal Lunatic Asylum. The 
 order was served on the guardians, but it was not 
 accompanied by the grounds of the order or par- 
 ticulars of the settlement. On mandamus to the 
 guardians of the union to pay the arrears of the 
 14s. weekly, the facts above mentioned were stated 
 on the record, and with respect to 252., part of the 
 amount claimed, the defendants relied on the 
 limitation clause in 22 & 23 Viet. o. 49, s. 1, which 
 enacts that, " with respect to any debt, claim or 
 demand which may be lawfully incurred, or be- 
 come due, from the guardians of any union or 
 parish, such debt, claim or demand shall be paid 
 within the half year in which the same shall have 
 been incurred or become due, or within three 
 months after the expiration of such half year, 
 but not afterwards : " — Held, first, that, notwith- 
 standing the repeal of 9 Geo. 4. c. 40, there was, 
 under 3 & 4 Vict. c. 54, s. 7, power to make the 
 order. Secondly, that it was not necessary to 
 serve the grounds of appeal with the order. 
 Thirdly, with regard to the 25?., that the limita- 
 tion clause applied, and the claim was barred. 
 The Queen v. The Guardians of Stepney Union, 43 
 Law J. Rep. (n.s.) M. C. 145 ; Law Rep. 9 Q. B. 383. 
 
 (F) Maintenance of Paupek Lunatic. 
 
 18. — Accrued and future dividends of a fund 
 settled on a married woman for her life for her 
 
LUNATIC (F)— MALICIOUS PROSECUTION. 
 
 345 
 
 separate use, without power of anticipation, were 
 ordered to be paid to the ofScer charged with 
 the care of lunatics in the Colony of Victoria, to 
 provide for her past and future maintenance as a 
 pauper lunatic in the colony. In re Baker's Trusts, 
 41 Law J. Eep. (n.s.) Chanc. 162; Law Eep. 13 
 Eq. 168. 
 
 MAINTENANCE. 
 
 [See Infant ; Lunatic ; Pooh.] 
 
 Enforceme7it of trust for mamtenance in 
 voluntary settle7neiit. [See Voluntaky 
 Settlement, 10.] 
 
 MALICIOUS INJURY TO PROPERTY. 
 
 (A) What constitutes Malice. 
 
 (B) Reasonable Supposition of Right. 
 
 (C) Infobmation : Ownbbship of Pboseoutoe. 
 
 (A) What constitutes Malice. 
 
 1. — ^The word " maliciously " in the 24 & 25 
 Vict. c. 97, s. 51, requires that an act to be cri- 
 minal within that section should be done wilfully. 
 The Qiteen v. Pembliton, 43 Law J. Rep. (n.s.) 
 M.C. 91 ; Law Rep. 2 C. C.R. 119. 
 
 A conviction under that section, for unlawfully 
 and maliciously committing damage above the 
 value of 51. to a house, where the defendant, after 
 fighting in a crowd in the street near the window 
 of the house, separated himself from the crowd, 
 picked up a stone, threw it at one of the persons 
 with whom he had been fighting, missed his aim, 
 and hit a plate-glass window above the value of 
 51. in the house, but did not intend to break the 
 window, was quashed. Ibid. 
 
 (B) Reasonable Supposition of Right. 
 
 2.— By 24 & 25 Vict. c. 97, =. 62, " whoever 
 shall wilfully or maliciously commit any damage, 
 injury, or spoil, to or upon any real or personal 
 property whatsoever, either of a public or private 
 nature, for which no punishment is hereinbefore 
 provided, shall, on conviction before a justice," 
 be subject to fine or imprisonment, &c. . . . ; 
 "provided that nothing herein contained shall 
 extend to any case where the party acted under 
 a fair and reasonable supposition that he had a 
 right to do the act complained of." The appel- 
 lant was summoned before the justices under this 
 section. It appeared that he was in the employ- 
 ment of D., and that by his order he forcibly 
 entered a- garden belonging to and in the occupsr 
 tion of the respondent, accompanied by thirteen 
 other men, and cut a small ditch, ftom forty to 
 fifty yards in length, through the soil. The res- 
 pondent and his predecessor in title had occupied 
 the garden for thirty-six years, and during the 
 whole time there had been no ditch upon the site 
 Digest, 1870-1876. 
 
 of part of that cut by the appellant. For the 
 defence D. was called, who stated that fifteen 
 years before, there had been an open ditch in the 
 land in question, which received the drainage from 
 the highway, and that he gave directions for the 
 ditch to be cut by the appellant, in the exercise 
 of what he considered to be a public right. The 
 justices found that the appellant had no fair and 
 reasonable supposition that he had a right to do 
 the act complained of, and accordingly convicted 
 him: — Held, that by the express words of the 
 section and proviso, the jurisdiction of the justices 
 was not ousted by the mere bond fide belief of 
 the appellant that his act was legal, and that 
 there was evidence on which they might properly 
 find that he did not act under the fair and rea- 
 sonable supposition required by the statute. 
 White V. Feast, 41 Law J-. Rep. (n.s.) M.C. 81 ; 
 Law Rep. 7 Q. B. 363. 
 
 (C) Infoemation: Ownership of Pboseoutoe. 
 
 . 3. — An information was laid against the appel- 
 lant, under section 52 of 24 & 25 Vict. c. 97, 
 charging him with committing damage to a lamp, 
 which was affixed to a club-house. The-lamp 
 was alleged in the information to be the property 
 of B., C. and A., the trustees of the club-house. 
 The evidence shewed that B. was the lessee of 
 the house, and that by a declaration of trust be- 
 tween himself, of the first part, and B., C. and 
 A., of the second part, he declared himself to stand 
 possessed for the trustees. The informant, the 
 manager of the club, did not see the damage com- 
 mitted by the appellant: — Held, that this was 
 not necessary, that he was not precluded from 
 laying the information, and that the justices were 
 not justified in dismissing the information by rea- 
 son of the alleged variance between the informa- 
 tion and the evidence. If they thought that the 
 appellant had been deceived or misled, they might 
 have adjourned the hearing, as provided by 11 & 
 12 Vict. c. 43 ; but if they did not think so, they 
 should have gone on to decide the case. EaVph 
 V. Ewrrell, 44 Law J. Rep. (n.s.) M. C. 145. 
 
 MALICIOUS PROSECUTION. 
 
 1. — Where in an action for maliciously giving 
 the plaintiff into custody and for slander, the de- 
 fendant pleaded to the latter cause of action a 
 plea in justification, which would have been no 
 answer to the former, and at the trial the plaintiff 
 failed to prove the slander : — Held, that the jury 
 ought to disregard this plea in considering the 
 former cause of action. Brooke v. Avrillon, 42 
 Law J. Rep. (N.s.) 0. P. 126. 
 
 2. — S., an attorney, having been instructed by 
 H. to make J. bankrupt, obtained a debtor's sum- 
 mons under s. 7 of the Bankruptcy Act, 1869, and 
 served it on J., who thereupon applied to the re- 
 gistrar of the County Court to dismiss the sum- 
 mons. Having heard both parties, the registrar 
 made an order on the 12th of April that J. should 
 within seven days enter into a bond, with two 
 YY 
 
346 
 
 MALICIOUS PROSECUTION— MANDAMUS (B). 
 
 sueli sufficient sureties as the Court should ap- 
 prove, to pay such sum as should be recovered by 
 H. in any proceeding taken for the recovery of 
 the debt due to him from J., together with coats ; 
 and that all proceedings on the summons should 
 be stayed until the Court in which such proceed- 
 ings for the recovery of the debt should be taken 
 had come to a decision thereon. S. drew up the 
 order, which was the first of the kind made by 
 the County Court in pursuance of the statute. 
 During the seven days a correspondence took place 
 as to the proposed sureties, who were objected to 
 by S. on behalf of H., and no bond having been 
 executed in consequence, a petition in bankruptcy 
 was, by the express order of H., presented by S. 
 on the 21st of April under the 8th section, and 
 on the same day a receiver was appointed under 
 the 13th section, the act of bankruptcy alleged 
 being (in the terms of section 6, sub-sec. 6 of the 
 Act) that the petitioning creditor had served on 
 J. a debtor's summons, and that he being a trader 
 had for seven days neglected to pay the debt 
 alleged to be due, or to secure or compound for 
 the same. J, objected to the petition ; and after 
 several hearings under the 8th section, the County 
 Court Judge on the 8th of May adjudged J. to be 
 bankrupt. This decision was affirmed by the 
 Chief Judge in Banlcruptcy, but was afterwards 
 reversed by the Lord Justice of Appeal, who an- 
 nulled the proceedings on the ground that the 
 order of the 12th of April was a stay of proceed- 
 ings at the time of the petition and adjudication : 
 — Held, by Kelly, C.B., and Cleasby, B., that upon 
 these facts an action was maintainable by J. against 
 S. for maliciously and without reasonable and 
 probable cause presenting the petition and causing 
 him to be adjudicated a bankrupt. Held, contra, 
 by Martin, B., and Bramwell, B., that such an 
 action was not maintainable by J. against S. 
 Johnson v. Emsrson, 40 Law J. Eep. (n.s.) Exeh. 
 201 ; Law Eep. 6 Exch. 329. 
 
 Oase stated hy County Coii/rt Judge : evi- 
 dence itself ought to be set out. [See 
 County Coxtrt, 23.] 
 
 MANDAMUS. 
 
 (A) When it lies. 
 
 (ffi) Eight of applicant. 
 (IJ) To Lords of Treasury. 
 
 (B) Costs. 
 
 (A) When it lies. 
 (ffl) Right of applicant. 
 
 \. — The Court in the exercise of its discretion 
 as to the issuing of a writ of mandamus requires 
 that the application should be made by one who 
 has a real interest in requiring the duties to be 
 performed. The Queen v. Mayor of Peterborough, 
 44 Law J. Rep. (n.s.) Q. E. 85. 
 
 The Court will not grant a mandamus to the 
 mayor of a borough to hold a fresh meeting of the 
 
 ratepayers of the borough for the purpose of 
 granting or withholding their consent to the 
 incurring by the governing body of a borough 
 the expense of opposing a bill in Parliament 
 under the 35 & 36 Vict. c. 91, ». 4, after a, 
 prior meeting had been held where a poll had been 
 refused, in order that at the fresh meeting a poll 
 of the ratepayers of the borough might be taken, 
 upon the application of a ratepayer of the borough 
 who is also one of the promoters of the bill in 
 question. Ibid. 
 
 (J) To Lords of Treasury. 
 2.— By 29 & 30 Vict. c. 39, s. 14, when any 
 sum shall have been granted to Her Majesty by a 
 resolution of the House of Commons or by an Act 
 of Parliament to defray expenses for any specific 
 public services, it shall be lawful for Her Majesty 
 ' from time to time, by order, under the royal sign 
 manual, countersigned by the Treasury, to autho- 
 rise and require the Treasury to issue, out of the 
 credits to be granted to them on the Exchequer 
 accounts, the sums which may be required from 
 time to time to defray such expenses, not exceeding 
 the amount of the sums so voted or granted. By 
 the Annual Appropriation Acts since 1835 there 
 has been a grant of a gross sum each year to de- 
 fray " the charges for prosecutions at assizes and 
 quarter sessions in England formerly paid out of 
 county rates." The accounts of costs of prosecu- 
 tion in the county of L. were duly taxed by the 
 proper officers, and paid out of the county rates, 
 but a number of items in these bills were taxed 
 off and disaUowed by officers appointed by the 
 Treasury. The justices of the county obtained a 
 rule nisi for a mandamus to compel the Lords of 
 the Treasury to pay the amount disallowed to the 
 county treasurer : — Held, that a mandamus could 
 not issue to compel the Lords of the Treasury to 
 pay the amount as they had only received it in 
 the character of servants of the Crown. The 
 Queen v. The Lords Commissioners of the Treasury, 
 41 Law J. Eep. (n.s.) Q. B. 178; Law Eep. 7 
 G. B. 387. 
 
 Mandamns to election commissioners to grant 
 
 certificate of witness, [See Pablia- 
 
 MENT, 8.] 
 
 To directors of company to allow inspection 
 of looks. [See Peoduotion, 9.] 
 
 (B) Costs. 
 
 3. — A party who induces Quarter Sessions to 
 act upon an objection which turns out to be ill- 
 founded, and to refase to hear an appeal and who 
 substantially litigates the point up to the time of 
 cause being shewn against a rule which had been 
 obtained for a mandamus to the sessions to hear 
 the appeal, will have to pay the costs of the 
 rule, though he does not actually shew cause 
 against the rule. The Queen v. The Guardians of 
 the Sirmingliam Union, 44 Law J. Rep. (n.S.) 
 M. C. 48. 
 
MANOR— MAEINE INSURANCE (A). 
 
 347 
 
 MANOR. 
 
 [See Copyhold ; Common ; Inolosure.] 
 
 Ctistody of Court rolls. 
 
 1. — Summons by guardian ad litem, of infant 
 lord to compel a steward to deliver up Court 
 Rolls dismissed. Windham v. Cfiubilei, 40 Law J. 
 Rep. (n.s.) Chane. 605. 
 
 Ch-ant of waste. 
 
 2.— The 51 Geo. 3. c. 115, s. 2, does not em- 
 power the lord of a manor to grant a portion 
 of the waste land of the manor, which is a village 
 green, freed from the parishioners' customary 
 right to the use of it, as such, and a demurrer 
 by the vicar of St. M. E., in the manor of B., 
 the grantee of. the ecclesiastical commissioners 
 (lords of the manor), to a bill by one of the 
 parishioners of B., to establish their right to the 
 village green, and set aside the grant of it, was 
 overrviled. Forbes v. The Ecclesiastical Commis- 
 sioners for England and the Bev. T. L. 0. Davies, 
 42 Law J. Rep. (n.s.) Chane. 97; Law Eep. 15 
 Eq. 51. 
 
 MANSLAUGHTER. 
 
 Where two men fought with fists and the one 
 was killed, and before fighting they by agreement 
 each deposited a pound with the defendant, upon 
 the terms that after the fight he was to hand over 
 the two pounds to the winner, the defendant, who 
 was not present at the fight, and took no further 
 part in the circumstances attending it than to hold 
 the money, and to hand it over afterwards to 
 the survivor, was held not liable to be convicted 
 . of being accessory before the fact to the man- 
 slaughter. The Queen v. Taylor, 44 Law J. Rep. 
 (N.s.) M. C. 67; Law Rep. 2 C. C. R. 147. 
 
 MARINE INSURANCE. 
 
 (A) Vaiidity op Contbact os Insueance 
 
 TTNBEE Provisions of 30 Vict. c. 23. 
 (o) Specification of names of underwriters. 
 (J) Policy exceeding twelve months. 
 (e) Stamp. 
 
 (1) Action on v/mtamped slip. 
 
 (2) Admissibility of wnstamped docu- 
 
 ment. 
 
 (B) Avoidance of Policy. 
 
 (a) Concealment. 
 
 (1) Material fact : what is. 
 
 (2) Facts subsequent to initialing of slip. 
 
 (3) Mistake in nam£ of ship. 
 
 (4) Election to avoid contract. 
 
 (b) Misrepresentation. 
 
 (c) IllegcJ, voyage. 
 
 (C) CoNSTEUcrioN OF PaETICDLAE POLICIES. 
 
 (a) Policy of insurance against losses as 
 
 carriers. 
 (i) "During ship's stay and trade." 
 (c) "Freight." 
 
 (D) Restraint of Princes. 
 
 (E) CONTEABAND OF WaH. 
 
 (F) Risks insured asainst. 
 
 {a) Inception of risk : "from loading^' 
 
 (1) Be-asstvrance. 
 
 (2) Chartered freight. 
 (i) Duration of risk. 
 
 (c) Description of risk, 
 {d) Declaration of risk. 
 (e) Variation of risk. 
 
 (G) Partial and Total Loss. 
 
 (ffl) Of vessel: mode of assessing under sepa- 
 rate outward and homeward policies. 
 (i) Of cargo. 
 
 (c) Of chartered freight. 
 
 (d) Constructive total loss. 
 (H) Notice of Abandonment. 
 
 (n) WTien necessary, 
 (b) What ammmts to acceptance. 
 (I) Seaworthiness. 
 («) Warranty of. 
 
 (1) Implied warranty : policy on 
 cargo. 
 
 (2) Bepresentation as to seaworthiness: 
 time policy. 
 
 (6) Evidence of. 
 (K) General Average. 
 (L) Insurable Interest. 
 (M) Valued Policy. 
 
 (N) ASSISNMENT OF PoLICY. 
 
 (a) Termination of interest. 
 (5) Bight of assignee to sue. 
 
 (0) Actions and Suits. 
 
 (») Undisclosed •principal. 
 
 (b) Suit in equity for return of premki/ms. 
 (P) Mutual Marine Insurance Association. 
 
 (a) Bules and constitution. 
 
 (5) Contract between society and members. 
 
 (A) Validity of Contract of Insurance under 
 Provisions of 30 Vict. c. 23. 
 
 (ffl) Specification of names of underwriters. 
 
 1. — A mutual marine insurance association 
 issued policies signed by managers "per procura- 
 tion of" the several members of the association : 
 — ^Held (affirming the decision of the Master of 
 the Rolls), that this was not a specification of 
 the names of the subscribers or underwriters 
 within the meaning of the 30 Vict. c. 23, s. 7, 
 and that on this ground the policies were void. 
 In re the Arthur Average Association ; Ex parte 
 Gory, 44 Law J. Rep. (n.s.) Chanc. 569 ; Law 
 Rep. 10 Chanc. 542, nom. Ex parte Hargrove ^ 
 Company. 
 
 The policies in question were non-mutual poli- 
 cies, but Semble, the same objection would apply 
 to all. Ibid. 
 
 (J) Policy exceeding twelve months. 
 
 2. — A policy of insurance was made on a vessel 
 for a year, by an insurance association, by the 
 rules of which the insurance was to be from year 
 to year unless notice to the contrary be given, 
 and the managers, unless they receive ten days' 
 Y Y 3 
 
848 
 
 MAEINB INSURANCE (A), (B). 
 
 notice to the contrary, ivero to renew the policy 
 on its expiration : — Held, that according to the 
 terms of such rules, and 30 & 31 Vict. o. 23, s. 8 
 (which makes null a policy exceeding twelve 
 months), the policy was not a continuing one, but 
 expired at the end of the year. Lishman v. The 
 Northern Maritime Insurance Company {Lim.), 42 
 Law J. Rep. (n.s.) C. P. 108; Law Eep. 8 0. P. 
 216. 
 
 (e) Stamp. 
 (1) Action on unstamped slip. 
 
 3. — No action lies on an unstamped slip, inas- 
 much as by sections 7 and 9 of 30 Vict. a. 23, no 
 contract for sea insurance is valid unless the 
 same is expressed in a policy, and no policy is 
 available unless duly stamped. So held by the 
 JKxcheijuer Chamber affirming the judgment be- 
 low, 42 Law J. Eep. (n.s.) Q,. B. 224 ; Law Eep. 
 8 Q,. B. 469. Fisher v. The Liverpool Marine In- 
 surance Company (Exch. Ch.), 43 Law J. Eep. 
 (n.s.) a. B. 114 ; Law Eep. 9 a. B. 418. 
 
 The defendants, an Insurance Company at Li- 
 verpool, employed E. & Co. as their agents in 
 London to accept risks and receive premiums in 
 London for policies of marine insurance. The 
 plaintiffs instructed P. & Co., insurance brokers 
 in London, to effect an insurance upon a cargo of 
 rails. P. & Co. on the 16th of November, 1871, 
 prepared a slip which was initialed by B. & Co., 
 and a copy was made out by P. & Co., who sent 
 it to E. & Co. On the same night E. & Co. sent 
 the copy to the defendants at Liverpool. A policy 
 ought to have been executed and sent soon after, 
 but this was not done. An account, including 
 2s. Gd. policy duty, was sent by E. & Co. to P. & 
 Co., who paid it on the 1 3th of March, 1872. No 
 stamped policy was ever prepared or executed, 
 and the ship on which the cargo of rails was 
 having been lost, the defendants refused to exe- 
 cute the policy or to pay the insurance money. 
 The jury found that the defendants authorised 
 E. & Co. to issue slips, accept risks and receive 
 premiums ; that they had given plaintiffs reason- 
 able ground to believe, and that the plaintiffs did 
 believe, that if the plaintiffs paid the premium 
 and stamp, on a slip initialed by E. & Co., they, 
 the defendants, would issue a policy in accordance 
 with the slip. They also found that the plaintiffs 
 were prevented by the conduct of the defendants 
 from insuring elsewhere : — Held, that there was 
 no duty on the defendants separable from the con- 
 tract to insure in the usual and customary man- 
 ner, and therefore that no action on such contract 
 being maintainable by the plaintiffs against the 
 defendants without contravening the provisions of 
 sections 7 and 9 of 30 Vict. c. 23, the plaintiffs 
 could not recover in any form of action brought 
 againt the defendants. Ibid. 
 
 (2) Admissibility of unstamped docimient. 
 
 4, — Letter authorising the manager of a mutual 
 marine insurance to insure a ship, and undertak- 
 ing to abid,e by the rules of the association, fol- 
 lowed by a duly stamped policy issued to the 
 
 insurers, but which contained no reference to 
 the rules : — Held, that, the letter, though not 
 stamped, was admissible in evidence, and that the 
 insurers were liable as contributories under the 
 rules which bound each insurer to contribute to 
 the losses of any other insurer. Smith's case. 
 Law Eep. 4 Chanc. 611, distinguished. In re the 
 Albert Average Association, Law Eep. 13 Eq. 
 529. 
 
 5. — A ship was insured in 1863 by M. in a Mu- 
 tual Marine Insurance Association. The policy, 
 which was unstamped, was renewed up to 1868, 
 when the ship, with M. on board, was lost at sea. 
 The money due in respect of the insurance was 
 collected by order of the association, according to 
 their usual practice, from the members liable to con- 
 tribute the same, but was retained by the secre- 
 tary until a personal representative to M. should 
 have been appointed. Before any such appointment 
 was made the association was ordered to be wound 
 up. Subsequently M.'s widow took out adminis- 
 tration to him, and brought in a claim in the 
 winding up under the policy. A portion of the 
 amount due under the policy had already been 
 paid to persons having a lien thereon: — Held, 
 that the relation of debtor and creditor had been 
 sufficiently established between the parties, and 
 the widow was entitled to recover the amount, 
 notwithstanding the want of a stamp on the po- 
 licy. In re the Teignmouth and General Mutiud 
 Shipping Association, il l^&yiJ. Eep. (n.s.) Chanc. 
 679 ; Law Eep. 14 Eq. 148. 
 
 A slip, though not stamped, and therefore not 
 available as a policy, nevertheless referred to for 
 the purpose of shewing the intention of the par- 
 ties at the time of the execution of the policy. 
 lonides v. The Pacific Fire and Marine Insurance 
 Company, No. 13 infra. 
 
 [And see No. 7 infra.] 
 
 (B) Avoidance of Policy. 
 
 (a) Concealment. 
 
 (1) Material fact : what is. 
 
 6. — By the rules of Lloyd's register book, a 
 vessel classed for a period of seven years is bound 
 to undergo a "half-time survey" in her fourth 
 year, and upon the report of such survey, the 
 committee of Lloyd's determine whether she is to 
 retain her classification or shall be degraded. If 
 she has satisfactorily undergone the survey, and 
 retains her classification, the letters " H. T." are 
 placed opposite to her name in the book, with the 
 date of the survey. If the report is not satisfac- 
 tory, she is degraded, and if a survey is not had, 
 or is declined, she is struck out of the register. 
 Each subscriber to Lloyd's is furnished with a copy 
 of this book, which is corrected from time to 
 time, and he can get further information from 
 the secretary of Lloyd's. The plaintiff was the 
 owner of the ship A. classed A. 1, and built in 
 1865. On the 22nd of October, 1869, notice was 
 given to him, by the surveyor, that she was due 
 for half-time survey, and he was asked when she 
 woiild be ready for survey. He replied on the 
 23rd of October, that he had decided not to con- 
 
MAEINE INSURANCE (B). 
 
 349 
 
 tinue her in Lloyd's book. On the 28th of Octo- 
 ber, his agent enquired of the defendant at -what 
 rate an insurance could be effected upon the A., 
 and the book being looked at in which she stood 
 A. 1, seven years from 1865, a qxiotation was 
 given to him. On the 15th of November, she was 
 initialed for insurance, and the policy was issued, 
 dated the 1st of December, 1869. On the 16th of 
 November she had been struck out of the book, 
 and the plaintiff was informed on the 17th of her 
 being so struck out. The A. was wrecked and 
 became a total loss on the 31st of December. An 
 action having been brought upon the policy, it 
 was pleaded that there had been concealment of 
 material facts by the plaintiff and his agents. The 
 judge, at the trial, asked the jiiry, first. Was the 
 ship, on the 16th of November, in the ordinary 
 business sense, degraded from her class ? To this 
 question the jury answered " No." Second, Was 
 the fact that the plaintiff had resolved not to 
 continue the ship on the list, and had so stated to 
 the surveyor, a material fact ? To this question 
 the jury answered " No." Third, Ought the un- 
 derwriter to have known on the 15th of November 
 that the continuance of the class must depend on 
 whether the ship had been then lately surveyed 
 and passed, or would within a few days be sur- 
 veyed and passed or repaired, and if "Yes," 
 ought the knowledge to have put the underwriter 
 to ask whether the ship had been surveyed or was 
 about to be surveyed ? To this question, the jury 
 answered " Yes," and a verdict was entered for the 
 defendants: — Held, by Mellor, J., Lush, J., and 
 Hannen, J., first, That the judge was not bound 
 to direct the jury, as matter of law, that the ver- 
 dict must be found for the defendants. Secondly, 
 That there was no misdirection. Held, by Cock- 
 burn, C.J., that there was no misdirection, biit 
 that there was proof of the concealment of a 
 material fact, which ought to have been communi- 
 cated to the defendants, there being positive 
 • knowledge on the part of the plaintiff that he had 
 refused to have the A. surveyed, while there was 
 only a possible inference on the part of the de- 
 fendants that there had been such refusal. Gandy 
 V. The Adelaide Marine Insurance Company, 40 
 Law J. Eep. (n.s.) Q. B. 239 ; Law Eep. 6 a. B. 
 746. 
 
 7. — Underwriters having agreed upon the terms 
 for a marine insurance with the broker of the 
 assured, initialed the slip and debited the broker 
 with the premium, in ignorance of facts material 
 to be communicated to them, and known to the 
 broker. Shortly afterwards the underwriters dis- 
 covered the concealment, and mentioned it to the 
 broker, but raised no objection, and afterwards, at 
 the usual time, executed and delivered to the broker 
 in silence a stamped policy in accordance with the 
 slip. News of a total loss having arrived, they 
 repudiated their liability on the ground of the 
 concealment and the assured sued them on the 
 policy. By 30 & 31 Viet. c. 23, s. 9, no policy 
 shall be pleaded or given in evidence in any Court, 
 or admitted in any Court to be good or available 
 in law or in Equity unless duly stamped. It was 
 conceded that in effecting marine insurances. 
 
 when the slip is initialed the contract is consi- 
 dered concluded ; and it was proved to be the 
 usage to issue a stamped policy in accordance with 
 the slip, no matter what might happen after the 
 slip was initialed : — Held (reversing the judg- 
 ment of the Exchequer, 42 Law J. Eep. (n.s.) 
 Exch. 17; Law Eep. 8 Exch. 40), that since 
 the assured had not been induced to alter his 
 position by a belief that the underwriters had 
 elected to treat the contract as binding, the deli- 
 very of the stamped policy was not an act of 
 estoppel; nor even primA facie evidence of an 
 election, so as to make it incumbent on the under- 
 writers to shew that the assured did not under- 
 stand, or had no right to understand, the conduct 
 of the underwriters as an election, Morrison v. 
 The Universal Marine Insurance Company (Lim.) 
 (Exch. Ch.), 42 Law J. Eep. (n.s.) Exch. 115; 
 Law Eep. 8 Exch. 197. 
 
 8. — An underwriter having subscribed a marine 
 policy of insurance on certain goods, afterwards 
 insured his risk by effecting with other under- 
 writers a policy on the goods without stating that 
 the latter transaction was a re-insurance. In an 
 action by him upon the second policy, a common 
 practice to state the fact of a re-insurance in the 
 slip or policy was admitted, but the jury found 
 the fact immaterial, and negatived concealment : 
 — Held, that the plaintiff was not bound by law 
 to disclose the fact of re-insurance unless enquiry 
 were made of him with respect to it, and was, 
 therefore, upon the findings of the jury, entitled 
 to the verdict. Mackenzie v. Whitworth, 44 Law 
 J. Eep. (n.s.) Exch. 81 ; Law Eep. 10 Exch. 142. 
 
 9. — Where the insurer, in effecting a marine 
 policy, does not disclose to the underwriter the 
 fact that the goods insured are largely over 
 valued, it is a question for the jury whether the 
 concealment is material having regard to the 
 reasonable practice of underwriters. lonides v. 
 Pender, i3 Law J. Eep. (n.s.) Q. B. 227; Law 
 Eep. 9 a. B. 531. 
 
 It is the duty of an insurer to disclose every- 
 thing which would affect the judgment of a rar 
 tional underwriter governing himself by the 
 principles and considerations on which under- 
 writers do in practice act, and therefore the jury 
 are justified in finding that an overvaluation of 
 the goods insured is a material fact which ought 
 to have been and was not disclosed ; and upon 
 such finding the underwriters are entitled to the 
 verdict. Ibid. 
 
 (2) Facts subsequent to initialing of slip. 
 
 10. — Although, for want of statutory requisites, 
 an underwriter's slip does not constitute a valid 
 contract, yet, inasmuch as according to the usage 
 of marine insurance it amounts to a contract, 
 binding upon the underwriters in good faith and 
 honour, the assured need not communicate to the 
 underwriters material facts which have come to 
 his knowledge after they have initialed the slip, 
 and the policy of insurance afterwards executed 
 will be valid notwithstanding such facts are not 
 communicated. Xcnos v. Wiclcham (36 Law J. 
 Eep. (n.s.) 0. P. 313; Law Eep. 2 E. & I. App. 
 
350 
 
 MAEINE INSURANCE (B). 
 
 296) considered. Cory v. Patton, 41 Law J. Eep. 
 (n.s.) a. B. 195 n. ; Law Eep. 7 Q. B. 302. 
 
 11. — The plaintiffs at Cardiff instructed their 
 agents in London to effect an insurance upon a 
 cargo at 30s. a ton. The defendant refused to 
 insure at tliat rate, but initialed a slip at 35s., 
 subject to approval by the plaintiffs, who subse- 
 quently ratified the agreement of their agent to 
 the higher premium. Subsequently to the slip 
 being initialed, but before the policy was signed, 
 the plaintiffs became aware that the cargo was 
 lost. They did not communicate the fact to the 
 defendant : — Held, on the authority of Hagedorn 
 V. Oliverson (2 M. & S. 486), that the defendant 
 was not entitled to have the fact communicated to 
 him. Cory v. Patton, 43 Law J. Eep. (n.s.) 
 a. B. 181 ; Law Eep. 9 a. B. 577. 
 
 12. — The defendants on the 11th of March 
 agreed to insure freight by the plaintiffs' vessel 
 on a certain voyage, and a slip containing the 
 terms of insurance was then drawn up by the de- 
 fendants, who on that day accepted the risk. No 
 question was then asked by the defendants as to 
 the insurance upon the hull. The plaintiffs' vessel 
 had been insured with the T. Insurance Associa- 
 tion for 5001., but this insurance was to expire 
 after the 20th of March ; but, by the rules of the 
 T. Insurance Association, policies were to be re- 
 newed, unless the assured gave ten days' notice 
 not to renew them ; the plaintiffs' vessel was 
 otherwise insured for 2,700Z. She was lost by 
 perils of the sea on the 16th of March. On the 
 1 7th of March the plaintiffs, being aware of the 
 loss, requested that a stamped policy should he 
 delivered to them. The defendants, being igno- 
 rant of the loss, asked for what amount the hidl 
 was insured, and being informed they inserted a 
 warranty that the hull was not insured for more 
 than '2,7001. after the 20th of March, and they 
 issued the stamped policy to the plaintiffs. The 
 T. Insurance Association did not renew the assur- 
 ance upon the plaintiffs' vessel after her loss : — 
 Held (afBrming the judgment of the Court of 
 Common Pleas, 42 Law J. Eep. (n.s.) C. P. 108 ; 
 Law Eep. 8 0. P. 216), that the vessel having 
 been lost before the 20th of March, the warranty 
 as to the amount of insurance upon the hull 
 had been complied with ; and that the warranty 
 being immaterial as to the risk at the time of the 
 loss, the plaintiffs were not bound to disclose to 
 the defendants, at the time of inserting it on the 
 17th of March, that the vessel was then lost, and 
 that they were entitled to recover from the de- 
 fendants the amount secured by the policy. lAsh- 
 man v. The Northern Maritime Insurance Company 
 (_Lim.) (Exch. Ch.), 44 Law J. Eep. (n.s.) C. P. 
 185; Law Eep. 10 C. P. 179. 
 
 (3) Mistake in name of ship. 
 
 13. — I. and C, the plaintiffs, who were ship 
 and insurance brokers in London, were in the 
 habit of effecting insurances by the instructions of 
 S. on behalf of G. and E., merchants of Hamburgh. 
 On the 23rd of September, 1869, they received 
 instructions from S. to open a policy on hides to 
 the- amount of 5,000Z. On the same day C. filled 
 
 up a slip on one of the printed forms kept at the 
 office of the defendants, who were underwriters, 
 for 6,000^. on hides per "ships," and left it at 
 the office. On the 22nd of January, 1870, S. 
 wrote referring to hides on board The Socrates, 
 and on the 24th of January L., the clerk of I. and 
 C, called on the defendants and, referring to Uie 
 French Veritas, in which were named two ships. 
 The Soorate and The Socrates, said that he be- 
 lieved the ship was ITie Socrates. On the 3rd of 
 February, 1870, C. called on the defendants, and 
 taking up the slip for 5,000^., which he had filled 
 up on the 23rd of September, 1869, filled up two 
 slips, one for 2,455Z. on hides per The Socrates, 
 and the other for 2,500Z. on hides per The Sophie, 
 saying that it would be more convenient to have 
 two separate policies. In due course policies 
 were executed in accordance with the slips. 
 The hides were loaded on board The Soorate, and 
 not on board The Socrates, and whilst on board 
 that vessel they were lost by the perils insured 
 against. The risk on The Soorate was greater 
 than on The Socrates. At the trial, the jury was 
 asked whether both the parties in making the 
 policies meant to insure the hides by the vessel 
 on which they were shipped, whatever her name 
 might be, though they supposed her to be The 
 Socrates, or whether the defendants meant to insure 
 hides on board The Socrates. The jury answered 
 this question in favoiir of the plaintiffs : — Held 
 (affirming the judgment below, 4lLaw J. Eep. (n.s.) 
 Q,. B. 33), in an action upon the policy for 2,455?., 
 that although by 30 Vict. c. 23, ss. 4 and 9, the 
 slip of the 23rd of September, 1869, not having 
 been stamped, would not he available as a policy, 
 it might be referred to for the purpose of shewing 
 what was the intention of the parties at the time 
 of the execution of the policy, which was 
 founded upon that slip. lonides v. The Pacific Fire 
 and Marine Insurance Company (Exch. Ch.), 41 
 Law J. Eep. (n.s.) Q,. B. 190 ; Law Eep. 7 Q. B. 
 517. 
 
 Held also, that it appearing by the slip that 
 the insurance was on hides per " ships," and the 
 jury having found, in favour of the plaintiflS, on 
 the question left to them as above, that it be- 
 came immaterial that The Socrates was mentioned 
 in the policy and in the declaration in the action 
 upon it, and that the plaintiffs were entitled to 
 recover, although the hides were on board The 
 Soorate when they were lost. Ibid. 
 
 (4) Election to avoid contract. 
 
 14. — There is no presumption of law that 
 underwriters are acquainted with the contents 
 of Lloyd's Lists, so as to discharge an assurer 
 from the duty of communicating material facts 
 known to himself and published in those lists. 
 Morrison v. The Universal Marine Insurance Com- 
 pany {Lim."), 42 Law J. Eep. (n.s.) Exch. 115; 
 Law Eep. 8 Exch. 197. 
 
 Underwriters having agreed upon the terms for 
 a marine insurance with tiie broker of the assured, 
 initialed the slip and debited the broker with the 
 premium, in ignorance of a fact material to be 
 communicated to them, and known to the broker. 
 
MAEINE INSURANCE (B), (C). 
 
 351 
 
 Shortly afterwards the underwriters discovered 
 the concealment, and mentioned it to the broker, 
 but raised no objection, and afterwards, at the 
 usual time, executed and delivered to the broker 
 in silence a stamped policy in accordance with 
 the slip: News of a total loss having arrived, 
 they repudiated their liability on the ground of the 
 concealment, and the assured sued them on the 
 policy. By 30 & 31 Vict. c. 23, s. 9, no policy 
 shall be pleaded or given in evidence in any 
 Court, or admitted in any Court to be good or 
 available in law or in Equity unless duly stamped. 
 It was conceded that in effecting marine insur- 
 ances, when the slip is initialed the contract is 
 considered concluded; and it was proved to be 
 the usage to issue a stamped policy in accord- 
 ance with the slip, no matter what might happen 
 after the slip was initialed. 
 
 Blackburn, J., directed the jury that the un- 
 derwriters could not, after discovering the con- 
 cealment, say, "we elect to go on," and afterwards, 
 on hearing of the loss, repudiate the contract, but 
 were bound within a reasonable time after the 
 discovery to elect whether they would avoid the 
 contract on that ground ; and he asked the jury 
 whether the underwriters had, after the discovery, 
 elected to treat the policy as subsisting, telling 
 them that he Wmself attached no weight to the 
 delivery of the stamped policy : — Held (reversing 
 the judgment of the Exchequer, 42 Law J. Eep. 
 (n.s.) Exch. 17 ; Law Hep. 8 Exch. 40), that there 
 was no misdirection of which the assured could 
 complain; that since the assured had not been 
 induced to alter his position by a belief that the 
 underwriters had elected to treat the contract as 
 binding, the delivery of the stamped policy was 
 not an act of estoppel nor even primd facie evi- 
 dence of an election, so as to make it incumbent 
 on the underwriters to shew that the assured did 
 not understand, or had no right to understand, 
 the conduct of the underwriters as an election. 
 Ibid. 
 
 Upon an appeal to the Exchequer Chamber, 
 from a decision of the Court below, making abso- 
 lute a rule fbr a new trial, the respondent cannot 
 support that decision on the ground that the ver- 
 dict was against the weight of evidence ; for under 
 the Common Law Procedure Act, 1864, the Court 
 of Appeal has no jurisdiction to entertain that 
 question in any form. Ibid. , 
 
 (b) Misrepresentation. 
 
 15. — A shipowner stated in a proposal for in- 
 surance that his ship had been last metalled in 
 1867. The bottom was then overhauled, and new 
 metal put where required: — Held, that he had 
 not made a material misstatement so as to vitiate 
 the policy. Alexander v. Campbell, 41 Law J. Eep. 
 (n.s.) Chanc. 478. 
 
 16. — Where a party effecting an insurance on 
 chartered freight from B. to E. point and thence 
 to London, read to the insurers a letter from the 
 masteif of the sliip, stating "E. point is considered 
 by the pilot here a good and safe anchorage and 
 well sheltered. I have been out and seen the 
 place and consider it safe : " — Held, that the read- 
 
 ing of the letter was only a statement of opinion, 
 and not an averment of the truth of its contents 
 in fact, and that if E. point was not a safe anchor- 
 age, there was no such misrepresentation as to viti- 
 ate the policy. Anderson v. The Pacific Fire and 
 marine Insurance Company/, Law Eep. 7 C. P. 65. 
 
 (c) Elegal voyage. 
 
 17. — The circumstance that a vessel without 
 the owner's knowledge, carries passengers without 
 having obtained a certificate does not under 1 7 & 1 8 
 Vict. c. 104, s. 118, make the voyage illegal so as to 
 avoid a policy of insurance effected by the owner. 
 Dudgeon v. PerribroJce, 43 Law J. Eep. (n.s.) Q,. B, 
 220 ; Law Eep. 9 Q. B. 581 : reported, on appeal, 
 Law Eep. 1 Q. B. Div. 96. 
 
 (C) CONSTETTCTION OF PaeTICTTLAK POLICIES. 
 
 (a) Policy of insurance against losses as carriers. 
 
 18. — The plaintiffs, who were lightermen, were 
 insured by a Lloyd's policy, upon craft of every 
 description " at and from all or any of the wharves, 
 banks, quays, and places of arrival or departure 
 in the river Thames, comprising the whole extent 
 of the river from Wandsworth downwards to the 
 Victoria Docks, including all or any intermediate 
 docks and wharves, and vice versS,, until on board 
 any merchant or steam-vessel, barge or boat, or 
 otherwise landed at any wharf," &c. The policy 
 was " on all goods and produce as interest may ap- 
 pear," and at the foot of it was written, " to cover 
 and include all losses, damages and accidents, 
 amounting to 201. or upwards, on each craft, to 
 goods carried by the plaintiffs as lightermen, or 
 delivered to them to be water-borne either in their 
 own or other craft, and for which losses, damages 
 and accidents the plaintiffs may be liable or 
 responsible to the owners thereof or others inter- 
 ested. It is agreed that the amount of each 
 underwriter's liability shall not exceed the amount 
 of his subscription." This policy was subscribed 
 by underwriters for sums, amounting to 2,000i. 
 The defendant underwrote it for lOOi. During the 
 risk a loss occurred to goods carried by the plain- 
 tiffs as lightermen, for which the plaintiffs became 
 responsible to the owners interested to the amount 
 of 1,100Z., and paid that amount. The total in- 
 terest of the plaintiffs in goods carried in this 
 and other barges, amounted at the time of the loss 
 to 20,OOOZ. : — Held, that the policy was not a 
 marine policy, but was intended to indemnify the 
 plaintiffs against losses sustained by them as car- 
 riers, and that the defendant was liable to the 
 extent of his subscription, and not merely to such 
 a proportion of the loss as his subscription bore 
 to the whole value of the plaintiffs' interest at the 
 time of the loss. Joyce v. Kennard, 41 Law J. 
 Eep. (n.s.) Q. B. 17 ; Law Eep. 7 Q. B. 78. 
 
 (6) " During ship's stay and trade" 
 
 19. — By the terms of a marine policy the insu* 
 anoe was expressed to be an insurance on a vessel 
 and cargo " at and from Liverpool to the west and 
 (or) south-west coast of Africa during her stay 
 and trade therein and back to a port of dall oi 
 
362 
 
 MARINE INSURANCE (C), (E). 
 
 (and) discharge in the United Kingdom.'' The 
 premium was eight guineas per cent, on the value 
 insured. 20 per cent, of the premium was to be 
 returned for the risk ending in ten months and 
 40 per cent, for the risk ending in eight months ; 
 and there was written in the margin " held covered 
 at 13s. id. per cent, per month if longer than 
 twelve months out." The vessel having stayed a 
 month on the African coast for the purpose of 
 earning salvage, and having been damaged there, 
 and afterwards stranded on her voyage home, the 
 owners sued for a total loss : — Held, that the 
 words " stay and trade " meant " stay for the pur- 
 pose of trade ; " and that, no evidence being 
 given that staying for salvage purposes was 
 staying for an ordinary purpose of the South- West 
 African Coast trade — the risk had been substan- 
 tially varied, that there was in the absence of such 
 evidence no question for the jury, and that they 
 were properly directed to find for the underwriters. 
 The Company of African Merchants {Lim.) v. The 
 British and Foreign Marine Insurance Company 
 {Lim.) (Exch. Ch.), 42 Law J. Rep. (n.s.) Exch. 
 60 ; Law Rep. 8 Exch. 154. 
 
 (c) "Frdght." 
 
 20. — The term " freight " in a policy of insur- 
 ance maybe limited by the assured to such freight 
 only as he has an insurable interest in at the time 
 of effecting the assurance. Allison v. The Bristol 
 Marine Inswrance Company, 42 Law J. Rep. (sr.s.) 
 C.P. 334. 
 
 By a charter-party under which the plaintiff's 
 vessel was chartered to carry a cargo of coal from 
 G-reenock to Bombay, freight was to be paid on 
 the right delivery of the cargo at a certain rate 
 per ton on the quantity delivered, and such freight 
 was to be paid half in cash on signing bills of 
 lading and the remainder on the right delivery of 
 the cargo. The vessel left Greenock with her 
 chartered cargo and was wrecked on the voyage, 
 and half its cargo was totally lost, but half was 
 saved and delivered at Bombay the port of desti- 
 nation, but as the freight in respect of such cargo 
 was less than the freight which had been paid in 
 advance on signing the bills of lading, the plaintiff 
 received no freight on the delivery of such half, 
 but totally lost the same : — Held, that the freight 
 which the plaintiff so lost was recoverable as a 
 total loss under an insurance of "freight" by the 
 said vessel, on the said voyage, which the plaintiff 
 effected after the charter-party, although at the 
 time the underwriters were not informed of such 
 charter-party, and that part of the freight was 
 payable in advance, since the plaintiff at the time 
 of effecting such insurance had only an insurable 
 interest in so much of the freight as was payable 
 on the delivery of the cargo at the port of desti- 
 nation. Ibid. 
 
 21. — The plaintiff's vessel had been chartered 
 on a voyage from Sydney to Calcutta and London, 
 but upon her arrival at Calcutta, the voyage to 
 England was abandoned because of the charterers 
 having stopped payment, and the ship took 360 
 coolies, and the necessary provisions for their use, 
 and 12,000 bags of rice for Mauritius. The pas- 
 
 sage money of the coolies amounted to ],944Z., 
 and was payable on their arrival at Mauritius, 
 and the bUl of lading freight of the rice amounted 
 to 1,4:111. On hearing this the plaintiff, who 
 wished to insure the freight on the rice only, caused 
 a policy of insurance which had originally been 
 effected with the defendants for 1,000^, upon char- 
 tered freight valued at 7,O0OZ. on the voyage from 
 Sydney to Calcutta and London, to be altered by 
 the defendants inserting a declaration " that the 
 within voyage is from Sydney to Calcutta, and 
 thence to Mauritius, instead of as before stated," 
 and that " the within interest is to he on freight 
 valued at 2,000^." The sum insured by the defend- 
 ants remained unaltered, 1,000^. Though there 
 did not appear to exist a customary use of the 
 word " freight " in insurance business, yet the most 
 frequent course was to insure passage money by 
 some distinguishing term when it was intended 
 to insure it, and the premium for insuring 
 such upon a voyage from Calcutta "to Mauritius 
 was generally less than for insuring freight of goods 
 upon the same voyage. The plaintiff's vessel was 
 wrecked near Mauritius, and the rice and freight 
 thereof were wholly lost, but 348 of the coolies 
 were saved, and their passage money was paid : — 
 Held, upon the above feets, and upon the construc- 
 tion of this policy, that the freight of the rice only 
 was insured, but that as the rice was not a full 
 cargo, and there was nothing to shew what the 
 total freight would have been had the vessel been 
 filled up with cargo, the policy was an open policy 
 for half the loss of freight of the rice, not exceed- 
 ing 1,000?., and the defendants were liable there- 
 fore for the amount of such half, namely, 1601. 
 Binoon v. The Home and Colonial Assurance Com- 
 pany, 41 Law J. Rep. (n.s.) 0. P. 162 ; Law Rep. 
 7 C.P. 341, nom. Denoon, ^c. 
 
 (D) Rbsteaint of Princbs. 
 
 22. — Policy on goods from S. to London via 
 Marseilles, and whilst remaining there for transit. 
 It appearing that goods sent from S. to London 
 were always sent overland through France, and 
 that the underwriters knew this : — Held, that the 
 policy covered the risk during the overland transit 
 through Eranee. The risks insured included re- 
 straint of princes : — Held, that the detention of 
 the goods in Paris, which was being besieged by 
 the German armies, was a loss by " restraint of 
 princes," and justified notice of abandonment by 
 the insured. Eodocanachi v. Elliott, 43 Law J. 
 Rep. (n.s.) C.P. 255 ; Law Rep. 9 C.P. 518. 
 
 (E) CONTEAEANB OF WaE. 
 
 23. — Whilst war was existing between the 
 United States of America and the so-called Con- 
 federate States goods were insured on a voyage 
 from London to Matamoras by a policy which 
 contained a warra,uty against contraband of war. 
 Matamoras was a neutral port belonging to Mex- 
 ico, but the intention of the assured from the 
 beginning was to send the goods on to the Con- 
 federate States by transhipping them at Matamo- 
 ras,_ and conveying them across the river which 
 divided Mexico from the territory then in the 
 
MARINE INSUEANCE (E), (F). 
 
 353 
 
 possession of the Confederate States. Some of the 
 goods which were so insured consisted of artillery 
 harness : — Held, that such goods were contraband 
 of war, and that there was therefore a breach of 
 the said warranty, which avoided the whole insur- 
 ance. Seymour v. The London and Fromndal 
 Marine Insurance Compannj, 41 Law J. Eep. (n.s.) 
 C.P. 193. ^ ^ ' 
 
 (F) ElSKS INSTJEED AGAINST. 
 
 (o) Inception of risk : "from loading." 
 
 (1) Re-asmrance. 
 
 24. — A policy of insurance was underwritten 
 by the defendants for 1,000^., which was declared 
 to be a re-£issurance subject to aU clauses and con- 
 ditions of the original policy, on the ship D., at 
 and from any port or ports in any order on the 
 "West Coast of Africa to the vessel's port or ports 
 of call and discharge in the United Kingdom, the 
 insurance to commence " from the loading of the 
 goods at as above." By the original policy the 
 insurance was for 1,0002. upon the cargo of the 
 D., at and from Liverpool to any ports in any 
 order backwards and forwards and forwards and 
 backwards on the coast of Africa, and thence back 
 to a port of discharge in the United Kingdom, 
 with leave to increase the valuation of the cargo 
 on the homeward voyage ; " outward cargo to be 
 considered homeward interest twenty-four hours 
 after her arrival at her &st port of discharge." 
 Goods were shipped at Liverpool, and the vessel, 
 with the same goods on board, departed from a 
 port on the "West Coast of Africa, and more than 
 twenty-four hours after she had arrived at her 
 first port of discharge, the goods were lost by 
 perils insured against in the original policy: — 
 Held, that the words " the insurance to commence 
 from the loading of the goods at as above " were 
 qualified by the words in the original policy, by 
 which outward cargo was to be considered home- 
 ward interest twenty-four hours after the vessel's 
 arrival at her first port of discharge, and that the 
 risk had consequently attached and the under- 
 writers were liable. Joyce v. The Bealm Marine 
 Insurance Company, 41 Law J. Eep. (n.s.) Q,. B. 
 356; LawEep. 7Q.B. 580. 
 
 (2) Chartered freight. 
 
 25. — ^The plaintiffs had signed a policy on 
 chartered freight of the vessel Napier on a voyage 
 to Baker's Island, and from Baker's Island to a 
 port of destination in the United Kingdom. They 
 then caused themselves to be re-insured by the 
 defendants, "lost or not lost, upon freight pay- 
 able in respect to this present voyage to be per- 
 formed by the vessel Napier from Baker's Island 
 to a port of discharge in the United Kingdom ; the 
 insurance on the freight beginning from the loading 
 of the vessel." The Napier arrived at Baker's 
 Island, and was wrecked after taking in about two- 
 thirds of her homeward cargo : — Held, that the 
 plaintiffs were not entitled to recover as for a 
 total or partial loss of the freight — ^by Blackburn, 
 J., on the ground that it was not intended that 
 the risk should commence until the vessel sailed 
 Digest, 1870-1875. 
 
 on her voyage from Baker's Island, and that the 
 words, " beginning from the loading of the vessel," 
 did not extend the liability of the defendants, but 
 only added the further statement that they would 
 not be liable for freight until the goods were 
 actually loaded — by Mellor, J., and Lush, J., on 
 the ground that these words did create a liability 
 before the voyage commenced, but that the word 
 " loading " must be taken to mean " complete load- 
 ing," so that as the cargo was never fully loaded, 
 the policy did not attach, and nothing could be 
 recovered. Jones v. The Neptune Marine Insur- 
 ance Company, 41 Law J. Eep. (n.s.) Q. B. 370 ; 
 Law Eep. 7 Q. B. 702. 
 
 (6) Duration of risk. 
 
 26. — The plaintiffs insured by a policy in the 
 ordinary form of a Lloyd's policy, which was 
 underwritten by the defendant, silfcs from Shan- 
 ghai to London, viA Marseilles or Southampton, 
 "and whilst remaining there for transit, with 
 leave to call at any ports or places in or out of 
 the way, for all purposes, including all risks of 
 craft to and from the steamers." The risk insured 
 included " arrests, restraints and detainments of 
 all kings, princes and people," and there was a 
 memorandum in the margin of the policy that the 
 silks should be shipped by, inter alia, the Messa- 
 geries Impiriales streamers. It was found as a 
 fact that the company of the Messageries Impi- 
 riales always send goods from Shanghai to Loudon 
 overland through France, and that it was well known 
 among underwriters that goods sent from China 
 to London vil Marseilles were always sent over- 
 land through France. The silks insured were 
 shipped on one of the steamers of the Messageries 
 Implriales, and reached Paris vik Marseilles, on 
 the 13th of September, 1870, but at that time 
 there was war between France and Germany, and 
 the German armies were surrounding Paris, which 
 they completely invested on the 1 9th of Septem- 
 ber, so from that day to the commencement of the 
 plaintiff's action it was impossible to remove the 
 silks from Paris. On the 7th of October the 
 plaintiffs who had previously sold the silks, gave 
 notice of abandonment to the defendant : — Held, 
 affirming the decision of the Court of Common 
 Pleas (42 Law J. Eep. (n.s.) C. P. 247 ; Law Eep. 
 
 8 C. P. 649), that the policy was not limited to 
 marine risks, but included those during the land 
 transit through France. Held, also, that by rea- 
 son of the siege of Paris there was such a construc- 
 tive total loss of the silks by restraint of princes 
 within the terms of the policy as to entitle the 
 plaintiffs to abandon and sue the defendant for a 
 total loss. Held further, that the plaintiffs did 
 not lose their right of abandonment by a previous 
 sale of the silks. Sodocanachi v. Elliott (Exch. 
 Ch.), 43 Law J. Eep. (n.s.) C. P. 255 ; Law Eep. 
 
 9 C.P. 518. 
 
 (c) Description of risk. 
 
 27. — The plaintiffs, who carried on business in 
 New South "Wales, effected a policy of fire insur- 
 ance with the defendant's company on wool, 
 " in all or any shed or store on station ot in transit 
 
354 
 
 MAEINE INSURANCE (F), (G). 
 
 to Sydney by land only, or in'any shed or store, 
 or any wharf in Sydney, until placed on hoard 
 ship." The foregoing policy was suhject to a 
 stipulation that if the wool should be "Insured 
 elsewhere," notice was to he given to the defend- 
 ant's company. The plaintiffs afterwards effected 
 a policy of marine insurance with the I. Company, 
 upon wool, " at and from the river Hunter to 
 Sydney, per ships and steamers, and thence per 
 ship or ships to London, including the risk of craft 
 from tjhe time that the wools are first waterborne, 
 and of transhipment or landing and reshipment at 
 Newcastle and Sydney." Notice of this policy 
 effected with the I. Company was not given to the 
 defendant's company. Certain wool of the plain- 
 tiffs was brought from the river Hudson to Syd- 
 ney. It was there stored, in order to be sent to 
 London, whenever the ship appointed to carry it 
 should he ready to receive it. Whilst the wool 
 was thus stored it was burnt: — Held, that the 
 defendant's company was liable to reimburse the 
 plaintiffs for the loss sustained ; for at the time of 
 the fire the marine policy effected with the I. 
 Company did not affect the plaintiffs, as the wool 
 was not then being landed and reshipped within 
 the meaning thereof; and further, that the stipu- 
 lation as to notice did not refer to an insurance 
 aocidently overlapping the policy effected with the 
 defendant's company, but to an insurance for sub- 
 stantially the same risk, and therefore that the ab- 
 sence of notice as to the poUey with the I. Company 
 affprded no defence to the present action. The 
 Australian Agricultural Company v. Saunders 
 (Exch. Ch.), 44 Law J. Hep. (n.s.) C. P. 391 ; Law 
 Eep. 10 C.P. 668. 
 
 (d) Declaration, of risk. 
 
 28. — A shipowner, who was in the habit of re- 
 ceiving shipments of cotton to he carried on deck, 
 sometimes at the request and risk of the shippers, 
 sometimes for his own convenience, and under a 
 clean bill of lading at his own risk — to protect 
 himself as to jettison in the latter case, entered 
 into open policies of insurance as to which the 
 usage was that he was bound to declare all his 
 risks in order of shipment, and rectify any mistake 
 even after loss known. His agent, by negligence 
 or mistake, gave a clean bill of lading for a certain 
 shipment and gave no notice to him, but such ship- 
 owner on discovering the omission altered his de- 
 clarations by inserting this shipment though after 
 loss known : — Held, that the shipowner had an 
 insurable interest, as at law a written contract 
 cannot he varied on the ground of negligence or 
 mistake, and was entitled to alter the declarations 
 both according to the usage, which could not be 
 said to be unreasonable, and according to the 
 doctrine to be deduced from decided cases, that 
 by the usages of merchants and underwriters, re- 
 cognised by the Courts without formal proof, such 
 declarations may be altered even after loss known, 
 if the alterations be made innocently and without 
 fraud. StepJiens v. The Australasian Insurance 
 Co7iipany, 42 Law J. Eep. (k.s.) C. P. 12; Law 
 Eep. 8 O.P. 18. 
 
 (e) Variation of risk. 
 29.— On the 13th of July a voyage policy 
 was effected upon a ship " at and from Montreal 
 to Monte Video," at a premium of two per cent. 
 The ship was at sea on a voyage intended to end 
 at Montreal, and did not arrive at Montreal until 
 the 30th of August, so that the_ voyage was 
 changed from a summer to a winter voyage, 
 whereby the risk and the rate of premium were 
 materially affected. The delay between the 
 making of the policy and the commencement of 
 the risk intended to be insured against was un- 
 reasonable, but it was occasioned by matters 
 beyond the control of the assured. At the time 
 of effecting the policy, no question was asked by 
 the underwriter as to where the ship was, nor 
 was any information offered by the assured: — ■ 
 Held, that the risk being materially varied, the 
 underwriters were not liable to an action upon 
 the policy. Be Wolf v. The Archangel Maritime 
 Bank, 43 Law J. Eep. (n.s.) Q. B. 147 ; Law Eep. 
 9Q.B. 451. 
 
 [And see supra No. 19.] 
 
 (Gr) PaETIAI, iNB ToTAl LoSS. 
 
 (ffl) Of vessel : mode of assessing under separate 
 outward and homeward policies. 
 
 30. — The plaintiffs, who were owners of a 
 vessel, effected two policies of insurance upon her, 
 one for the outward voyage, in which the risk 
 was " at and from London to Calcutta, and for 
 thirty days after arrival," and the other for the 
 homeward voyage, in which the risk was " at and 
 from Calcutta to London." In each policy the 
 vessel was valued at a specific sum. The vessel 
 arrived at Calcutta damaged from an injury re- 
 ceived during the outward voyage by striking on 
 a reef; and after the expiration of the outward 
 policy, and when the risk under the homeward 
 policy had attached, she was totally destroyed by 
 fire. At that time her repairs rendered necessary 
 by the damage sustained on her outward voyage 
 had been begun, but were not finished. The de- 
 fendant, who had underwritten both policies, ad- 
 mitted a liability to a partial loss under the 
 outward policy, and a total loss under the home- 
 ward policy : — Held, that such losses were to be 
 assessed under each policy as if the other policy 
 had never been made, and that the loss under the 
 outward policy was to be assessed on the principle 
 of the plaintiffs being entitled to be paid the 
 diminution in value of the vessel at the end of 
 her voyage from the damage she had received by 
 striking on the reef, although all the expense of 
 repairing such damage had not been actually in- 
 curred ; and that in assessing the total loss under 
 the homeward, policy the defendant was not en 
 titled to any deduction from the valuation of the 
 vessel in the policy in respect of the expense of 
 such repairs which had not been incurred, as the 
 valuation of a vessel in a valued policy is, in the 
 absence of fraud or wagering, the conventional 
 sum to be paid if the vessel be lost, whatever may 
 
MARINE INSURANCE (G). 
 
 356 
 
 then be her actual value. lAdgett v. Secretan, 40 
 Law J. Rep. (n.s.) C. P. 257 ; Law Rep. 6 C. P. 
 616. 
 
 (6) Of cargo. 
 
 31. — Policy of insurance on a cargo of flour 
 with a stipulation that no action should be 
 brought, unless within a year after the loss oc- 
 curred. The ship having encountered a storm 
 was found six months afterwards, and part of the 
 flour was saved, and sold by the insurance com- 
 pany. An action was brought ten mouths after- 
 wards : — Held, that it was not too late, as the 
 loss was not in its inception total, and only be- 
 came so when it was found impossible to carry 
 the flour to its destination, and necessary to sell 
 it. Browning v. The Provincial Insurance Com- 
 pany, Law Rep. 5 P. C. 263. 
 
 32. — Insurance on cargo by policy warranted 
 " free from average imless general, or the ship 
 should be stranded." Whilst on the voyage the 
 ship met with disasters, and flnally, in a crippled 
 condition, was towed on to a bank, where she lay 
 on her port side, and was further damaged. The 
 ship and cargo having been seized by salvors, the 
 damaged cargo was sold in the suit: — Held (1), 
 that there was -not a total loss, the sale imder the 
 decree of the Court not being a consequence of 
 the peril insured against; (2) that there was a 
 "stranding" within the policy. De Mattos v. 
 Saunders, Law Rep. 7 C. P. 571. 
 
 33. — By a marine policy of insurance the in- 
 surance was described to be "on 1,711 packages 
 teas," valued at one sum, on a voyage from New 
 York to London, by a certain ship " warranted by 
 the assured free from damage, from dampness, 
 change of flavour, or being spotted, or mouldy, 
 except caused by actual contact of sea water with 
 the articles damaged, occasioned by sea perils." 
 In case of partial loss by sea damage to certain 
 goods, not including tea, "the loss shall be ascer- 
 tained by a separation and sale of the portion only 
 of the contents of the packages so damaged, and 
 not otherwise ; and the same practice shall obtain 
 as to all other merchandise, as far as practicable." 
 The. ship met with very bad weather during the 
 voyage, and 449 of the 1,7H packages of the tea 
 were seriously damaged by actual contact of sea 
 water. The rest of the packages arrived sound 
 and in good condition, except by the injury to 
 their reputation from having formed part of a 
 shipment of which 449 packages had been da- 
 maged by sea water, and which was the cause, as 
 was usual in such cases, of these packages, though 
 sound and uninjured, not realising so high prices 
 as they would have done if the 449 packages had 
 not been damaged by sea water : — Held, that the 
 packages insured by the above policy were divi- 
 sible, and that the assured was entitled to recover 
 only in respect of the 449 packages which were 
 actually damaged. Also, that the loss in value 
 of the goods depended on their value at the time 
 of their arrival at the port of destination, and not 
 at the time of sale, and the underwriters were 
 therefore not liable for a fall in the market price 
 between such arrival and the time of sale. Cater 
 
 V. The Great Western Insurance Company of New 
 York, 42 Law J. Rep. (n.s.) C.P. 266; Law Rep. 
 8 C. P. 562. 
 
 (c) Of chartered freight. 
 
 34. — By a charter-party, which contained the 
 usual exceptions of dangers and accidents of navi- 
 gation, the plaintiff's vessel was to proceed with 
 all convenient speed from Liverpool to Newport, 
 and there load a cargo of iron rails for San Pran- 
 eispo, and the freight was to be paid by the char- 
 terers on right delivery of the cargo. The plain- 
 tiff effected a policy of insurance with the defen- 
 dants on the chartered freight on that voyage. 
 The vessel proceeded from Liverpool to Newport, 
 but before arriving there she took the rocks at 
 Carnarvon Bay, where she remained for a con- 
 siderable time. She was ultimately got off, and 
 brought back to Liverpool, but though the damage 
 she had sustained was not such as to constitute a 
 total loss of the ship, the time necessary for get- 
 ting her off and repairing her, so as to be a cargo 
 carrying ship, was so long as to put an end, in, a 
 commercial sense, to the commercial speculation 
 entered upon by the plaintiff (the shipowner) and 
 the charterers, and the latter accordingly aban- 
 doned the contract, and hired another vessel by 
 which they forwarded the rails to San Francisco : 
 — Held, by the Exchequer Chamber (Cleasby, B., 
 dissentiente), affirming the judgment of the Court 
 of Common Pleas, 42 Law J. Rep. (n.s.) C. P. 284 ; 
 Law Rep. 8 C. P. 872, that under the above cir- 
 cumstances the charterers were released from their 
 contract to load under the charter-party, and that 
 there had been a total loss of chartered freight by 
 perils of the seas within the meaning of the policy. 
 Jackson V. The Union Marine Insurance Company 
 {Lim.) (Exch. Ch.), 44 Law J. Rep. (n.s.) 0. P. 
 27; Law Rep. 10 C.P. 125. 
 
 35. — Notice of abandonment need not be given 
 where there is nothing which on abandonment can 
 pass or be of value to the abandonee. Rankin v. 
 Potter (H.L.), 42 Law J. Rep. (n.s.) C. P. 169 ; 
 Law Rep. 6 E. & I. App. 83. 
 
 A ship being chartered for a voyage from Cal- 
 cutta to London, she being at the time at sea on a 
 voyage out to New Zealand, and thence to Cal- 
 cutta, the owners effected an insurance on the 
 chartered freight from Calcutta to London, but 
 such insurance was only for the preliminary voyage 
 to New Zealand. The ship, during such prelimi- 
 nary voyage, got aground and sustained such da- 
 mage as would have justified the owners had they 
 been then aware of the actual extent of it in 
 abandoning the vessel and treating the loss as a 
 constructive total loss, but though several surveys 
 were held on her after she arri ved at New Zealand, 
 there were no means there of ascertaining her real 
 condition as it was necessary for that purpose 
 that she should be taken into a dry dock or put 
 on a patent slip, neither of which existed at New 
 Zealand. The surveyors recommended certain 
 repairs being done, and that the ship should be 
 put in a dry dock or on a slip, at the nearest avail- 
 able port, for further examination ; but they did 
 not state that they apprehended she had sustained 
 zz 2 
 
356 
 
 MAEINE INSURANCE (G), (I). 
 
 any extensive damage beyond what had been as- 
 certained, and they advised the captain to proceed 
 in ballast on his voyage as soon as the necessary 
 repairs pointed out had been completed. The 
 vessel was partially repaired and proceeded in 
 ballast to Calcutta, where, on putting her into dry 
 dock, her real condition was ascertained. On the 
 owners being informed of this, they at once gave 
 notice of abandonment to the underwriters both 
 on the ship and on freight, there having been also 
 an insurance on the ship. The accident to the 
 ship had occurred in May and June, 1863, and she 
 might have left New Zealand in the following 
 September, biit for the captain not having suffi- 
 cient funds to effect the necessary repairs. This 
 deficiency of funds arose from great expenses 
 which had been incurred in getting the vessel off 
 from where she had grounded, and in meeting 
 claims of passengers for breaches of the Passenger 
 Act, and of consignees of the outward cargo for 
 damage thereto, and also from the unwillingness 
 of the owners' agent at New Zealand to advance 
 what was required without specific directions 
 from the owners to do so. "When at length these 
 directions arrived the money was advanced and 
 the ship repaired without further delay ; but the 
 result of it altogether was the detention of the 
 ship at New Zealand to the 14th of April, 1864, 
 on which day she left for Calcutta : — Held, first, 
 that as there was a constructive total loss of the 
 ship, it was impossible for its owners to earn 
 the chartered freight, and there was therefore an 
 actual and not a constructive total loss of such 
 freight ; therefore no notice of abandonment was 
 necessary. Secondly, that no such notice was 
 necessary, inasmuch as the ship never having been 
 ready to receive the chartered cargo there was 
 nothing to abandon to the underwriter on freight. 
 And thirdly, that sufficient notice of abandonment 
 of freight was given, if such notice was necessary, 
 in order to recover as for a total loss on the in- 
 surance on freight. Ibid. 
 
 (d) Conatructive total loss. 
 
 Of ship. [See supra No. 35.] 
 Of cargo. [See supra 26.] 
 
 (H) Notice of Abandonboint. 
 (a) When necessary. 
 [See supra No. 35.] 
 
 (6) What amounts to acceptance. 
 
 36.— The Civil Code of Canada by Art. 2,547 
 provides that " Abandonment made and accepted 
 is equivalent to transfer, and the thing abandoned 
 with the rights pertaining to it becomes from the 
 time of abandonment the property of the insurers. 
 The acceptance may be either express or implied." 
 A ship was lost by a peril not insured against. 
 The insurers received notice of abandonment and 
 were silent, but they took possession of the ship, 
 and repaired her: — Held, that the insurers by 
 their conduct had accepted the abandonment, and 
 were therefore liable as for a total loss though the 
 
 ship was not loss by a peril insured against. The 
 Provincial Inswramee Company of Canada r. Ledtte, 
 43 Law J. Eep. (n.s.) P. C. 49 ; Law Rep. 6 P. G. 
 224. 
 
 (I) Seawoethiness. 
 
 (a) Warranty of seaworthiness. 
 
 (1) Implied warranty : policy on cargo. 
 
 37. — The plaintiff sued upon a policy of in- 
 surance to recover an alleged total loss by jetti 
 son of wine loaded on board a steamship. The 
 risk insured was " at and from L., on wine in 
 casks, on or under deck." The wine insured was 
 all on deck, so loaded at L., after the ship's hold 
 had been filled with other cargo. The insured 
 wine was jettisoned in bad weather by staving in 
 the casks. The ship and under-deck cargo arrived 
 safe. The defendants pleaded that the ship at the 
 commencement of the insured voyage was not sea- 
 worthy. At the trial the Judge directed the juiy 
 that although they should find, as matter of fact, 
 that if the deck cargo were not got rid" of, the 
 ship, with the cargo on and under her decks, would 
 be in danger of destruction in the ordinary rough 
 weather of the voyage insured, yet if the deck 
 cargo could, in such weather, be got rid of so 
 easily, that by reason of the facility of its de- 
 struction the ship and the rest of the cargo were 
 in no danger in an ordinary voyage, they might 
 find that the implied warranty that the ship was 
 seaworthy was satisfied in point of law : — Held, a 
 wrong direction ; for the extent and effect of the 
 warranty, that the ship is seaworthy in a policy 
 on cargo, can never be implied to contemplate the 
 destruction, in order to save the ship on an ordi- 
 nary voyage, of that very cargo which is the sub- 
 ject-matter of insurance ; and that the jury ought 
 not to have been led to understand, that if the 
 ship could only be made safe for an ordinary 
 voyage by the destruction of the insured cargo, 
 they might, nevertheless, say that the ship was 
 seaworthy. Daniels v. Harris, 44 Law J. Rep. 
 (n.s.) C.P. 1 ; Law Eep. 10 C. P. 1. 
 
 (2) Bepresentation as to seaworthiness : time 
 
 38. — In an action upon a time policy upon a 
 steamer, the Frances, it appeared that at the time 
 of the insurance the vessel, which had not been 
 classed in this country, was lying at MiUwall, and 
 that at the time of effectiiig the insurance the 
 broker stated that she had been thoroughly re- 
 paired, and was going into the Grottenburgh trade. 
 The Frances took out a cargo to G-ottenburgh, and ' 
 on her return encountered a heavy rolling sea, and 
 after beating about for some days became water- 
 logged, went ashore, and was lost. There was 
 strong evidence that the Frances did not behave 
 at sea in the manner that a good vessel would, and 
 that owing to a screw tunnel having been unre- 
 paired and left in a decayed state, the pumps 
 became choked with oats which were on board : — 
 Held, first, that inasmuch as it was a question for 
 the jury whether the broker's representation in- 
 volved a statement that the Frances bad been 
 
MAEINE INSURANCE (I), (K). 
 
 867 
 
 actually made seaworthy, or only that her owners 
 had bond fide done all that competent advisers 
 thought necessary to put her in thorovigh repair, 
 and reasonably believed that their outlay had 
 been sufficient to make her fit for the service, the 
 jury were justified in finding that the representa- 
 tion was substantially correct. Secondly, that 
 there being in a time policy no warranty of sea- 
 worthiness, and the jury having negatived any 
 knowledge on the part of the assured that the ship 
 was unseaworthy, there was nothing to shew that 
 the loss was occasioned by a wrongful act on their 
 part. Thirdly, that there was no sufB.cient evi- 
 dence that the loss was occasioned by wear and 
 tear aggravated by the original bad state of the 
 vessel, instead of by perils of the sea. Dudgeon 
 V. Pembroke, 43 Law J. Eep. (n.s.) Q,. B. 220 ; Law 
 Eep. 9 Q. B. 581 : reversed, on appeal, Law Rep. 
 1 4 B. Div. 96. 
 
 In an action on a marine policy a plea that the 
 ship was sent by the owners with passengers on 
 board on the voyage on which she was lost, with- 
 out the plaintiffs, the owners, having done what 
 was necessary to enable them to receive alid witho ut 
 having received a passengers' certificate from tha 
 Board of Trade, all which the plaintiffs well knew, 
 is good. Ibid. 
 
 (6) Evidence of, 
 
 39. — On the 2nd of February the plaintiff con- 
 tracted to buy of B. "the cargo of new crop 
 Rangoon rice, per Sunbeam, at 9s. l^d. per cwt. 
 cost and freight. . . . Payment by seller's 
 draft on purchasers at six months' sight with 
 documents attached." The Sunbeam did not be- 
 long to either the seller or the plaintiff. She was 
 chartered by the seller's agent to load a cargo of 
 rice at Rangoon for a port in the United Kingdom 
 or Continent. On the 3rd of February the plain- 
 tiff effected a policy of insurance with the defen- 
 dant, " at and from Rangoon to any port or place 
 of discharge in the United Kingdom or Continent 
 by the Sunbeam ... on rice." The Sunbeam 
 arrived in the Rangoon river on the 3rd of March, 
 and began to load a cargo of rice. On the 30th of 
 March, whilst lying at anchor in the river, she 
 sprang a leak from an unknown cause, and sank in 
 the course of a few hours. At the time of founder- 
 ing the Sunbeam had not finished loading ; both 
 the ship and the portion of the cargo on board 
 were totally lost. Two years before she went 
 down the Sunbeam was re-caulked and re-metaUed 
 in dry dock ; she afterwards performed some long 
 voyages ; and before the 30th of March no sus- 
 picion was felt that anything was wrong about 
 her : — Held (affirming the judgment of the Court 
 of Common Pleas, 44 Law J. Eep. (n.s.) C. P. 10 ; 
 Law Eep. 10 C. P. 58), that upon the foregoing 
 facts there was evidence to be laid before a jury 
 that the Sunbeam was seaworthy when the risk 
 under the policy attached, and that she had 
 been lost by perils of the seas; but held (per 
 Bramwell, B., Blackburn, J., Lush, J., Pollock, B., 
 and Amphlett, B., reversing the judgment of the 
 Court of Common Pleas, dissentietite Quain, J.), 
 that under the contract to buy the rice the pro- 
 
 perty therein was not to vest in the plaintiff until 
 the loading should have been completed, and that 
 there having been no default in the seller, the 
 plaintiff, after the ship had sunk, had not an 
 option to accept a short delivery so as to charge 
 the defendant with the loss, and therefore that 
 the plaintiff had no insurable interest in the rice 
 when the Sunbeam foundered ; and although he 
 might have an insurable interest in the profit to 
 be derived from the sale of the cargo, he could 
 not recover for the loss thereof upon the foregoing 
 policy, where the subject-matter of insurance was 
 declared to be "rice." Anderson v. Morrice (Exch. 
 Ch.), 44 Law J. Eep. (n.s.) C. P. 341 ; Law Eep. 
 IOC. P. 609. 
 
 (K) GrENEEAL AVEEAGE. 
 
 40. — The plaintiffs were owners of a cargo of 
 wheat upon a vessel called the C, to be carried 
 from Varna to Marseilles ; they insured the wheat 
 with the defendants, and by the policy general 
 average was to be paid " as per foreign state- 
 ment," and a warranty against average, unless 
 general, was also inserted. Upon the voyage the 
 C., owing to bad weather, was compelled to hoist 
 a press of canvass ; in consequence she was 
 strained, shipped heavy seas, and sprang a leak, 
 whereby part of the cargo was damaged. Upon 
 arriving at Constantinople it was necessary to re- 
 pair the C, and thereupon the sound portion of 
 the cargo was transhipped and forwarded to Mar- 
 seilles, and the residue was sold. An adjustment 
 was made up at Constantinople, according to the 
 law of France, which there prevailed ; in this 
 adjustment the damage to. the wheat was treated 
 as a general average loss. Nearly three mouths 
 elapsed before the repairs of the C. were finished : 
 — Held (affirming the judgment of the Court of 
 Common Pleas, 43 Law J. Eep. (n.s.) C. P. 339 ; 
 Law Eep. 9 C. P. 695), that the voyage was pro- 
 perly broken up at Constantinople, and that the 
 defendants were bound by the adjustment, treating 
 the damage to the wheat as a general average loss. 
 Mavro v. The Ocean Marine Insurance Company, 
 (Exch. Ch.) 44 Law J. Eep. (n.s.) C. P. 229 ; Law 
 Eep. 10 C. P. 414. 
 
 41. — The plaintiffs, owners of goods on a voyage 
 from Taganrog to Bremen, insured them with the 
 defendants, by a policy in the ordinary form used 
 at Lloyd's, except that it contained a marginal 
 note " to pay general average as per foreign state- 
 ment, if so made," and certain warranties as to 
 being free from particular average and capture 
 and seizure. From stresses of weather the ship 
 had to put into pqrts of distress, and the master 
 had to charge the ship, freight and cargo by bot- 
 tomry bonds. On arrival at Bremen, B. & Co., 
 purchasers of the cargo, had to pay the bonds to 
 get the cargo. A foreign adjustment was made, 
 apportioning this charge between ship and freight 
 and cargo. The shipowner and master being 
 unable to pay the part apportioned to the 
 ship and freight, and the ship on sale only 
 realising part thereof, and a supplemental adjust- 
 ment having been made, including the residue 
 as against cargo, the plaintiffs, as trustees for 
 
358 
 
 MARINE INSURANCE (K), (L). 
 
 B. & Co., sought to reoover payment thereof from 
 the defendants : — Held (on Special Case stated), 
 that the plaintiffs were entitled to recover, per 
 'Bovill, C.J., and Keating, J., because the defen- 
 dants had bound themselves to repay whatever 
 had to be paid by the owners of the cargo and was 
 general average according to the foreign state- 
 ment, whether or not it were really general aver- 
 age by English or Bremen law, or arose from 
 perils (not being those specially excepted) in- 
 sured against, and in their view of the particular 
 findings of the case, such a statement had been 
 made as to the sum in question ; and, per Brett, J., 
 because in his view of the findings in this case, 
 not only had there been such a statement, but 
 also the sum was general average by the Bremen 
 law ; and as the defendants under an ordinary 
 policy would have been liable to pay if the loss 
 had arisen from perils insured against, the only 
 way to give effect to the marginal note was to 
 hold it to extend the liability to losses not occa- 
 sioned by perils insured against, and not within 
 the special exceptions. Harris v. Scaramanga, 
 41 Law J. Rep. (n.s.) C. P. 170 ; Law Rep. 7 
 
 C. P. 481. 
 
 42. — The plaintiff insured a cargo (consisting 
 of bags of sugar in series) with the defendants by 
 an English policy, which contained these words : 
 " To cover only the risks excepted by the clause 
 warranted free from particular average unless the 
 vessel be stranded, sunk or burnt, to pay all 
 claims and losses on Dutch terms, and according 
 to statement made up by official dispacheur in 
 Holland, being warranted free from particular 
 average unless amounting to ten per cent, on each ^ 
 series." The plaintiff had previously insured the 
 same cargo with Dutch underwriters, and the de- 
 fendants knew that the cargo was insured, but 
 not where, nor the terms of the Dutch policy. 
 The vessel in the course of the insured voyage 
 took the ground under circumstances which made 
 it a stranding according to English law, but not 
 according to Dutch law. An average statement 
 was made by a Dutch dispacheur according to the 
 principles of the Dutch law, shewing a particular 
 average loss, and for this the plaintiff sued ; — 
 Held, that the policy was to be construed accord- 
 ing to English law, and without reference to the 
 Dutch or any other policy, but that as the de- 
 fendants were to pay all claims according to a 
 Dutch average stater, the stranding of the vessel 
 must be determined according to Dutch law, and 
 the defendants were liable to pay the average 
 loss as stated by such Dutch average adjuster 
 according to the Dutch law. HendricJcs v. The Aus- 
 tralasian Insurmwe Company, 43 Law J. Rep. 
 (n.s.) C. p. 188; Law Rep. 9 C. P. 460. 
 
 43. — A ship was lying at anchor in port with a 
 general cargo on board, when a fire broke out in 
 the forehold. Every effort was made, but with- 
 out success, to extinguish the fire by throwing 
 water down the hatchways and upon the cargo. 
 Finally, a hole was cut in the side of the vessel, 
 and her fore compartment filled with water. 
 This extinguished the fire, and if it had not been 
 done the cargo would have been destroyed, and 
 
 the ship seriously damaged if not rendered a total 
 wreck. Part of a quantity of bark, shipped on 
 board by the plaintiffs, was damaged or destroyed 
 by the water which was poured or let into the 
 vessel to extinguish the fire. The bark was 
 shipped under a bill of lading, which contained 
 the words, " average, if any, to be adjusted ac- 
 cording to British custom." It is the practice of 
 British average adjusters in adjusting losses to 
 treat a loss occasioned by water in the manner 
 above described as not a general average loss : — 
 Held, affirming the judgment of the Queen's 
 Bench (42 Law J. Rep. (n.s.) Q,. B. 84 ; Law Rep. 
 8 Q. B. 88), but without determining whether the 
 loss was (as held in the Court below), according to 
 the general law of England, the subject of a general 
 average contribution, that the words " British 
 custom " in the bill of lading must be taken to 
 mean the practice of British average adjusters, 
 so that the claim for general average was ex- 
 pressly excluded. Stewart v. The West Indian 
 and Pacific Steamship Company, 42 Law J. Rep. 
 (n.s.) Q.B. 191 ; Law Rep. 8 Q. B. 362. 
 
 (L) Instikable Interest. 
 [See also supra No. 39.] 
 
 44. — The usage of the marine insurance busi- 
 ness that when a policy is effected on goods by 
 ship to be declared, the policy attaches to the goods 
 as soon as and in the order in which they are 
 shipped, and that the assured is bound to declare 
 them in such order, and, if a mistake is made, 
 must rectify the declarations, and that this may 
 be done even after loss, is reasonable, and, as to 
 the last particular, consistent with the authorities. 
 Where the agent of a shipowner, by mistake, 
 gave a bill of lading for a shipment of goods, at 
 the shipowner's instead of the shipper's risk, it 
 was held that the shipowner had an insurable in- 
 terest. Stephens v. The Australasian Insurance 
 Company, 42 Law J. Rep. (n.s.) C. P. 12; Law 
 Rep. 8 C. P. 18. 
 
 45. — The plaintiffs were cotton brokers and 
 agents in London, who were accustomed to re- 
 ceive consignments of cotton from Bombay for 
 sale on behalf of the shippers, who drew bills of 
 exchange on them against the consignments ; the 
 bills of exchange were usually negotiated in 
 India, sent to this country with the bills of lading 
 attached as security, presented to, and accepted 
 by, the plaintiffs against delivery of the shipping 
 documents ; and the plaintiffs were in the habit 
 of effecting open floating policies of insurance with 
 the defendants, " as well in their own names as 
 for and in the name or names of all and every per- 
 son or persons to whom the same doth, may or 
 shall appertain, in part or in all." Cotton having 
 been shipped, bills of exchange drawn on the 
 plaintiffs against it, negotiated and sent vrith the 
 bills of lading, and accepted against delivery of 
 the documents, the plaintiffs declared the cotton 
 against two open floating policies previously made 
 and not yet exhausted ; and the cotton being lost, 
 the bills of exchange paid by them, and the bills 
 of lading obtained, brought an action on the poli- 
 
MAEINE INSUEANCB (L), (0). 
 
 359 
 
 cies, averring that they, or some or one of them, 
 were interested to the fall amount named, and 
 that the insurances were made for the use and 
 benefit, and on account of the persons so inte- 
 rested: — ^Held, per Bovill, O.J., and Denmiu, J., 
 on the facts of the case, that the plaintiffs had an 
 equitable interest in every part of the cotton, and 
 that it was intended that not only their interests 
 but those of the other parties interested should 
 be covered, and that the plaintiffs having such an 
 interest and a duty of selling and managing, were 
 in law entitled so to insure, and were the only 
 persons to bring an action, and might aiver, as 
 they did in their declaration, and recover to the 
 full extent, applying the proceeds to their own 
 benefit to the extent of their own claims, and 
 holding the residue for the other persons inte- 
 rested; but, per Brett, J., and Keating, J., the 
 plaintiffs were consignees for sale of goods not 
 arrived, who had made advances on goods, but 
 had only a contract right as to them, and though 
 interested in every part were not the legal 
 owners, and therefore they were by law limited 
 to the recovery of their own beneficial interest, 
 which alone they could properly insure and re- 
 cover. EbsworthY. The AUiatice Marine Insurance 
 Company. 42 Law J. Eep. (n.s.) C. P. 306 ; Law 
 Eep. 8 C. P. 596. 
 
 [N.B. — This case was argued on appeal in the 
 Exchequer Chamber, when, by arrangement be- 
 tween the parties, the decision of the Court 
 below was reversed, and the damages entered for 
 the plaintiffs reduced to a sum representing the 
 personal pecuniary interest of the plaintiffs, and 
 not including the Interest of any other person.] 
 
 (M) Vaiued Policy. 
 
 46. — The valuation of a vessel in a valued 
 policy is, in the absence of fraud or wagering, the 
 conventional sum to be paid if the vessel be lost, 
 whatever may then be her actual value. Lidgett 
 V. Secretan, No. 30 supra. 
 
 (N) Assignment of Poliot. 
 
 (a) Termination of interest. 
 
 47. — The plaintiffs purchased linseed, to be de- 
 livered at a destined port in the United Kingdom, 
 and paid for in fourteen days from being ready 
 for delivery, by cash, less discount, or, at sellers' 
 option (which was not exercised), on handing 
 shipping documents less interest. The sellers, 
 before the sale to the plaintiffs, by policy made 
 with the defendants, insured the linseed, including 
 all risk of craft and boats to and from the ship or 
 vessel, and also any special lighterage, each 
 lighter or craft being considered as if separately 
 insured. The vessel containing the linseed ar- 
 rived at a port in the United Kingdom, and the 
 cargo was landed by means of public lighters 
 employed by the plaintiffs, one of which was sunk 
 when loaded, and the linseed on it partly lost and 
 partly damaged. This loss, which was within 
 the terms of the policy, occurred before delivery 
 of the cargo had been completed, and before the 
 plaintiffs had paid the price. After the cargo 
 
 had been completely delivered the sellers assigned 
 the policy to the plaintiffs, who sued the defen- 
 dants in respect of the loss above mentioned : — 
 Held, that as there was no express contract that 
 the policy of insurance should pass to the pur- 
 chaser on the sale of the linseed, and as none 
 could be implied from the terms of the sold-note, 
 the interest under the policy remained in the 
 sellers until delivery ; and as on delivery on board 
 the lighter the plaintiffs' interest ceased and the 
 policy lapsed, no interest under it could pass to a 
 subsequent assignee. The North of England Pure 
 Oil Cake Company (Lim.) v. The Archangel Ma- 
 ritime Bank and Insurance Company (Lim.), 44 
 Law J. Eep. (n.s.) Q. B. 121 ; Law Eep. 10 Q. B. 
 249. 
 
 (6) Sight of assignee to sue. 
 
 48.— By the first section of 31 & 32 Vict. c. 86, 
 it is provided that "whenever a policy of in- 
 surance on any ship, or on any goods in any ship, 
 or on any freight, has been assigned, so as to pass' 
 the beneficial interest in such policy to any person 
 entitled to the property thereby insured, the as- 
 signee of such policy shall be entitled to sue there- 
 on in his own name : " — Held, that this provision 
 is not confined to cases where the policy is as- 
 signed before the loss along with the goods, but 
 also applied to a policy upon goods assigned after 
 loss, and therefore that the assignee of such a 
 policy so assigned may sue upon it in his own 
 name. Lloyd v. Spence. Same v. Fleming, 41 
 Law J. Eep. (n.s.) Q. B. 93; Law Eep. 7 a.B. 299. 
 As to effect of rules of insurance association, 
 [See infra No. 51.] 
 
 (0) Actions and Suits. 
 
 (a) Undisclosed principal. 
 
 49.— The rule that an undisclosed principal 
 may sue and be sued upon mercantile contracts 
 made by an agent in the agent's own name, subject 
 to any defences or equities which, without notice, 
 may exist against the agent, is applicable to policies 
 of marine insurances, as well under Canadian as 
 English law. Where in a certificate of insurance 
 the words usually inserted, stating that the agent 
 " as well in his own name as in the name of every 
 person to whom the same shall appertain," had 
 insured the goods, were omitted : — Held, that the 
 omission did not take away the principaj's right to 
 sue. Browning v. The Provincial Insurance Com- 
 pany, Law Eep. 5 P. C. 263. 
 
 (J) Suit in equity for return ofpremivmis. 
 
 50. — On the 16th of September A. (since dead) 
 insured a cargo of wheat at Lloyd's in the sum of 
 5,4002., at the rate of 60s. per cent., which policy 
 was duly subscribed by the agent of the defendant 
 for lOOi. A. forged bills of lading for the cargo, 
 and on the 5th of October obtained an advance of 
 5,0002. from the plaintiff's agents on the security 
 of the bills. On the 28th of October the plaintiff 
 discovered the forgery, and subsequently applied 
 to the defendant and the other underwriters for 
 repayment of the premiums on the policy, on the 
 
360 
 
 MAEINE INSURANCE (0)— MARKET (A). 
 
 ground of no interest having attached, but repay- 
 ment was refused. After the death of A. (-whose 
 representatives could not be found) the plaintiff 
 filed his bill, praying that it might be declared 
 that he was entitled to be repaid the sum of 60s. : 
 — Held, first, that a Coiirt of law was the proper 
 tribunal to decide the question as to whether the 
 defendant was liable to repay the premium, as the 
 fact of a person being only the equitable assignee 
 of a legal demand was" not a ground for changing 
 the forum ; secondly, that a suit could not be 
 maintained in equity for the sum of 60s., as no 
 " general right " would be established, and there 
 were no " special eircuiistanoes " to bring the case 
 within the exceptions mentioned in Cons. Ord. 
 IX. r. 1. Hoskins v. Holland, 44 Law J. Rep. (n.s.) 
 Chanc. 273. 
 
 (P) Mutual Maedie Insubanob Assooiatiok. 
 (o) Bules and constitution. 
 
 51. — A rule of a mutual marine insurance as- 
 sociation provided that in case of a mortgage or 
 assignment of any vessel insured in the association, 
 the mortgagee must make himself personally 
 liable to pay premiums : — Held, that the rule did 
 not affect an assignment of a policy. Alexander v. 
 Campbell, 41 Law J. Rep. (n.s.) Chanc. 478. 
 
 The above rule was not set up as a defence by 
 answer : — Held, that at the hearing a certificate of 
 the ship's register could not be produced to shew 
 that there was a mortgage of the ship itself. 
 Ibid. 
 
 The rules of a marine insurance association 
 provided that disputes should be referred to arbi- 
 tration : — Held, that the assured was not bound 
 to submit a legal point to the decision of arbitra ■ 
 tion before suing in equity. Ibid. 
 
 52. — In the winding-up of a mutual marine in- 
 surance association, — Held, by the Master of the 
 Rolls, James, L.J., expressly not dissenting, that a 
 powerto issue " to members " non-mutual policies 
 at special rates did not sanction a practice of issuing 
 such policies to persons not mutual members, as 
 jKasJ-members, for this purpose. In re the Arthur 
 Average Association ; Ex parte Cory, 44 Law J. Rep. 
 (n.s.) Chanc. 369 ; Law Rep. 10 Chanc. 542. 
 
 Also, that a mutual insurance association is an 
 association for the acquisition of gain, so as to re- 
 quire registration under the Companies Act, 1862, 
 if it consists of more than twenty members. Ibid. 
 
 Semble — that a company which ought to be, but 
 is not,registered under the Companies Act, 1862, is 
 not an " unregistered company," that can be wound 
 up under s. 199. Ibid. 
 
 A call having been made to answer debts fouiid 
 
 -by the chief clerk's certificate, the contributories 
 
 applied to vary the certificate. The application 
 
 , was allowed, though six months had elapsed 
 
 since the certificate was filed. Ibid. 
 
 53. — A policy of marine insurance for a year 
 effected in an insurance association, by the rules 
 of which the insurance was to be from year to year 
 unless ten days' notice to the contrary were given, 
 and the managers in the absence of notice were to 
 renew the policy ; — Held, regard being had to 30 & 
 
 31 Vict. c. 23, s. 81 (making void a policy exceeding 
 twelve months), not a continuing policy after the 
 expiration of the current year. lAshman v. The 
 Northern Maritime Insurance Oompam/, 42 Law J. 
 Rep. (n.s.) C. p. 108 ; Law Rep. 8 C. P. 216. 
 
 (5) Contract between society and members. 
 54. — The defendants, a mutual insurance society 
 (limited), registered pursuant to 25 & 26 Vict. c. 
 89, issued to the plaintiff, one of its members, a 
 policy of insurance on his ship H., which was 
 afterwards lost. The policy referred to the articles 
 of the association, the 39th of which provided 
 that the directors should have full power to decide 
 and determine all disputes, &c., arising between 
 the society and its members concerning insurances, 
 &c., and the decision of the directors should be 
 final and conclusive, &c., and no member of the 
 society should be allowed to bring any action, &c., 
 except as was provided, &c., and the directors 
 might, if they thought fit, cause any claim or de- 
 mand to be submitted to an average adjuster, " and 
 in every such case the decision or award of such 
 average adjuster shall be final and conclusive on 
 the society and claimant, and every person in- 
 terested in such claim, and no appeal shall be 
 allowed therefrom." By the 84th article, a means 
 was provided by which any member who was dis- 
 satisfied with the decision of the directors might 
 obtain a reconsideration of his claim. The H. 
 having been lost, the plaintiff made a claim, but 
 the directors decided that he had no claim upon the 
 society. He then brought his action :• — Held, that 
 the decision of the claim by the directors, subject 
 to the right of obtaining a reconsideration, under 
 the 84th article, was binding, and that no action 
 was maintainable, although it was admitted that 
 the H. was lost by perils of the seas. Edwa/rds 
 V. The Aberayron Mutual Ship Insurance Company 
 {Lim.), 44 Law J. Rep. (n.s.) Q. B. 67. 
 
 MARKET. 
 
 (A) Right of Sale. 
 
 (B) Toiis. 
 
 (C) Eniargbmbnt. 
 
 (A) Right op Sale. 
 
 1. — The local board for C, acting under the 
 powers of the Acts in that behalf, made bye-laws, 
 directing that cattle markets and an annual show 
 of horses should be held in prescribed places. 
 The respondent, at the time when these markets 
 were established, was possessed of a building 
 called the " Agricultural Hall," which was erected 
 some years before the passing of the bye-laws 
 regulating the market. It was a large building, 
 containing a ring or area in which was accommo- 
 dation for about 100 head of cattle. Adjoining 
 to, and communicating with it, was a yard capable 
 of holding 1,400 sheep. The respondent's dwell- 
 ing-house was separated from the Agricultural 
 Hall by his harness-room and stable. He adver- 
 
MABKET (A)— MAEEIAGE (B). 
 
 361 
 
 tised and held sales in the Agrioultural Hall on 
 market-days, the average sale on these day amount- 
 ing to 100 cattle and 1,000 sheep, and exceeding 
 the sales in the regular market. The cattle and 
 sheep so sold were the property of farmers and 
 others, the respondent charging them with a com- 
 mission. The justices had refused to convict the 
 respondent: — Held, without expressing any opinion 
 as to whether an auctioneer would have been at 
 liberty to sell a horse on his premises, notwith- 
 standing the market, it was evident, ha-sang regard 
 to the nature and extent of the respondent's pre- 
 mises, that they were not part of his dwelling- 
 place or shop within the meaning of 10 Vict. c. 
 14, s. 13, and that the business carried on by the 
 appellant was not a right, power or privilege which 
 he enjoyed when the market was established, 
 within the meaning of the Local Government Act, 
 B. 50. Fearon v. Mitchell, 41 Law J. Eep. (n.s.) 
 M.C. 170 ; Law Eep. 7 Q. B. 690. 
 
 2. — By section 13 of the Markets and Fairs 
 Clauses Act, 1847, after a market-place is opened 
 for public use every person other than a licensed 
 hawker, selling in a place within the prescribed 
 limits, except in his own dwelling-place or shop, 
 any articles in respect of which tolls are by the 
 special Act authorised to be taken in the market, 
 is liable to a penalty. By the Pedlars Act, 1871, 
 section 6, a certificate under that Act is to have 
 the same effect as a hawker's license for the purpose 
 of the Markets and Fairs Clauses Act, 1847, and 
 the term "licensed hawker" in such Act shall be 
 construed to include a pedlar holding such a certi- 
 ficate. A person holding a pedlar's certificate both 
 sold on foot and with a horse and four wheeled 
 waggon within the limits of a district formed by 
 the adoption of the Local Government Act, 1858, 
 under which Act the local board had provided 
 a market-place, potatoes and other vegetables 
 liable to toll in the market : — Held (Lush, J., dis- 
 senting), that he was exempted by the pedlar's cer- 
 tificate from the penalty imposed by the 13th sec- 
 tion of the Markets and Fairs Clauses Act, 1847, 
 though not acting strictly as a pedlar, but rather 
 as a hawker. Howard v. Impton, 44 Law J. Eep. 
 (n.s.) M. C. 160 ; Law Eep. 10 Q. B. 598. 
 
 (B) Toils. 
 
 3. — By 32 & 33 Viet. c. cxxxi. s. 204, the toUs in 
 respect of cattle brought to the market of Wolver- 
 hampton for sale, become due as soon as the cattle 
 in respect whereof they are demandable, are brought 
 into the market place : — Held, that the lessee of 
 the market was not rateable in respect of tolls re- 
 ceived for animals brought into the market place 
 for sale, but not placed under covered places or in 
 pens so as to occupy any part of the soil. Caswell 
 V. The Overseers of the Borough of Wolverhampton, 
 41 Law J. Eep. (n.s.) M. C. 108 ; Law Eep. 7 Q. B. 
 328, nom. The Queen v. OassweU. 
 
 (C) ElTtABGBMENT. 
 
 4. — Power in a local Act to "enlarge" a 
 market: — Held, to give power to extend the market 
 to streets in the immediate neighbourhood, not 
 DisEST, 1870—1875. 
 
 therefore forming part of its sides and not men- 
 tioned in the Act. The Attorney -General v. The 
 Mayor, Aldermen and Burgesses of Cambridge, 
 (H. L.), Law Eep. 6 E. & I. App. 303. 
 
 "Market place" held to extend to streets where 
 the actual market had been held. Ibid. 
 
 The erection of a new corn exchange adjoining 
 the market also held to be authorised. Ibid. 
 
 MAEEIAGE. 
 
 (A) Formalities. 
 
 (a) Celebration without license. 
 
 (b) Publication of banns. 
 
 (B) FOKFBITUBB UNDEH MaERIASE AoT. 
 
 (A) Formalities. 
 (a) Celebration without license, 
 1. — A. and B. intermarried at the parish church 
 of Bradford, Yorkshire, on the 18th of June, 1857. 
 The license for their marriage did not issue until 
 the 19th of June, and A. (the husband) knew at 
 the time of the marriage that the license was not 
 in existence, but B. (the wife) was ignorant of the 
 fact and believed that all necessary formalities 
 had been observed : — Held, that the parties had 
 not knowingly and wilfully intermarried without 
 license within the meaning of 4 Geo. 4. c. 76, s. 
 22, and the validity of the marriage was pronounced 
 for. Greaves v. Greaves, 41 Law J. Eep. (n.s.) 
 P. & M. 66 ; Law Eep. 2 P. & D. 423. 
 
 (A) Publication of banns. 
 
 2. — The husband caused the banns to be pub- 
 lished without the knowledge of the wife, a minor, 
 to whom he proposed marriage only the day before 
 it took place. For the purpose of concealment, 
 the Christian name of the wife was wrongly stated, 
 and the age and residence of the husband and wife 
 were also falsely described : — Held, that the mar- 
 riage was valid, the wife having been unconscious 
 of the irregularity in the publication of the banns. 
 TempUton v. Tyree, 41 Law J. Eep. (n.s.) P. & M. 
 86 ; Law Eep. 2 P. & D. 420. 
 
 The Court has no power to pronounce a decree 
 of nullity of marriage, or to dissolve a marriage, 
 because of fraud in its inducement. Ibid. 
 
 3. — In the register of a marriage which was 
 solemnized in 1842, only secondary Christian names 
 of both husband and wife appeared. The wife 
 was dead. The husband deposed that he had 
 given incomplete names for the sake of brevity : — 
 Held, that there was no evidence to shew that the 
 marriage had been celebrated "without due publi- 
 cation of banns." Gomperts v. Kensit, 41 Law J. 
 Eep. (n.s.) Chane. 382 ; Law Eep. 13 Eq. 369. 
 
 (B) FOBFBITTIHB UNDER MaBBIAOE AcT. 
 
 4. — A man by falsely swearing to certain cir- 
 cumstances, obtained a license for his marriage 
 with a woman under age, who had eloped with him, 
 and married her. The wife was entitled to a sum 
 3 A- 
 
362 
 
 MARRIAGE (B)— MARRIAGE SETTLEMENT (B). 
 
 of stock absolutely, and to a reversionary interest 
 in other sums of stock, expectant on her mother's 
 death. Upon an information filed at the relation 
 of the mother, the Court declared the wife's fortune 
 to have been forfeited under the Marriage Act, i 
 Geo. 4. c. 76, and having regard to the small 
 amount of the fund instead of ordering a settle- 
 ment, directed the fund to be transferred into 
 Court, and made a declaration as to the trusts of 
 it. The Attorne!/- General y. Clements, 40 Law J. 
 Rep. (n.s.) Chanc. 678; Law Rep. 12 Eq. 32. 
 
 5. — On forfeiture under the Marriage Act, 1823, 
 the Court in settling the property of a female 
 minor, gave her, in default of children, a general 
 power of appointment by will without the insertion 
 of words to exclude the husband. In future, on 
 applications for orders as to settlements under the 
 Act, the Attorney-General must appear separately 
 from the relator. The Attornet/ General v. Eead, 
 Law Rep. 12 Eq. 38. 
 
 MARRIAGE SETTLEMENT. 
 
 (A) Covenant or Agk3ebment fob Settlement. 
 (a) Agreement by mfis father, 
 
 {b) Covenant by husband to settle lands on 
 "issue." 
 
 (c) Marriage articles. 
 
 (1) Construction and effect of. 
 
 (2) Bight to specific performance. 
 
 (B) Consteuction of Settlement, 
 
 (a) Eldest son. 
 
 (b) As to separate use, ^c, extending to 
 
 second marriage. 
 («) Gift over to class : when class to be as- 
 certained. 
 
 (d) Vesting : gift over. 
 
 (1) Frovisionfor issue of children dying 
 
 before becoming entitled. 
 
 (2) Trusts for children : child attain- 
 ing twenty-one and predeceasing 
 tenant for life. 
 
 (3) Divesting clause: eldest son. 
 {e) Personal representatives. 
 
 (/) Trust for next-of-kin of wife not bind- 
 ing on her. 
 
 (g) Shifting clause. 
 
 (h) Covenant to settle after-acquired pro- 
 perty. 
 
 (1) To what property it extends. 
 
 (2) Validity of, as against creditors of 
 husband. 
 
 (C) Investment in Names of Tetjstees of Set- 
 
 tlement. 
 
 (D) Election. 
 
 (E) Effect of Divorce on Settled Property 
 
 OF Wife. 
 
 (F) Jurisdiction, &c., of Coitrt of Chancery. 
 (rt) Mortgage authorised for rebuilding man- 
 sion house. 
 
 (6) Mistake: rectification. 
 
 (c) BUI to set aside settlement by lunatic, 
 id) Equity to a settlement. 
 
 (A) Covenant or Agreement fob Settlbmbnt. 
 (a) Agreement by wif^s father. 
 1.— Letters written by a widower previously to 
 the marriage of his only daughter stated that he 
 would settle all his property after his death on her 
 and her children. The father married again, and 
 by his will left certain benefits to his widow : — 
 Held, that the daughter was entitled to have the 
 whole of her father's property settled. CoverdaU 
 V. Eastwood, 42 Law J. Rep. (n.s.) Chanc. 118 ; 
 Law Rep. 15 Eq. 121. 
 
 (6) Covenant by husband to settle lands on " issue. 
 
 2. — A covenant by an intended husband to 
 settle lands upon his issue by the intended wife is 
 a covenant for a strict settlement, so that he has 
 no power to charge the lands with portions for 
 younger children. Grier v. Grier, Law Rep. 5 E. 
 & I. App. 689. 
 
 (c) Marriage articles. 
 
 (1) Construction and effect of. 
 
 3. — ^Where by marriage articles it was stipu- 
 lated that funds of the wife should belong to the 
 husband if there were no children and he shoidd 
 survive her, and by the subsequent settlement 
 after limitations in trust for wife and husband 
 successively for life and trusts for children there 
 was a provision that if there were no children of 
 the husband and wife and the husband should sur- 
 vive the. fund should belong to him, without any 
 alternative provision in case the wife should 
 survive, and the husband joined in transferring the 
 fund to the trustees and died in the wife's lifetime 
 without leaving children :— Held, (1) that there 
 had been no reduction into possession, (2) that the 
 settlement ought to be rectified, and that the wife 
 was entitled to the fund, including arrears of in- 
 come due at her husband's death. Cogan v. 
 Duffield, 45 Law J. Rep. (n.s.) Chanc. 74; Law 
 Rep. 20 Eq. 789 : affirmed, on appeal, 45 Law J. 
 Rep. (n.s.) Chanc. 307 ; Law Rep. 2 Chanc. Div. 44. 
 
 (2) Bight to specific performance. 
 
 4. — Marriage articles entered into between an 
 intended husband and the father of the wife, 
 whereby each party covenanted to settle funds on 
 the usual trusts, were enforced by the husband 
 against the father's estate after the death of the 
 wife without issue, although the husband had 
 always neglected and refused to fulfil his part of 
 the agreement. Jeston v. Key, 40 Law J. Rep. 
 (n.s.) Chanc. 503 ; Law Rep. 6 Chanc. 610. 
 
 (B) Construction of Sbitlbment. 
 
 (a) Eldest son. 
 
 5. — A second born son, who attained twenty-one 
 years of age, and on his father's death succeeded 
 to his title, but died before the period of distribu- 
 tion, was held to be excluded as an " eldest son " 
 from sharing in certain unappointed trust funds. 
 His younger brother, who succeeded him in the 
 title, and was living at the period of the distribu- 
 tion of the funds, was held entitled to share in 
 
MAEEIAGE SETTLEMENT (B). 
 
 363 
 
 them. In re Sivers's Settlement Trusts, 40 Law J. 
 Eep. (n.s.) Chano. 87. 
 
 (b) As to separate tise, ^c, extending to second 
 marriage. 
 
 6. — The trustees of a marriage settlement held 
 money on trust during the life of the intended 
 wife, to pay the income to her for her separate use, 
 independentry of her intended husband, and so that 
 her receipts alone should be suf&cient discharges, 
 and so that she shotild not have power to deprive 
 herself thereof by anticipation : — Held, that the 
 trust for her separate use extended to the second 
 marriage of the lady. Hawkes v. HvhbacJc, 40 
 Law J. Rep. (n.s.) Chanc. 49 ; Law Eep. 11 Eq. 5. 
 
 7. — A husband, being entitled in remainder to 
 an estate for his life in certain real property, 
 settled the same during the joint lives of himself 
 and his wife, for her separate use independently of 
 his control, and without power of anticipation. 
 The wife subsequently obtained a divorce, and 
 married again without a settlement : — Held, that 
 notwithstanding the special circumstances of the 
 case, the trust for separate use and the restraint on 
 anticipation revived on the second marriage. 
 Shafto T. Butler, 40 Law J. Eep. (n.s.) Chanc. 308. 
 
 Eestraint on anticipation. [See Baeon & 
 Feme, 20, 21.] 
 
 ift over to class: when class to be ascertained. 
 
 8. — Limitation in a marriage settlement to wife 
 for life, remainder to children other than an eldest 
 or only son, with a gift over in case any younger son 
 should become an eldest son before attaining twenty- 
 one:— Held, that the class of younger children 
 was to be ascertained at the death of the wife, and 
 with reference to the family estate ; and did not 
 include a younger son who, after attaining twenty- 
 one, became an eldest son, and then died in the 
 lifetime of the wife. In re Baylet/s Settlement, 
 Law Eep. 6 Chanc. 590. 
 
 {d) Vesting : gift over. 
 (1) Provision for issue of children dying before 
 
 9, — ^By a marriage settlement, after reciting an 
 intention to make a provision for the issue of the 
 marriage, the trust funds were settled, after the 
 decease of the husband and wife, in case they 
 should leave any issue of their two bodies be- 
 gotten, which being a daughter or daughters should 
 live to be married, or attain the age of twenty-one 
 years, or, being a son or sons, should live to attain 
 the age of twenty-one years, upon trusts to transfer 
 the same unto, between and amongst all such issue 
 (if more than one, share and share alike), as and 
 when they should respectively attain the said age 
 of twenty -one years or be married, if a daughter 
 or daughters, with consent. The settlement con- 
 tained trusts for the maintenance of the said issue 
 in the meantime, and it was provided that, if any 
 " such issue as aforesaid " should happen to die 
 before he, she or they should respectively become 
 entitled to and actually receive his, her or their 
 portion or respective portions under the settlement, 
 
 leaving lawful issue surviving, such last-mentioned 
 issue should have and be entitled to his, her or 
 their father's or mother's share or shares. One of 
 tlie children attained twenty-one, and died a bache- 
 lor in the lifetime of his father :— Held, reversing 
 the decision of one of the Vice-Chancellors, that 
 the deceased child had not acquired a vested in- 
 terest in the trust fund. Observations on the rule 
 in Woodcock v. The Duke of Dorset, 3 Bro. C. C. 
 669. Jeyes v. Savage, 44 Law J. Eep. (n.s.) Chanc. 
 706; Law Eep. 10 Chanc. 555. 
 
 (2) Trusts for children : child attaining twenty-one 
 and predeceasing tenant for life. 
 
 10. — By a marriage settlement it was declared 
 that the trustees should pay the income of the 
 trust fund to E. H. for life, and after her decease 
 leaving children, should pay the capital " to all 
 and every the child or children" of the said E. H. 
 and the issue of such of her said children as might 
 be then dead (such issue to take their parent's 
 share) equally, the. shares of sous to be paid at 
 twenty-one, and of daughters at twenty-one or 
 marriage. E. H. died, leaving five children sur- 
 viving her, who all attained twenty-one or married. 
 One other child, a son, F. H., attained twenty-one, 
 but died in her lifetime without issue : — Held, that 
 P. H. took a vested interest in one-sixth of the 
 trust fund on his attaining twenty-one, notwith- 
 standing that he did not survive his mother. In re 
 Orleba/fs Settlement Trusts, 44 Law J. Eep. (n.s.) 
 Chanc. 661 ; Law Eep. 20 Eq. 711. 
 
 (3) Divesting clause : eldest son. 
 
 11. — By a marriage settlement a sum of stock 
 was settled, subject to the husband's and wife's 
 life interests therein, upon trusts for the children 
 and issue of the marriage (except an eldest son 
 entitled to certain settled estates) as the husband 
 and wife, or the survivor of them, should appoint, 
 and in default of appointment, for the children 
 (except as aforesaid) in equal shares, the shares of 
 sons to be vested at twenty-one, of daughters at 
 twenty-one or marriage, and it was provided that 
 if the husband should die in his wife's lifetime, 
 leaving an only child, a son, such son should be 
 entitled to the whole trust fund, but if the vfife 
 should survive the husband, and there should be 
 only two children or only one child (except as 
 aforesaid) who should attain twenty-one or marry, 
 such two only children or one only child (except as 
 aforesaid) should not be entitled to any part of 
 the trust fund, but it should go to the husband 
 absolutely, as in that event such two children or 
 one child (except as aforesaid) were otherwise pro- 
 vided for by a deed of even date creating a charge 
 upon the settled real estates. There were two 
 children of the marriage, a son who died an infant 
 and a daughter who married, and became, on her 
 brother's death, entitled to the settled estates. 
 The wife survived the husband. The deed pur- 
 porting to create a charge upon the settled estates, 
 turned out to be invalid : — Held, upon the con- 
 struction of the settlement, and without resting 
 the decision upon the invalidity of the charge, that 
 the daughter took an absolutely vested interest in 
 3 a2 
 
S64 
 
 MARRIAGE SETTLEMENT (B). 
 
 the trust fund, and that it did not go to the hus- 
 band's representative. Garter v. I)ueie, 41 Law 
 J. Rep. (n.s.) Chane. 153. 
 
 Semble — that if it had been otherwise, the in- 
 validity of the charge would have been sufficient 
 to displace the claim of the husband's representa- 
 tive. Ibid. 
 
 (e) Personal representatives. 
 
 12.— A fund was settled on A. for life, then on 
 any husband she might leave for life, then on her 
 children, and in default of children on the person 
 or persons who should happen to be her legal per- 
 sonal representative or representatives at the time 
 of her death : — Held, that legal personal represen- 
 tatives meant next-of-kin according to the Statutes 
 of Distribution. Bobinson v. Evans, 43 Law J. 
 Eep. (n.s.) Chanc. 82. 
 
 Semble — on points of construction precedents 
 may not be cited as authorities, unless they explain 
 the meaning of technical terms or lay down general 
 principles. Ibid. 
 
 13. — Under a limitation in a marriage settle- 
 ment of the wife's property, in default of her 
 appointment " to such person or persons as should 
 be her personal representative or representatives," 
 the wife's "administrators" are entitled. In re 
 Bests Settlement Trusts, 43 Law J. Eep. (n.s.) 
 Chano. 545; Law Rep. 18 Eq. 686. 
 
 14. — By an ante-nuptial settlement real and 
 personal estate was vested in trustees, upon trust 
 for sale and investment of the proceeds ; and after 
 the marriage, for payment of the income to the 
 husband and wife during their joint lives, and the 
 life of the survivor, and then for the benefit of the 
 children and issue of the wife, as she should by 
 deed appoint, and in default for her children and 
 issue. If there were no children of the marriage, 
 the whole of the trust moneys and premises were 
 to be held by the trustees upon trust for such per- 
 son or persons as the wife should, notwithstand- 
 ing any coverture, by deed or will appoint ; and in 
 default of appointment, then " upon trust to pay 
 or transfer the said trust moneys and premises 
 unto the legal representatives of the wife in a due 
 course of administration" : — Held,on demurrer, that 
 the words " legal representatives in a due course 
 of administration," denoted the next-of-kin of the 
 wife according to the statutes, and not the husband. 
 Briggs v. Upton, 41 Law J. Rep. (n.s.) Chanc. 
 519 ; Law Rep. 7 Chanc. 376 : affirming the decision 
 of Wickens, V. C, 41 Law J. Rep. (n.s.) Chanc. 33 ; 
 Law Rep. 7 Chanc. 378 n. 
 
 (/) Trust for next-of-kin of wife not binding 
 on her. 
 
 15. — In a marriage settlement (the intended 
 wife being an infant) the husband covenanted that 
 one half of the wife's personal property and of the 
 proceeds of her real property when sold, should be 
 settled upon trust for himself for life, then for her 
 for her life, and then, in default of issue, upon 
 trust for her next-of-kin. The property was duly 
 vested in the trustees. The husband died, and 
 there was no issue of the marriage : — Held, that 
 the trust for the next-of-kin was not binding 
 
 against the wife, and that she had absolute power 
 to deal with the trust funds. Gibbs v. Grady, 41 
 Law J. Rep. (n.s.) Chanc. 163. 
 
 ig) Shifti/ng clause. 
 
 Shifting clause following shifting clause in 
 patent conferring a title. [See Tbust, 
 A 7.] 
 
 (K) Covenant to settle after-acguired property. 
 (1) To vihat property it extends. 
 
 16. — A marriage settlement contained a coven- 
 ant to settle property which the husband and wife, 
 or either of them, should, during the coverture, 
 become " seised or possessed of, or entitled to." 
 The wife was then entitled to a vested remainder 
 in realty, but she died before it came into posses- 
 sion : — Held, that such property was not subject 
 to the settlement. In re Tedder's Settlement, 40 
 Law J. Rep. (n.s.) Chanc. 77. 
 
 17. — A marriage settlement contained a coven- 
 ant to settle after-acquired property of the value 
 of 500Z. or upwards : — Held, that money acquired 
 under several appointments of 499Z. 19s. \\d. each, 
 bearing different dates, but executed in immediate 
 succession one to another, was not subject to the 
 covenant. Bower v. Smith, 40 Law J. Rep. (n.s.) 
 Chanc. 194; Law Rep. 11 Eq. 279. 
 
 18. — A covenant, by husband and wife, to settle 
 property to which the wife or the husband in her 
 right "shall become entitled" during the coverture, 
 held to include property vested in reversion before 
 the coverture, and falling into possession during 
 the coverture, but not to include property to which 
 they are entitled only in reversion during the 
 coverture, and which falls into possession after 
 the coverture. In re Clinton's Thists ; Ex parte 
 Holloway ; Ex parte Weare, 41 Law J. Rep. (n.s.) 
 Chanc. 191 ; Law Rep. 13 Eq. 295. 
 
 19. — A covenant to settle after-acquired pro- 
 perty of a specified amount acquired " at any one 
 time " must be held to mean " from one and the 
 same source." "Where the covenantor, becoming 
 entitled to property exceeding the specified amount, 
 receives by anticipation under a power of advance- 
 ment a sum which reduces it below such amount, 
 such sum must be taken into account in determin- 
 ing whether the property is within the covenant. 
 Hood V. Franklin, Law Rep. 16 Eq. 496. 
 
 20. — A covenant in a marriage settlement to 
 settle all property to which the wife shall become 
 entitled after the marriage, will, in the absence 
 of any expressions in the settlement shewing a 
 contrary intention, be restricted to property ac- 
 quired during the coverture. The rule laid down 
 in Dickenson v. Villwyn, 39 Law J. Rep. (n.s.) 
 Chanc. 266 ; Law Rep. 8 Eq. 546, and Carter v. 
 Carter, 39 Law J. Rep. (n.s.) Chanc. 268; Law 
 Rep. 8 Eq. 551, adopted in preference to that laid 
 down in Stevens v. Vanvoorst, 17 Beav. 305. In 
 re Edwards ; and In re the London, Brighton and 
 South Coast Railways Act, 43 Law J. Rep. (n.s.) 
 Chanc. 265 ; Law Rep. 9 Chanc. 97. 
 
 21. — A lady was entitled under a marriage 
 settlement to the whole of a fund for her life, The 
 
MAERIAGE SETTLEMENT (B), (E). 
 
 365 
 
 fund in default of children -was limited to the 
 husband. There being no children the lady, on 
 her husband's death, became entitled to one 
 moiety of his residue beneficially. She ■was also 
 his administratrix, and on her second marriage a 
 settlement was made by which she and her in- 
 tended husband covenanted to settle all property 
 to which she or he in her right should become 
 entitled during the coverture under the former 
 settlement. The life interest was expressly set- 
 tled. At the date of the second marriage the 
 fund in question was the only fund outstanding 
 under the first settlement : — Held, that the coven- 
 ant operated on her moiety. In re Vianfs Settle- 
 ment, 43 Law J. Eep. (n.s.) Chano. 832 ; Law Sep. 
 18 Eq. 436. 
 
 22. — A half-pay officer covenanted on the occa- 
 sion of his marriage to assign to the trustees of 
 the marriage settlement all property to which he 
 then was or should, during the coverture, become 
 entitled at any one time, and from any one source, 
 exceeding a given amount : — Held, that the coven- 
 ant did not extend to a capital sum exceeding the 
 given amount received by him diuing the coverture 
 from the Treasury in commutation of his half-pay. 
 Churchill v. Denny, 44 Law J. Eep. (n.s.) Chano. 
 578 ; Law Eep. 20 Eq. 534. 
 
 (2) Validity of, as against creditors of husband. 
 
 23. — C., by a settlement made before his mar- 
 riage, assigned a policy and some furnitme to 
 trustees for the benefit of his wife and the child- 
 ren of the marriage, and also covenanted that all 
 other real or personal estate of which he should 
 become seised, possessed or entitled during the 
 coverture, should be transferred to the trustees 
 upon trusts thereby declared. No trusts of the 
 after-acquired property were declared in the set- 
 tlement. After the marriage and when C. was 
 stUl solvent he purchased some shares ; the shares 
 were registered in his name and he held the cer- 
 tificates. Subsequently he filed a petition for 
 liquidation, and the trustee in the liquidation 
 claimed these shares, as against the trustees of 
 the settlement : — Held (reversing the decision of 
 the County Court Judge), that C. could not be 
 allowed in this way to withdraw the whole of his 
 property from his creditors, and that the shares 
 mi^st be handed to the trustee in the liquidation. 
 Ex parte Bolland ; In re Clint, 43 Law J. Eep. 
 (n.s.) Bankr. 16 ; Law Eep. 17 Eq. 115. 
 
 (C) Investment or Names of Teustees of 
 Settlement. 
 
 24. — In 1868 C. wrote to his bankers request- 
 ing them to purcliase a sum of 2,000^. consols to be 
 added to the sum " now standing in my name " and 
 the dividends to be received by them with this ad- 
 dition as before. C. was tenant for life under his 
 marriage settlement of a sum of consols on which 
 the dividends were received by the bankers under 
 a general power of attorney from the trustees. The 
 bankers wrote stating the names in which the con- 
 sols stood, and asking if the investment was to be 
 made in his name or the trustees'. He thereupon 
 
 called and endorsed the letter " Make the invest- 
 ment in the trustees' names." The trustees were 
 never informed of this, but the investment was 
 made and the dividends received by C. tiE his 
 death in 1870. In 1862, C.and his wife executed 
 a joint appointment to children under the settle- 
 ment, of the original sum of consols, not mention- 
 ing the addition : — Held, that the 2,OO0Z. consols 
 was included in the settlement, and passed as in 
 default of appointment. In re Curteis's Trust 
 Fund, 41 Law J. Eep. (n.s.) Chanc. 631 ; Law 
 Eep. 14 Eq. 217. 
 
 (D) Election. 
 
 25. — By a post-nuptial settlement made before 
 the passing of 20 & 21 Vict. c. 57, personal estate 
 belonging to the husband and other personal es- 
 tate brought into settlement by the wife's father, 
 were settled upon certain trusts for the benefit of 
 the husbdnd and wife and the children of the mar- 
 riage ; and by the same deed, in consideration of 
 the premises, the husband and wife assigned the 
 wife's reversionary interest in other personalty 
 upon trusts for the husband and wife, and the 
 issue of the marriage by reference to the trusts 
 previously declared. The marriage was after- 
 wards dissolved by a decree of the Divorce Court, 
 and subsequently the wife's reversionary interest 
 fell into possession. The divorced ■vrffe having 
 instituted a suit to set aside the settlement so far 
 as it affected the reversionary interest, — Held, 
 reversing the decision of the Master of the EoUs, 
 that she was bound to elect between the relief 
 sought by the bill, and the benefits given to her 
 by the settlement. Per James, L.J. — In marriage 
 contracts each person bringing anything into set- 
 tlement is contributing part of the consideration 
 for everything else brought into settlement, and 
 purchasing it on behalf of the objects of the set- 
 tlement ; and any object of the settlement taking 
 any portion of the settled fund by piiramount title, 
 must take it in fuU satisfaction of his or her share 
 or interest under the settlement. Cam/pbell v. 
 Ingilhy (21 Beav. 567 ; s. c. 25 Law J. Eep. (n.s.) 
 Chanc. 761 ; 1 De Gex & J. 393 ; s. c. 26 Law J. 
 Eep. (n.s.) Chanc. 654) doubted. Cod/rington v. 
 Lindsay, 42 Law J. Eep. (n.s.) Chanc. 526 ; Law 
 Eep. 8 Chano. 578 : aMrmed, on appeal, by the 
 House of Lords, Codrington v. Codrington, Law 
 Eep. 7 E. & I. App. 854. 
 
 (E) Effect of Divobcb on Settled Peopektv 
 OF Wife. 
 
 26. — By a marriage settlement property of the 
 wife was settled upon her for life for her separate 
 use, and after her decease, in case there should be 
 no issue of the marriage and her husband should 
 survive, upon trust for her next-of-kin, with power 
 for her to appoint by will part of the property, 
 and in case she should survive, then for her abso- 
 lutely. The marriage having been dissolved on 
 the petition of the wife, and there being no issue 
 of the marriage, a biU was filed by her in her 
 maiden name against her former husband and the 
 trustees of the settlement : — Held, that she was 
 absolutely entitled to the property, Fussell v. 
 
MAEBIAGE SETTLEMENT (E)— MASTEE AND SBEVANT (A). 
 
 g, 41 Law J. Eep. (n.s.) Chanc. 716; Law 
 Eep. 14 Eq. 421. 
 
 Mteration of settlement in Court of Divorce. 
 [Sea DivoBCE, 47-52.] 
 
 (E) Jtjrisdictiok, &c., of Coubt of Chancery. 
 
 (a) Mortgage authorised for rebuilding mansion- 
 house. 
 
 27. — The mansion-house on a settled estate was 
 fallin g down . There were no powers in the settlement 
 to raise money for rebuilding. It was shewn that 
 to raise money by mortgage and rebuild would be 
 beneficial to all parties interested. The Court on 
 bill filed by tenant for life authorised a mortgage 
 for the purpose. Frith v. Cameron, 40 Law J. 
 Eep. (n.s.) Chanc. 778 ; Law Eep. 12 Eq. 169. 
 
 The settlor had intended to add three small 
 plots of land to the settled estate ; two of these 
 had been purchased before the settlement, and 
 omitted from it by mistake, the other had been 
 purchased since. The Court ordered that they 
 should be conveyed to the uses of the settlement. 
 Ibid. 
 
 (i) MistaJce : rectification. 
 [And see last case.] 
 
 28. — Words were inserted in a settlement by 
 mistake. The Court, being convinced of the mis- 
 take, ordered funds, which had been paid into 
 Court under the Trustee Eelief Act, to be paid to 
 the persons who would be entitled under the set- 
 tlement as intended to be drawn, without rectify- 
 ing the settlement. /?» re De La Touche's Settle- 
 ments, 40 Law J. Eep. (n.s.) Chanc. 85. 
 
 29. — A settlement of personal property belong- 
 ing to a ward of Court was made on her marriage 
 and approved by the Court. It provided that, in 
 case of failure of children, which event happened, 
 after a life interest to the husband and wife, the 
 property should go to the wife's next-of-kin. The 
 wife survived her husband. On an affidavit by the 
 wife that she had misunderstood the settlement, 
 the Court declared that, in the events which hap- 
 pened, she was entitled absolutely to the fund. 
 Smith v. Hife, 44 Law J. Eep. (n.s.) Chanc. 765 ; 
 Law Eep. 20 Eq. 666. 
 
 (e) Bill to set aside settlement hy lunatic. 
 
 30. — Liberty was given to a person interested 
 in impeaching a settlement by a lunatic of doubt- 
 ful validity to file a bill to set it aside at his own 
 risk as the lunatic's next friend. In re Gordon, 44 
 Law J. Eep. (n.s.) Chanc. 208; Law Eep, 10 
 Chanc. 192. 
 
 Jurisdiction under leases and sales of Settled 
 Estates Act. [See Settled Estates 
 Act.] 
 
 (d) Equity to a settlement. 
 [See Baeon and Feme, 11-15.] 
 
 MAESHAILING ASSETS. 
 
 [See Administration, 14-28 ; Mortgage, 31 
 Peihcipai. and Surety, 9.] 
 
 MASTEE AND SEEVANT. 
 [See Apprentice.] 
 
 (A) Contract of Service. 
 
 (a) Non-disclosure of material fact. 
 (i) Construction of contract. 
 
 (1) Service for "twelve months cer- 
 
 tain." 
 
 (2) Forfeiture of " all wages due." 
 
 (B) Liability op Master fob Injury to 
 
 Servant. 
 (a) Breach of statutory duty. 
 (J) Ignorance of servant of defective state 
 of machinery. 
 
 (C) Eight op Action by Master foe Loss of 
 
 Service. 
 
 (D) Liability of Master foe Acts of Servant. 
 (a) Evidence of employment of servant by 
 
 master. 
 (6) Whether servant acting within the scope 
 
 of his employment. 
 (c) lAability as against licensee to use 
 
 (d) Dangerous animal: evidence of know- 
 
 ledge of servant. 
 
 (e) Negligence of fellow-servant : common 
 
 (E) Summary Jueisdiotion under Master and 
 Servant Act, 1867. 
 
 (a) Complaint against servant for not enter- 
 
 ing into service. 
 
 (b) Breach of contract to employ. 
 
 (c) Claim for wages. 
 
 {d) Absence without lawful excuse. 
 
 [The use of violence, threats, or molestation, for 
 coercing masters or workmen in their relations 
 with each other, made subject to certain penalties. 
 34 & 35 Vict. c. 32.] 
 
 [Enlargement of the powers of County Courts in 
 respect of disputes between employers and work- 
 men. Limited civil jurisdiction in respect of such 
 disputes given to other Courts. 38 & 39 Vict, 
 c. 90.] 
 
 (A) Conteact of Service. 
 
 (a) Non-disclosure of material fact. 
 
 1, — In an action by a governess for breach of 
 an agreement in writing, in which she was de- 
 scribed as M. K., spinster, and by which the defen- 
 dant undertook to employ her for a term of three 
 years, it was pleaded that the plaintiff intending 
 to induce the defendant to enter into the contract, 
 concealed from him a fact material to her qualifi- 
 cations as such governess, and material to be 
 known by the defendant in engaging her as such 
 governess, namely, that she had previously been 
 married, and that the marriage had been dissolved 
 by decree of the Divorce Court: — Held, on de- 
 
MASTER AND SERVANT (A), (B). 
 
 367 
 
 murrer, that the plea was bad, as there was no 
 allegation of fraud, and the mere non-disolosure 
 of a material fact was, except in the case of 
 policies of insurance, no answer to an action upon 
 a contract. Fletcher v. Krell, 42 Law J. Eep. 
 (n.s.) Q. B. 55. 
 
 (J) Construction of contract. 
 
 (1) Service for " twelve months certain." 
 
 2. — By an agreement between brewers and 
 their traveller, the latter was engaged at a salary 
 of 200i. a year, payable fortnightly, and it was, 
 inter alia, stipulated " that the agreement between 
 the aforesaid parties shall be for twelve months 
 certain, after which time either party shall be at 
 liberty to terminate this agreement by giving to 
 the other a three months' notice in writing." But 
 if the said employers " shall be desirous of ter- 
 minating this agreement without notice, after 
 twelve months, or before any notice shall have 
 expired, they may do so on payment of bQl." : — 
 Held, per Bramwell, B., and Pigott, B. (Kelly, 
 C.B., dissentiente), that the agreement ceased at 
 the end of the first twelve months unless the par- 
 ties allowed the engagement to continue beyond 
 that time, in which event only did notice, or pay- 
 ment in lieu thereof, become necessary to deter- 
 mine it. Langton v. Garleton, 43 Law J. Eep. 
 (n.s.) Exch. 54 ; Law Eep. 9 Exch. 57. 
 
 (2) Forfeiture of " all wages dme." 
 
 3. — In an action to recover 22s. for wages it 
 appeared that the plaintiff was a weaver in the 
 employment of the defendants, who were cotton 
 manufacturers, that he was j, weekly servant, and 
 that his wages were regulated by the number of 
 pieces which from time to time he wove and de- 
 livered to his masters. The practice at the de- 
 fendants' mill was that the wages earned by the 
 workmen at the mill were ascertained and fixed 
 at noon on Thursday, but were not paid to the 
 workmen tUl the following Saturday. The work- 
 men worked under rules embodied in the contract 
 of hiring, as follows : — " All persons in our em- 
 ploy are required to give fourteen days' notice 
 before leaving, such notice to be given at the time 
 of hooking up. Persons leaving without notice 
 wUl forfeit all wages due." The term " booking 
 up " is understood to mean the Thursday in each 
 week. Fifteen shillings of the amount sued for 
 was earned by the plaintiff in the week of his ser- 
 vice, which ended at noon on Thursday, and the 
 amount was then fixed. He worked till the fore- 
 noon of Friday, earning the balance claimed, and 
 then left his service without any reasonable 
 excuse : — Held, that the wages earned in the week 
 ending on Thursday were forfeited as the rules 
 were so framed as to protect the master by making 
 the workman always liable to forfeit something if 
 he left without notice. TVaish v. WaUey, 43 Law 
 J. Eep. (n.s.) Q. B. 102 ; Law Eep. 9 Q. B. 367. 
 
 Bond to secure faithful services : alteration 
 of terms of service : discharge of swrety, 
 [See Principal and Subbti, 20, 21.] 
 
 (B) LiABiLiTr or Mastbe fou Injtjbt to 
 Sebtant. 
 
 (a) Breach of statutory duty. 
 
 4. — A company for the manufacture of cotton 
 employed a servant to grease the bearings be- 
 tween the fly-wheel and the spur-wheel of a steam- 
 engine in their factory. The fly-wheel revolved 
 in a wheel race parallel to a wall and on one side 
 of it, and the spur-wheel revolved, parallel, on the 
 other side. The extreme distance between the two 
 wheels was two feet ten inches, and the wall was 
 two feet three inches thick. In a hole made in 
 this wall the servant stood or sat while he greased 
 the bearings. The wheel race was one which 
 ought to have been fenced or othervrise secured 
 within 7 & 8 Vict. u. 15, s. 21. The fly-wheel on 
 the side next the wall and the edge of the wheel 
 race on that side were not fenced. The servant 
 having been at this work for five days, was found 
 on the sixth lying dead on the bearings, and it 
 was not disputed that he must have been caught 
 and killed by the fly-wheel. The administratrix 
 of the deceased having brought an action, on be- 
 half of the widow and child, against the company 
 for negligence in not fencing the wheel race, as 
 required by the statute, — Held, assuming that 
 the deceased was not guilty of contributory negli- 
 gence either in undertaking the employment or in 
 conducting it, that the action was maintainable. 
 Britton v. The Great Western Cotton Company, 41 
 Law J. Eep. (n.s.) Exch. 99 ; Law Rep. 7 Exch. 
 130. 
 
 (i) Ignorance of servant of defective state of 
 machinery. 
 
 5. — Declaration by the plaintiff as administra- 
 trix of Gr. W., deceased, that the defendants were 
 owners of a machine about which the deceased was 
 employed to do work for them, and in the course 
 of his employment it was necessary for him to get 
 into the machine ; that by the negligence and de- 
 fault of the defendants, the machine was con- 
 structed unsafely and in a defective and improper 
 manner, and was by reason of not being sufficiently 
 guarded, in an unsafe and unflt condition for being 
 used and entered, which the defendants well knew ; 
 and by reason of the premises, and also by reason, 
 as the defendants well knew, of no sufficient or 
 proper apparatus having been provided by the 
 defendants to protect the deceased, while em- 
 ployed about the machine, from injury arising 
 from the unsafe and unguarded state thereof, 
 while the deceased was in the course of his em- 
 ployment the machine was suddenly put in motion, 
 and caused injuries to him whereof he died. On 
 demurrer, — Held, that it was not necessary to aver 
 in the declaration that the deceased was ignorant of 
 the defective state of the machine ; and further, 
 that the averments sufficiently alleged that the 
 accident was the result of the negligence of the 
 defendants. Watlimg v. Oastkr, 40 Law J. Rep. 
 (n.s.) Exch. 43 ; Law Rep. 6 Exch. 73. 
 
 Catowner and caidriver : UahUity of dab- 
 owner for supplying cahdHver with 
 dangerous horse. [See Nboliqence, 30.] 
 
MASTER AND SERVANT (C), (D). 
 
 (0) Right of Aotiok by Master for Loss of 
 Service. 
 
 [See also Seduction.] 
 
 6. — To a declaration alleging that ty reason of 
 the negligence of the defendant's servant the 
 plaintiff's daughter and servant was killed, and 
 claiming damages for loss of services and for the 
 burial expenses paid by the plaintiff, the defen- 
 dant pleaded — first, that the daughter and servant 
 was tilled on the spot by the act complained of, 
 so that the plaintiff did not and could not sustain 
 damage entitling him to sue ; and secondly, that 
 the act complained of was a felonious act on the 
 part of the defendant's servant, and that the ser- 
 vant had not, before the action tried, been com- 
 mitted or prosecuted in any way in respect of the 
 same : — Held, per totam Curiam, that the second 
 plea afforded no answer to the declaration ; and 
 held by Kelly, C.B., and Pigott, B., that the first 
 plea afforded a good answer, on the ground that, 
 apart from Lord Campbell's Act (9 & 10 Vict. c. 
 93), no civil action is maintainable against a per- 
 son who has by negligence caused the death of 
 another. But held by Bramwell, B., that the first 
 plea afforded no answer, and that the action was 
 maintainable. Osborne v. Cfillett, 42 Law J. Rep. 
 (n.s.) Exch. 63 ; Law Rep. 8 Exeh. 88. 
 
 (D) Liability of Master for Acts of 
 Servant. 
 
 (a) Evidence of employment of servant by master. 
 
 7. — K., a master stevedore, having contracted 
 to unload the defendant's ship, employed D., one 
 of the ship's crew, at the defendant's request, to 
 assist in the work. K. could have refused to have 
 so employed D. if he thought him incompetent ; 
 and during the time K. employed him D. could not 
 have been employed by the master of the ship on 
 the ship's work, and though D. was paid by the 
 defendant, such pay was deducted from what K. 
 received for the unloading. In the course of such 
 employment D. so negligently worked a winch used 
 in the unloading as to injure the plaintiff, one of 
 K.'s men, with whom D. was put to work by K.'s 
 foreman: — Held, that the defendant was not 
 responsible for such injury, as at the time of the 
 accident D. was not working for the defendant, 
 but for K. Murray v. Currie, 40 Law J. Rep. 
 (n.s.) 0. P. 26 ; Law Rep. 6 C. P. 24. 
 
 Unforeseen accident by acts of skilled work- 
 men. [See Negligence, 25.] 
 
 Liability of chairmam, of a public Tneeting 
 for an assault by an. officer acting under 
 his orders. [See Assault, 1 .] 
 
 (A) Whether servant acting within the scope of his 
 employment. 
 
 8. — The fact that a passenger in an omnibus is 
 struck by the driver's whip is prima facie evidence 
 of negligence by the driver in the course of his 
 employment ; and even if it appear that the blow 
 was struck at the servant of another omnibus with 
 whom there had been a dispute, and who had 
 jumped on the omnibus step to get its number, it 
 
 is a question for the jury whether the blow was 
 struck by the driver in private spite or in supposed 
 furtherance of his employer's interests. ' Ward v. 
 The General Omni/ms Company (Exch. Ch.), 42 
 Law J. Rep. (n.s.) C. P. 265. 
 
 9. — One W. being employed to cart certain 
 iron to a wharf, and the defendant, a stevedore, 
 to ship it on board a ship alongside, the defen- 
 dant's foreman, who was acting for him, being 
 dissatisfied with the uncarting of the iron by 'W.'s 
 carters, got into the cart, threw out some iron, and 
 in so doing injured the plaintiff. Two of the 
 plaintiff's witnesses said it was the duty of W.'s 
 carters to put the iron on the ground, and of the 
 stevedore then to take it, and this was the only 
 evidence as to the duty of the defendant and his 
 servants : — Held, by Grove, J., and Deuman, J., 
 that it was a question for the jury whether, in the 
 particular case, the foreman was acting within the 
 scope of his employment ; but by Brett, J., that 
 the Judge was bound to say that what was done 
 by him was done before his employment by the 
 defendant commenced. Burns v. Poidson, 42 Law 
 J. Rep. (n.s.) 0. P. 302 ; Law Rep. 8 C. P. 563. 
 
 10. — The defendants were proprietors of a 
 sewage-farm, of which B. was manager. The 
 farm was separated from the plaintiff's land by a 
 brook. In order to improve the drainage from 
 the farm, and to benefit the neighbourhood, B. 
 scoured the brook, pared down the bank of the 
 plaintiff's land, and cut down the bushes there 
 growing. These acts were trespasses, and B. had 
 no express authority from the defendants to commit 
 them : — Held, that the defendants were not liable 
 to be sued by the plaintiff in respect of the acts 
 above mentioned, as they were not done upon the 
 sewage farm. Bolingbroke v. The Local Board of 
 Health of Swindon New Town, 43 Law J. Rep. 
 (n.s.) C. p. 287 ; Law Rep. 9 C. P. 575. 
 
 11. — The plaintiff went to the booking office of 
 the defendants, a railway company, and asked for 
 a passenger's ticket, in order that he might travel 
 upon the railway. B , a ticket clerk in the employ 
 of the defendants, handed to him a ticket, and 
 also money for the change he was entitled to re- 
 ceive. The money so handed to the plaintiff con- 
 tained a foreign coin, which he refused to receive. 
 B. refused to take it back, and the plaintiff threw 
 it down upon the counter, saying, " I will have my 
 right money." Thereupon B. seized'the plaintiff, 
 and gave him into custody, charging him with 
 putting his hand into the till, and attempting to 
 steal money therefrom : — Held, that there was no 
 implied authority from the defendants to give the 
 plaintiff into custody, and that in an action brought 
 by him against the company for false imprison- 
 ment, he must be nonsuited. Allen v. The London 
 and South- Western Bailway Company, 40 Law J. 
 Rep. (n.s.) Q.B. 55 ; Law Rep. 6 Q. B. 65. 
 
 Scope of employment ; railway porter : 
 wrongful removal of a passenger. [See 
 Cabrirr, 2.] 
 
 lAability of railway company for false im- 
 prisonment by inspector. [See Eaxsb 
 Imprisonment.] 
 
MASTEE AND SERVANT (D), (E). 
 
 369 
 
 (c) Liability as against licensee to use premises. 
 
 12. — The stations of the defendants and 
 another railway company adjoined and were open 
 to each other, and the passengers by either rail- 
 way had long been permitted to reach it by pass- 
 ing through the station of the other company. 
 The plaintiff, while so passing across the platform 
 of the defendant's station to get to the other, was 
 injured by a portmanteau, which fell from a truck, 
 owing to the negligence of a porter of the defen- 
 dants : — Held, without deciding what would have 
 been the case if the accident had happened 
 through the condition of the defendants' premises, 
 that they were liable, as the injury was caused by 
 the misfeasance of one of their servants in the 
 course of his employment, and there was no pre- 
 sumption that the plaintiff had agreed to undergo 
 greater risks than if he had been one of the defen- 
 dants' passengers. Tebbutt v. The Bristol and 
 Exeter Bailviay Company, 40 Law J. Eep. (n.s.) 
 Q.B. 78 ; Law Eep. 6 Q. B. 73. 
 
 [And see Negligence, 23.] 
 {d) Dangerous animal : evidence of knowledge of 
 
 Negligence in custody of animal : scienter : 
 knowledge of servant the knowledge of 
 master. [See Negligence, 1, 2.] 
 
 (e) Negligeace of fellow servant : common 
 
 13. — There is not, between the owners of a ship 
 and a pilot whom they are compelled to employ, 
 an implied contract that the pilot shall take upon 
 himself the risk of injury from negligence of the 
 shipowner's servants. And where a pilot went on 
 board a vessel, in the course of his duty, in a dis- 
 trict in which pilotage is compulsory, and while 
 he was on board, a boat, which had been negli- 
 gently slung by servants of the shipowners, fell 
 on and killed him : — Held, that his widow could 
 recover in an action against the shipowners 
 brought by her. as executrix, under Lord Camp- 
 bell's Act. Smith v. Steele, 44 Law J. Eep. (n.s.) 
 Q.B. 60; Law Eep. 10 Q. B. 125. 
 
 14. — The owners of a colliery who have ap- 
 pointed a certificated manager under the Coal 
 Mines Eegulation Act, 1872 (35 & 36 Vict. c. 76), 
 s. 26, are not liable for an injury to a workman in 
 the colliery caused by the negligence of the man- 
 ager, as there is nothing in the statute to make 
 him other than fellow workman of the person 
 injured. Howells v. The Landore Siemens Steel 
 Company, iA: Law J. Eep. (n.s.) Q. B. 26 ; Law 
 Eep. 10 Q.B. 62. 
 
 (E) Summary Jttbisdiction under Master 
 AND Seevant Act, 1867. 
 
 (a) Complaint against servant for not entering 
 into service. 
 
 15. — Upon complaint against a servant in hus- 
 bandry under the Master and Servant Act, 1867, 
 30 & 31 Vict. e. 141, for not entering into service 
 Digest, 1870-1875. 
 
 according to his agreement, the fact that there 
 was no written contract deprives the magistrates 
 of jurisdiction. Banks v. Crossland, 44 Law J. 
 Eep. (N.s.) M. C. 8 ; Law Eep. 10 Q. B. 97. 
 
 By the Master and Servant Act, 1867 (30 & 31 
 Vict. u. 141), B. 3, nothing in the Act is to apply 
 to a contract of service other than a contract 
 within the meaning of the enactments described 
 in the first schedule to the Act. Among these 
 enactments are 20 Geo. 2. e. 19, and 4 Geo. 4. c. 
 34 ; and by the last of these (section 3) the power 
 of imprisoning servants in husbandry for breach 
 of contract is conferred upon magistral es, but is 
 (where the breach is not entering into the service) 
 restricted to cases where the contract is in writing 
 and signed by the contracting parties. The appel- 
 lant, having failed to enter into service according 
 to his contract, was summoned under 30 & 31 
 Vict. c. 141, before magistrates. It appeared that 
 on the nth of November, 1873, he was hired 
 verbally as a servant in husbandry for one year, 
 to commence on the 23rd, and received three shil- 
 lings as his fastening money. The magistrate 
 dismissed the information, holding, first, that it 
 was necessary that the contract should be in 
 writing to satisfy section 4 of the Statute of 
 of Frauds ; secondly, that under the Master and 
 Servant Act, 1867, above mentioned, the want of 
 a written contract took away their jurisdiction : — 
 Held, that the magistrates were right on both 
 points. Ibid. 
 
 (b) Breach of contract to employ. 
 
 16. — By a contract between a coal miner and 
 his employer, it was stipulated that the contract 
 should not be determined without a fortnight's 
 notice on either side. The employer dismissed 
 the miner without notice : — Held, that, under sec- 
 tion 4 of 30 & 31 Vict. c. 141, he could recover 
 compensation for such breach of contract upon 
 information before justices, charging that the em- 
 ployer had refused to pay the wages due and 
 owing for breach of contract by the employer in 
 not giving a fortnight's notice. Shaw v. Alderson, 
 44 Law J. Eep. (n.s.) M. C. 160. 
 
 (e) Claim for wages. 
 
 17. — M. and D., journeymen painters, took out 
 a summons returnable before a justice of the peace 
 for the recovery of a sum oi money alleged to be 
 due to them for wages from C, claiming also a 
 further sum as damages for the detention of such 
 wages. The justice heard the summons under the 
 Master and Servant Act, 1867 (30 & 31 Vict. c. 
 140), s. 9, and dismissed the same upon the merits, 
 M. and D. then issued plaints in the County Court 
 against C. to recover che wages alone, but judg- 
 ment was given for the defendant on the ground 
 that the case was res judicata : — Held (per Cock- 
 burn, O.J., Blackburn, J., and Mellor, J., Field, J., 
 dissentiente), that the County Court Judge was 
 right, and that the justice of the peace having 
 jurisdiction under sees. 4 and 9 of the Master and 
 Servant Act, 1867, and having exercised that 
 jurisdiction, the matter was res judicata. 
 3B 
 
370 
 
 MASTER AND SERVAN* (E)— MEEOHANT SHIPPING ACTS. 
 
 V. Coleman; Dawson v. Coleman, 44 Law J. Rep. 
 (n.s.)Q.B. 194. 
 
 Wages due from an employer to a journeyman 
 may be summarily recovered by summons before 
 a justice of the peace under the Master and Ser- 
 vant Act, 1867, sees. 4 and 9, and this although 
 the servant does not make any claim for damages 
 in respect of the non-payment of such ■wages, but 
 seeks to recover the wages alone. The jurisdiction 
 given to a justice of the peace, "wherever any 
 question, difference or dispute shall arise as to the 
 rights or liabilities of either of the parties," ex- 
 tends to a claim for the non-payment of wages, 
 which may be recovered by such summary process 
 as " compensation or damage." Ibid. 
 
 Semble — that the provisions of the Master and 
 Servant Act, 1867, giving by inference such a 
 summary remedy, are substituted for the pro- 
 visions to the same effect of 20 Geo. 2. c. 19, and 
 that, therefore, the proper statute under which to 
 proceed summarily for the recovery of wages is 
 the later Act. Ibid. 
 
 (d) Absence without lawful excuse. 
 
 18. — The appellant, a fire-iron forger in the 
 employment of fiie-iron manufacturers at Sheffield, 
 was summoned before a magistrate for having 
 absented himself from their service without just 
 cause, or lawful excuse, under the Master and 
 Servant Act, 1867, 30 & 31 Vict. c. 141, s. 9. An 
 order was made directing the defendant to pay 
 111. lis. as compensation to the complainants. It 
 appeared that on the 25th of February, 1871, the 
 appellant agreed to work for his employers for 
 the term of five years. On the 1st of April, 1873, 
 he was summoned for absenting himself, and 
 ordered to pay 111. 8s., with costs, and the money 
 not being paid he was ordered to be imprisoned in 
 the House of Correction for three months. On 
 the 6th of June, 1873, he was again summoned 
 for not returning to his work, and was ordered to 
 find security to fulfil his contract, and in defaxilt 
 was again sentenced to three months' imprison- 
 ment. After his liberation he continued to absent 
 himself, and a fresh summons was taken out, and 
 the order appealed against made : — Held, that the 
 previous orders were not a bar to the subsequent 
 complaint, and the order made upon it. Cutler v. 
 Turner, 43 Law J. Rep. (n.s.) M. C. 124; Law 
 Eep, 9 Q. B. 602. 
 
 MEDICAL ACT. 
 
 1. — Under the Apothecaries Act (S5 Geo. 3. c. 
 1 94), s. 2 1 , which is not repealed by the Medical Act, 
 1858 (21 & 22 Vict. c. 90), ss. 31, 32, a member 
 of the OoUege of Surgeons, registered as a sur- 
 geon only under the latter Act and having no 
 further qualification, cannot recover for medi- 
 cines administered by him in a case not requiring 
 surgical treatment. Leman v. Fletcher, 42 Law 
 J. Eep. (n.s.;) a. B. 214 ; Law Rep. 8 Q. B. 319. 
 
 2. — A licientiate of the Society of Apothe- 
 caries cannot recover his charges for advice and 
 
 medicine in a case not requiring surgical trea-tment, 
 where it appears that at the date of his services he 
 did not possess his qualification, and was not regis- 
 tered under the Medical Act, 1868 (21 & 22 Vict, 
 c. 90), e. 16, though he is so registered on the 
 day of the trial of the action. Leman v. Housdey, 
 44 Law J. Rep. (n.s.) Q. B. 22 ; Law Rep. 10 Q.B. 
 66. 
 
 The plaintiff was a member of the College of 
 Surgeons, and registered as such under 21 & 22 
 Vict. c. 90, but had no farther qualification. He 
 brought an action for medicines, advice, and at- 
 tendances in a case not requiring surgical treat- 
 ment ; and it was held by this Court (see last case) 
 that he could not recover, as the Apothecaries Act, 
 section 21, was not repealed by the later Act, 
 which only enabled a physician to recover a<;cord- 
 ing to his qualification. Subsequently to this de- 
 cision the plaintiff was examined for and obtained 
 his diploma as an apothecary, and was placed on 
 the medical register as a medical and surgical 
 practitioner. He then took proceedings to reco- 
 ver the amount due to him for medicines, &c., in 
 a case precisely similar to that of Leman v. Flet- 
 cher :—E.fs\di, that in section 32 of 21 & 22 Vict. 
 c. 90, it was clearly intended that a practitioner 
 should have been examined and have become 
 qualified at the time of the services in respect of 
 which he was allowed to recover ; and though, if 
 he were qualified, at the time of his services, he 
 might possibly procure himself to be registered 
 before the trial, he could not cure his want of 
 qualification. Ibid. 
 
 Turner v. Eeynall (14 Com. B. Eep. N.S. 328 ; 
 32 Law J. Rep. (n.s.) C. P. 164) considered. Ibid. 
 
 MERCANTILE LAW AMENDMENT ACT, 
 1856. 
 
 Seizure by sheriff: " actual seizure,'' [See 
 Judgment, 2.] 
 
 MEECHANT SHIPPING ACTS. 
 
 [The Merchant Shipping Acts amended and in 
 part repealed. 36 & 37 Vict. e. 85.] 
 
 [The same Acts amended as regards unsea- 
 worthy ships. 38 & 39 Viet. c. 88.] 
 
 The word " ship," in 25 & 26 Vict. c. 63, s. 33, 
 applies to a vessel which substantially goes to 
 sea and only uses oars as an auxiliary power, and 
 where a collision took place between a steamship 
 and a fishing coble of ten tons burthen, twenty- 
 four feet in length, decked forwaid only, with two 
 moveable masts, and a sail for each, and which was 
 accustomed to go twenty miles out to sea, and to 
 remain out for some hours at a time, and was usu- 
 ally under sail, but was sometimes propelled by oars 
 'when convenient, it was held to be a collision be- 
 tween two ships within that section. Ex parte 
 Ferguson and Hutchinson, 40 Law J. Eep. (n.s.) 
 Q. B. 105 ; Law Eep. 6 Q. B. 280. 
 
MEECHANT SHIPPING ACTS— METEOPOLIS (A). 371 
 
 [30 & 31 Vict. 0. 6 extended. 34 & 35 Vict, 
 e. 16.] 
 
 [Repeal of certain enactments as to Metropo- 
 litan Police Magistrates. 38 & 39 Vict. c. 4.] 
 
 [Provisions for the due supply of water to the 
 metropolis. 34 & 35 Vict. u. 113.] 
 
 Limitation of ship's liability under, [See 
 Shipping Law, P 23, 24.] 
 
 Infringement of regulations. [See Ship- 
 ping Law, F 25.] 
 
 MERGER. 
 Of mortgage term. [See^MoETGAGE, 33.] 
 
 MERSEY DOCK ACTS. 
 
 By the Mersey Dock Acts the cargo of any 
 ship from a foreign or colonial port using certain 
 ports must be received, weighed, and loaded off 
 by one set of porters under the direction of a 
 master porter : — Held, that these Acts relate to 
 the possibility of injury in the receiving, weigh- 
 ing, and loading off the goods, and do not alter 
 the legal liability prior to their delivery to the 
 master porter. The Emilien Marie, 44 Law J. 
 Rep. (n.s.) Adm. 9. 
 
 [And see Shipping Law, PL] 
 
 METROPOLIS. 
 
 (A) Bdildings. 
 
 (a) General line of building. 
 (i) " Vacant ground." 
 (c) Dangerous structure, 
 {d) District surveyor's fees. 
 
 (B) Steeets. 
 
 (a) Bepair of footway over private cellar. 
 (i) Nem street. 
 
 (1) Expenses of paving. 
 
 (2) Inability to repair. 
 
 (3) Apportionment of sewers rates. 
 
 (C) Meteopoutan Commons. 
 
 (D) Meteopolis Gas Act, 1860. 
 
 [Amendment of the law relating to slaughter- 
 houses and certain other businesses in the metro- 
 polis. Absolute prohibition against establishing 
 anew the businesses of blood boiler, bone boiler, 
 manure manufacturer, soap boiler, tallow melter, 
 and knacker. Certain other offensive trades not 
 to be established without sanction of local autho- 
 rity. 37 & 38 Vict. c. 67.] 
 
 [The Metropolis Management Acts amended. 
 38 & 39 Vict. c. 33.] 
 
 [Section 3 of the Married Woman's Property 
 Act, 1870, applied to Metropolitan Board of Works 
 Consolidated Stock. 34 & 36 Vict. o. 47.] 
 
 [Further provision made respecting the borrow- 
 ' ing of money by the Metropolitan Board of Works. 
 33 & 34 Vict. e. 24.] 
 
 [The Metropolitan Board of Works (Loans) Acts 
 amended. 38 & 39 Vict. c. 66.] 
 
 [The equal distribution over the metropolis of 
 a portion of the charge for the poor. 33 & 34 
 Vict. c. 18.] 
 
 (A) Btjeldings. 
 
 (a) General line of building. 
 
 1. — In a proceeding before the magistrate under 
 section 75, for erecting a building beyond the 
 general line of buildings without the consent of 
 the Metropolitan Board of Works, the magistrate 
 is not bound by the decision of the superintend- 
 ing architect of such board as to the general line 
 of buildings, but is at liberty to exercise his own 
 judgment as to what is such general line. Simp- 
 son V. Smith, 40 Law J. Rep. (n.s.) M. C. 89 ; Law 
 Rep. 6 C. P. 87. 
 
 2. — Where there is a known " owner or occu- 
 pier," the proper person to proceed against for 
 an infringement of the 75th section of the Metro- 
 polis Local Management Amendment Act (25 & 
 26 Vict. e. 102), is such owner or occupier, and 
 not "the builder," and a summons upon the 
 builder is only valid whilst he is engaged in the 
 work. Brutton v. The Vestry of St. George, Hano- 
 ver Square, 41 Law J. Rep. (n.s.) Chane. 134 ; 
 Law Rep. 13 Eq. 339. 
 
 The offence, six months after the commission or 
 discovery of which complaint is, under the 1 07th 
 section of the same Act, to be made, is committed 
 when first an intrusion is made upon the general 
 line of building, and the time begins to run from 
 the day such intrusion is discovered. Ibid. 
 
 Accordingly, where a vestry on the 25th 
 of August discovered that an owner of a house 
 had on the 24th of August put up the framework 
 of a conservatory which intruded on the space 
 beyond the general line, and was finished on the 
 23rd of September, but such vestry, not having re- 
 ceived the certificate of the superintending archi- 
 tect until the 2nd of the following March, took 
 no step till the 4th of March, when they issued 
 a summons against the builder, who had in the 
 meantime been paid, and had gone abroad, — 
 Held, upon a bill filed by the occupier to restrain 
 demolition, first, that the summons was issued 
 against the wrong person ; secondly, that it was 
 out of time. Ibid. 
 
 3. — The limitation clause, section 107, of 25 & 
 26 Vict. 0. 102, imposing a limit of six months 
 for making a complaint for the payment of any 
 penalty or forfeiture for an offence against that 
 Act, does not apply to a complaint for the erec- 
 tion of a building beyond the general line of 
 buildings of a street without the consent of the 
 Metropolitan Board of Works, contrary to the 
 75th section of the Act, which provides the means 
 of obtaining an order for the demolition of such 
 buildings. Brutton v. The Vestry of St. George, 
 Hanover Square (41 Law J. Rep. (n.s.) Chanc. 
 134 ; Law Rep. 13 Eq. 339) upon this point dis- 
 3b2 
 
372 
 
 METROPOLIS (A), (B). 
 
 sented from; The Vestry of Bermondsey v. Johii- 
 son, 42 Law J. Eep. (n.s.) M. C. 67 ; Law Rep. 
 
 8 C.P. 441. 
 
 (S) " Vacant groimd." 
 
 4. — The " vacant ground " mentioned in section 
 75 of the Metropolis Management Amendment 
 Act, 1872, does not include ground which is the 
 site of buildings recently pulled down, and the 
 section therefore is inapplicable to such ground. 
 Auckland v. The Westminster Local Board of 
 Works, 41 Law J. Eep. (n.s.) Chanc. 723 ; Law 
 Rep. 7 Chanc. 697. 
 
 Some houses were taken by a railway company 
 under their powers, and were pulled down by 
 the company in the course of constructing their 
 line. The site was afterwards sold by the com- 
 pany as building ground : — Held, that the Metro- 
 politan Board of Works had no power under sec- 
 tion 75 to restrict the purchaser from covering 
 the whole site of the former houses with build- 
 ings. Ibid. 
 
 The Court will exercise jurisdiction in such a 
 case notwithstanding the statutory powers to 
 apply to a magistrate. Ibid. 
 
 Semble — that if any control is to be exercised 
 over such building, it must be under the 74th 
 section. Ibid. 
 
 (c) Bangerous striictv/re. 
 
 5. — Where the Metropolitan Board of Works, 
 acting under the compulsory powers of the Metro- 
 politan Building Act, 1855 (18 & 19 Vict. c. 122), 
 s. 73, and the Metropolitan Building Act, 1869 
 (32 & 33 Vict. c. 82), have taken proceedings 
 before a magistrate for the purpose of compelling 
 the owner of a dangerous structure to repair or 
 secure it, they are entitled to recover the reason- 
 able costs of serving the requisite notices on the 
 defendant, but no costs in respect of the forms for 
 such notices, or general office expenses relating 
 to them. The Metropolitan Board of Works v. 
 Might, 43 Law J. Rep. (n.s.) M. C. 46 ; Law Rep. 
 
 9 Q. B. 58. 
 
 {d) District swveyor'sfees, 
 
 6. — The fee to which a district surveyor is en- 
 titled under the above section " for inspecting the 
 arches or stone floors over or under piiblic ways " 
 is a fee of 10s. in respect of each building to 
 which any given number of arches is intended to 
 be appropriated, and not in respect of each arch. 
 An appeal lies under 20 & 21 Vict. c. 43, from the 
 decision of a magistrate on a summons by a dis- 
 trict surveyor, notwithstanding section 106 of the 
 Metropolitan Building Act. Power v. Wiginore, 
 Law Rep. 7 C. P. 386. 
 
 7. — The appellant laid out part of an estate, 
 of which he was seised in fee, for building pur- 
 poses. He agreed with L. that so soon as L. 
 should have erected and covered in buildings 
 upon four plots of land, he would demise to L. 
 the several plots of land and the buildings there- 
 on for the term of ninety-nine years, from the 
 29th of September, 1865, at the rent of a pepper- 
 corn, untU the 24th of June, 1870, and from 
 
 thence at the yearly rent of 28Z. during] the 
 remainder of the term. The buildings were to 
 be completed by the 24th of June, 1870. This 
 was not done, but the time was extended by the 
 appellant, and the buildings were completed in 
 or about September, 1870. The respondent, the 
 district surveyor, having become entitled to fees 
 in respect of surveying the buildings, claimed 
 them in October from L., and subsequently from 
 the appellant : — Held, that the appellant was not 
 the "owner" of the buildings within the mean- 
 ing of sections 3 and 51 of 18 & 19 Vict. e. 122, 
 so as to be liable to pay the said fees to the re- 
 spondent. Campell v. Hanson, 41 Law J. Rep. 
 (n.s.) M. C. 8 ; Law Rep. 7 Q. B. 55, nom. Caud- 
 well V. Hanson. 
 
 (B) Streets. 
 
 (ffi) Repair of footway over private cellar. 
 
 8.— In front of a house situate in a London 
 square was an area and cellar. The cellar was 
 formed of brick walls, one forming the outer wall 
 of the area, and another running parallel to such 
 outer wall. The covering to the cellar was formed 
 of large flagstones, the ends of which rested on 
 the walls. From the year 1830, when the houses 
 were built and the flagstones were laid down, the 
 flagstones were used by the public as a footway, 
 and became by reason of the traffic worn down, 
 cracked, and dangerous. The vestry called upon 
 the owner to repair the cellar and its covering. 
 He refused to do so, whereupon the vestry did the 
 work, and proceeded against him to recover the 
 expenses : — Held, that the vestry were bound to 
 keep the flagstones in repair, and could not re- 
 cover from the appellant any part of the expenses 
 of doing so. Hamilton v. The Vestry of St. George, 
 Hanover Square, 43 Law J. Rep. (n.s.) M. C. 41 ; 
 Law Rep. 9 a. B. 42. 
 
 (i) New street. 
 
 (1) Expenses of paving. 
 
 9. — On the let of January, 1856, When the 
 Metropolis Local Management Act passed, there 
 was an ancient highway and public carriage way 
 in the parish of L., within the district of the 
 Phimstead Board of Works, which from time out 
 of mind had been repaired by the parish. At that 
 time there were two houses adjoining the high- 
 way, but distinct from one another. Between 
 the 1st of January, 1866, and the 7th of August, 
 1862, when the Mietropolis Local Management 
 Amendment Act, 1862, passed, twenty-one more 
 houses were built along one side of the highway, 
 some being in a block and some detached. Be- 
 tween 1862 and the 23rd of June, 1869, ninety 
 additional houses were built, of which fifty-six 
 were built on the opposite side. Roads were 
 made intersecting the highway, the said roads 
 being private, and the soil thereof being in 
 the appellant, N. The appellant. P., was the 
 owner of some of the houses. The respond- 
 ents, the said Board of Works, having deter- 
 mined that the highway should be made into a 
 hard road to an extent greater than it had been 
 
METROPOLIS (B). 
 
 373 
 
 before, and that pathways should be formed, ap- 
 portioned the amount which was to be paid by 
 N., in respect of the soil of the private roads, 
 and by P. in respect of the houses of which he 
 was the owner -.—Held, that the highway was a 
 " new street " within the Metropolis Local Manage- 
 ment Acts, and that the respondents had a right 
 to throw upon the appellants the cost appor- 
 tioned upon tbem of the work to be done. Poundy. 
 The Board of Works for the Plumstead District ; 
 and Northbrook v. The Same, 41 Law J. Kep. 
 (n.s.) M. C. 51 ; Law Hep. 7 Q. B. 183. 
 
 10. — ^By the Metropolis Management Acts, 18 
 & 19 Viet. c. 120, s. 105, and 26 & 26 Vict. 
 u. 102, s. 77, the costs of paving a new street 
 under the compulsory powers of the former 
 Act are payable by the owners of the land and 
 houses abutting upon and forming the street, 
 and are to be apportioned by the vestry or dis- 
 trict board of works : — Held, that the strips of 
 land belonging to a railway company abutting 
 upon a street, and kept and used for the sole pur- 
 pose of repairing the arches of the railway via- 
 duct, were chargeable to the costs of paving the 
 street under the Act, as was also land used only 
 as a buttress for the railway embankment, and to 
 allow for slippings from it. Higgins v. Harding, 
 42 Law J. Eep. (n.s.) M. 0. 31 ; Law Eep. 8 
 Q.B. 7. 
 
 11. — The respondent leased some land for build- 
 ing purposes, and formed a road for the purposes 
 of tils houses built on each side of the road. 
 Previous to 1863-1864, the road was occupied by 
 saw pits and building materials. From the year 
 1863 he placed a barrier across it, with an 
 open space capable of being also closed by a fold- 
 ing bar. He continued the barrier, and frequently 
 prevented the passage of vehicles along the road. 
 Both he and the freeholders objected to the road 
 being a public thoroughfare. The footways on 
 each side of the road were made at the cost of 
 the owners, and repaired by the vestry ; — Held, 
 that under these circumstances there had been no 
 dedication of the road to' the public, but that 
 nevertheless it was a " new street" vrithin s. 112 
 of 25 & 26 Vict. c. 102, and vrithin s. 105 of 18 
 & 19 Vict. c. 120, so that the vestry had a right 
 under the last-mentioned section to call upon the 
 respondent to pay the amount of the estimated 
 expenses of paving the road. The Vestry of St. 
 Mary, Islington, v. Barrett, 43 Law J. Eep. (n.s.) 
 M. C. 85 ; Law Eep. 9 Q. B. 278. 
 
 12. — ^The defendants being owners of land, laid 
 it out for building purposes, and made roads and 
 ways upon and across it communicating with certain 
 ancient highways outside the land. The defendants 
 then sold the land in lots to different piu-ehasers, 
 and conveyed it to them by metes, bounds and ad- 
 measurements, set forth on a plan annexed to the 
 conveyance, upon which each lot was numbered. 
 Each lot had a frontage upon one of the roads, 
 and in the conveyance was stated to be situate 
 upon the side of and adjoining such road, but 
 neither the measurements nor the colouring of the 
 plan on the conveyance included any part of the 
 roads, and each lot was in the plan separated from 
 
 the road by a line. The roads so set out were 
 dedicated to the public so far as the defendants 
 could, by any act of theirs, dedicate the same, 
 but no proceedings had ever been taken underthe 
 Highway Acts to make them repairable by the 
 parish. Part of the roads when built up became 
 streets, and the plaintiffs, the board of works of 
 the district within which the land was situate, 
 paved and improved the streets under the Metro- 
 polis Local Management Acts, 18 & 19 Vict. c. 
 120, s. 106, and 25 & 26 Viet. c. 102, s. 77, and 
 apportioned the costs, assessing the defendants 
 in respect of the streets and roads where bound- 
 ing or abutting on the sides or ends of the streets 
 paved : — Held, by the Court of Queen's Bench, 
 Law Eep. 10 Q. B. 16, first, that it was evident 
 from the conveyance that there was no intention 
 to pass the soil of the road ad mediv/m filum viiB 
 to the purchasers of the lot ; secondly, that the 
 defendants were liable to be charged in respect of 
 the roads as " owners of land " within the decision 
 in Northbrook v. The Plumstead Board of Works 
 (41 Law J. Eep. (n.s.) M. C. 51 ; Law Eep. 7 
 ft. B. 183 ; No. 9 supra). But held on appeal to 
 the Exchequer Chamber, reversing the judgment 
 of the Court below on the second point, that, sup- 
 posing the soil of the roads did not pass by the 
 conveyances, the roads were not, within the 
 meaning of the Act, land bounding or abutting on 
 the streets which they met or intersected, and 
 that therefore the defendants were not liable to 
 contribute to the expense of paving such streets. 
 Northbrook v. The PJmmsiead Board of Works dis- 
 tinguished. The Plumstead Board of Works v. 
 The British Land Company, 44 Law J. Eep. 
 (n.s.) ft. B. 38 ; Law Eep. 10 Q. B. 203. 
 
 13.— By 18 & 19 Vict. c. 120, s. 105, and 
 25 & 26 Vict. c. 102, s. 77, the costs of paving a 
 new street under the compulsory powers of the 
 former Act are payable by the owners of lands as 
 well as the owners of houses abutting on such 
 street, and are to be apportioned by the vestry or 
 district board, " provided that it shall be lawful 
 for such vestry or district board to charge the 
 owners of land in a less proportion than the owners 
 of house property, should they deem it just and 
 expedient so to do." A district board made their 
 apportionment and demanded the amount payable 
 by the appellant as an owner of a house, which 
 he refused to pay. On an application before a 
 justice to enforce payment, the appellant objected 
 to the mode of apportionment, and complained that 
 other owners of premises abutting on the street 
 ■had had the amount of their apportionment fixed 
 as owners of land, when they ought to have been 
 assessed as owners of houses : — Held, that the ap- 
 portionment by the board was final and conclusive 
 on that point, and could not be questioned before 
 the magistrate. Nisbett v. The Board of Works 
 of Greenwich, 44 Law J. Eep. (n.s.) M. C. 119 ; 
 Law Eep. 10 Q. B. 466, nom. Nesbitt. 
 
 14. — An unsatisfied judgment recovered by a 
 vestry for the expenses of paving a street under 
 the Metropolis Local Management Acts against a 
 former owner of tenements, is no bar to an action 
 for these expenses against a tenant under a sue- 
 
274 
 
 HAEBOUE— HIGHWAY (B). 
 
 shore between Flamborough Head and the Spurn 
 Point (formerly in the port of Bridlington sup- 
 pressed by the said order) placed within them ; 
 and in the years 1868 and 1869, by orders under 
 the former Act, persons were prohibited from tak- 
 ing ballast or shingle from certain parts of the 
 shore so added to the port of Hull : — Held, that 
 the powers conferred by 54 Geo. 3. u. 159, s. 14, 
 are not confined to that which is geographically or 
 popularly, or was at the time of the Act part of a 
 particular port, but extended to the port in its 
 legal and proper sense ; and that those conferred 
 by 9 & 10 Vict. e. 102, s. 15, are not confined to 
 customs purposes, and that the orders of the years 
 1868 and 1869 were therefore valid, and persons 
 infringing them liable to the penalty imposed by 
 64 Geo. 3. c. 159, s. 14. Hicholson v. Williams, 
 40 Law J. E«p. (n.s.) M. C. 159 ; Law Eep. 6 
 Q. B. 632. 
 
 HEIELOOMS. 
 
 By a settlement made in 1804 real estate was 
 settled to the use of C, third Earl of Harrington, 
 for life, with remainder to his first son, Lord Pe- 
 tersham, for life, remainder to the first and other 
 sons successively of Lord Petersham, in tail male, 
 with similar remainders in succession, to the eight 
 other sons of the third earl for life, and their 
 respective first and other sons in tail male ; 
 remainder to the third earl in fee. By his will 
 made in 1824 the third earl gave chattels upon 
 trust " for the person or persons who for the time 
 being should, under the limitations in the set- 
 tlement, be in the actual possession of the estates, 
 to the intent that the same chattels might be 
 deemed heirlooms, to go along and for ever be en- 
 joyed with the estates, so far as the rules of law 
 and equity would permit, but so, nevertheless, as 
 that the same chattels should not, as to the effect 
 or purpose of transmission, vest absolutely in any 
 person who under the settlement should become 
 seized of or entitled to the estates for an estate of 
 inheritance either in possession or reversion, or 
 otherwise, unless such person should attain the 
 age of iwenty-one, or dying under that age should 
 leave issue inheritable under the limitations in 
 the settlement." The testator gave his residuary 
 personal estate upon trusts for investment in lands 
 to be settled to the same uses as those declared in 
 the settlement of 1804. The first tenant in tail 
 in possession died under twenty-one, within the 
 period allowed by the law as to perpetuities : — 
 Held, that the gift was not an executory bequest : 
 — Held, also, that the proviso that no tenant in 
 tail should take absolutely unless he attained 
 twenty-one, was a condition inseparably annexed 
 to the gift, so that any tenant in tail must take 
 subject to it, and if the proviso was void the whole 
 gift was void. But a tenant in tail having become 
 entitled to the chattels absolutely, either as tenant 
 in tail or under the gift of residue, the House pro- 
 nounced no opinion on the validity of the gift. 
 Harrington v. Harrington (H.L.), 40 Law J. Eep. 
 (.\.s.) Chanc. 716 ; Law Eep. 6 E. & I. App. 87. 
 
 By Lord 'Westbury.— The death of the first 
 tenant in tail in possession under twenty-one hav- 
 ing happened within the time allowed by law for 
 the vesting of personalty, the heirlooms on that 
 event under the direction to accompany the real 
 estate, were carried on to the next tenant under 
 the limitations in the settlement. Ibid. 
 
 HEEIOT. 
 [See Limitations, Statute op, 3.] 
 
 HIGHWAY. 
 
 (A) Pkesumption of Ownership. 
 
 (B) Dei>ication of Highway. 
 
 (C) LlABILITT TO EEPAIE. 
 
 (D) Exemption fkom Highway Eatb. 
 
 (E) DrvEETiNG and Stopping up. 
 {a) Notice of vestry meeting. 
 (i) Form of oertificate. 
 
 (c) Notice of appeal. 
 
 (F) Nuisances ajd Obstructions. 
 (a) Eight to plough up, 
 
 (J) Bight to carnage way across foot pave- 
 ment. 
 
 (c) Invalidity of custom to obstruct. 
 
 {d) Powers of highway board to dig up high- 
 way. 
 
 («) Obstruction of navigable lake. 
 
 (G) Encroachment. 
 
 (H) Surveyor of Highways. 
 
 {a) Liability for negligence. 
 
 (i) Liability for trespass by order of board. 
 
 {c) Notice of action against. 
 
 id) Mandamus to, to swmmum a vestry. 
 
 (e) Surveyor's accounts. 
 (I) Person Ai, Liability of Members op High- 
 way Board. 
 
 (A) Presumption op Ownership. 
 [See Presumption.] 
 
 (B) Dedication of Highway. 
 
 1.— A highway cannot be created by statute 
 unless the provisions of the statute creating it are 
 strictly followed. Cubitt v. Maxse, 42 Law J. 
 Eep. (n.s.) C. p. 278 ; Law Eep. 8 C. P. 704. 
 
 By the General Inclosure Act, 41 Geo. 3. o. 109, 
 ss. 8 and 9, the Commissioner, before making the 
 allotments of the land to be enclosed, was to set 
 out such roads as he should judge necessary, and 
 to appoint a surveyor to form and complete the 
 same, and until so formed and completed the parish 
 was not to be bound to repair such roads, but after 
 that time they were to be for ever after kept in 
 repair by the parish. ' An Inclosure Commissioner 
 appointed to act under a local Inclosure Act, sub- 
 ject to the provisions of 41 Geo. 3. c. 109,' duly 
 set out a road which he described in his award 
 made in 1808, but although such road was staked 
 out on the ground and fenced oflF from the adjoin- 
 
HIGHWAY (B), (E). 
 
 276 
 
 ing allotments on either side, it was never formed 
 and completed as required by the 41 Geo. 3. e. 109, 
 nor was it ever used by tlie public : — Held, that as 
 the requirements of the statute had not been com- 
 plied with, the road so set out was not a highway 
 created by statute, and as there had been no user, 
 and therefore no acceptance of the road by the 
 public, it was not otherwise a highway. Ibid. 
 
 [And see next case.] 
 
 (C) LUBEUTY TO BBPAIE. 
 
 2. — A private road, set out under an inclosure 
 award, may, upon proof of sufficient user by the 
 public before the passing of the Highway Act, 
 S & 6 Win. 4. c. 50, be deemed to be a highway 
 which the parish or township is compellable to 
 repair, though the award provides that such road 
 is for ever thereafter to be kept in repair by the 
 owners or occupiers of the adjoining land. The 
 Queen v. The Inhabitants of Bradfield, 43 Law J. 
 Sep. (n.s.) M. C. 155 ; Law Eep. 9 Q. B. 552. 
 
 3.— Under 5 & 6 Will. 4. u. 50, s. 23, where a 
 person is about to dedicate a new road to the public, 
 and seeks to make it repairable by the parish, 
 and gives notice to the surveyor that at the end 
 of three months it will be dedicated, it is the duty 
 of the surveyor to call a vestry meeting of the 
 inhabitants of the parish, and if such meeting 
 decides that the road is not of sufficient utility to 
 justify its being kept in repair at the expense of 
 the parish, it is his further duty to summon the 
 party proposing to dedicate before the justices at 
 the next special sessions for highways, who are to 
 decide on the question of the utility of the road ; 
 but if the surveyor omits to summon the party, at 
 the next special sessions after such vestry meeting, 
 the parish is not liable to repair the road, and a 
 mandamus will not lie to the justices, after such 
 special sessions have been passed over, and after 
 the three months mentioned in the notice have 
 expired, to view and certify that the road has been 
 substantially made. The Queen v. Bagge and 
 another. Justices of Norfolk, 44 Law J. Eep. (n.s.) 
 M.C. 45. 
 
 Semble — a mandamus would lie to the surveyor 
 to summon the vestry or the party before the 
 special sessions, and semble per Blackburn, J., 
 after the three months had expired. Ibid. 
 
 Highway/ repairable by the inhabitants at 
 large within the Public Health Aot, 1848, 
 sec. 69. [See Public Hhalth, 12, 14.] 
 
 (D) EXBMPTION FROM HlQHWAY EaTE. 
 
 4. — An occupier of land, forming part of a 
 highway district, who claims exemption from high- 
 way rates, must shew that there is some considera- 
 tion for such exemption, and it is not sufBcient to 
 shew that none of the inhabitants of the land, or 
 the occupiers thereof, have ever paid highway 
 rates, or done statute work, or paid composition 
 in lieu of highway rates. — Lush, J., dissentiente. 
 The Queen v. Bollitt, 44 Law J. Eep. (n.s.) M. C. 
 190; Law Eep. 10 Q.B.469. 
 
 (E) DlVEBTINa AND Stofpino rp. 
 (a) Notice of vestry meeting. 
 
 5.— By the Highways Act, 6 & 6 Will. 4. c. 60, 
 s. 84, " when the inhabitants, in vestry assembled, 
 shall deem it expedient that any highway should 
 be stopped up, diverted or turned .... the chair- 
 man of such meeting shall, by an order in writing, 
 direct the surveyor to apply to the justices to view 
 the same, &c." (specifying other proceedings for 
 stopping up or diverting the highway). By 58 
 Geo. 3. c. 69, s. 1, no vestry shall be holden until 
 public notice shall have been given of such vestry, 
 and of the place and hour of holding the same, 
 and the special purpose thereof, three days at the 
 least before the day to be appointed for holding 
 such vestry, by the publication of such notice in 
 the parish church or chapel, &o. 
 
 Notice of a vestry meeting was given in the 
 words following: — "Hamlet of Trevecca. — I, the 
 undersigned, hereby give notice that a meeting of 
 the ratepayers of the above hamlet will be held at 
 
 the Vestry Eoom, &c for the purpose of 
 
 taking into consideration the proceedings now 
 
 taken by Mr. John Parry, of , against Mr. 
 
 Ehys Davies, surveyor of the Talgarth District 
 Highway Board, respecting Blaenanbach Eoad, and 
 for other purposes connected with the highways of 
 the above hamlet." 
 
 The meeting so convened passed a resolution 
 that the road should be stopped up, under the 
 Highways Act, 6 & 6 Will. 4. c. 50, s. 84 :— Held, 
 that, having regard to the fact that proceedings 
 had been taken for compelling the parish to repair 
 the highway, the notice sufficiently informed the 
 public that any steps which might be necessary for 
 defeating these proceedings, such as stopping up 
 the highway, would be considered by the vestry, 
 and that the meeting was therefore duly convened. 
 The Queen v. Powell, 42 Law J. Rep. (n.s.) M. C. 
 129; Law Eep. 8a.B. 403. 
 
 (A) Form of cei tificate. 
 
 6. — A certificate of two justices relative to the 
 stopping up of a highway did not state that the 
 surveyors, at whose request, it was alleged, the 
 justices viewed the highway, had first duly ob- 
 tained the consent of the inhabitants in vestry 
 assembled to the proposed stopping up of the 
 highway, after a notice in writing from the party 
 desirous of stopping up the same, requiring the 
 surveyors to convene a meeting of the vestry for 
 the purpose of obtaining such consent, or that the 
 surveyors were, at the time of the said request to 
 view, in possession of and acting under an order 
 in writing of the chairman of a meeting of the 
 inhabitants in vestry assembled : — Held, in oppo- 
 sition to the dictum in The Queen v. The Justices 
 of Worcestershire (3 E. & B. 477 ; 23 Law J. Eep. 
 (n.s.) M. 0. 113) that the certificate was not bad 
 for not containing statements as to these matters. 
 The Queen v. Hervey, 44 Law J. Eep. (n.s.) M. 0. 
 1; Law Eep. lOQ.B. 46. 
 
 [And see next case.] 
 nn2 
 
376 
 
 MINES (B), (D). 
 
 respect the Vice-Cliancellor that the right of 
 ■working the clay must be exercised, if at all, in 
 such a manner as not to injure the surface. Bxxt 
 V. Gill, 41 Law J. Eep. (n.s.) Chanc. 761 ; Law 
 Eep. 7 Chanc. 699. 
 
 6. — Lessees of lands subject to clauses reserv- 
 ing to the lessor the minerals with power to work 
 them, making compensation, bought the reversion 
 subject to similar clauses, which reserved the 
 minerals with working powers of an extensive 
 character, and provided for compensation for da- 
 mage or spoil to the ground thereby : — Held, that 
 the true construction of the particular deed was 
 that the compensation was to be made, not merely 
 as to future workings, &c., but also for subsequent 
 damage accruing from the future use of existing 
 workings, &c., and that such compensation was to 
 be assessed with reference to the marketable 
 value of the land, taken or damaged, for all pur- 
 poses to which it was reasonably applicable, with- 
 out regard to the powers of working, &c., to 
 which it was subj ect, and that there was no re- 
 striction on increasing the weight in the mines. 
 Mordue v. The Dean and Chapter of Durham, 42 
 Law J. Eep. (n.s.) C. P. 114 ; Law Rep. 8 C. P. 
 336. 
 
 7. — A plot of land was conveyed to a purchaser 
 for the purpose of erecting a cotton mill thereon, 
 in consideration of a perpetual rent and certain 
 covenants by the purchaser. One of such cove- 
 nants was, that the purchaser should erect and 
 keep in repair a cotton miU upon the land. The 
 conveyance contained a reservation to the vendor 
 of the mines and minerals under the land, with 
 full liberty to search for and carry away the same 
 at pleasure, but without entering upon the surface 
 of the land, so that compensation should be made 
 for all damage done to the buildings on the land 
 by the exercise of the excepted liberties. In a 
 suit instituted by the surface owner to restrain 
 the mine owner from working the mines so as to 
 let down the surface and injure the buildings 
 thereon, — Held (affirming the decision of Jessel, 
 M.E.), that the owner of the minerals was enti- 
 tled to take them all away, and in so doing, to 
 let down the surface, subject to the obligation of 
 making compensation for the damage done to the 
 surface owner. Aspden v. Seddon, 44 Law J. Eep. 
 (n.s.) Chanc. 369 ; Law Eep. 10 Chanc. 394. 
 
 (C) Covenants as to Working. 
 
 8. — A covenant in a coal mining lease to work 
 and carry on the mines in a proper and work- 
 manlike manner, is not to be construed as a cove- 
 nant to continue working. Nor under such a 
 covenant is the lessee bound to sink a pit if he 
 can carry on the works by headings from an ad- 
 joining colliery. Jegon v. Vioian, 40 Law J. Eep. 
 (n.s.) Chanc. 389 ; Law Eep. 6 Chanc. 472. 
 
 9. — Lease of three mines with covenant by 
 the lessees to work the mines with their utmost 
 skill, in the best manner and to the best advan- 
 tage, and according to the common mode of car- 
 rying on collieries with effect : — Held, that the 
 lessees were entitled to work any of the mines 
 without working the others, and to discontinue 
 
 working those which they had commenced to work, 
 and, there being evidence that such practice was 
 common in the district, to work a lower mine be- 
 fore working a higher. Lord Abmffer v. Ashton, 
 Law Eep. 17 Eq. 358. 
 
 10. — The plaintiff, by deed, demised to the 
 defendant certain veins of clay under certain lands 
 of the plaintiff, with liberty to enter upon the 
 lands for the purpose of getting the clay for a cer- 
 tain term, paying a certain royalty per ton for 
 the clay dug. After covenants on the part of the 
 defendant to pay the royalty, to cause the clay 
 dug to be conveyed away by a certain canal to 
 make trials for clay, to fill up pits, and not to 
 assign, there followed a covenant by him to dig 
 an aggregate amount of not less than 1,000 tons, 
 nor a larger quantity than 2,000 tons of clay in 
 each year. The plaintiff sued for a breach of this 
 last covenant, alleging that the defendant did 
 not dig an aggregate amount of clay of not less 
 than 1,000 tons in each year. The defendant 
 pleaded for a defence on equitable grounds that 
 he could not dig such an aggregate amount, be- 
 caiise there was not such an amoiint of clay under 
 the land, and that the performance of the cove- 
 nant was impossible, and that at the time of 
 making the covenant the impossibility was un- 
 known to the defendant : — Held, on demiurer, that 
 the plea was good, and that the defendant's 
 covenant only amounted to a stipulation as to the 
 rate at which the clay was to be raised if found, 
 and did not amount to a warranty that clay to 
 the amount of at least 1,000 tons in each year 
 could be dug on the land. Cliford v. Watts, 40 
 Law J. Eep. (n.s.) C. P. 36 ; Law Eep. 6 C. P. 
 577. 
 
 (D) Damases for "Wbongfitl 'Wobkino. 
 
 11. — Where a coal mine has been worked by a 
 trespasser, but under a bon& fide claim of title, in 
 taking an account of the coal wrongfully worked, 
 he will be allowed to deduct the cost of getting 
 and severing the coal, as well as the cost of bring- 
 ing it to the pit's mouth. Jegon v. Vivian, 40 
 Law J. Eep.j(N.s.) Chanc. 389 ; Law Eep. 6 Chanc. 
 472. 
 
 12. — Where a trespasser had been working a 
 coal mine, under a honS, fide claim of title, he 
 was allowed in taking an account of the coal 
 wrongfully worked to deduct the cost of getting 
 and severing the coal as well £is of raising it to 
 the pit's mouth. But where there was no such 
 claim, the landowner was held entitled to the 
 value of the coals taken from imder his land, with 
 an allowance for raising, but none for getting, and 
 to compensation as wayleave and royalty for all 
 minerals taken from the defendant's own mines, 
 and carried under his land. Jegon v. Vivian, 40 
 Law J. Eep. (n.s.) Chanc. 382 ; Law Eep. 6 
 Chanc. 742 ; 19 W. E. 365 ; and Phillips v. Horn- 
 fray. Fothergill v. Phillips, Law Eep. 6 Chanc. 
 770. 
 
 13. — The measure of damages for wrongfully 
 taking coal from the mine of an adjoining owner 
 is, in the absence of fraud, the market value of 
 the coal at the pit's mouth, deducting the actual 
 
MINES (D). (H). 
 
 377 
 
 disbiu'sements for severing and raising the coal. 
 In re the United Merthyr Collieries Company, 
 Law Eep. 15 Eq. 46. 
 
 14. — The defendants wrongfully broke through 
 the boundary of their coal mine in the adjoining 
 mine of the plaintiffs, and got, therefrom a quan- 
 tity of the plaintiff's coal. On a bill for an ac- 
 count and damages, — Held, that an account must 
 be taken of the market value of such coal at the 
 pit's mouth, the plaintiffs making to the defend- 
 ants all just allowances for the costs of bringing 
 the coal to the pit's mouth, but not for the costs 
 of getting or severing the coal, and there must 
 also be an enquiry as to damages. The Llynor 
 Coal and Iron Company v. Brogden, 40 Law J. 
 Eep. (n.s.) Chanc. 46; Law Eep. 11 Eq. 188, 
 nom. Llynvi Company v. Brogden. 
 
 Damage by woihing : vendor and pur- 
 chaser: covenants for title, guietenjoy- 
 ment, and against incumbrances: 
 covenant enuring to appointee of cove- 
 nantee. [See Covenant, 5.] 
 
 (E) Damage by Escape of "Wateb. 
 
 15. — The lessees of the C. colliery being in 
 possession of other mines adjoining, and to the 
 rise of the C. mine, worked the C. mine by driv- 
 ings firom their own mine, and in exercise of 
 powers contained in their lease made a channel 
 through which the water flowed from their own 
 to the C. mine by gravitation : — Held, that they 
 were not liable to make compensation for damage 
 caused by the water so flowing. Jegon v. Vivian, 
 40 Law J. Eep. (n.s.) Chanc. 389 ; Law Eep. 6 
 Chanc. 472. 
 
 16. — There was a hoUow upon the surface of 
 the defendants' land, caused by subsidence of the 
 ground from their mining operations underneath. 
 Across the land ran a brook, the course of which 
 had been diverted and improved by the defend- 
 ants. During an unusual flood, the hollow became 
 filled with water from — first, the direct rainfall ; 
 second, the surface of the laud ; ,and third, the 
 overflow of the diverted brook, which burst its 
 banks. The waters thus gathered in the hollow 
 sank, through chinks, and a cut made at the bot- 
 tom by the defendants for the purpose of quarry- 
 ing ore, down into their mine, and thence flowed 
 into the adjoining mine of the plaintiff, which was 
 on a lower level. He brought an action for the 
 damage so done. At the trial, the above facts 
 having been proved, the defendants proposed to 
 give evidence to shew that, but for the diversion 
 of the brook, more water woidd have escaped 
 from it into the hole, and greater harm would 
 have resulted to the plaintiff. The Judge ruled 
 that such evidence would be immaterial, that 
 the case was within Rylands v. Fletcher (34 Law J. 
 Eep. (n.s.) Exch. 177 ; and 35 ibid. 154 ; Law Eep. 
 3 E. & I. App. 330), and that the defendants, having 
 suffered the water to collect in the hollow, were 
 absolutely liable for the consequences. The 
 Court of Exchequer having confirmed this ruling, 
 — Held, by the Exchequer Chamber, that the 
 Judge stopped the case too soon, and, as, 
 Digest, 1870-1785. 
 
 if the defendants had adduced their evidence, 
 there might have been a question for the jury, the 
 cause must be tried anew ; that at the second trial 
 a distinction should be made between the divers 
 waters which gathered in the hole, viz., the rain- 
 fall, surface and brook waters ; and also that the 
 opinion of the jury should be taken as to whether 
 the mining operations of the defendants had been 
 done in the reasonable, ordinary, and proper 
 course of working the mine. Smith v. Fletcher, 
 43 Law J. Eep. (n.s.) Exch. 70 ; Law Eep. 
 9 Exch. 64. 
 
 17. — ^The plaintiff was lessee of a coal mine 
 near Wigan. The defendants had recently become 
 possessors of a field, called Eecles Field, and some 
 other mines under it, at a little distance from the 
 plaintiff's mine. The river Douglas fiowed over 
 the surface of the defendants' mines which were 
 in the same dip with, but higher up than, that of 
 the plaintiff. The object of the suit was to restrain 
 the defendants from so working their mines, dig- 
 ging shafts, and proceeding to other operations, 
 as to let in the river water to their mines, and 
 from them, to the plaintiff's mine. The de- 
 fendants demurred to the bill, but the demurrer 
 was overruled. The authorities on the subject 
 reviewed. Crompton v. Lea, 44 Law J. Eep. (n.s.) 
 Chanc. 69 ; Law Eep. 19 Eq. 115. 
 
 Rights of owner of coal mines under canal : 
 liability of canal company. [See 
 Canal, 1.] 
 
 (F) Custom op Cobnwail. 
 
 18. — By the custom of Cornwall, an adven- 
 turer in a cost-book mine, upon relinquishing 
 his shares and discharging his proportion of the 
 company's liabilities at that date, is entitled to 
 be paid within two years his share of the then 
 value of the stock and plant, and if the assets 
 have been exhausted within the two years in 
 payment of the compan^s debts, he is entitled 
 to be paid by contributions from the continuing 
 adventurers. In re the Prosper United Mining 
 Company ; Palmer's case, Law Eep. 7 Chanc. 286. 
 
 (G) Account against Mining Association. 
 
 19. — Land was held under a lease by a person 
 as truste'e for a number of partners, who were 
 not incorporated, but constituted an association 
 for mining purposes : — Held, that the Court of 
 Chancery had jurisdiction to decree an account 
 against the association as equitable lessees of the 
 land. Wright v. Pitt, 40 Law J. Eep. (n.s.) Chanc. 
 558 ; Law Eep. 12 Eq. 408. 
 
 (H) Neglect of StatUtoey Eequlations. 
 
 20.— The 23 & 24 Vict. o. 151, s. 10, provides 
 as a general rule to be observed in a coal mine by 
 the owner and agent that whenever safety lamps 
 are required to be used in a mine they shall be 
 examined- and securely locked by a person duly 
 authorised. Section 22 enacts that if any general 
 rule shall be neglected or wilfully violated by any 
 owner, agent or viewer, he shall be rliable to a 
 30 
 
378 
 
 MINES (H)— MOETGAGE. 
 
 pecuniary penalty. Safety lamps were given out 
 in a mine to which the above Act applied without 
 being duly locked ; a competent lampman had 
 been appointed, and there was no personal default 
 in either the owners or the agent of the mine : 
 — Held, that the owners and the agent of the 
 mine were not liable to be convicted imder the 
 above statute. DicMnson v. Fletcher, 43 Law J. 
 Eep. (n.s.) M. C. 25 ; Law Eep. 9 C. P. 1. 
 
 Free miners of Forest of Dean. [See Foebst 
 
 OP Dean.] 
 Mining lease : arbitration clause. [See 
 
 Aebiteation, 7.] 
 BateaMlity to poor rate of surface land 
 
 used im working mine. [See Eate, 9.] 
 Non-rateability of iron mines to poor rate. 
 
 [See Eate, 8.] 
 Coal Mines Begulation Act. [See Mastee 
 
 AND Servant, 14.] 
 
 Act of Victoria. [See Colonial 
 
 Law, 36, 37.] 
 
 MISTAKE. 
 
 Where money has been voluntarily paid under a 
 mistake the remedy is at law and not in equity. 
 Lamb v. Cranfield, 43 Law J. Eep. (n.s.) Chanc. 
 408. 
 
 MistaJce as to English law no defence. [See 
 Action, e.] 
 
 MISDEMEANOUE. 
 
 By the Bpping Forest Amendment Act, 1872, 
 the Epping Forest Commissioners were autho- 
 rised to make orders prohibiting, until the expira- 
 tion of the session of Parliament next after they 
 should have made their final report under the 
 Epping Forest Act, 1871, any inclosures of any 
 lands within the forest, not inclosed before the 
 passing of the Epping Forest Act, 1871; and for the 
 prevention of any waste, injury, or destruction of 
 vert, herbage, tree, shrubs or other growing things 
 in or upon any land within the forest, subject in 
 their judgment to any forestal or common rights. 
 The Commissioners made an order that, until the 
 expiration of the session of Parliament next after 
 they should have made their final report under the 
 Epping Forest Act, 1871, " All persons whosoever 
 be, and they are hereby, prohibited from commit- 
 ting any waste, injury or destruction of, or to the 
 vert, herbage, trees and shrubs, or other growing 
 things in or upon the waste lands of Epping Forest 
 aforesaid within the manor of Theydon Bois, in 
 the county of Essex (including inclosures of waste 
 lands within the said manor made within twenty 
 years next preceding and since the 21st of August, 
 1871), and all which lands are distinguished on 
 the plan hereto annexed by the qolour green." 
 The defendant, who was in occupation as tenant, 
 of a piece of land which was part of that coloured 
 green on the plan, and had been inclosed before 
 the passing of the Act of 1871, but within the 
 twenty years previous, committed waste by digging 
 marl and clay, and was indicted for a misde- 
 meanour in doing so contrary to the order of the 
 commissioners : — Held, that the order was rightly 
 made, and that a breach of it was an indictable 
 offence punishable as a misdemeanour at common 
 law. The Queen v. Walker, 44 Law J. Eep. (n.s.) 
 M. C. 169 ; Law Eep. 10 Q. B. 355. 
 
 MORTGAGE. 
 
 (A) Validity of Mortgage. 
 
 (a) Mortgage by trustee under power, 
 lb) Mortgage by company. 
 
 (B) Legal Eights of Moetgaqee. 
 
 (C) "What Peopeety passes. 
 
 (a) Stock-in-trade: inventory. 
 (j) Fixtures. 
 
 (D) Ageeement not to call in Mortgage 
 
 Monet. 
 
 (E) Moetgage by Way of Trust foe Sale. 
 
 (F) Mortgage op Policy of Insurance. 
 
 (G) Mortgage op Ship or Eeeiqht. 
 (H) Power op Sale. 
 
 (a) Whether extinguished on transfer. 
 (6) Eight to surplus proceeds of sale. 
 (c) Effect of sale on mortgagee's legal rights. 
 \d) Sale of minerals apart from surface. 
 (I) Priorities of Moetgagees. 
 
 (a) Effect of fraud or suppression. 
 (ft) Priority by obtaining legal estate. 
 
 (1) Neglect to examine title deeds. 
 
 (2) Mortgage by underlease: assign- 
 
 ment of reversion. 
 (c) Notice of sequestration. 
 (<Z) Chose in action : commission in the 
 
 army : notice. 
 (e) Constructive notice. 
 (/) Fwrther advances with notice of subse- 
 quent charge, 
 (g) Priority as between equitable mortgagee 
 
 and creditor obtaining charge, 
 (h) As between depositees of earlier and later 
 
 title deeds, 
 (i) Postponement of mortgagees under sec. 5 
 
 of Pa/rtnership Act, 1875. 
 (k) Priority by registration. 
 (I) Irish Begistration Act, 
 (K) CoNSOLroATiON OF Secueities. 
 (L) Maeshallino. 
 
 (M) Peimary and Collateral Securities. 
 (N) Merger of Mortgage Teem. 
 
 (O) ACCOTTNTS. 
 
 (ffl) Appropriation of balances. 
 
 (ft) Mortgage of live stock. 
 
 (e) Discounts on renewal of bill. 
 (P) EauiTAELE Moetgage. 
 
 (a) Beinsdy of equitable mortgagee. 
 
 (ft) Deposit of share or stock certificates. 
 
 (c) Deposit of title-deeds and memorandum. 
 (G) Teansfee of Mortgage. 
 (E) Title Deeds. 
 (S) Foreclosure and Eedemption Suits. 
 
 (a) Parties : judgment creditors, 
 
 (6) Foreclosure decree. 
 
MORTGAaE (A), (E). 
 
 379 
 
 (1) Jurisdiction. 
 
 (2) Turning into decree for sale. 
 
 (3) Form of; disputes between defend- 
 
 ants. 
 (c) Opening foreclosure, 
 {d) Redemption, suit. 
 
 (1) Sefvisal of mortgagee to account. 
 
 (2) Effect of dismissal of suit. 
 (e) Costs. 
 
 (1) Interest on. 
 
 (2) Administration suit by mortgagee. 
 
 (3) In general. 
 
 (T) JuMSDIOTION UNDEE TeTTSTEE AcT. 
 
 [Mortgagors having no notice from their mort- 
 gagees of their intention to enter into possession, 
 enabled after the 2n(l of November, 1874, to sne 
 in their own names as to the possession of the 
 land. 36 & 37 Vict. c. 66, s. 25.] 
 
 [The legal personal representative of a mortgagee 
 of freeholds or copyholds may now, on payment of all 
 sums secured by the mortgage, convey or surrender, 
 whether the mortgage be in form an assurance 
 subject to redemption or an assurance upon trust. 
 Protection and priority by legal estates and tacking 
 henceforth aboHshed. 37 & 38 Vict. c. 78, s. 4.] 
 
 (A) Valibity of Moetgage. 
 
 (ffi) Mortgage by trustee imder power. 
 
 [See Power, 28.] 
 
 (J) Mortgage by company. 
 
 1. — A charge on future book debts,, under a 
 power to mortgage the property of a company, was 
 upheld. Bloomer v. The Union Coal and Iron 
 Company, 43 Law J. Eep. (n.s.) Chane. 96 ; Law 
 Eep. 16 Eq. 383. 
 
 Company: power to mortgage unless ex- 
 pressly prohibited. [See Compant D, 
 45.] J 
 
 Mortgage by executor. [See Exbcutoe, 12, 
 13.] 
 
 (B) Legal Eights of Moetgaqee. 
 
 2. — To an action by a mortgagee on the mort- 
 gagor's covenant to pay the debt, the action being 
 brought to recover the balance due to the mort- 
 gagee, after giving credit for the money realised 
 on the sale of the mortgaged property, the de- 
 fendant pleaded, by way of equitable defence, a, 
 plea which shewed that the plaintiff had taken 
 possession of the mortgaged property, and had 
 sold the same under the power of sale contained in 
 the mortgage, and had thereby, as the plea alleged, 
 deprived the defendant of his right to have such 
 property re-conveyed to him upon payment of the 
 money and interest due on the mortgage. This 
 plea was pleaded under a master's order, whicli 
 gave the plaintiff liberty to reply and demur 
 thereto. Instead of demurring, the plaintiff ap- 
 plied for and obtained an order from a Judge to 
 strike the plea out : — Held, that such Judge's order 
 was rightly made, as the plea was clearly bad, 
 
 since it did not shew that sufficient had been 
 realised by the sale to satisfy the debt. Mudge v. 
 ifJoA«ns, 42 Law J, Eep. (n.s.) C. P. 127; Law Eep. 
 8 0. P. 358. 
 
 (C) What Peopeett passes, 
 (a) Stock-in-trade : inventory. 
 
 3. — In this case there was a mortgage of an 
 iron foundry, and fixtures, and worldng plant there- 
 on, as specified in an inventory, which was to be 
 read and construed with the deed. The inventory 
 included " stock-in-trade," which was not men- 
 tioned in the deed. A petition for liquidation was 
 filed by the mortgagor, and thereupon the stock- 
 in-trade was claimed by both the mortgagee and 
 the trustee in the liquidation : — Held (affirming the 
 decision of the County Court Judge), that the in- 
 ventory could not, contrary to the intention of the 
 parties, be allowed to enlarge the operation of the 
 deed, and that as it was not, as a matter of fact, 
 intended that the stock-in-trade should be included 
 in the mortgage, it passed to the trustee. Exparte 
 Jardine ; In re M'Mamts, 44 Law J. Eep. (n.s.) 
 Bankr. 58 ; Law Eep. 10 Chanc. 322. 
 
 (i) Fixtures. 
 [See that title.] 
 
 (B) Aqeeement not to call in Mortgage 
 Money. 
 
 4. — Where an agreement is made between an 
 intending mortgagor and mortgagee that the mort- 
 gage debt shall not be called in for a certain term, 
 that arrangement must be understood, although it 
 it is not so expressed, to be conditional upon the 
 punctual payment of interest ; and if a mortgage 
 deed had to be settled by the Court in pursuance 
 of such an agreement, the deed would be worded 
 so that the mortgagee would only be bound to 
 continue the loan so long as the interest was duly 
 paid. Seaton v. Twyford, 40 Law J. Rep. (n.s.) 
 Chanc. 122; Law Eep. 11 Eq. 591. 
 
 Where, therefore, a mortgagee who was bound 
 by such an agreement, before the expiration of the 
 term for which it was agreed the debt should not 
 be called in, but after the mortgagor's default in 
 the payment of interest, recovered judgment in 
 an action at law for the whole amount of his 
 principal and interest, the Court refused a motion 
 to stay execution, except upon the terms of the 
 mortgagor's paying into Court the whole amount 
 recovered in the judgment. Ibid. 
 
 (E) MOBTQAGB BY WaY OE TeUST FOR SaIB. 
 
 5. — A mortgage of real estate made by way 
 of a conveyance to a trustee, upon trust to sell at 
 discretion and out of the proceeds of sale to pay 
 the mortgage debt, and to pay the sm-plus moneys 
 to the mortgagor, does not constitute an express 
 trust in favour of the mortgagor, within the 25th 
 section of the Statute of Limitations, 3 & 4 Will. 
 4. c. 27. LocTcmgy. Farher, 42 Law J. Eep. (n.s.) 
 Chanc. 257 ; Law Eep. 8 Chanc. 30. 
 
 Under such a mortgage the only right of the 
 3c2 
 
380 
 
 MOETGA&E C^), (I). 
 
 mortgagor is to redeem, and lie cannot file a till 
 for a sale. The only right of the mortgagee is to 
 have the property sold, and he is not entitled to 
 foreclose. Ibid. 
 
 The mortgagor's right to redeem under such a 
 mortgage is barred by twenty years' possession by 
 the mortgagee -without any acknowledgment of 
 the mortgagor's title. Ibid. 
 
 (F) M0ETSA8E OF Policy op Insueance. 
 
 6.— The mortgagees from Q. and C. of a policy 
 of insurance on the life of Gr. which was settled on 
 C. for life for her separate use, without power of 
 anticipation, and after her death upon such trusts 
 as she should appoint, having, during the life of 
 G., paid the premiums on the policy : — Held, that 
 they were entitled, on the death of G., to be at 
 once repaid the sums so advanced with interest at 
 four per cent., as in the nature of salvage moneys. 
 The mortgage provided for interest at five per 
 cent. : — ^Held, that the mortgagees had a right to 
 have the extra one per cent, on the sums advanced 
 charged on the policy moneys on the death of C. 
 Gill V. Downing, Law Eep. 17 Eq. 316. 
 
 [And see Insubancb, 6.] 
 
 (G) MoRTOAGE OP Ship oe Freight. 
 [See Shippino Law, 0; 116, 17.] 
 
 (H) PowEE OF Sale, 
 
 (a) Whether extinguished on transfer. 
 
 7. — A mortgage deed, dated the 15th of June, 
 1825, contained a covenant to pay the mortgage 
 debt twelve months after date, with a power of 
 sale in case of default. A transfer of the mort- 
 gage, dated the 2nd of July, 1830, recited that the 
 old power of sale had not been and was not in- 
 tended to be exercised, and contained a covenant 
 to pay the mortgage debt seven years after that 
 date, with a power of sale in case of default, and 
 also assigned the debt and all powers and remedies 
 for recovering the same and all the benefit of the 
 previous mortgage : — Held (reversing the decision 
 of the Master of the Bolls), that the old power 
 was not extinguished. Boyd v. Petrie, 41 Law J. 
 Eep. (n.s.) Chanc. 378 ; Law Eep. 7 Chanc. 385. 
 
 (i) Eight to surplus proceeds of sale. 
 
 8. — After the death of a mortgagor insolvent, 
 the mortgagees of a policy on the life of the mort- 
 gagor, taken in their names, received the policy 
 moneys. After satisfaction of their mortgage 
 debt, they had a balance in their hands ; this 
 they claimed to retain against the executor of the 
 mortgagor, to satisfy an unsecured simple con- 
 tract debt due from the mortgagor to them : — 
 Held, that they were entitled to do so. In re 
 Hadefoofs Estate ; Chauntler's Claim, 41 Law J. 
 Eep. (n.s.) Chanc. 286; Law Eep. 13 Eq. 327. 
 
 (c) Effect of sale on mortgagee's legal rights. 
 [See supra, No. 2.] 
 
 {d) Sale of minerals apart from surf aee. 
 
 9. — Mortgagees of real property, except the 
 minerals, were allowed upon petition to exercise 
 their power of sale by selling apart from the 
 minerals, although a bill for foreclosure had been 
 filed by them, and subsequent incumbrancers and 
 persons interested in the equity of redemption 
 opposed the petition. In re Wilkinson's Mort- 
 gaged Estates, 41 Law J. Eep. (n.s.) Chanc. 392 ; 
 Law Eep. 13 Eq. 634. 
 
 (I) Peiobities op Moetgagees. 
 (a) Effect of fraud or suppression. 
 
 10. — The plaintiif in the year 1865 entered 
 into a partnership with L., the terms being that 
 L. should bring in as capital the business premiseB, 
 to he taken at a valuation, and so much money as 
 might be required to make up 6,000?., and that 
 the plaintiff should bring in 6,000Z. and pay a 
 certain premium to L. The defendant, J. C, 
 acted as solicitor for L. in this transaction, and 
 furnished the valuer with the particulars of his 
 interest in the business premises. Four years 
 afterwards L. became bankrupt, having drawn all 
 his capital out of the partnership, and being in 
 debt to it at the time ; and the defendant, J. C, 
 then informed the plaintiff that he and his brother, 
 P. C, held a mortgage on L.'s interest in the 
 business premises for 850Z., the sum advanced 
 being trust money. This mortgage had been 
 created before the partnership was agreed upon, 
 and neither J. C, nor L. had ever mentioned it to 
 the plaintiff, nor was it noticed in the particulars 
 furnished to the valuer, and the interest had been 
 paid upon it by L. in cash, or hy cheques on his 
 private account : — Held, that J. C. was bound to 
 make good to the plaintiff the amount of the 
 mortgage and any interest he might have to pay 
 on it, and that he must pay the costs of the suit. 
 Stern/ v. Combs, 40 Law J. Eep. (n.s.) Chanc. 595. 
 
 11. — D., a second mortgagee, with a power of 
 sale, was fraudulently induced by his confidential 
 solicitor to join with the first mortgagee in exe- 
 cuting a conveyance upon a pretended sale to the 
 solicitor, and to sign a receipt for the purchase- 
 money; but no money was paid to him, the 
 solicitor representing that it was a mere matter 
 of form, and that the mortgages would remain as 
 before. The solicitor afterwards deposited the 
 deeds with C. by way of equitable mortgage : — 
 Held, affirming the decision of the Court below 
 (Law Eep. 11 Eq. 292),thatD. having by his negli- 
 gence enabled the solicitor to commit the fraud, 
 C.'s equitable mortgage was entitled to priority. 
 Hunter v. Walters; Curling v. Walters; Darnell 
 V. Hunter, 41 Law J. Eep. (n.s.) Chanc. 175 ; Law 
 Eep. 7 Chanc. 75 (and see Angas v. Lee, ib. 79 n). 
 
 12. — In 1866 H. and C, who were trustees of a 
 settlement, lent 7,700Z. on mortgage of freehold 
 lands belonging to S., the mortgage being for three 
 years certain. C. was a solicitor, and acted in 
 the matter both for the trustees and for S., and 
 took possession of the title-deeds on behalf of the 
 trustees, and paid the interest as it became due to 
 the cestui que trust. In 1859, before the three 
 
MORTGAGE (1). 
 
 381 
 
 years had expired, S. sold part of the property in 
 mortgage to three purchasers. The mortgage was 
 not disdosed and S. purported to conyey the legal 
 estate to the respective purchasers in consideration 
 in the -whole of 3,080Z., C. again acting as solicitor 
 to S. Such title-deeds as related only to the parts 
 sold were handed to the respective purchasers. 
 Between S. and C. there was a running accoimt, 
 andS. paid to C. the 3,080?., C. giving to S. a 
 receipt signed by him on behalf of himse& and his 
 co-trustee, H., who he alleged was abroad. H. 
 was in England, but knew nothing of these trans- 
 actions. In 1870 S. contracted to sell another 
 part of the property in mortgage to P. for 1,500?. 
 He declined on this occasion to conceal the mort- 
 gage, and pressed C. to obtain for him a re-con- 
 veyance of the paits already sold. 0. then in- 
 formed S. that he had appropriated the 3,080?., 
 and lost it. He then represented to H. that S. 
 had sold different parts of the property to pur- 
 chasers for 3,080?. and 1,500?. and obtained from 
 H. a conveyance to P. of the part agreed to be 
 sold to him, and a re-conveyance to S. of the parts 
 sold for 3,080?. in order that S. might convey to 
 the purchasers. The conveyance to P. was then 
 completed with the knowledge of S., and the re- 
 conveyance was handed to S. C. was to have 
 paid the whole of the money to a joint account, 
 but he failed to do so, and absconded taking the 
 mortgage-deed with him. Before S. had con- 
 veyed the legal estate to the purchasers H. filed 
 his bill against C, S., and all the purchasers : — 
 Held, affirming the decree of Bacon, V.O. (43 Law 
 J. Eep. (if.s.) Chanc. 169 ; Law Eep. 18 Eq. 216), 
 that the purchasers were purchasers only of an 
 equity of redemption, and that they could not 
 avail themselves of the legal estate, the re-con- 
 veyance of which had been procxired by fraud ; 
 that H. was entitled to have the re-conveyance to 
 S. cancelled, and an account taken of what was 
 due on the mortgage security, and also to a decree 
 that the amount found due should be paid by S. 
 But held, varying the same decree, that upon 
 default of payment by S. and on the purchasers 
 (except P.) failing to pay such amount, H. was 
 entitled to a foreclosure (except as to the parts 
 sold to P.) instead of a sale as directed by the 
 Vice-Chancellor. Heath v. Crealoclc, 44 Law J. 
 Eep. (n.s.) Chanc. 157 ; Law Eep. 10 Chanc. 22. 
 
 Held, also, varying the same decree, that the 
 purchasers could not be ordered to deliver up the 
 title-deeds in their possession, the rule being that 
 from a purchaser for value without notice the 
 Court takes nothing away which he has honestly 
 acquired. Ibid. 
 
 If a puroi'Loer on the completion of his pur- 
 chase acquires a defective title, that defective 
 title cannot afterwards be strengthened either by 
 his own fraud or the fraud of any other person. 
 Ibid. 
 
 13. — T. "W., a solicitor, was the acting trustee 
 of a settlement. Part of the trust funds was 
 invested in a fiist legal mortgage, in the names of 
 T. W. and his co-trustee, of property belonging to 
 J. C, a client of T. "W. At the request of J. C, 
 Tvho was pressed by his bankers for security for 
 
 his overdrawn account, T. W. gave up to him the 
 title-deeds, in order that he might deposit them 
 with the bankers, a promise being then made by 
 J. C. to substitute another security, which was 
 never done. Nothing was said bjr T. W. to his 
 co-trustee or his cestuis que trust. J. C. de 
 posited the title-deeds with his bankers, sup- 
 pressing the mortgage. Before accepting the 
 deposit, the bank required a certificate of title 
 from some solicitor, and, at the suggestion of 
 J. 0., they applied to T. W., who gave a certi- 
 ficate that J. C. had a good title. J. C. and T. W. 
 having both died insolvent, upon bill filed by 
 the surviving trustee, and his cestuis que trust, 
 against the bank, to establish the first mortgage, 
 and to obtain delivery of the deeds, — Held, that 
 the bank were purchasers without notice, not 
 being affected by notice through T. W., and that 
 a simple foreclosure decree only could be made, as 
 in Heath v. Crealock (44 Law J. Eep. (n.s.) Chanc. 
 157 ; Law Eep. 10 Chanc. 22), and that no order 
 could be made as to the deeds. Waldy v. Gray, 44 
 Law J. Eep. (N.s.) Chanc. 394 ; Law Eep. 20 Eq. 238. 
 
 (J) Priority hy obtaining legal estate. 
 (1) Neglect to examine title deeds. 
 
 14. — A. bought an estate and received the title- 
 deeds tied up in a parcel : thereupon he took out 
 the four latest deeds, including the conveyance to 
 himself, and deposited them with the plaintiff by 
 way of equitable mortgage : subsequently, having 
 tied up the remaining deeds in the old wrapper, 
 he deposited them with his bankers to secure the 
 balance owing to them. In April, 1866, being in- 
 debted to the defendant, A. promised to give him 
 a mortgage of the estate, and told him and H., 
 who acted as solicitor for both, that the deeds 
 were at the bank as a security. H., with 400?. 
 supplied by the defendant, paid off the bank, and 
 obtained the parcel on the 1st of May, 1866, when 
 he was told that it had never been examined by 
 the bank. H. kept the parcel in his possession 
 without opening it till the 12th of May, 1866, 
 when a legal mortgage was executed to A., who, 
 as well as H., was still ignorant of the absence of 
 the title-deeds. The 400?. was afterwards repaid 
 to the defendant by A. The plaintiff having filed 
 this bill against the defendant, seeking to fore- 
 close him, it was dismissed with costs. Batcliffe 
 V. Barnard, 40 Law" J. Eep. (n.s.) Chanc. 777 ; 
 Law Eep. 6 Chanc. 652 : affirming the Master of 
 the Eolls, 40 Law J. Eep. (n.s.) Chanc. 147. 
 
 (2) Mortgage hy underlease : assignment of 
 reversion. 
 
 15.— P. having a term of years in a house, made 
 a mortgage thereof to M. by way of underlease, 
 retaining in himself a reversion of two days. 
 He subsequently made an equitable mortgage by 
 way of written memorandum to Padgett. He 
 again made a third mortgage to S., and assigned 
 to S. the original term, including the reversion of 
 two days. S. had no notice of the equitable 
 mortgage to Padgett :— Held, by Malins, V.C, 
 
382 
 
 MORTaAGE (i). 
 
 that the equities being equal, S. had a legal estate 
 by virtue of the assignment to him of the original 
 term, and the reversion of two days, which enti- 
 tled him to priority over Padgett. On the argu- 
 ment of the appeal, the Lords Justices expressed 
 themselves not prepared to affirm this view, and 
 therefore desired a further question of fact to be 
 argued ; hut the case was compromised before any 
 judgment was given. In re Eussell Road Purchase 
 Moneys, 40 Law J. Eep. (n.s.) Chanc. 673 ; Law 
 Eep. 12 Eq. 78. 
 
 [And see supra No. 12, and Shippinb Law, I 17.] 
 
 (o) Notice of sequestration. 
 
 IG. — A decree was made against A., and seques- 
 tration issued, to avoid which A. absconded. The 
 plaintiff then changed his solicitor by the common 
 order, and B., the brother-in-law of A., gave the 
 dismissed solicitor 1002. to induce him to appear 
 and consent to a motion discharging the seques- 
 tration, which he did, the change of solicitors not 
 being noticed at the time. A. subsequently be- 
 came entitled, as next-of-kin of a deceased in 
 testate, to a fund in the hands of the adminis- 
 trator, and mortgaged it to B. for nearly its full 
 amoxmt. The sequestration creditor then filed a 
 bill against A., B., and the administrator, asking 
 for payment of the sum to which A. had become 
 entitled, and obtained a discharge of the order 
 discharging the sequestration. A., who was out 
 of the jurisdiction, was not served with the bill : 
 ■ — Held, first, that the omission to serve A. was 
 no bar to the question being decided between the 
 plaintiff and B., but that no order for payment of 
 the fund to the plaintiff could be made without 
 notice to A., though it would be ordered into 
 Court. Second, that as between the plaintiff and 
 B.,the plaintiff was entitled to preference. Ward 
 v. Booth, 41 Law J. Eep. (n.s.) Chanc. 729 ; Law 
 Eep. 14 Eq. 195. 
 
 {d) Chose in action : commission in the army : 
 notice. 
 
 17. — A notice left at a bank after business 
 hours only operates as notice to the bank from the 
 time when in the ordinary course of business it is 
 opened and read. Calisher v. Forbes, 41 Law J. 
 Eep. (n.s.) Chanc. 56 ; Law Eep. 7 Chanc. 109. 
 
 An officer in the army retired from the service 
 by the sale of his commission. The proceeds of 
 the sale were in the hands of the army agents on 
 the 7th of December, but the balance payable to 
 him, after deduction of his regimental debts', was 
 not transferable to his account until the 8th, on 
 which day it was so transferred. He had pre- 
 viously to the sale charged the proceeds of his 
 commission with various sums of money advanced 
 to him. One of the incumbrancers left a notice 
 of his charge at the office of the army agents at 
 half-past five" p.m., on the 7th instant, after 
 business hours, and when the office was closed. 
 The other incumbrancers left similar notices as 
 soon as the office doors were open next morning ; 
 — Held, that all the notices must be taken to have 
 been left at the same time, and therefore the 
 
 priorities of the several incumbrancers depended 
 on the dates of their securities. PapUlon v. 
 Brunton (29 Law J. Eep. (n.s.) Exch. 266) distin- 
 guished. Ibid. 
 
 18. — On the retirement of an officer from the 
 army by the sale of his commission, the commis- 
 sion was absorbed by the Crown, and the army 
 agents received an order from the authorities at 
 the Horse Guards to transfer to him the price of 
 the commission out of a fund held by them subject 
 to the regulations and under the directions of the 
 Horse Guards, but by those regulations the money 
 was not actually issuable except upon the receipt 
 of the retiring officer : — Held, reversing the deci- 
 sion of the Master of the EoUs, that the agents 
 were constituted trustees of the money upon the 
 receipt of the order to transfer, and consequently 
 as between two equitable assignees, the one who, 
 first after the receipt of that order, gave to the 
 agents notice of his charge, was entitled to priority. 
 The successful appellant in such a case, allowed 
 to add his costs of appeal to his charge. Addison 
 V. Cox, 42 Law J. Eep. (n.s.) Chanc. 291 ; Law 
 Eep. 8 Chanc. 76. 
 
 (e) Constructiiie notice. 
 
 10. — A mortgagee advancing money on the' 
 security of a considerable estate, and omitting to 
 investigate the title to a particular portion of it, 
 will not be affected with notice of equities affecting 
 the residue of the estate, which upon such investi- 
 gation he might possibly have discovered. Hunter 
 V. Walters, 41 Law J. Eep. (n.s.) Chanc. 175 ; Law 
 Eep. 7 Chanc. 75. 
 
 20. — B., a builder, entitled to an agreement 
 for a lease, sold a house to M., and subsequently 
 obtained a lease from the ground landlord, which 
 he deposited with Stohwasser, by way of equitable 
 mortgage, to secure an advance from Stohwasser. 
 Stohwasser, at the time of the advance, had no 
 notice of B.'s title. Stohwasser subsequently took 
 a legal mortgage of the house from B., to secure 
 his previous advance. At the time of taking such 
 legal mortgage a tenant of M. was in occupation 
 of the house : — Held, that the fact that a tenant 
 of M. was in possession gave constructive notice to 
 Stohwasser of M.'s title. Mnmford v. Stohwasser, 
 43 Law J. Eep. (n.s.) Chanc. 694 ; Law Eep. 18 
 Eq. 556. 
 
 Held, further, that Stohwasser obtained no 
 priority over M. by taking the legal estate. Ibid. 
 
 Semble — that the result would have been the 
 same if, at the time of taking the legal estate, he 
 had had no notice of M.'s claim. Ibid. 
 
 Semble — that a person advancing money on an 
 equitable security, subject to a prior equity, of ' 
 which he has not notice, either actual or construc- 
 tive, does not, by subsequently getting the legal 
 estate, obtain priority, whether at the time he gets 
 the legal estate he has or has not constructive 
 notice of the prior equity. Ibid. 
 
 (/) Furt/ier advances with notice of subsequent 
 charge. 
 
 21. — A brewer took from an innkeeper a mort- 
 
MORTGAGE (I). 
 
 383 
 
 gage to secure 1,260Z. and any sums afterwards 
 due from him not exceeding 1,5002. At the same 
 time and place the innkeeper gave to a distiller, 
 subject to the brewer's secm'ity, a charge upon the 
 mortgaged premises for a sum advanced. Subse- 
 quently, the mortgagor became indebted in further 
 sums to the brewer : — Held, that the distiller had 
 priority over such further sums as became owing 
 after notice of the distiller's mortgage, and that 
 neither an alleged custom of trade, nor the fact 
 that the securities were given simultaneously, 
 could alter the legal meaning of the documents. 
 Menzies v. Lightfoot, 40.Law J. Eep. (n.s.) Ohanc. 
 561 ; Law Eep. 11 Eq. 459. 
 
 (g) Priority as between, equiidble mortgagee and 
 creditor obtaining charge. 
 
 22. — The devisees of an equitable estate in a 
 freehold house deposited the title-deeds to secure 
 the payment of a loan made to them by the de- 
 positee. The deposit was accompanied by a writ- 
 ten memorandum charging the interest of the 
 depositors in the property with the repayment of 
 the sum advanced. Before the deposit a decree 
 had been made, in a suit instituted for the ad- 
 ministration of the testator's estate, which con- 
 tained a declaration that the depositors- were enti- 
 tled to the house as tenants in common. After 
 the deposit a creditor of the testator obtained in 
 another suit a decree declaring her entitled to a 
 charge upon the house in respect of a debt due to 
 her from the testator. The depositee of the deeds 
 had no notice of this claim when he advanced the 
 money: — Held (reversing the decision of Hall, 
 y.C), that the depositee was entitled to priority 
 ovei; the creditor. Carter v. Sanders (2 Drew. 
 248 ; 23 Law J. Eep. (n.s.) Chanc. 679) dis- 
 approved. The British Mutual Investment Com- 
 pany V. Smart, 44 Law J. Eep. (n.s.) Chanc. 695 ; 
 Law Eep. 10 Chanc. 667. 
 
 Semble — that an equitable mortgage by deposit 
 of title-deeds made by an heir-at-law or a devisee 
 of a legal estate would be good as against cre- 
 ditors of the ancestor or testator who had not ob- 
 tained any judgment or decree binding the land 
 before the mortgage was made. Ibid. 
 
 (A) As between depositees of earlier and later deeds. 
 
 23. — A person advancing money upon a letter 
 giving an equitable charge accompanied by the 
 deposit of a single ancient title-deed relating to 
 the estate, and honestly giving credit to the repre- 
 sentation of the borrower that the creditor has 
 the title-deeds relating to the estate, has a good 
 equitable mortgage, although the modern and 
 really important title-deeds are not included nor 
 enquired after, and such charge will be entitled to 
 priority over a subsequent mortgage by the de- 
 posit of all the deeds necessary to shew a good 
 title. Dixon v. MucMeston, 42 Law J. Eep. (n.s.) 
 Chanc. 210; Law Eep. 8 Chanc. 155. 
 
 The authorities as to postponement of a prior 
 equitable mortgage by neglect to enquire, con- 
 sidered, Ibid. 
 
 (i) Postponement of mortgagees under sec. 5 of 
 Partnership Act, 1875. 
 
 24. — Money was advanced to a trader in return 
 for ^a share in the profits of his business. The 
 agreement under which the advance was made 
 was expressly under the Partnership Act, 1865, 
 and stipulated for a mortgage of the business pre- 
 mises. Subsequently these premises were con- 
 veyed to a trustee for the lender by way of mort- 
 gage to secure the advance. 'The mortgagor 
 became bankrupt : — Held, that thereupon by 
 section 5 of the said Act the mortgagees were 
 postponed to the other creditors of the mortgager, 
 and they were ordered to concur with the bank- 
 rupt's trustee in selling the mortgaged premises 
 for the benefit of the other creditors. Ex parte 
 Macarihur ; In re 'Ramsden, 40 Law J. Rep. (n.s.) 
 Banltr. 86. 
 
 (Jc) Priority by registration. 
 
 25. — A solicitor having a power to raise money 
 by mortgaging certain equities of redemption, 
 raised a sum of money from one of his clients, 
 and then, concealing this exercise of the power, 
 raised another sum from another of his clients. 
 Neither of the mortgagees had any independent 
 advice. The property was situated in Middlesex, 
 but the mortgage-deeds were not registered. The 
 solicitor subsequently left the country in difficul- 
 ties, and soon afterwards both the deeds were 
 registered, the second mortgagee's deed being 
 registered first in point of time : — Held, reversing 
 the decision of the Master of the EoUs (40 Law 
 J. Eep. (n.s.) Chanc. 345), that the first mortgage 
 was entitled to priority, though registered sub- 
 sequently to the second. Bolland v. Hart, 40 
 Law J. Eep. (n.s.) Chanc. 701 ; Law Eep. 6 
 Chanc. 678. 
 
 26. — A. took an agreement, not under seal, to 
 execute a second mortgage of land in Yorkshire as 
 security for money lent, but did not register : — 
 Held, that a subsequent third mortgagee who re- 
 gistered, had priority over A. Moore v. Culver- 
 house (27 Beav. 639; 29 Law J. Eep. (n.s.) 
 Chanc. 419) followed; Wright v. Stanfield (27 
 Beav. 9; 29 Law J. Eep. (n.s.) Chanc. 183) 
 not followed. In re Wight's Mortgage Trusts, 43 
 Law J. Eep. (n.s.) Chanc. 66 ; Law Rep. 16 Eq. 41. 
 
 27. — In a register county, a further charge is 
 a conveyance requiring registration, and an un- 
 registered further charge is not simply postponed 
 to a subsequent registered mortgage, but is void 
 as against it, so that it cannot be tacked to the 
 first mortgage. Credland v. Potter, 44 Law J. 
 Eep. (N.s.) Chanc. 169 ; Law Eep. 10 Chanc. 8. 
 
 A person taking a security for a past debt was 
 content wdth the mortgagor's statement that a 
 registered deed was a mortgage to secure a certain 
 amount, and that no more was due to the mort- 
 gagees : — Held, that he was not affected with 
 notice of an unregistered further charge. Ibid. 
 
 Decree of Bacon, V.C. (43 Law J. Eep. (n.s,) 
 Chanc. 484; Law Eep. 18 Eq. 35ft) affirmed. 
 Ibid. 
 
 [And see Sbhtinq Law, I 16.] 
 
384 
 
 MOETGAGE (I), (0). 
 
 (I) Irish Segiairatioii Act. 
 
 28. — The mere fact that upon the preparation 
 of a mortgage of property in Ireland the title- 
 deeds ■were not produced to the solicitor of the 
 mortgagee does not prove fraud or negligence 
 on the part of the solicitor so as to postpone his 
 client's registered mortgage to a prior unregis- 
 tered equitable security. The decision of the 
 Court below affirmed on the special facts of the 
 case and the construction of the Irish Eegistration 
 Act. Womiald y. Maitland (35 Law J. Eep. 
 (n.s.) Chanc. 69) questioned. The Agra Bank v. 
 Barry, Law Eep. 7 E. & I. App. 136. 
 
 (K) Consolidation op Securities. 
 
 29. — If two distinct mortgages (A. and B.) 
 by the same mortgagor, each containing a trust 
 to apply the proceeds of a sale under the power, 
 first, in payment of costs of sale, then of the 
 interest, and then of the principal due upon it, 
 come into the hands of the same person as mort- 
 gagee, he may sell the lands subject to mortgage 
 A., and apply the proceeds in payment of arrears 
 of interest on mortgage B. before reducing the 
 principal of A. Thompson v. Hudson, 40 Law J. 
 Eep. (N.s.) Chanc. 28 ; Law Eep. 6 Chanc. 320. 
 
 30. — The principle of consolidation of secu- 
 rities does not apply to a mere bailment of deeds 
 to secure one of the debts. Crickmore v. Freeston, 
 40 Law J. Eep. (n.s.) Chanc. 137. 
 
 Quaere — whether the principle applies to a case 
 in which the mortgagor is not relying upon his 
 right to redeem but on a right at law. Ibid. 
 
 31. — A mortgagee of a life estate and policies 
 of assurance had also obtained subsequent judg- 
 ments, being charges under 1 & 2 Vict. c. 110, on 
 the life estate. There were intervening incum- 
 brances on the life estate only. On his first mort- 
 gage being discharged oiit of the life estate, — 
 Held, that the next incumbrancer was entitled, on 
 the principle of marshalling, to be paid out of the 
 policies, and that the first mortgagee could not by 
 consolidating his securities throw his subsequent 
 charges on the policies so as to prevent this. Ford 
 T. Tynte, 41 Law J. Eep. (n.s.) Chanc. 758. 
 
 (L) Maeshalmng. 
 [See last case.] 
 
 (M) PeIMAEY and COLIATEBAI SeOUBITIES. 
 
 32,— D., on the 27th of October, 1862, made 
 an equitable mortgage of his N. estate to his 
 bankers, to secure advances made on his current 
 account. On the 4th of May, 1863, he made a 
 similar mortgage to them of his W. and S. estates 
 to secure farther advances thereon. He had, prior 
 to October, 1862, devised his N. and S. estates to 
 the plaintiiFs in the suit, and his W. estate to one 
 of the defendants in it. At the death of D., in 
 November, 1863, there was owing on the securities 
 to the bankers the sum of 18,886?. 11«. Id. of 
 which 17,450?. 10s. 6d. was incurred up to the 4th 
 of May, 1863, and 1,436Z. Os. M. between that 
 date and the death of D. A suit was instituted, 
 
 the N, estate was sold, and vdth the purchase- 
 money, and a portion of the rents of it and of the 
 S. estate, the whole of the debt due to the bank 
 was discharged. The plaintiffs insisted that they 
 were entitled to contribution from the devisee of 
 the "W. estate, according to its value : — Held, that 
 the N. estate was the primary security for the first 
 and larger advance, and that the two estates ac- 
 cording to their values were rateably chargeable 
 with the second and smaller advance. Lipscomb 
 V. Lipscomb (38 Law J. Eep. (n.s.) Chanc. 90 ; 
 Law Eep. 7 Eq. 501) approved and followed. Le 
 Bochefort v. Dawes, 40 Law J. Eep. (n.s.) Chanc. 
 625 ; Law Eep. 12 Eq. 540. 
 
 (N) Meegee or Moetgage Teem. 
 
 33. — A mortgage was made for a term of years, 
 and subsequently the reversion was conveyed to a 
 trustee for sale to secure a further advance and the 
 prior advances : — Held, that the terms were not 
 merged, though portions had been sold by the trus- 
 tee with the concurrence of the mortgagee. Lock- 
 ing V. Parker, 42 Law J. Eep. (n.s.) Chanc. 257 ; 
 Law Eep. 8 Chanc. 30. 
 
 (0) Accounts. 
 (a) Appropriation of balances. 
 
 34. — If a mortgagee, even when his interest is 
 in arrear, enter into possession and sell part of 
 the mortgaged estate under a power of sale in his 
 mortgage, and after payment of his costs and in- 
 terest then due, retain a balance of the proceeds 
 in his hands, that balance will be considered as 
 applied in reduction of the principal debt, and 
 future interest can be charged only on the amount 
 of the debt so reduced. Thompson v. Hudson, 40 
 Law J. Eep. (n.s.) Chanc. 28 ; Law Eep. 6 Chanc. 
 320. 
 
 (5) Mortgage of live stock. 
 
 35. — Mortgage of a station and stock with a 
 stipulation that the mortgagee might pay " the 
 license fees or rent, fines, penalties and other 
 charges payable in respect of the station or run or 
 the stock thereon or in relation thereto," and charge 
 them on the mortgaged property if the mortgagor 
 failed to pay them : — Held, that advances for pay- 
 ment of government rent due and for scab licenses 
 might be charged, but not sheep wash. Feiiton v. 
 Blackwood, Law Eep. 5 P. C. 167. 
 
 (e) Discounts on renewal of bill. 
 
 36. — Mortgage by A. of a station and stock to 
 his agents to secure the repayment of a sum of 
 money for which he had given them hi^ accept- 
 ance, with interest, and to secure the payment of 
 any bill which the mortgagees might receive or 
 take by way of renewal. The bill having been 
 renewed from time to time, the mortgagees paid 
 on A.'s behalf the discounts on renewal payable to 
 the bank who had discounted the bill, but instead 
 of keeping a separate account of the moneys so 
 paid as moneys secured by the mortgage, they in- 
 cluded them in their general account with A., 
 charging him interest and mercantile commission ; 
 
MOETGAGE (0), (R). 
 
 385 
 
 — Held, nevertheless, that the moneys paid were 
 advanced to A. on the security of the mortgage, 
 ■and not simply in account current on his personal 
 security. Fentoa v. Blaolcwood, Law Rep. 5 P. 0. 
 167. 
 
 As between the mortgagor and mortgagee of 
 ipolioy. [See supra No. 6.] 
 
 (P) Equitabub Mobtgaqe. 
 (a) Bemedy of equitable inortgagee. 
 
 37. — The proper remedy for an equitable mort- 
 gagee with a deposit of title-deeds is by a decree 
 for foreclosure, and not a sale. Price v. Bury, 
 MSS., followed. Confer Lib. Beg. 25th of January, 
 1854, per L.C. and L.J J. James v. Ja/mes, 42 
 Law J. Rep. (n.s.) Chanc. 386; Law Rep. 16 Eq. 
 163. 
 
 (6) Deposit of share or stock certificates. 
 
 38. — As the registered owner of shares or 
 stock in any company may be only entitled as 
 trustee, any one who advances money upon an 
 equitable deposit of share or stock certificates, or 
 upon an assignment in equity of shares or stock 
 without obtaining a transfer of the legal estate, 
 does so subject to the risk of having his equitable 
 title overridden by a pre-existing, though undis- 
 closed, equitable title. The Shropshire Union 
 Bailway Canal Company v. The Queen, 45 Law J. 
 Rep. (n.s.) 0. L. 30 ; Law Rep. 7 E. & I. App. 497. 
 
 If any one absolutely entitled to shares or stock, 
 places them for his own purposes in the name of 
 a sole trustee, and allows such trustee to hold the 
 certificates of the share or stock, he does so at the 
 risk of having his equitable title defeated by the 
 execution of a legal transfer of the shares or stock 
 by bis trustee to a purchaser or mortgagee without 
 notice. His right may also be forfeited in favour 
 of an equitable mortgagee by his own misconduct 
 or misrepresentations, but such misconduct must 
 be very distinct and the burden of proving it rests 
 with him who relies on it as the ground for dis- 
 placing the cestui que trust's equitable interest. 
 These principles are as applicable to corporations 
 as to individuals. Ibid. 
 
 (c) Deposit of title-deeds and memorandum, 
 
 39. — Notice to a person under contract to sell 
 an estate that his vendee has agreed to make a 
 valid assignment of the contract, if so requested, 
 does not put the vendor upon enquiry whether his 
 vendee has been requested to make, or has made 
 such valid assignment. Shaw v. Foster (H. L.), 42 
 Law J. Rep. (n.s.) Chanc. 49 ; Law Rep. 5 E. & 
 I. App. 321. 
 
 Where a deposit of title-deeds is accompanied 
 with a memorandum in writing, the kind and 
 amount of charge intended to be created by the 
 deposit must be ascertained solely by reference to 
 the written document. Ibid. 
 
 of deeds 
 Bankee, 6-8.] 
 
 with banker. [See 
 
 (ft) Tbansfeb of Mobtgaqe. 
 40. — The interest on a mortgage being in 
 Digest, 1870-1875. 
 
 arrear, the mortgagees in June, 1864, ordered it 
 to be put up for sale under their power of sale. 
 The mortgagor was a trustee, and he had com- 
 mitted a breach of trust in not keeping down the 
 interest out of the rents of the property. He pro- 
 cured a person to take a transfer of the mortgage, 
 who on the 14th of June, in order to stop the sale, 
 paid the mortgagees 1951. for arrears of, interest 
 and costs. In September, 1864, he paid the mort- 
 gagees a further sum of 561. for interest. The in- 
 vestigation of the title was not completed for some 
 time, and the transfer of the mortgage was not 
 executed until August, 1865, by which time fur- 
 ther interest to the amount of 1222. had accrued 
 due. The transfer deed recited that the principal 
 debt, the 1221. interest and 45?. costs, were due to 
 the mortgagees, and by it they assigned to the 
 transferee the principal debt and the last-men- 
 tioned sums for interest and costs, and conveyed 
 the property, subject to the equity of redemption. 
 Contemporaneously with the transfer another deed 
 was executed, by which the mortgeigor purported 
 to capitalise the arrears of interest and costs, and 
 to charge the amount of them, with interest 
 thereon, upon the estate. The title to the pro- 
 perty gave notice to the transferee of the breach 
 of trust which had been committed. A redemption' 
 suit having been instituted by the cestuis que trust 
 against the transferee and the trustee, — Held (re- 
 versing a decision of Hall, V.C), that the trans- 
 feree was entitled to charge against the estate the 
 sums which he had paid for interest and costs 
 before the execution of the transfer. Held also 
 (reversing the Vice-Chancellor's decision), that 
 there was no ground for depriving the transferee 
 of the costs of the suit. Cottrell v. Finney, 43 Law 
 J. Rep. (n.s.) Chanc. 562 ; Law Rep. 9 Chanc. 641, 
 
 As to extinguishment of power of sale on 
 transfer of mortgage with new power, 
 [See supra No. 7.] 
 
 (R) TrruB Deeds. 
 [And see supra Nos. 12, 13.] 
 
 41. — A mortgage was made of estate A. for 
 3001., in which sureties joined to secure the debt. 
 Another mortgage of estate B. was made by the 
 same mortgagor to the same mortgagee to secure 
 1,500Z., and the title-deeds of other property 
 belonging to the mortgagor's wife were deposited 
 as collateral security for SOOl., part of the 1,500?. 
 The first 3002. was paid off partly by the sureties. 
 Afterwards, the other principal security was rea- 
 lised, and the 1,500?. paid off. The mortgagee 
 , resisted the delivery of the deposited deeds on the 
 ground that the sureties might have an equity 
 against them, and the sureties were made parties 
 to a suit for delivery of the deeds. The sureties 
 did not assert any claim in the sdt : — Held, that 
 the mortgagor was entitled to a, decree for de 
 livery of the deeds, and to the costs of the suit 
 against the mortgagee, and that the principle of 
 consolidating securities did not apply to a mere 
 bailment of deeds to secure one of the debtit. 
 Crickmore v. Freeston, 40 Law J. Rep. (n 3 ■> Chane, 
 137. 
 
 8D 
 
MOETGAGE (E), (S). 
 
 In siioh a case the proper remedy is by inter- 
 pleader, and if a person having a right to file an 
 interpleader bill does not do so, but awaits the suit 
 of one of the claimants, he -will, if the plaintiff es- 
 tablishes his claim, be ordered to pay the costs of 
 the suit. Ibid. 
 
 Qusere — whether the principle of consolidating 
 securities applies to a case in which the mortgagor 
 is not relying upon his right to redeem but on a 
 right at law. Ibid. 
 
 (S) FOEECLOSDEE AND REDEMPTION StriTS. 
 
 (a) Parties : judgment creditors. 
 
 42. — The plaintiff in a foreclosure suit had 
 made parties as defendants certain judgment cre- 
 ditors who had not taken the steps necessary to 
 obtain a charge on the land under 27 & 28 Viet. 
 c. 112. One of these, immediately on being served 
 with a copy of the bill, wrote a letter saying he 
 claimed no interest. The others disclaimed by 
 answer : — Held, that they were not necessary par- 
 ties. Mildred v. Austin (Law Eep. 8 Eq. 220) 
 disapproved of. The Earl of Cork v. Ewssell, 41 
 Law J. Rep. (n.s.) Chanc. 226 ; Law Rep. 13 Eq. 
 210. 
 
 (b) Foreclosure decree. 
 (1) Jurisdiction. 
 
 43. — When the Crown is interested in an equity 
 of redemption, the Court cannot make a decree for 
 foreclosure against it, but may order the property 
 to be sold. Bartlett v. Eees, 40 Law J. Rep. (n.s.) 
 Chanc. 599 ; Law Rep. 12 Eq. 395. 
 
 44. — The Court has jurisdiction to make a fore- 
 closure decree in respect of lands situate out of the 
 jurisdiction. Paget v. Ede, 43 Law J. Rep. (n.s.) 
 Chanc. 571 ; Law Rep. 18 Eq. 118. 
 
 (2) Turning into decree for sale. 
 
 45. — After decree for foreclosure in a fore- 
 closure suit, the decree w£is turned into one for a 
 sale on consent of all parties, except the mort- 
 gagor, who was out of the jurisdiction, and against 
 whom the decree had been taken pro confesso. 
 Woodford V. Brooking, Law Rep. 17 Eq. 425. 
 
 (3) Form of: disputes between defendants. 
 
 46. — In a foreclosure suit, when there is a dis- 
 pute amongst the defendants as to their priorities, 
 the Court will not give them successive rights of 
 redemption, but will appoint one day at the ex- 
 piration of six months from the filing of the chief 
 clerk's certificate, on which any may redeem, and 
 after which all will be foreclosed. Bartlett v. 
 Bees, 40 Law J. Rep. (n.s.) Chanc. 599 ; Law Eep. 
 12 Eq. 395. 
 
 (c) Opening foreclosmre. 
 
 47. — A mortgagee in possession who receives a 
 sum by way of rent from the mortgaged property 
 in the interval between the filing of the chief 
 clerk's certificate and the day fixed for payment, 
 thereby opens the account and cannot get a final 
 order without getting another certificate fixing 
 another day for redemption. Allen v. Edwards, 
 42 Law J. Rep. (n.s.) Chanc. 455. 
 
 48. — The final order in a foreclosure suit can- 
 not be obtained, if rents have been received by the 
 mortgagee since the account was taken. Frees v. 
 Coke, Law Rep. 6 Chanc. 645. 
 
 {d) Eedemption suit. 
 
 (1) Refusal of mortgagee to aceoumt. 
 
 49. — A mortgagor filed a bill for redemption 
 against a mortgagee who had been in possession 
 for 19^ years, praying that the usual accounts 
 might be taken with rests, and by his interro- 
 gatories required the defendant, the mortgagee, to 
 set forth an account of " all rents and profits " re- 
 ceived by him. The defendant, in his answer, 
 mentioned the existence of a lease without stating 
 the amount of rent reserved, but refused to set 
 forth any accounts in his answer. On exceptions 
 to the answer as evasive and insufficient, — Held, 
 that the answer was evasive in mentioning the 
 lease without stating the rent, but that, on the 
 rent being stated, the answer would be considered 
 sufficient. The exceptions were, therefore, tech- 
 nically allowed, the costs being reserved till the 
 hearing. Mmer v. Creasy, 42 Law J. Rep. (n.s.) 
 Chanc. 807. 
 
 (2) Effect of dismissal of suit. 
 
 50. — The rule that the dismissal, for any other 
 cause than want of prosecution, of a mortgagor's 
 bill for redemption, operates as a foreclosure 
 against him, does not apply to the case of an equit- 
 able mortgage by deposit of deeds. Marshall v. 
 Shrewsbury, 44 Law J. Eep. (n.s.) Chanc. 302 ; 
 Law Eep. 10 Chanc. 260. 
 
 (e) Costs. 
 
 (1) Interest on. 
 
 51. — Where a mortgagee's costs are ordered to 
 be added to his security, and to be a charge on 
 the mortgaged estate, the amount so charged car- 
 ries interest. It makes no difference that the 
 mortgage is by grant of a redeemable annuity. In- 
 terest in such a case was allowed at the rate of 
 4 per cent, per annum. Idppard v. Sicketts, 41 
 Law J. Rep. (n.s.) Chanc. 596 ; Law Eep. 14 Eq. 
 291. 
 
 (2) Administration suit by mortgagee. 
 
 52. — Where the mortgagee of a reversionary 
 interest under a will, the mortgagor having died 
 intestate, filed a bill for administration of the tes- 
 tator's estate, and was then paid the money due 
 on the mortgage and his costs of suit : — Held, on 
 motion to dismiss the bill, that the mortgagee was 
 not entitled to six months' interest in lieu of no- 
 tice, but he was allowed his costs of the motion, 
 as he had been paid off in a summary way, Letts 
 T. Hutchins, Law Rep. 13 Eq. 176. 
 
 [See Costs in EaxirrY, 21, 22.] 
 
 (3) In general. 
 
 Costs of Tnortgagee: 
 costs of 
 Eotity, 12.] 
 
 for costs and 
 [See Costs in 
 
M0ETGA6E (S)— MUNICIPAL COEPOEATION (A). 
 
 387 
 
 Costs of foreclosure suits. [See Costs in 
 
 EoriTr, 24.] 
 Costs of transferee of mortgage having 
 
 notice of breach of trust. fSee supra 
 
 No. 40.] 
 Disclaimer by defendant : costs of subsequent 
 
 proceedings. [See Costs in Equity, 40.] 
 
 (T) JtmiSDICTION UNDEK TbUSTEB AoT. 
 
 [And see Tbust, E.] 
 
 53. — The Court has no jurisdiction under the 
 Trustee Act, 1 860, to appoint a person to convey 
 lands in mortgage for the estate therein of a joint 
 mortgagee out of the jurisdiction of the Court. 
 Inre Osbom's Mortgage Trust, 40 Law J.Eep. (n.s.) 
 Chanc. 706 ; Law Eep. 12 Eq. 392. 
 
 54. — A mortgagor of copyholds having refused 
 for twenty-eight days to make a surrender in ac- 
 cordance with his covenant, an order was made 
 vesting the legal estate in the mortgagee, subject 
 to the proviso for redemption. In re Crowe's 
 Mortgage, 41 Law J. Eep. (n.s.) Chanc. 32 ; Law 
 Eep. 13 Eq. 26. 
 
 MOETMAIN. 
 
 [See CaiKiTY.] 
 
 Civil Code of Lower Canada : rules of con- 
 struction. [See Colonial Law, 16.] 
 
 MUNICIPAL COEPOEATION. 
 
 (A) Powers of Municipal Coepobations. 
 (a) Powers as to dangerous buildings. 
 (6) Buildings used as watch-hotises. 
 
 (c) Powers of corporation acting as local 
 
 board. 
 
 (d) Eight to take tolls. 
 
 (e) Expenses payable out of borough fund. 
 
 (B) Qualifications of Aldermen, Town 
 
 CoUNCflLLORS, AND BuEBESSES. 
 
 (C) Municipal Elections. 
 
 (a) Under the Municipal Corporation Acts, 
 (6) Under the Bailot Act, 1872. 
 
 (D) CoEEUPT Practices. 
 (a) Petition. 
 
 (1) Who may be made respondent. 
 
 (2) Amefndmmi. 
 
 (3) Costs. 
 
 (J) Particulars : form and delivery of. 
 
 (c) Amendment of list of objections. 
 
 {d) Several offences : cumulative penalties. 
 
 [Provisions for enabling the costs of parliamen- 
 tary proceedings by corporations for the benefit 
 of the inhabitants to be charged on borough funds, 
 &c. 35 & 36 Vict. c. 91.] 
 
 [22 Vict. c. 35, B. 4, repealed. 34 & 35 Vict. 
 c. 67.] 
 
 [Provisions made for the prevention of corrupt 
 practices at municipal elections. 35 & 36 Vict. 
 c. 60.] 
 
 [New provisions as to regulations of municipal 
 elections and new forms of notices, nomination, 
 and ballot papers. 38 & 39 Vict. c. 40.] 
 
 (A) Powers op Municipal Coepobations. 
 (n) Powers as to dangerows buildings. 
 
 1, — By 30 & 31 Vict. c. xxxvi. s. 38, it was 
 
 enacted that " if the surveyor of the city" of M., 
 " or, in his absence, any other duly qualified sur- 
 veyor, shall certify in writing that there is immi- 
 nent danger from any building, the corporation " 
 of the city " shall and may, without any present- 
 ment, notice or other formality, cause the same to 
 be taken down either wholly or in part, or to be 
 repaired or secured in such manner as the corpora- 
 tion shall think requisite." By section S it was 
 enacted that if any summons, demand or notice 
 or other such document under the Act " require 
 authentication by the corporation, the signature 
 of the town clerk thereto shall be a sufficient 
 authentication." The plaintiff was the owner of 
 some houses in M. ; the surveyor to the city cer- 
 tified in writing that there was imminent danger 
 from them, and thereupon the town clerk, in the 
 name of the corporation, directed the surveyor to 
 cause the houses to be secured in such manner as 
 he should think requisite. The directions by the 
 town clerk to the surveyor were given without 
 any express antecedent authority from the cor- 
 poration. In one of the certificates given by the 
 surveyor, two of the plaintiff's houses, which were 
 occupied together and had internal communica- 
 tion, were described as a " building. No. 95, Mar- 
 ket Street." The plaintiff's houses were in part 
 taken down. The corporation by its subsequent 
 proceedings adopted and acted upon the directions 
 of the town clerk. The plaintiff sued the corpora- 
 tion for wrongfully taking down his houses, and 
 proposed to shew that there was not imminent 
 danger from them at the time when the surveyor 
 to the city gave the certificates : — Held, first, that 
 the certificates were conclusive as to whether 
 danger was imminent, and that the corporation was 
 bound to act upon them ; secondly, that by force 
 of the statutory provisions, the directions by the 
 town clerk to the surveyor must be deemed the 
 acts of the corporation, which had also ratified his 
 proceedings ; and, thirdly, that the certificate of 
 the surveyor sufficiently described the plaintiff's 
 two houses as a " building. No. 95, Market Street." 
 Cheetham v. The Mayor, ^c, of Manchester, 44 
 Law J. Eep. (n.s.) C. P. 139; Law Eep. 10 C. P. 
 249. 
 
 (4) Buildings used as watch-houses. 
 
 2.— Section 84 of 6,& 6 Will. 4, c. 76, as to build- 
 ings used as watch-houses being given up for the use 
 and accommodation of constables, only applies to 
 buildings so used in places under the control of 
 local authorities prior to the passing of the Act. 
 Baldwin v. White, Law Eep. 10 Q. B. 279. 
 
 (c) Powers of corporation acting as local board. 
 3.— -The Local Government Act, 1858 (21 & 22 
 8d2 
 
MUNICIPAL CORPORATION (A), (B). 
 
 Vict. c. 98), s. 24 — whicli enacts that in corporate 
 toroughs the local boards " shall be the mayor, 
 aldermen and burgesses acting by the council " — 
 does not make the local board a new and separate 
 body, but in substance enacts that in corporate 
 boroughs the corporation shall be the local board ; 
 and if in making contracts the name and style of 
 the corporation "acting as the local board" is 
 used, the corporation is the essential body and 
 contracting party and may be sued as such on the 
 contracts. Andrews v. The Mayor, ^c, of Eyde, 
 43 La-w J. Rep. (n.s.) Exch. 174 ; Law Rep. 9 
 Exch, 302. 
 
 Cmisent of, as local hoard, to license for 
 slaughter-houses. [See Towns Im- 
 pROTEMENT Clauses Act, 3.] 
 Local Board of Health : power to take lands 
 for public improvements : right to take 
 more land than actually required. [See 
 Lands Clattses Act, 1.] 
 
 {d) Bight to take tolls. 
 
 [See Toll.] 
 
 (e) Expenses payable out of borough fund. 
 
 4. — A waterworks company, established to sup- 
 ply water to the borough of S., was empowered by 
 Act of Parliament to make rules and regulations, 
 which before coming into force were to be ap- 
 proved of by two justices of the borough. Cer- 
 tain of such proposed rules and regulations having 
 been brought before the justices for approval, it 
 was thought by the corporation that they should 
 be opposed. Expenses were incurred in so op- 
 posing them, and the opposition was, in great 
 part, successful. The company also promoted a 
 bill in Parliament, with the view of obtaining 
 further powers. The corporation conceiving that 
 the bill was objectionable, opposed it in Parlia- 
 ment, and eventually it was withdrawn. Orders 
 were made for the payment, out of the borough 
 fund, of the expenses incurred in opposing the 
 rules and regulations, and the bill promoted 
 by the company: — Held, that as the expenses 
 above mentioned could not be expenses " necessa- 
 rily in curred in carrying into effect the provisions " 
 of the Municipal Corporation Act, within the 92nd 
 section of that Act, and as they did not fall within 
 any of the payments specified in the Act, they 
 were not chargeable upon the borough fund, and 
 that the orders were invalid. The Queen v. The 
 Corporation of Sheffield, 40 Law J. Rep. (n.s.) 
 Q. B. 247 ; Law Rep. 6 Q,. B. 652. 
 
 Semble— that if there had been a surplus fund, 
 it might be applied towards the payment of such 
 expenses. Ibid. 
 
 5. — A member of the constabulary force of the 
 borough of Liverpool was made the subject of 
 a libellous article in a newspaper, in reference 
 to his conduct as inspector of public-houses, in 
 giving a good character to an applicant for a 
 license, at the meeting of the magistrates of the 
 borough in Licensing Session, whom he knew to 
 have been the keeper of a house of ill fame. 
 Upon an intimation from, though without the 
 official sanction of his superior authorities, he 
 
 took criminal proceedings by way of summons be- 
 fore a magistrate against the publisher of the 
 libel, and incurred expenses thereon. The Watch 
 committee, with the subsequent approbation of 
 the Town Council, made an order on the borough 
 treasurer for the payment of a sum of money on 
 account of such expenses. The Liverpool Borough 
 Fund has a surplus : — Held, that such order was 
 not in respect of an " allowance," nor a charge or 
 expense for the purposes of the constabulary force 
 within the meaning of section 82 of 5 & 6 Will. 4. 
 c. 76, nor an application of the fond for the public 
 benefit of the inhabitants of the borough within 
 section 92, and that a rule must go for a certiorari 
 to bring up the order for the purpose of being 
 quashed. The Queen v. The Mayor and Town 
 Council of Imerpool, 41 Law J. Rep. (n.s.) Q. B. 
 175. 
 
 (B) Qualifications op Aldermen, Town 
 
 OOUNCILLOKS, AND BURGESSES. 
 
 8. — The disqualification of a burgess to act as 
 an alderman dates from the time when he ceases 
 to occupy the qualifying premises, and not from 
 the time when he is struck off the burgess list, 
 and therefore a quo warranto to try by what right 
 such person holds the office of alderman must be 
 applied for within twelve months after he ceases 
 to occupy. Ex parte Birkbeck, Law Rep. 9 Q,. B. 
 256. 
 
 7. — A town councillor, disqualified by reason of 
 having compounded with his creditors, cannot re- 
 sign his office and then be re-elected, as his dis- 
 qualification incapacitates him from resigning. In 
 order that he may be re-elected, it is necessary 
 that the council should first declare his office void, 
 as required by the Municipal Corporations Act, 
 s. 52. Hardwick v. Brown, Law Rep. 8 C. P. 
 406. 
 
 8. — Where the name of a burgess in a muni- 
 cipal borough within the Municipal Corporation 
 Act, 1835, was inserted in the burgess roll in re- 
 spect of a " house," and upon objection duly made 
 it was proved before the Revision Court held in 
 October, 1874, that his qualification was not in 
 respect of a "house," but was in respect of a 
 " counting-house,"^Held, that section 18 gave no 
 power to amend the list, and that the name was 
 rightly expunged. The Queen v. The Mayor of 
 Chipping Wycombe, 44 Law J. Rep. (n.s.) Q. B. 
 82. 
 
 9. — Under the Municipal Corporation Acts, 
 the assessors chosen to hold a Court with the 
 mayor to revise the burgess lists of a borough 
 divided into wards, under 7 Will. 4 & 1 Vict. c. 
 78, s. 4, are eligible for election as councillors of 
 their ward at the election held in the November 
 of the year in which they were so chosen assessors, 
 and have revised the lists of the ward. Ex parte 
 Molesworth ; In re the Municipal Election of the 
 City of Chichsstcr and Adames, 41 Law J. Rep. 
 (n.s.) Q. B. 12; Law Rep. 7 Q. B. 209. 
 
 10. — There is nothing in the Municipal Fran 
 chise Act, 1869, 32 & 33 Vict. c. 55, or in the 
 Married Women's Property Act, 1870 (33 & 34 
 Vict c. 93), which enables a married woman to 
 
MUNlClPAli COHPOMTION (B), (C). 
 
 he placed on tlie burgess roll, and to vote at the 
 election of town councillors. And semble, that a 
 woman who marries after her name has been 
 placed on the burgess roll is also disqualified from 
 voting. 2Tie Queen v. Hwrrald, 41 Law J. Eep. 
 (M.S.) Q.B. 173; Law Eep. 7 Q.B. 361. 
 
 (C) MuNiciPAi, Elections. 
 (a) Tinder the Municipal Corporation Acts. 
 
 11. — A voting paper used at the election of an 
 alderman under the Municipal Corporation Acts 
 (7 WiU. 4 & 1 Vict. c. 78, ss. 13, 14), does not 
 require a stamp. The Queen v. Strachan, 41 Law 
 J. Eep. (n.s.) Q. B. 210 ; Law Eep. 7 Q. B. 463. 
 
 12. — By the Municipal Corporation Act, 5 & 6 
 Win. 4. c. 76, s. 44, " if a burgess be rated in re- 
 spect of distinct premises in two or more wards, 
 he shall be entitled to be enrolled and to vote in 
 such one of the wards as he shall select, but not 
 in more than one." At an election of councillors 
 for a borough which was divided into wards a 
 burgess, who was on the roll for two wards, voted 
 for the defendant in one ward, and immediately 
 afterwards voted in the other ward :— Held, on 
 the authority of The Queen v. Tugwell (37 Law J. 
 Eep. (n.s.) Q. B. 275 ; Law Eep. 3 Q. B. 704, 713), 
 that the vote was good, and that the voter having 
 voted in one ward had irrevocably made his selec- 
 tion, which was not affected by what took place 
 afterwards. The Queen v. Harrald, ii2 Law J. 
 Eep. (n.s.) Q. B. 211 ; Law Eep. 8 Q. B. 418. 
 
 (i) XInder the Ballot Act, 1872. 
 
 13. — Although a parliamentary or municipal 
 election will be void by the common law of Par- 
 liament, if it be so conducted that either there be 
 no real electing by the constituency at all, or it 
 be not really conducted under the subsisting elec- 
 tion law, which is now an election by ballot, yet if 
 there be no reasonable ground to believe that a 
 majority of the electors may have been prevented 
 from voting in favour of the candidate they pre- 
 ferred, and if the election be substantially an 
 election by ballot, the election will not be void by 
 the common law of Parliament, notwithstanding 
 there may have been mistake ur misconduct in the 
 use of the machinery of the Ballot Act. Woodward 
 v. Sarsons, 44 Law J. Eep. (n.s.) C. P- 293 ; Law 
 Eep. 10 C. P. 733. 
 
 The 13th section of the Ballot Act, 1872 (35 & 
 36 Vict. t. 33), is only declaratory of what would 
 have been the law appUcable to elections under 
 that Act if that section had not existed, and 
 therefore to render an election invalid for non- 
 observance of the rules or forms of the Ballot Act, 
 the non-observance must be so great as to amount 
 to a conducting of the election contrary to the 
 principle of an election by ballot, and be such 
 that it either did or might have affected the result 
 of the election. Ibid. 
 
 The enactment in the 2nd section of the Ballot 
 Act, 1872, as to the ballot paper being secretly 
 marked by the voter, is an absolute enactment, 
 and must therefore be obeyed strictly, but the 
 manner in which the voter is to mark such paper 
 
 is enacted only in the directory part of the sta- 
 tute, and therefore it is sufficient if it be obeyed 
 substantially. Ibid. 
 
 At a municipal election held under the Ballot 
 Act, 1872, the presiding officer at one of the poll- 
 ing stations marked upon the face of every ballot 
 paper which he gave out to each elector at such 
 station the number of the voter appearing on the 
 burgess roll. The number so marked was not in 
 fact seen so as to be identified, but it could have 
 been seen at the counting. At another of the 
 polling stations the presiding officer placed each 
 of the ballot papers, which he had marked by the 
 direction of voters unable to read in the ballot 
 box, wrapped up in the declaration of-inability to 
 read made by the voter for whom the vote was 
 marked, and each such vote could have been, but 
 was not, in fact, identified at the counting. It 
 appeared that no voter had been prevented from 
 voting, and that these errors of the presiding 
 officers did not affect the result of the election, the 
 majority of electors not being thereby prevented 
 from effectually exercising their votes in favour 
 of the candidate they preferred : — Held, that the 
 election was therefore not void, either by the 
 common law of Parliament or under the Ballot 
 Act, 1872. Ibid. 
 
 Held, also, that the ballot papers which had 
 been so marked on their face by the presiding 
 officer with the number of the voter were void 
 and ought not to be counted, but that the 
 ballot papers, which had been wrapped in the 
 declarations of inability to read, were not on that 
 account to be rejected, but ought properly to be 
 counted. Ibid. 
 
 A ballot paper which bears the voter's signature 
 is void, and must be disallowed, as also must be 
 disallowed a ballot paper which has the name of 
 the candidate written by the voter instead of a 
 cross opposite to the printed name of the candi- 
 date. The mere fact of two crosses being put, or 
 of the cross being of a peculiar form, or of there 
 being another mark with the cross, or of there 
 being a straight line instead of a cross, or of the 
 cross being put on the left-hand side of the can- 
 didate's name instead of on the right-hand side, 
 will not vitiate the ballot paper, and the same ■ 
 should not be rejected on that account, unless 
 there be evidence of an arrangement that such pe- 
 culiar marks were to be indications of identity. 
 Ibid. 
 
 14. — A candidate at a municipal election under 
 the Ballot Act, 1872 (35 & 36 Vict. c. 33), has a 
 right as such candidate to be present in the polling 
 station during the polling, although he does not 
 either hijnself undertake the duties of an agent, 
 or assist his agent in the performance of such 
 duties ; and therefore the presiding officer at the 
 station has no authority to exclude such candidate 
 therefrom, if he does not interfere with the polling 
 or in any other way misconduct himself. Clement- 
 son V. Mason, 44 Law J. Eep. (n.s.) C. P. 171; 
 Law Eep. 10 C. P. 209. 
 
 15. — At a municipal election N. was nominated 
 for the office of councillor by a bad nomination 
 under the Municipal Election Statutes (6 & 6 
 
390 
 
 Mt^NlCIPAL COEf 0EAl?I01f (0), (fi). 
 
 Will. 4. 0. 76, and 22 Vict. c. 35), but by another 
 nomination paper he was well nominated. There 
 being more candidates than there were vacancies 
 to be filled up, a poll was taken according to the 
 Ballot Act, 1872 (35 & 36 Vict. e. 33). In draw 
 ing up the ballot paper, the mayor entered the 
 name of N. twice, as if he were two candidates, 
 and described him in one entry, viz., No. 6, ac- 
 cording to the description of him in his correct 
 nomination paper, and in the other entry, viz.. 
 No. 5, according to his description in the incorrect 
 nomination paper. A number of voters voted for 
 N., by putting a cross opposite his name in entry 
 No. 6, and some others who had not so voted, 
 voted for him by putting a cross opposite his 
 name in the entry No. 5. If both could be counted 
 as votes given for him he was duly elected, but if 
 they could not be so counted, he was not elected : — 
 Held, that the ballot paper, which ought to con- 
 tain a list of the candidates and not of their 
 nominations, was wrongly drawn up, but that it 
 was a mistake, which being in the use of the form 
 given in schedule 2 of the Ballot Act, 1872, and 
 not affecting the result of the election, was cured 
 by section 13 of that Act, and therefore, counting 
 and treating the votes according to section 35 of 
 5 & 6 Will. 4. c. 76, the number of votes which 
 had been really given for N. entitled him to be 
 elected. Northcote v. Pulsford, 44 Law J. Eep. 
 (n.s.) C. p. 217 ; Law Eep. 10 0. P. 476. 
 
 Duties of presiding officer. [See Ballot 
 Act.] 
 
 (D) COKKUPT Peaoticbs. 
 
 (o) Petition. 
 
 (1) Who may he made respondent. 
 
 16. — ^A person who assumes to be elected, 
 though not in fact elected, may be made a respon- 
 dent to a municipal election petition presented un- 
 der 35 & 36 Vict. c. 60, against his election. Yates 
 V. Leach, 43 Law J. Rep. (n.s.) C. P. 377 ; Law 
 Eep. 9 C. P. 605. 
 
 There were two candidates, M. and L., for the 
 office of councillor at a municipal election. M. 
 had the majority of votes, and was declared 
 elected, but being disqualified he did not accept 
 the ofBce, upon which L. claimed to be elected, 
 made the declaration of acceptance of office pre- 
 scribed by 5 & 6 Will. 4. c. 76, s. 50, and sat and 
 acted as councillor. Both M. and L. were there- 
 upon made respondents to a petition against the 
 election presented under 36 & 36 Viet. c. 60. They 
 each gave notice under section 18 of that Act that 
 he did not intend to oppose the petition. The Court 
 held that L. was properly made respondent, and 
 refused an application made by him to have his 
 name struck out as respondent. Ibid. 
 
 17. — An unsuccessful candidate at a municipal 
 election cannot properly be made a respondent to 
 a petition presented under the Corrupt Practices 
 Municipal Elections Act, 1872 (36 & 36 Vict. c. 
 60), against the return of the successful candi- 
 dates with whom he has coalesced for the purpose 
 of canvassing the burgesses. Lovering v. Dawson, 
 
 44 Law J. Eep. (n.s.) C. P. 321 ; Law Eep. 10 
 C. P. 711. 
 
 (2) Amendment. 
 
 18. — L. is a borough divided into wards, and 
 on the 4th of December, 1873, the respondent 
 was elected a town councillor for the north ward. 
 A petition was presented against his return, 
 within twenty-one days from the 4th of December, 
 which alleged that the respondent employed per- 
 sons, " who were included in the register for the 
 said ward of the said borough as burgesses, for 
 payment and reward at the above election as can- 
 vassers for the purpose of the said election." On 
 the 16th of January, 1874, an order was made at 
 chambers amending the petition, by inserting the 
 words " and other wards," after the words " who 
 were included in the register for the said ward." 
 A rule having been obtained to set aside the 
 order, — Held, that before the insertion of the 
 words the petition charged only corrupt practices 
 with voters at the election for the north ward, and 
 that after the insertion it charged corrupt practices 
 with those who were not voters at that election ; 
 that the effect of the alteration was to make a 
 new petition after twenty-one days from the date 
 of the election, that there was no jurisdiction to 
 make the amendment, and that the rule to set 
 aside the order must be made absolute. Maude 
 V. Loviley (No. 2), 43 Law J. Eep. (n.s.) C. P. 
 106; Law Eep. 9 C. P. 165. 
 
 (3) Costs. 
 
 19. — The barrister who tries an election peti- 
 tion under 35 & 36 Vict. c. 60 has an absolute dis - 
 cretion in ordering how the costs of the proceed- 
 ings on siich petition are to be defrayed by the 
 parties to it, and he may order such costs to be 
 paid to a person who has been made a respondent 
 improperly by the petitioner; and the superior 
 Court has no jurisdiction to review his order. 
 Lovering v. Dawson, 44 Law J. Eep. (n.8.) C. P. 
 321 ; Law Eep. 10 C. P. 726. 
 
 (i) Particulars : form and delivery of. 
 
 20. — A petition having been presented, on the 
 ground of corrupt practices, against the election of 
 the respondent as town councillor, and the 3rd of 
 February having been fixed for the trial thereof, 
 an order was made on the 16th of January at 
 chambers, directing the petitioners within one week 
 to deliver particulars of the persons alleged to 
 have been bribed and treated, " by whom, when 
 and where;" of the persons alleged to have been 
 retained and employed as canvassers, " by whom, 
 when and where ; " and of persons to whom money 
 was paid on account of conveyance of voters to 
 the poll, " by whom, when and where : " — Held, 
 that the order ought to be varied by extending 
 the time for the delivery of the particulars to the 
 27th of January, one week before the trial, and by 
 inserting the words, "as far as is known," before 
 the words, " by whom, when and where," where- 
 soever the latter words occurred in the order. 
 Mande v. Lowley (No. 1), 43 Law J. Eep. (n.s.) 
 C.P. 103 ; Law Eep. 9 C. P. 165. 
 
MUNICIPAL CORPORATION (D)— NATIONAL DEBT. 
 
 391 
 
 (c) Amendment of list of objections. 
 
 21. — ^A petitioner under the Corrupt Practices 
 (Municipal Elections) Act, 1872, having omitted 
 to deliver a list of objections six days before the 
 time of trial, as is required by the seventh of the 
 General Rules made under the provisions of that 
 Act, he applied to the Court for leave to give evi- 
 dence against the validity of certain votes re- 
 corded at the municipal election, and to file a list 
 of objections nunc pro tunc : — Held, that the Court 
 had no jurisdiction to gi'ant the application ; for 
 the power of amendment conferred by the seventh 
 lule related only to pet-itions presented in due 
 time, and did not relate to petitions delivered 
 after the prescribed period. Meld v. Batty, 43 
 Laiv J. Rep. (n.s.) C. P. 73 ; Law Rep. 9 C. P. 
 104. 
 
 ((i) Several offences : cumulative penalties. 
 
 22. — The corrupt acts forbidden by 17 & 18 
 Vict. c. 102, B. 2, which is applied to municipal 
 elections by 36 & 36 Vict. c. 60, s. 3, constitute 
 separate offences, and any person committing at 
 the same election more than one of the forbidden 
 corrupt acts is liable to several penalties. Milnes 
 V. Bale ; Same v. Corbet ; Same v. Lea ; Same v. 
 Colsey, 44 Law J. Rep. (n.s.) C. P. 336 ; Law Rep. 
 10 C.P. 891. 
 
 The first count of a declaration in a penal action 
 charged the defendant with corruptly giving 
 money to several voters at a municipal election ; 
 the second count charged him with corruptly 
 agreeing to give money to them. Plea, that the 
 defendant had been sued, and judgment had been 
 recovered against him for bribery committed at 
 the said election : — Held, upon demurrers to the 
 declaration and plea, that the plaintiff was entitled 
 to judgment. Ibid. 
 
 MUSIC. 
 
 and dancing license. 
 Enteetainmbnt.] 
 
 [See Public 
 
 MUTUAL BENEFIT SOCIETY. 
 
 The Bombay Civil Fund was formed to pro- 
 vide retiring pensions for civil servants, and an- 
 nuities and portions for their widows and children. 
 The fund was constituted by the subscriptions of 
 the members, and by a grant from the Govern- 
 ment. It was managed by a committee, the mem- 
 bers of which resided- in Bombay, and by the rules 
 the property of the fund was vested in the com- 
 mittee of managers as trustees. In fact, however, 
 the funds were always in the hands of the Govern- 
 ment as a floating debt due to the association. A 
 suit having been instituted by the representatives 
 of the widow of a member of the association, 
 against the trustees of the "fund and the Secretary 
 of State for India, claiming payment of an annuity 
 which they alleged ought to have been paid to her 
 in her lifetime, — Held, that there was no fiduciary 
 
 relation between the trustees of the fund and a 
 person making a claim against the fund, and that 
 therefore the plaintiffs could only recover the 
 arrears of the annuity which accrued due within 
 six years before the filing of the bill. Edwards v. 
 Warden, 43 Law J. Rep. (n.s.) Chano. 644 ; Law 
 Rep. 9 Chanc. 49. 
 
 Held, also, that even assuming that the suit 
 ought to have been instituted in Bombay, still in- 
 asmuch as the defendants resident in India had 
 appeared unconditionally, had not moved to dis- 
 charge an order made for service of the bill on 
 them in India, and had not raised any objection to 
 the jurisdiction by demurrer or plea, and as the 
 Government of India in fact held the money, and 
 had taken no objection to the suit, the Court ought 
 to decide the question in dispute. Ibid. 
 
 By the original rules of the ftind the annuity to 
 which the widow of a member was entitled de- 
 pended upon the amount of his property at the 
 time of his death. The rules were afterwards 
 altered so as to give the widow of a member a fixed 
 annuity independently of the amount of her hus- 
 band's property. But it was provided that, to 
 entitle a member to the benefit of this provision 
 on behalf of his family, he must, after he had 
 accepted a retiring annuity, subscribe to the fund 
 one per cent, per annum on his annuity, or one per 
 cent, on the total value of his annuity at the time 
 of acceptance. A member retired while the 
 altered rules were in operation. They were sus- 
 pended a few months after his retirement, and the 
 suspension was not removed till after his death. 
 He never paid or tendered the subscription due 
 from him : — Held, that the contract with the 
 association was in the nature of a contract of in- 
 surance, and that, the premium not having been 
 paid or tendered, no claim could be sustained by 
 the member's widow against the association under 
 the new rules. Ibid. 
 
 [The above case varied on appeal. Law Rep. 1 
 App. Cas. 304.] 
 
 NATIONAL DEBT. 
 
 1. — Where stock has been transferred to the 
 Commissioners for the Reduction of the National 
 Debt by reason of no application for dividends 
 having been made, a re-transfer cannot be obtained, 
 nor can enquiries be directed as to the beneficial 
 title to the stock in the absence of a legal repre- 
 sentative of the person in whose name the stock 
 stood at the date of the transfer. In re Ashmeadls 
 Trust, 42 Law J. Rep. (n.s.) Chanc. 314; Law 
 Rep. 8 Chanc. 113. 
 
 When a person establishes a right to the re- 
 transfer of stock which has been transferred to the 
 Commissioners for the Reduction of the National 
 Debt, he is only entitled to a re-transfer of the 
 stock and the payment of the amount of the divi- 
 dends, but not to the invested accumulations of 
 such dividends. Ibid. 
 
 2. — Stock in the name of a trustee who never 
 acted was transferred to the Commissioners for 
 Reduction of the National Debt. A re-transfer 
 
392 
 
 NATIONAL DEBT— NEGLIGENCE (A). 
 
 was ordered to the trustee, with a, direction for 
 him to transfer to the beneficiary. Ex parte 
 Jameson, 44 Law J. Rep. (n.s.) Chanc, 480 ; Law 
 Eep. 19 Eq. 430. 
 
 NATURALIZATION. 
 
 [Repeal of previous Acts, 33 & 34 Vict. c. 14.] 
 [Aliens empowered to acquire and hold real 
 property in the United Kingdom. British sub- 
 jects empowered to renounce their allegiance as 
 such on becoming naturalized in other countries. 
 33 & 34 Vict. c. 14 ; amended by Act passed in 
 the same session, 33 & 34 Vict. c. 102.] 
 
 NECESSARIES. 
 [See Admibalty, 13 ; Baeon and Feme, 1.] 
 
 NEGLIGENCE. 
 
 (A) Neglihence in the Care op Animals. 
 »(a) Scienter : knowledge of servant. 
 
 (6) Bunaway horses. 
 
 (c) Injury to passenger in omnibus. 
 
 (d) Keeping dangerous horse infield. 
 
 (B) NeQLIGENCE in liEEPINQ PkOPERTY IN UN- 
 
 SAFE Condition. 
 
 (a) Poisonous leaves and clippings of trees. 
 
 (b) Negligence ill care of ship. 
 
 (c) Using defective wagon on railway. 
 
 (d) Dangerous state of highway. 
 
 (e) Unsafe bridge. 
 
 If) Neglect to repair fences, Sfc. 
 
 (jf) Dangerous grating over sewer. 
 
 (h) Maintenance of towing path. 
 
 (i) Level crossings over railway. 
 
 (A) Damage by fire from railway banks. 
 
 (I) Escape of water. 
 
 (1) Collecting water on land. 
 
 (2) As between occupiers of upper and 
 
 lower floors. 
 
 (3) Escape from pipe of waterworks 
 
 company. 
 (ot) Insufficiently buoying sunken anchor. 
 (») Injury to consignee using premises. 
 (o) Unforeseen accident from acts of skilled 
 workmen. 
 
 (C) CONTRIBTITOET NeQLIQENCE. 
 
 (D) Negiigence by Persons in PARTionLAE 
 
 Relations. 
 (a) Valuer or arbitrator. 
 (6) Patent agent. 
 (c) By solicitor, 
 {d) By broker. 
 (e) By innkeeper. 
 
 (/) Cabovmer letting out cab to oabdriver. 
 {g) Livery stable keeper, 
 (h) Bailee of bills for encashment. 
 
 (E) Statutory Negligence. 
 (E) Damages. 
 
 (A) Negligence in the Case of Animals. 
 («) Scienter: knowledge of servant. 
 
 1. — In an action against a publican for know- 
 ingly keeping a ferocious dog, a witness deposed 
 that, having been attacked by the dog at a previous 
 time, he complained to the barmen, who were 
 serving the defendant's customers. Another vrit- 
 ness also proved that, having been attacked on a 
 different occasion by the dog, he likewise com- 
 plained to the barmen. At the trial the plaintiff 
 was nonsuited, on the ground that the foregoing 
 circumstances did not amount to knowledge in the 
 defendant of the dog's ferocity : — Held (per Lord 
 Coleridge, C.J., and Keating, J., dissentiente3iett, 
 J.), that as the complaints had been made to per- 
 sons who, in the defendant's absence, were manag- 
 ing his business, there was primd facie evidence of 
 knowledge in the defendant of the dog's ferocity, 
 and that the nonsuit must be set aside. Applebee 
 V. Percy, 43 Law J. Rep. (n.s.) C. P. 365 ; Law 
 Rep. 9 C. P. 647. 
 
 2. — The defendant owned a mischievous dog, 
 which was kept at his stables under the care and 
 control of his coachman, who knew the dog to be 
 mischievous. The defendant supposed the dog to 
 be quite harmless. The plaintiff haying been 
 bitten by the dog, and having brought an action 
 for the injuries, the Judge directed the jury that 
 there was evidence of the scienter, since the 
 knowledge of such a servant was enough to make 
 the defendant liable : — Held, that the direction 
 was right. Baldwin v. Casella, 41 Law J. Rep. 
 (n.s.) Exch. 167; Law Rep. 7 Exch. 325. 
 
 (6) Bunaway horses. 
 
 3. — The plaintiff was walking along a public 
 street, when the defendant, seated on the box of 
 his carriage which was drawn by two horses and 
 driven by a man then under his control, came down 
 a cross street. The horses, frightened by the 
 barking of a dog, ran away. The driver was un- 
 able to hold them in, but told the defendant to 
 leave them to him. The defendant accordingly 
 sat passive, while the driver, trying to turn the 
 horses so as to prevent them from running into a 
 shop window opposite, pulled them aside towards 
 the spot where the plaintiff then happened to be, 
 but on nearing her, endeavoured vainly to draw 
 them away from her. They ran against her, and 
 she being hurt, sued the defendant for negligence 
 and trespass. The jury found the defendant free 
 from negligence, and that the occurrence was mere 
 accident : — Held, that he was not liable in tres- 
 pass. Holmes v. Mather, 44 Law J. Eep. (n.s.) 
 Exch. 176 ; Law Rep. 10 Exch. 261. 
 
 (c) Injury to passenger in omnibus. 
 
 4. — In an action against an omnibus proprietor 
 for injury to a passenger, it was proved, on behalf 
 of the latter, that he was sitting inside the omni- 
 bus, and was injured by one of the horses kicking 
 the front panel constituting 'the back of his seat, 
 and that on a subsequent examination marks of 
 other kicks were seen : — Held, that there was evi- 
 dence of negligence of the defendants to go to the 
 
NEGLIGENCE (A), (B). 
 
 393 
 
 jury. Simpson v. The London General Omnibus 
 Company, 42 Law J. Eep. (n.s.) C. P. 112 ; Law 
 Rep. 8 0. P. 390 nom. Simson. 
 
 (d) Keeping dangerous horse infield. 
 
 5. — The defendants were occupiers of a plot of 
 land, which was separated from a field of the 
 plaintiff's by a wire fence. The defendants turned 
 into their plot of land an entire horse ; and the 
 plaintiff put into his field a mare. The defendants' 
 horse and the plaintiff's mare got together upon 
 either side of the fence, and the horse by biting 
 and kicking through the fence injured the mare. 
 The horse did not trespass upon the plaintiff's field 
 by crossing the fence. Upon previous occasions 
 he had been watched, and the plaintiff had warned 
 the defendants to keep him away from the mare. 
 The plaintiff having sued for the injury to the 
 mare, the Coimty Court Judge held that there 
 was no case to go to a jury : — Held, that the plain- 
 tiff was entitled to judgment; for there was evi- 
 dence that a trespass had been committed, and the 
 damage was not too remote. Ellis v. The Loftus 
 Iron Company, ii Law J. Eep. (n.s.) C. P. 24 ; 
 Law Eep. 10 C. P. 10. 
 
 (B) Negligence in keeping Pbopebtt in unsafe 
 Condition. 
 
 (a) Poisonous leaves and oUppings of trees. 
 
 6. — ^Declaration that the defendant was pos- 
 sessed of yew trees upon land belonging to him 
 and in his occupation, the clippings of which trees 
 were to his knowledge poisonous to horses and 
 cattle, whereupon it became his duty to take due 
 care to prevent the clippings from being put or 
 placed upon land, other than his own or in his 
 occupation, where the horses and cattle of his 
 neighbours and others might be enabled to eat 
 them. Breach, that the defendant took so little 
 care of the clippings that they were put and 
 placed upon laud other than his own or in his 
 occupation, whereby the horses of the plaintiff 
 were enabled to eat the clippings, and were poisoned 
 and killed : — Held, on demurrer, that this declara- 
 tion was bad, as it was consistent with the in- 
 ference, that the clippings had been carried from 
 the defendant's land by a stranger, or through 
 some cause over which the defendant had no con- 
 trol. Wilson V. Newberry, 41 Law J. Eep. (n.s.) 
 Q.B. 31 ; Law Eep. 7 Q.B. 31. 
 
 (i) Negligence in care of ship. 
 
 1, — The defendants' vessel, through the negli- 
 gence of their servants, took the ground and be- 
 coming unmanageable in consequence, was driven 
 against and damaged the plaintiffs sea wall. She 
 could not be removed from her position against the 
 wall without being broken up. During the time 
 occupied in landing the cargo, which was done 
 with reasonable care, speed andjdiligence, further 
 damage was done to the wall by the vessel bumping 
 against it. The declaration stated in the first 
 count that the vessel was wrecked by the negligence 
 of the defendant's servants, and thereby injured 
 the plaintiff's wall ; and in the second count that 
 Digest, 1870—1875. 
 
 the defendants' vessel had been wrecked and 
 driven against the wall, and did and was continu- 
 ing to do injury to it, and that by reasonable care 
 the defendants might have prevented her from 
 doing and continuing to do further injury to the 
 wall : — Held, affirming the judgment of the Court 
 below (39 Law J. Eep. (n.s.) Exch. 163), that the 
 plaintiffs were entitled to recover the damage 
 claimed in the first count. The Lords Bailiffs and 
 Jurats of Bomney Marsh v. The Corporation of the 
 Trinity House (Exch. Ch.), 41 Law J. Eep. (n.s.) 
 Exch. 106 ; Law Eep. 7 Exch. 247. 
 
 (c) Using defective wagon on railway. 
 
 8. — A railway company allowed a truck belong- 
 ing to a wagon company to come on their line. 
 The truck having a patent defect was put aside 
 for repairs, but was afterwards used on the line 
 when injury occurred to the plaintiff arising from 
 a latent defect, which might have been discovered 
 on examination, but which examination it was not 
 the duty of the railway company to make ; but 
 the jury found that it was the duty of the railway 
 company before allowing the truck to be used to 
 have required some distinct assurance from the 
 wagon company that it had been thoroughly 
 examined and repaired : — Held, that this finding 
 was not immaterial, and that the plaintiff was 
 entitled to a verdict. Bichardson v. The Great 
 Eastern Sail/way Company, JjB.^'Re,^. 10 C. P. 486 : 
 reversed, on appeal. Law Eep. 1 C.P.Div. 343. 
 
 {d) Dangerous state of highway. 
 
 9. — The defendant had been appointed by the 
 vestry surveyor of highways. The vestry resolved 
 that a part of a highway should be raised, and or- 
 dered the defendant to employ men to do it. He 
 contracted with G. to do the work, at so much per 
 yard, and the vestry found the materials. G. 
 employed his own men, and proceeded to perform 
 the work. The defendant did not personally inter- 
 fere with the work. G. left the road in such a 
 state that the plaintiff, in driving along by night, 
 was overturned and injured. The defendant did 
 not give any direction that the road should be left 
 in such a state : — Held (in an action by the plain- 
 tiff), that the defendant was not liable. Taylor 
 V. Greenhalgh; Pendleburyv. the Same, 43 Law J. 
 Eep. (n.s.) Q.B. 168; Law Eep. 9 Q.B. 487. 
 
 10. — A local board of health being, imder the 
 117th section of the Public Health Act, 1848, 
 surveyor of highways, is liable to an action at the 
 suit of a person, who, when passing along the high- 
 way, is injiired by reason of the servants of the 
 local board negligently leaving a heap of stones 
 upon the highway. Foreman v. The Mayor, dfc, 
 of Canterbury, 40 Law J. Eep. (n.s.) Q,. B. 138 ; 
 Law Eep. 6 Q. B. 214. 
 
 Quaere — whether, if the negligence was that of 
 the surveyor appointed by the board under section 
 37, and who could not be removed without the 
 approval of the General Board of Health, there 
 would be such liability. Ibid. 
 
 (e) Unsafe bridge. 
 11. — The plaintiff was walking on a highway 
 3E 
 
391 
 
 NEGLIGENCE (B). 
 
 under a bridge forming part of a line of railway, 
 when a brick fell from its place in the perpendicu- 
 lar pier of the bridge, and injured him. He at 
 the time heard a noise as of a train passing above : 
 — Held, by the Exchequer Chamber, affirming the 
 decision of the Queen's Bench (39 Law J. Eep. 
 (x.s.) Q. B. 200), that these facts were sufficient 
 evidence of negligence on the part of the railway 
 company to go to the jmy. Kearney v. The Lon- 
 don, Brighton, and South Coast Railway Company 
 (Exch. Ch.), 40 Law J. Eep. (n.s.) Q. B. 285 ; 
 Law Eep. 6 Q. B. 759. 
 
 (/) Neglect to repair fences, ^c, 
 
 12.— The plaiutiflF and the defendant were 
 occupiers of adjoining closes of land separated by 
 a fence, situated on the defendant's close, and the 
 property of the defendant. For more than forty 
 years the fence had been repaired whenever repairs 
 were necessary by the owner and occupiers of the 
 defendants' laud, and on several occasions the fence 
 had been repaired by the defendant and his pre- 
 decessors in title upon notice from the occupier 
 for the time being of the plaintiff's close. The 
 defendant sold the fallage of the wood on his close 
 to one H., who proceeded to fell the trees, and 
 some of his servants felled a tree in so negligent 
 a manner that it caused a gap in the fence through 
 which the plaintiif 's cattle entered the defendant's 
 close, and having eaten some of the foliage of a 
 yew tree they died in consequence. In an action 
 in the County Court the Judge found as a fact 
 that there was an obligation on the part of the 
 defendant to keep the fence in repair for the pur- 
 pose of preventing cattle lawfully in the plaintiff's 
 close from escaping into the defendant's close, and 
 that the escape of the cows was caused by negli- 
 gence of the servants of H., but that the defendant 
 had not received notice that the fence was broken 
 down. Upon these facts, the Judge held that the 
 defendant was not responsible for the injury to the 
 plaintiff: — Held, that the decision was wrong as 
 it appeared from the evidence that the defendant 
 was bound at his peril at all times to maintain the 
 fence and without notice to repair it, and the 
 damage done to the cattle was proximately due to 
 the defective state of the fence. Lawrence v. 
 Jenkins, 42 Law J. Eep. (k.s.) Q. B. 147 ; Law Eep. 
 8 Q. B. 274. 
 
 13. — Cattle belonging to the plaintiff were at 
 about eleven o'clock at night driven along an occu- 
 pation road which crossed a branch line of the 
 defendants' railway on a level. As they were 
 passing over the crossing they became frightened 
 owing to a number of trucks being shunted by the 
 defendants in a negligent manner, and six or seven 
 of them escaped from the control of their drovers, 
 and were not seen till four o'clock in the morning, 
 when they were found dead or dying on the main 
 line of the defendants' railway, which they ap- 
 peared to have reached owing to the defects in the 
 fence of a garden and orchard adjoining the rail- 
 way : — Held, that there was sufficient evidence, 
 that the death of the cattle was the natural result 
 of the defendants' negligence. Sneesby v. The 
 
 Lancashire and Yorkshire Railway Company, 43 
 
 Law J. Eep. (n.s.) Q. B. 69 ; Law Eep. 9 Q. B. 263. 
 
 Statutory duty : obligation, of railway com^ 
 
 pany to' fence adjoinincf lands, [See 
 
 Eailway, 26, 27.] 
 
 Neglect by tenant vmder covenant to repair. 
 
 [See Lease, 13, 14.] 
 
 {g) Dangerous grating over sewer. 
 
 14. — A local board of health had vested in 
 them, under the Public Health Act, 1848 (11 & 12 
 Vict. 0. 63), s. 43, a sewer which ran under a high- 
 way of which, by virtue of the same Act, they were 
 surveyors. A grid or grating in the highway, 
 used for the purpose of carrying the surface water 
 from the road into the sewer, was allowed by the 
 defendants to get out of repair, by reason of which 
 a horse of the plaintiffs was injured : — Held, that, 
 whether the defendants were liable or not, as sur • 
 veyors of the higliway, the grid must be taken to 
 be part of the sewer, and they were liable, as 
 owners of the sewer and grid, for their negligence 
 in not keeping the latter in repair. White v. The 
 Bindley Local Board of Health, 44 Law J. Eep. 
 (n.3.)Q.B. 114; Law Eep. lOQ. B. 219. 
 
 (A) Maintenance of towing path. 
 
 15. — The defendants were a corporation consti- 
 tuted for the purpose of the upper navigation of 
 the river Thames by the Thames Navigation Act, 
 1866 (29 & 30 Vict. c. 89), and under the powers 
 of that Act and of the previous statutes relating 
 to the navigation which had become vested in 
 them the defendants had constructed bridges and 
 other works, and had acquired the right to use the 
 whole of the towing-paths along the river, and to 
 take toll for the same. In the exercise of such 
 right the defendants took an aggregate toll in one 
 sum for the use of the entire navigation and tow- 
 ing-paths, which included the works the defendants 
 had constructed, as well as the natural soil which 
 had been worn into the track of a towing-path. 
 Part of such natural towing-path got into a dan- 
 gerous state by the action of the water, and in 
 consequence thereof the plaintiff's horses whilst 
 using it in towing a barge, for which the proper 
 toll had been paid to the defendants, fell into the 
 river and were drowned : — Held, by the Court of 
 Exchequer Chamber, affirming the decision of the 
 Court of Common Pleas (41 Law J. Eep. (n.s.) 
 C.P. 241; Law Eep. 7 C.P. 468) (Clea,sby, B., 
 dissentiente), that as the defendants took one toll 
 for the use of the entire towing-path, parts of 
 which were artificial, it mattered not that the 
 place where the accident happened was not artifi- 
 cial, but that it was the duty of the defendants to 
 take reasonable care that the whole of the towing- 
 path was in such a state as not to expose those 
 using it to undue danger, and that for a neglect of 
 such duty the defendants were responsible to the 
 plaintiff although they were a public body receiving 
 their powers for public purposes. Held, per totam 
 Curiam, that the towing-path was not confined to 
 the mere beaten track but included so much of the 
 bank as might ordinarily be used by horses when 
 
JfEGLIUENCfi (B). 
 
 towing targes. And semble, the defendants would 
 not be liable for the defective state of the towing- 
 paths, if such state were a latent one, of the ex- 
 istence of whicli the defendants naight be ignorant 
 though using reasonable care, or if they were to 
 give notice of it to those who pay the tolls, or to 
 inform them that they must take the towing-paths 
 as they find them. Winch v. The Conservators of 
 the Eiver Thames, 43 Law J. Eep. (n.s.) C. P. 167 ; 
 Law Eep. 9 C. P. 378. 
 
 (i) Level crossings over railtvay. 
 [See Eailway.] 
 
 {k) Damage hy fire from railway banks. 
 
 16. — In an action charging that by negligence of 
 the defendants, a railway company, in the manage- 
 ment of their railway engines and banks, cut 
 grass was heaped on the banks and ignited, and a 
 fire occasioned, which spread along a stubble field 
 to the plaintiff's cottage, and set it on fire ; there 
 was evidence that the summer being exceptionally 
 hot, the country was in an unusvially dry state, 
 and fires had in consequence happened, that the 
 hedges and grass on the banks of the railway had 
 been trimmed Ly the defendants' workmen, and 
 the trimmings left in little heaps on the banks for 
 a fortnight, so as to become highly combustible ; 
 that some few minutes after a train had passed, 
 a fire was observed on one of the railway banks, 
 which consumed some of these trimmings, and Ijurnt 
 through the hedge fence into the stubble field ; 
 and that there being a high wind, the fire WuS 
 carried across the field and over a lane, to the 
 plaintiff's cottage which it burnt: — Held (Black- 
 burn, J., duMtante), that there was evidence of 
 negligence to go to the jury. Held, also, per 
 totam Curiam, that negligence being established, 
 the defendants were liable for all the consequences, 
 although the extension of the fire to the plaintiff's 
 cottage was an accident which no reasonable per- 
 son could have anticipated. Smith v. The London 
 and South-Western Bailway Company, 40 Law J. 
 Eep. (n.s.) O.P. 21 ; Law Eep. 6 C. P. 14. 
 
 Q) Escape of water. 
 (1) Collecting water on land. 
 
 17. — The proprietor of collected water is not 
 liable, without negligence, for its escape, caused 
 by vis major ; and a fall of rain of a kind which 
 could not reasonably have been anticipated, 
 amounts to vis major. Nichols v. Marsland, 44 
 Law J. Eep. (n.s.) Exch. 134 ; Law Eep. 10 Exeh. 
 255. 
 
 Semble — the rule as to the liability of the pro- 
 prietor of stored water does not apply when a 
 fresh agency intervenes between the water and 
 the damage. Fletcher v. Bylands (37 Law J. Eep. 
 (n.s.) Exch. 116) distinguished. Ibid. 
 
 18. — The plaintiff's mine was flooded by water 
 which had, after an unusual rainfall, accumulated 
 in an excavation made by the defendants on their 
 land, and had escaped thence through their mine 
 into the plaintiff's, which was situated at a lower 
 level: — Held, that although the defendants in 
 
 making the excavation had no intention of col- 
 lecting water therein, and although they provided 
 an outlet for such an amount of water as might 
 be looked for in ordinary seasons, the case was 
 still governed by Bylands v. Fletcher (37 Law J. 
 Eep. (N.s.) Exch. 171 ; Law Eep. 3 E. & I. App. 
 330), and the defendants were liable for the dam- 
 age sustained by the plaintiff. Smith v. Fletcher, 
 41 Law J. Eep. (n.s.) Exch. 193 ; Law Eep. 7 
 Exch. 305. 
 
 [And see Mine, 16-17.] 
 
 (2) As between occupiers of upper and lower floors. 
 
 19. — Where the owner and occupier of a build- 
 ing lets the lower floor to a tenant, and remains 
 himself in occupation of the upper floors and roof, 
 he is under no liability to the tenant, either im- 
 plied from the contract between them or arising 
 from duty independent thereof, to make compen- 
 sation for damage done to this lower floor by an 
 escape of water from the roof caused by an acci- 
 dent (such as a rat gnawing a hole in a water- 
 pipe), which could not have been prevented by the 
 exercise of reasonable care and vigilance. Car- 
 stairs V. Taylcr, 40 Law J. Eop. (N.s.) Exch. 129 ; 
 Law Eep. 6 Exch. 217. 
 
 20. — The plaintiff carried on business on the 
 ground floor of a house, and the defendants carrie.l 
 on bxisiness in offices on the second floor. A 
 quantity of water oozed through the ceiling and 
 damaged the plaintiff's stock-in-trade, and it was 
 discovered that the water had escaped from a 
 water-closet in the private offices of the defend- 
 ants, owing to the valve having got out of order, 
 so that the water flowed into the pan, completely 
 filling it. There was no evidence of negligence 
 with regard to the fittings of the water-closet on 
 the part of the defendants, nor did it appear that 
 they knew that the valve was out of repair: — 
 Held, that the defendants were not liable, as there 
 was no obligation on them under all circumstances 
 and at all hazards to keep the' pipes from overflow- 
 ing and their room water-tight. Boss v. Fedden, 
 41 Law J. Eep. (n.s.) Q. B. 270 ; Law Eep. 7 Q. B. 
 661. 
 
 (3) Escape frovi pipe of waterworks company. 
 
 21. — The defendants, a waterworks company, 
 laid down and maintained, under powers conferred 
 on them by Act of Parliament, a pipe for the 
 purpose of conveying water. The pipe was car- 
 ried along a turnpike-road, the soil of which was 
 in K., who owned the land on both sides. He em- 
 ployed the plaintiff to make a tunnel under the 
 surface of the road which was at that spot raised 
 upon an embankment. In the course of the work 
 the plaintiff was obstructed by water which, with- 
 out the knowledge of anyone, escaped from the 
 pipe. The trustees of the road and the surveyor 
 of highways had consented to the tunnel being 
 made by K. The plaintiff gave notice to the de- 
 fendants, who repaired the pipe, but not until'aftor 
 the plaintiff had suffered injury by reason of t'le 
 obstruction to his works: — Held, that the plain- 
 tiff could not maintain an action against the 
 defendants, Cattle v. The Stockton Waterworks 
 .Se2 
 
NEGLIGENCE (B), (0). 
 
 Co-mpany, 44 Law J. Rep. (n.s.) Q. B. 139 ; Law 
 Eep. 10 a. B. 453. 
 
 (m) Insufficiently buoying sunken anchor, 
 
 22. — The defendants, under a local Act, con- 
 structed a pier and landing-stage. The pier was 
 a solid structure, which did not exteod to low 
 water mark, but the landing-stage floated on the 
 river, and was moored below low water mark by 
 anchors fixed in the bed of the river, a bridge 
 being made to connect the landing-stage with the 
 pier. Part of this landing-stage was beyond the 
 limits marked on the deposited plans, but it, with 
 its mooring anchors, received the approval of the 
 Admiralty, pursuant to the 8th section of the Act. 
 One of the mooring anchors to which the floating 
 stage was attached was' insufficiently buoyed to 
 indicate its position under the water, and thereby 
 injured a boat of the plaintiffs, which, whilst law- 
 fully navigating the river, and without any negli- 
 gence of the plaintiffs, struck against such anchor : 
 ■ — Held, in an action for the injury to the plain- 
 tiffs' boat, that the landing-stage and works were 
 authorised by the Act ; but that there was a cause 
 of action against the defendants for negligence in 
 insufficiently buoying the anchor, which caused 
 the injui-y to the plaintiffs' boat. JoUiffe v. The 
 Wallasey Local Board, 43 Law J. Eep. (n.s.) C. P. 
 41 ; Law Eep. 9 C. P. 62. 
 
 (re) Injury to consignee using premises. 
 
 23. — The plaintiff consigned a heifer to a station 
 of the defendants. On arrival, there being only 
 one porter to shunt the horse box containing the 
 heifer to a place from which it could be unloaded, 
 the plaintiff assisted. There was evidence to shew 
 that he did so by permission of the station master. 
 While so doing another train, through the negli- 
 gence of the defendants' servants, entered the 
 station, and ran over and injured the plaintiff. In 
 an action by him, — Held, that the evidence shewed 
 that he was a mere volunteer, and therefore on the 
 same footing as the servants of the company, but 
 that the consent of the station master to the plain- 
 tifl 's acting as he did whs binding on the company, 
 who were bound to take reasonable care for the 
 security of the plaintiff. Wright v. The London 
 and 'North- Western Railway Company, 44 Law J. 
 Eep. (n.s.) Q,. B. 119; Law Eep. 10 Q,. B. 298: 
 aflSrmed, on appeal, 45 Law J. Eep. (n.s.) Q.B. 
 670 ; Law Eep. 1 0. B. D. 252. 
 
 24. — A coal depot of a railway company had a 
 railway siding, under which were cells into which 
 the coals were tipped from the trucks, so as to fall 
 into the carts of the consignees, which were backed 
 into the cells from a roadway which was at a 
 lower elevation than the railway.. It was the 
 practice of the persons coming to receive the coals 
 to assist the defendants' servants in tipping their 
 coals, and for that purpose they passed along a 
 flagged pathway on the siding running by the side 
 of the trucks. Some coals arrived consigned to 
 the plaintiff, who wont to receive delivery, but 
 found that his truck could not be tipped, as the 
 colls were all full. With the permission of the 
 
 station master, he passed along the flagged path- 
 way till he came to his coals, stepped on to the 
 buffer of the truck, and threw down some pieces 
 of coal to the roadway, where his servant was with 
 a cart. He stepped back on to the flagged way, 
 and one of the flags, which was in an insecure state 
 gave way, and he, fell into one of the cells and 
 was injured : — Held (affirming the judgment below, 
 38 Law J. Eep. (n.s.) Exch. 147), that, although 
 the plaintiff in getting his coals was not doing so 
 in the ordinary mode, yet the defendants were 
 under the same obligation to provide for his safety 
 as if he had been pursuing the ordinary mode, and 
 that he was not a mere licensee, but engaged 
 with the consent of the defendants in doing some- 
 thing incidental to the completion of the contract 
 between himself and the defendants, in which both 
 he and the defendants had an interest, and there- 
 fore the defendants were bound to take due and 
 reasonable care for his security upon their pre- 
 mises. Holmes v. The NorthrEastem Railway 
 Company (Exch. Oh.), 40 Law J. Eep. (n.s.) Exch. 
 121 ; Law Eep. 6 Exch. 123. 
 
 (o) Unforeseen accident from acts of skilled 
 workmen. 
 
 25. — Where the execution of a work, which, if 
 carefully and properly done, need not result in 
 accident to passers-by, is entrusted to skilled and 
 proper workmen, there is no obligation on a rail- 
 way company whose line adjoins the work to take 
 special precautions to avert from their passengers 
 a danger which can only be apprehended on the 
 supposition that the workmen engaged will do their 
 work negligently ; at all events, if the company 
 have no control over the workmen, and are other- 
 wise not responsible for their acts, and by Lord 
 Westbury, not even if those proper and skilled 
 workmen were employed directly by the company. 
 Daniel v. The Metropolitan Railway Company 
 (H.L.), 40 Law J. Eep. (n.s.) C. P. 121 ; Law Eep. 
 5 E. & I. App. 45. 
 
 (C) CONTBIBUTORY NeOLIQENCE. 
 
 26. — The plaintiffs, colliery owners, possessed 
 a siding on one of the lines of the defendants, a 
 railway company, and a bridge over the siding 
 with a headway of eight feet. The course of 
 business was for the defendants to bring the plain- 
 tiffs' empty waggons on to the siding and leave 
 them, and for the plaintiffs then to deal with them 
 as they thought fit. At the plaintiffs' colliery it 
 was the custom to leave off work at 12.30 p.m. on 
 Saturdays, and resume it at 6 a.m. on Mondays. 
 On a Saturday afternoon at 2.30 p.m. the defend- 
 ants brought and left on the siding some of the 
 plaintiffs' waggons, all empty but one, which being 
 loaded with a disabled waggon was eleven feet 
 high, and therefore could not pass under the bridge. 
 The loaded waggon and the others were known to 
 a person in charge of the plaintiffs' works, during 
 the absence of the workmen at 2.30 on that day, 
 to be on the siding, and were left standing there. 
 On Sunday night, after dark, the defendants' ser- 
 vants brought an engine and a long train of the 
 
NEGLIGENCE (C), (D). 
 
 397 
 
 plaintiffs' empty -vraggons on to the same siding, 
 and with this train pushed the loaded ■waggon up 
 to the bridge, and on the waggon being stopped 
 by the bridge, without looking to ascertain the 
 cause, gave such momentum to the engine that 
 the waggon with its load knocked the bridge 
 down, and injured other property of the plaintiffs. 
 The plaintiffs having sued the defendants for neg- 
 ligence, and the jury having foimd a verdict for 
 the defendants on the ground that there was con- 
 tributory negligence on the part of the plaintiffs, 
 — Held (by the majority of the Exchequer Chamber, 
 reversing the decision of the Exchequer, 43 Law 
 J. Eep. (n.s.) Exch. 73 ; Law Eep. 9 Exch. 71), 
 that there was evidence for the jury of such con- 
 tributory negligence in the plaintiffe as would dis- 
 entitle them from recovering. Sadley v. The 
 London and North-Western Eailway Company 
 (Exch. Ch.), 44 Law J. Eep. (n.s.) Exch. 73 ; Law 
 Eep. 10 Exch. 100. 
 
 27. — The plaintiffs, guardians of the poor, ap- 
 pointed the defendant, who was the manager of a 
 bank, to be their treasurer. He received no re- 
 muneration from them nor profit from the sums 
 deposited in his hands, those sums being dealt with 
 by the bank as other funds deposited by customers. 
 B., the clerk to the guardians, allowed L., a clerk in 
 his employ, to draw up orders on the treasurer for 
 payment of money. These orders were paid across 
 the bank counter, as cheques usually are. L. 
 drew up orders in such a manner as to enable 
 himself to increase the amoimt after they had been 
 duly signed by the giiardians and countersigned by 
 the defendant, and he did increase them accord- 
 ingly by various sums, in most instances by lOZ., 
 the syllable " teen " being added after the written 
 word four, six, eight or nine, and a 1 being in- 
 serted before the figure 4, 6, 7, 8 or 9, in spaces 
 left by L. for the purpose. The orders thus 
 fraudulently increased were presented at the bank 
 and paid in the ordinary way, and the payment of 
 the excess was due solely to the fact that the de- 
 fendant's clerks were misled by want of proper 
 caution on the part of the guardians and their 
 clerk in signing the orders. In some cases L. 
 forged the indorsement of payees ; in others he 
 both increased the amounts and forged the indorse- 
 ments. The guardians sued their clerk for negli- 
 gence in his duty, but settled the action on his 
 consenting to a Judge's order to stay proceedings 
 on payment of a certain sum. They then brought 
 a similar action against the defendant: — Held, 
 that the clerk and the treasurer were not joint 
 tort feasors so as to make the compromise of the 
 action against the one a bar to the action against 
 the other, but, nevertheless, that the plaintiffs 
 were disentitled, by the negligence of themselves 
 and their clerk, to recover against the defendant. 
 Held, also, that although the treasurer was not 
 within the protection afforded to a " banker " by 
 16 & 17 Vict. c. 59, s. 19, yet the account of the 
 guardians must be deemed to have been kept with 
 the bank itself, and the Act operated to discharge 
 the bank, and consequently the defendant, its ser- 
 vant, from liability in respect of the payment of the 
 orders of which the indorsements were forged. 
 
 The Guardians of Halifax Union v. Whedwright, 
 44 Law J. Eep. (n.s.) Exch. 121 ; Law Eep. 10 
 Exch. 183. 
 
 Collision of trains : identification of plain- 
 tiff with driver guilty of contributory 
 negligence. [See Caekiek, 10, 11.] 
 [And see Shippino Law, 27-30.] 
 
 (D) Negligence by Peesons in paeticblae 
 Eelations. 
 
 (a) Valuer or arbitrator. 
 
 28. — The plaintiff purchased the goodwill, 
 stock and effects of a business at a valuation, the 
 amount of which was to be fixed by valuers, one 
 to be appointed on each side for that purpose, and 
 in case of difference by an umpire to be chosen by 
 the valuers. The plaintiff employed the defendant 
 as his valuer, and the defendant and the valuer 
 appointed by the vendor fixed between them the 
 amount of valuation. In an action for negligence 
 in making such valuation, by which the value of 
 the goodwill was fixed too high, the plaintiff ap- 
 plied to administer interrogatories to the defendant 
 to ascertain the basis on which he had agreed with 
 the valuer of the defendant to calculate the valua 
 tion : — Held, that the defendant had not acted in 
 the matter as an arbitrator, but as a valuer only, 
 and was therefore liable to his employer for negli- 
 gence, and the plaintiff accordingly was allowed 
 to administer the interrogatories. Turner v. 
 Goulden, 43 Law J. Eep. (n.s.) C. P. 60 ; Law Eep, 
 9 C. P. 87. 
 
 Action for, against auctioneer for not 
 making a binding contract of sale. [See 
 Auction, 2.] 
 
 Liability of average adjuster, as arbitrator. 
 [See Aebiteation, 1 6.] 
 
 (6) Fatent agent. 
 
 29. — A patent agent is expected to know the 
 law relating to the practice of getting patents. 
 Wliere, therefore, such agent who was employed 
 to procure a patent, being not aware of the deci- 
 sion of the Lord Chancellor in He Bates and Bed- 
 gate, 38 Law J. Bep. (n.s.) Chanc. 501 ; Law Eep. 
 4 Chanc. App. 577 (which makes it necessary, not- 
 withstanding provisional specification has been 
 filed, to take care that the patent is sealed before an- 
 other patent for the same invention is obtained by 
 a later applicant), delayed four months between 
 filing the provisional specification and applying to 
 have the patent sealed, whereby a subsequent ap- 
 plicant for a patent for the same invention was 
 able to get his patent sealed first, and so prevent 
 such agent from procuring a patent for his em- 
 ployer, — Held, evidence of negligence, for which 
 such patent agent might be liable in an action at 
 the suit of his employer. Lee v. Walker, 41 Law 
 J. Eep. (n.s.) C. p. 91 ; Law Eep. 7 C P. 121. 
 
 (c) By solicitor. 
 
 Liability of solicitor for negligence in neg- 
 lecting to register lis pendens, and in- 
 ducing client to take insufficient security, 
 [See Attoenet, 23, 24.] 
 
^38 
 
 NEGLIGENCE (b), (fi). 
 
 {d) "By broker. 
 
 Broker : liability for want of skill. [See 
 Ueoker, 1.] 
 
 (e) By innkeeper. 
 By innkeeper. [See ItfNKEEPEE, 2, 3.] 
 
 (/) Cabowner letting out cab to cabdriver. 
 
 30. — "Where the plaintiff, a cabdriver, was fur- 
 nished by the defendant, a cabowner, with a horse 
 and cab for the day, on the terms that the plain- 
 tiff was to pay a fixed sum for their use, and have 
 the earnings for himself, and the defendant per- 
 sonally furnished the plaintiff with a horse which 
 he, the defendant, had lately bought and not tried 
 in a cab, and which (though the defendant did not 
 know it) was unfit for the required purpose, and 
 ran away and injured the plaintiff: — Held, by the 
 majority (Grove, J., and Byles, J.) of the Court, 
 that the relation between the defendant and the 
 plaintiff was that of bailor and bailee, with a 
 warranty that the horse was reasonably fit, and 
 further, per Byles, J., that even if it was that of 
 master and servant, the personal interference of 
 the defendant was evidence of such negligence as 
 would make him liable ; but per Willes, J., that 
 the relation was that of master and servant, and 
 in the absence of knowledge, the defendant was 
 not liable. , Fouier v. Lock, 41 Law J. Rep. (n.s.) 
 C. P. 99 ; Law Eep. 7 C. P. 272. 
 
 [This case came, on appeal, to the Court of 
 Exchequer Chamber, and that Court, after taking 
 time to consider, ordered a new trial, Bramwell, 
 B., stating that some of the Judges thought, as 
 Willes, J., did, in the Court below, that the plain- 
 tiff was a mere sei'vant, whilst others of the 
 Judges did not think that he was a mere servant, 
 but that, though the plaintiff took the horse as a 
 bailee, it did not necessarily follow that he did 
 so with a warranty that the horse was reasonably 
 fit, and that it might be that he took it with the 
 risk attaching to an unknown horse. The cause 
 was accordingly tried a second time before Den- 
 man, J., at the London sittings after Trinity 
 Term, when the jury found, inter alia, secondly, 
 that the defendant did not take reasonable pre- 
 caution to supply the plaintiff with a reasonably 
 fit horse on the occasion. A verdict having been 
 returned generally for the plaintiff, Prancis, for 
 the defendant, applied in Michaelmas Term, 1874, 
 for a new trial, but the Court considered (see 
 Law Eep. 10 C. P. 90) that the second finding of 
 the jury put an end to the case, as, whether the 
 plaintiff was servant or bailee, the defendant was 
 liable for negligence, wliich was the result of 
 such second finding, and therefore no rule was 
 granted.] 
 
 [g) lAvcry stable keepir. 
 
 31. — The defendant, a livery stable keeper, had 
 contracted with a builder to erect a building, of 
 which the lower part was to be a shed intended 
 for the reception of carriages, and the upper part 
 to be used for other purposes. Two carriages and 
 horses of the plaintiff were placed under the shed 
 when the lower part of the building had been 
 
 completed, but whilst the contractor's workmen 
 were still on the upper floor. The building was 
 blown down by a high wind, and the carriages 
 were injured. It waB not disputed that the builder 
 was one whom a careful and prudent person 
 might trust, and that the defendant had no notice 
 of any negligence on the contractor's part ; but 
 it was proposed to prove that, owing to the neg- 
 lect of the contractor and his workmen, the 
 building was, in fact, unskilfully built and unsafe. 
 The Judge, at the trial, ruled that the defend- 
 ant's liability was that of an ordinary bailee for 
 hire, and that all he was bound to do was to use 
 ordinary, care in the keeping of the plaintiff's 
 carriages ; and that if, in causing the shed to be 
 built, he did all that a careful man would do, he 
 would be exempt from liability for an event 
 which was caused by the careless or improper 
 conduct of the builder, of which the defendant 
 had no notice; — Held, that the direction was 
 right, for it could not reasonably be inferred that 
 the defendant had warranted that the shed was 
 reasonably fit for the purpose to which it was ap- 
 plied, inasmuch as this would charge him with a 
 trust beyond what the nature of the thing put 
 it in his power to perform, and although it was 
 reasonable to require him to use due care to as- 
 certain whether the building was secure, and by 
 himself and his servants to take due care to main- 
 tain it in a proper state, it would be um-easonable 
 to go further. Searle v. Laverick, 43 Law J. Eep. 
 (n.s.) Q. B. 43 ; Law Eep. 9 Q. B. 122. 
 
 (Ji) Bailee of bills for encashment, 
 
 32. — A., being indebted to B., deposited with 
 C. certain bills drawn in A.'s favour as security, 
 G. undertaking to be responsible for them " imtil 
 the effectual encashment thereof, which encash- 
 ment is entrusted to A. :" — Held, that C. was not 
 guilty of breach of duty in allowing A. to take 
 the bills when due, for encashment at his discre- 
 tion, and was not bound to see that he handed 
 over the proceeds to B. Treftz v. Canelli, Law 
 Eep. 4 P. C. 277. 
 
 (j) By servant : liability of master. [See 
 Master and Servant, 7-14.] 
 
 (E) Statutokt Nbglisence. 
 
 33. — When a specified duty is imposed by 
 statute upon a public body, it is, in the absence 
 of express enactment, to be assumed that the 
 Legislature intended to exempt the public body 
 from liability to make compensation for alleged 
 omissions to fulfil that duty, unless negligence 
 can be proved to exist. Hammond v. The Vestry of 
 St. Pancras, 43 Law J. Eep. (n.s.) C.P. 157; 
 Law Eep. 9 C. P. 316. 
 
 The Metropolis Management Act, 1855, section 
 72, imposes upon certain vestries, amongst them 
 the defendants, the duty of keeping the sewers in 
 their respective parishes properly cleared, cleansed 
 and emptied. The plaintiff' was the occupier of 
 a messuage in the defendants' parish, and re- 
 ceived injury from the overfiow of a sewer ; the 
 
NEGLIGENCE (E)— NUISANCE (C). 
 
 399 
 
 overflow happened without any default on the 
 part of the defendants : — Held, that the plaintiff 
 could not maintain an action against the defend- 
 ants for the iiyiiry which he had suffered. Ibid. 
 
 34. — Injunction granted to restrain a railway 
 company in the negligent exercise of its statu- 
 tory powers ; e. g. in taking insufficient precau- 
 tious to secure adjoining houses. Biscoe v. The 
 Great Eastern BaUway Company, Law Eep. 16 
 Eq. 636. 
 
 By railway company in respect of level 
 
 crossings. [See Eailwat, 22-25.] 
 By railway company in respect of fences. 
 
 [See Eailway, 26, 27.] 
 By coal mine owner. [See Mike, 20.] 
 Action for breach of statutory duty. [See 
 
 Action, 2, 3.] 
 Liability of surveyor of highways. [See 
 
 Highways, 15, 16.] 
 Liability of master for injury to servant. 
 
 [See Mastek and Servant, 4, 5.] 
 Liability of person who has by negligence 
 caused another's death. [See Mastee 
 AND Seevant, 6.] 
 
 (F) Damages. 
 
 35. — The damages in an action for negligence 
 causing personal injury to the plaintiff are not 
 subject to any deduction therefrom of money 
 paid to him by an insurance office under a policy 
 of insurance against accident, as compensation 
 for the same injury. Bradhurn v. The Great Wes- 
 tern Railway Company, 44 Law J. Eep. (n.s.) 
 Exch. 9 ; Law Eep. 10 Exch. 1. 
 
 Remoteness of damage. [See Damages, 
 17-22.] 
 
 NEGOTIABLE INSTEUMENT. 
 [See BiLi. OF Exchange, Sceip Ceetificate.] 
 
 NOTICE OF ACTION. 
 [See Action, 10-12.] 
 
 NOVATION. 
 [See Company, E.] 
 
 NUISANCE. 
 
 (A) When ebsteained in Equity. 
 
 (B) Action foe. 
 
 (C) Abatement op. 
 
 (a) Smoke nuisance. 
 
 (J) Water dropping from bridge over high- 
 way. 
 
 (c) Overcrowding houses. 
 
 (d) " Owner" of premises. 
 
 (D) Indictment : Indecency. 
 
 (A) When eesteainbd in Equity. 
 
 [Sea Injunction, 17-26.] 
 
 1. — A sewage company was under covenant 
 with a local board to keep their own works in 
 working order, so as to admit the free flow of 
 sewage in sewers of the board. A demurrer to a 
 ■ biU seeking to restrain the company from causing 
 or permitting sewage to remain in the sewers of 
 the board was overruled. The Nuneaton Local 
 Board v. The General Sewage Company, 44 Law 
 J. Eep. (n.s.) Chanc. 561 ; Law Eep. 20 Eq. 127. 
 
 (B) Action poe. 
 
 2. — In order to maintain an action for a public 
 nuisance, the plaintiff must prove that he has 
 suffered a particular, direct, and substantial in- 
 jury. Benjamin v. Storr, 43 Law J. Eep. (n.s.) 
 C. P. 162 ; Law Eep. 9 C. P. 400. 
 
 The defendants were auctioneers, and received 
 large quantities of goods to be sold at their 
 rooms. The plaintiff kept a coffee-house near to 
 the defendants' place of business, and complained 
 that the vans which delivered goods at their 
 rooms blocked up the public street, so as to 
 darken his coffee-shop, and to compel him to 
 bum gas during daylight, and that the horses 
 caused unpleasant smells, which rendered his 
 customers unwilling to frequent his house. The 
 declaration did not specifically charge that the 
 plaintiff was annoyed by the smells, but alleged 
 that by reason of the obstruction the plaintiff's 
 house was rendered incommodious. At the trial, 
 evidence was allowed to be given of the bad 
 smells, and a verdict was found for the plaintiff: 
 — Held, that the injury to the plaintiff was par- 
 ticular, direct, and substantial, so as to entitle 
 him to maintain an action, and that, under the 
 allegation in the declaration that the plaintiff's 
 house was rendered incommodious by the obstruc- 
 tion, he could give evidence as to the unpleasant 
 smells. Ibid. 
 
 Right to carriage way across foot pavement. 
 [See Highway, 10.] 
 
 (C) Abatement op. 
 {a) Smoke nuisance. 
 
 3.— By 29 & 30 Vict. c. 90, s. 19, the word 
 " nuisances," under the Nuisance Eemoval Acts, 
 shall include any chimney (not being the chimney 
 of a private dwelling-house) sending forth black 
 
 smoke in such quantity as to be a nuisance : 
 
 Held, that in the event of such a nuisance exist- 
 ing, the occupier of the premises is liable to be 
 charged and to have an order made upon him for 
 the abatement of the nuisance, although it may 
 have arisen or have been continued by the act of 
 a servant employed by him upon the premises. 
 Barnes v. Ahroyd, 41 Law J. Eep. (n.s ) M C 
 110; Law Eep. 7 Q. B. 474. 
 
 4.— By the 18 & 19 Vict. c. 121, s. 14, any 
 person not obeying an order of justices to abate 
 a nuisanc^_ complained of shall, if he fail to 
 satisfy the justices that he has used all due dili- 
 
400 
 
 NUISANCE (C), (D). 
 
 genco to carry out sueli order, be liable for every 
 such oifence to a penalty of not more than ten 
 shillings per day during his default. By 29 & 30 
 Vict. 0. 90, s. 19, sub-see. 3, any chimney (not 
 being the chimney of a private dwelling-house) 
 sending fo'rth black smoke in such quantity as to 
 be a nuisance, is to be included under the word 
 " nuisance " in the Nuisances Removal Acts. An 
 order of abatement of such last-mentioned nuisance 
 ■was made by justices, whieh)wasnot complied with, 
 and subsequently nineteen summonses were issued 
 for disobedience of the said order, laying the 
 disobedience to have occurred on nineteen distinct 
 days, and such summonses were returnable and 
 heard on the same day, when the justices con- 
 victed on each of the summonses, and imposed a 
 penalty of ten shillings upon each summons, with 
 a separate set of costs in respect of each sum- 
 mons and conviction: — Held, that the sending 
 forth black smoke from the chimney was the nui- 
 sance, and that each summons was issued in re- 
 spect of a distinct offence, and that the convictions 
 were right. The Queen v. Waterhouse, 41 Law J. 
 Eep. (n.s.) M. C. 11 5 ; Law Eep. 7 Q. B. 345. 
 
 6.— By the Sanitary Act, 1866, 29 & 30 Vict. 
 c. 90, part 2, s. 14, the expression " Nuisance 
 Eemoval Acts " shall mean 18 & 19 Vict. c. 121| 
 and 23 & 24 Vict. s. 77, as amended by this (the 
 second) part of tliis Act, and this part of this 
 Act shall be construed as one with the said Acts. 
 By section 19, the word "nuisances" under the 
 Nuisances Removal Acts, shall include, inter alia, 
 any fireplace or furnace which does not, as far as 
 practicable, consume smoke arising from the com- 
 bustible used in such fireplace or furnace, and is 
 used within the district of a nuisance authority 
 for working engines by steam, or in any mill, fac- 
 tory, dyehouse, brewery, bakehouse, or gaswork, 
 or in any manufactory or trade process whatso- 
 ever, any chimney (not being the chimney of a 
 private dwelling-house) sending forth black smoke 
 in such quantity as t(5 be a nuisance. In 18 & 19 
 Vict. c. 121, s. 8, there is a definition of certain 
 nuisances, and by section 44, " The provisions of 
 this Act shall not extend or be construed to ex- 
 tend to mines of different descriptions, so as to 
 interfere with or obstruct the efficient working of 
 the same, or to the smelting of ores and minerals, 
 or to the manufacturing of the produce of such 
 ores and minerals ": — Held, by Blackburn, J., and 
 Mellor, J., (Lush, J., dissenting), that the mii- 
 sances enumerated in section 19 of the later Act 
 must he regarded as if they had been included in 
 the nuisances specified in section 8 of the earlier 
 Act, and that a nuisance caused by smoke from 
 furnaces used in the manufacture of bichrome, a 
 product of ore and minerals, was excepted by the 
 proviso in section 44 from the summary provi- 
 sions of the Acts. Norris v. Barnes, 41 Law J 
 Eep. (n.s.) M. C. 154 ; Law Eep. 7 Q. B. 537. 
 
 (J) Water dropping from bridge over highway. 
 
 6.— By 18 & 19 Vict. c. 121, =. 8, the word 
 " nuisances '' shall include " any premises in such 
 a state as to be a nuisance or injurious to health," 
 
 A complaint was made against the appellants (a 
 railway company), under the above statute, in 
 respect of a " nuisance " alleged to exist in and 
 upon their premises, a railway bridge erossing 
 over a public street, by reason of a want of pro- 
 per and sufficient means to prevent the percola- 
 tion and overflow of water upon persons passing 
 under or near to the said premises. It was proved 
 that during rainy weather, and for some time 
 afterwards, the water in a dirty state percolated 
 through the bottom of the bridge, which was 
 formed of wooden planks, and fell upon the per- 
 sons passing along the street: — Held, that al- 
 though there might be a, nuisance, in respect of 
 which the appellants were liable to be indicted, 
 they were not liable to be proceeded against under 
 this Act, inasmuch as the word " nuisances " in 
 section 8 must be read in the sense of nuisances 
 injurious to health, and the percolation of water 
 as above mentioned could only be said to be indi- 
 rectly a nuisance injurious to health. The Great 
 Western BaUway Company v. Bishop, 41 Law J. 
 Rep. (n.s.) 1I.C. 120; Law Eep. 7 Q.B. 550. 
 
 (c) Overcrowding houses. 
 
 7, — A house which is so overcrowded as to be 
 dangerous or prejudicial to the health of the 
 inmates, is included within the definitions of 
 " nuisances " in section 19 of 29 & 30 Vict. c. 90, 
 although it be occupied by one family only, and 
 proceedings may be taken under that Act to com- 
 pel the abatement of the nuisance. The Guardians 
 of the Bye Union v. Payne, 44 Law J. Eep. (n.s.) 
 M. 0. 148. 
 
 (d) " Owner " of premises. 
 
 8. — By the Nuisances Eemoval Act, 1855 (in- 
 corporated with the Sanitary Act, 1866), section 2, 
 the word " owner " includes any person receiving 
 the rents of the property, in respect of which that 
 word is used, from the occupier of such property 
 on his own account, or as trustee or agent for any 
 other person ... or who would receive the 
 same if such property were let to a tenant. Pro- 
 ceedings were taken against the appellant under 
 these Acts for a nuisance caused by the defective 
 construction of a privy. It appeared that the 
 house to which the privy belonged was let by A. 
 to H. for a term of years at a rack rent, and that 
 the appellant received the rent reserved by the 
 lease as agent for the representatives of A. H. 
 occupied the entrance or shop floor only, having 
 underlet the residue of the premises, including 
 the privy, to a yearly tenant at a rack rent : — 
 Held, that the appellant was not " owner" of the 
 premises within the meaning of the statutes, as 
 he did not receive the rent paid by the occupier 
 of the premises in which the nuisance arose. Cook 
 V. Montagu, 41 Law J. Eep. (n.s.) M. C. 119; 
 Law Eep. 7 Q. B. 418. 
 
 (D) Indictment: Indecency. 
 
 9. — A urinal situate on the side of a public 
 footpath and open to the public, but built in 
 compartments, is such a public place as to make 
 
NUISANCE (D)— PABENT AND CHILD (C). 
 
 401 
 
 an act of indecency committed in the uiinal and 
 •witnessed by two persons an indictable nuisance. 
 The Queen v. Orchard (3 Cox C. C. 248) ques- 
 tioned. The Queen v. Harris, 40 Law J. Eep. 
 (n.s.) M. C. 67 ; Law Eep. 1 C. C. E. 283. 
 
 OBSCENE BOOK. 
 
 " The Confessional Unmasked " was a book on 
 the practice of the Church of Eome with refer- 
 ence to auricular confession, and contained seve- 
 ral very obscene passages. It was published 
 by a society called the Protestant Electoral Union, 
 whose object was not to corrupt the public mind, 
 but to protest against the teaching of the Eomish 
 priesthood, and to expose what it termed the 
 iniquity of the Confessional. But notwithstand- 
 ing that such was the object of the society in 
 publishing it, the Court of Queen's Bench in The 
 Queen v. Hioklin, held the publication to be a mis- 
 demeanour at common law, and the book an ob- 
 scene book within the meaning of Lord Camp- 
 bell's Act, 20 & 21 Vict. c. 83. After that deci- 
 sion the society published a new edition in which 
 some of the most obscene passages were omitted, 
 but there remained sufficient to render the work 
 not distinguishable in principle from the former 
 edition. One Gr. M. having been tried at the 
 Court of Quarter Sessions for selling this new 
 edition, a report of such trial was published, in 
 which the new edition of " The Confessional Un- 
 masked " was fully set out, although at the trial 
 it was not read aloud, but taken as read. In 
 other respects the report was substantially a cor- 
 rect report of the trial: — Held, in accordance 
 with the decision in The Queen v. HicMin (37 
 Law J. Eep. (n.s.) M. C. 89 ; Law Eep. 3 Q. B. 
 360), that the report was an obscene book within 
 the 20 & 21 Vict. c. 83. Held also, that being 
 offensive to public decency, it was not privileged 
 as the report of proceedings in a Court of justice. 
 Steele v. Brannan, 41 Law J. Eep. (n.s.) M. C. 
 85; Law Eep. 7 C.P. 261. 
 
 The power of appeal to the quarter sessions 
 given by 20 & 21 Vict. u. 83, does not take away 
 the jurisdiction of the magistrate under 20 & 21 
 Viet. c. 43, to state a case under that Act for the 
 opinion of one of the Superior Courts on a point 
 of law arising under 20 & 21 Vict. c. 83. Ibid. 
 
 OPTION. 
 
 As to term of lease. [See Lease, 5.] 
 
 As to term, of loan. [See Debtor and 
 
 Cbkditoe, 6.] 
 As to time of payTnent. [See Deed, 9.] 
 
 OVEESEEES. 
 AecovMts of. [See Poob, 2, 3.] 
 
 Digest, 1870-1875. 
 
 PARENT AND CHILD. 
 [See Bastardy ; Infant ; Sedtjotion.] 
 
 (A) Gift by Paebnt to Child. 
 
 (B) Gift by Child to Parent. 
 
 (C) Custody and Ebliqious Education op 
 
 Child. 
 
 (D) Maintenance of Child. 
 
 (E) Power to appoint Guardian. 
 
 (F) Abandonment of Child. 
 
 (A) Gift by Parent to Child. 
 
 [See Advancement.] 
 
 (B) Gift by Child to Pabent. 
 [See Undue Influence, 3, 4.] 
 
 (C) Custody and Ebligious Education op 
 Child. 
 
 1. — The Court, in exercising the power given 
 to it by 22 & 23 Vict. c. 61, s. 4, with respect to 
 the custody of children, wiU allow, in the interest 
 of the children, the intervention of a third per- 
 son after the final decree in a suit for judicial 
 separation as in a suit for dissolution of mar- 
 riage. Godrich v. Godrich, 43 Law J. Eep. (n.s.) 
 P. & M. 2 ; Law Eep. 3 P. & D. 134. 
 
 The wife obtained a decree of judicial separa- 
 tion on the ground of cruelty, and had the cus- 
 tody of the children committed to her. A year 
 afterwards their grandfather applied for leave to 
 intervene, for the purpose of shewing that she 
 was not a fit person to have the custody of the 
 children, and the Court allowed the interventioij. 
 Ibid. 
 
 2. — Although the Judge of the Divorce Court 
 has a discretionary power to deprive a father of 
 the custody and control of his children, it is not 
 competent to the father, upon the compromise of 
 a divorce suit, by contract, to deprive himself of 
 such custody and control, for this would be to re- 
 nounce a duty. Hamilton v. Hector, 40 Law J. 
 Eep. (n.s.) Chanc. 692 ; Law Eep. 6 Chanc. 701. 
 
 But where a deed of separation between hus- 
 band and wife contained provisions that the chil- 
 dren should remain at such schools as the' hus- 
 band should select, and that both parents should 
 have reasonable access to them, and that the 
 holidays of the children should be passed by 
 them at such places and in such manner as the 
 trustees of the deed should from time to time 
 direct, having regard, as far as practicable, to the 
 wishes of each of the parents, — Held, reversing 
 the decision of .the Master of the EoUs, that this 
 was not such an abnegation by the father of his 
 parental control as the Court would refuse to 
 carry out on the grounds of public policy. Ibid. 
 
 3. — Although an agreement before marriage 
 that the children of the marriage should be 
 brought up in a different religion from that of 
 their father is not binding at law or in equity, 
 yet the Court will take such agreement into 
 account in considering whether the father has 
 abandoned his right to have his children brought 
 3F 
 
402 
 
 PAEENT AND CHILD (0)— PARKS EEGULATION ACT. 
 
 up in his own religion. Where there was such an 
 agreement, and after the death of the feither, it 
 appeared that it was for the benefit of the child 
 that she should remain with the mother's faniily 
 and be brought up in their religion, the Court de- 
 clined to order her to be brought up in the father's 
 religion, notwithstanding that she had not so far 
 imbibed the doctrines of the religion of her 
 mother's family as would render it dangerous to 
 change her religious education. Andrews v. Salt, 
 Law Eep. 8 Chane. 622. 
 
 Custody of child : habeas corpus : child 
 under fourteen : guardianship for 
 nurture. [See Haseas Coeptjs.] 
 
 [And see Inpamt, 11 ; Divobce, 44-46; Waed 
 
 OF COTIBT.] 
 
 (D) Maintenance of Child. 
 
 4. — A mother is not bound to maintain her 
 son, and if she does, and seeks to recover from 
 him or his estate advances made for his mainte- 
 nance after his mfijority, she must prove a con- 
 tract in order to establish a debt. In re Cottrell's 
 Estate; Joyce v. Cottrell, 40 Law J. Eep. (n.s.) 
 Chanc. 70 ; Law Eep. 12 Eq. 666. 
 
 Lower Canada : alimentary provision : debt 
 of trustee. [See Colonial Law, 11,] 
 
 (E) POWEE TO APPOINT GuAKDUN. 
 
 6. — A father cannot appoint a testamentary 
 guardian to his illegitimate children. Sleeman v. 
 Wilson, Law Eep. 13 Eq. 36. 
 
 6. — The authority conferred on a father by 12 
 Car. 2. c. 24, ss. 8, 9, to appoint a guardian of his 
 children during their minority, is not limited to the 
 mere nomination of a particular guardian. He 
 may also, if he should think fit, authorise the 
 guardian whom he appoints in his will to nominate 
 a co-guardian or successor in the office. In the 
 goods of Parnell, 41 Law J. Eep. (n.s.) P. & M. 
 35 ; Law Eep. 2 P. & D. 379. 
 
 A. appointed B. and C executors of his will and 
 guardians of his daughter D., and directed that in 
 the event of the death of either of them the sur- 
 vivor should appoint a co-guardian to act with 
 him. B. obtained probate of the will and died, 
 leaving part of the estate unadministered. C. 
 appointed F. to be a guardian jointly with himself 
 of D. during her minority, and renounced probate 
 and administration of the estate of A. The Court 
 granted administration (with the will annexed) of 
 the unadministered estate of A. to F. as substi- 
 tuted testamentary guardian of D., the universal 
 legatee for life named in the will. Ibid. 
 
 (F) Abandonment of Child. 
 
 7. — The prisoner was the father of a child under 
 two years of age. The child was in the custody 
 of the mother, who was living apart from the 
 prisoner. The mother brought the child to him, 
 and left it outside the door of his house at about 
 T o'clock p.m. He was inside, and she called out, 
 " Bill here's your child, I can't keep it ; I am 
 
 gone." She left, and the prisoner afterwards came 
 out of the house, stepped over the child,' and went 
 away. An hour and a half afterwards the child 
 was still lying in the road outside the wicket of 
 the garden ; it was dressed in short clothes, and 
 had nothing on its head. The prisoner's attention 
 was called to the child when he came home, after 
 a further interval of an hour and a half. He said 
 that he should not touch it, and that those that 
 brought it there must come and take it. The child 
 was found at 1 a.m. lying in the road cold and 
 stiff:— Held, that the prisoner was rightly con- 
 victed of having abandoned and exposed the child, 
 within the meaning of the 24 & 25 Vict. c. 100, 
 s. 27. The Quem v. White, 40 Law J. Eep. (n.s.) 
 M. C. 134 ; Law Eep. 1 C. 0. E. 311. 
 
 PAEKS EEGULATION ACT. 
 
 By the Parks Eegulation Act,, 1872, 35 & 36 
 Vict. c. 15 (passed June 27, 1872), s. 4, " If any 
 person does any act in contravention of any regu- 
 lation contained in the first schedule annexed 
 hereto, he shall, on conviction by a Court of sum- 
 mary jurisdiction, be liable to a penalty not ex 
 ceeding five pounds ; but the regulations contained 
 in the said schedule shall not take effect until the 
 expiration of one calendar month after the passing 
 of this Act." By section 9, " Any rule made in 
 pursuance of the first schedule to this Act shall 
 be forthwith laid before both Houses of Parlia- 
 ment, if Parliament be sitting, or if not, then 
 within three weeks after the beginning of the then 
 next ensuing session of Parliament; and if any 
 such rules shall be disapproved of by either House 
 of Parliament within one month after the same 
 shall have been so laid before Parliament, such 
 rules, or such parts thereof as shall be disapproved 
 of, shall not be enforced." By Eegulation 8 in 
 schedule 1, " No person shall deliver, or invite 
 any person to deliver, any public address in a 
 park, except in accordance with the rules of the 
 park;" and by Eegulation 19, "Eules of the 
 Park" mean rules made by the ranger as to 
 matters within his' jurisdiction, and as to other 
 matters, rules made by the Commissioners of 
 Works and Public Buildings. 
 
 Eules for Hyde Park were made and published 
 on the 1st of October, 1872, signed by the Eanger 
 and under the seal of the Commissioners of 
 Works. By rule 11, " No public address may be 
 delivered, except within forty yards of the notice- 
 board on which this rule is inscribed." By rule 
 13, "No public address may be delivered unless a 
 written notice of the intention to deliver the same, 
 signed with the names and addresses of two house- 
 holders residing in the metropolis, be left at the 
 office of the Commissioners of Her Majesty's 
 Works and Public Buildings, at least two clear 
 days before : such notice must state the day and 
 hour of intended delivery. After such a notice 
 has been received, no other notice for the delivery 
 of any other address on the same day will be 
 valid." 
 
PAEKS EEGXILATiON ACT— tAELlAMENT (B). 
 
 403 
 
 The appellant, in the November following, and 
 before the meeting of Parliament, delivered a 
 public address in Hyde Park, more than forty 
 yards from a notice-board on which the rule above 
 mentioned was inscribed, and having been sum- 
 moned before a police magistrate was convicted 
 and fined : — Held, that the conviction was right, 
 as it was the intention of the Legislature that the 
 rules should come into operation in the recess, and 
 before the approval of Parliament had been ob- 
 tained, and that in case Parliament should dis- 
 approve of them, they should cease to be further 
 enforced ; that the rules were sufficiently authen- 
 ticated by having the signature of the ranger and 
 the seal of the commissioner attached to the same 
 copy; that they were within the jurisdiction of 
 either the ranger or the commissioner ; and that 
 there was nothing in section 11 which prevented 
 the appellant from being convicted, as at the date 
 of the Act there was no right of way or of holding 
 public meetings in Hyde Park. Bailey v. William- 
 son, 42 Law J. Eep. (n.s.) M. C, 49 ; Law Rep. 8 
 CI.B. 118. 
 
 PAELIAMKNT. 
 
 (A) PnrVILBGB OF Paeiiament. 
 
 (B) Election of Membees. 
 (a) Bribery and corrwption. 
 
 (1) Corrupt practices by agent before 
 
 joint candidature. 
 
 (2) Votes after notice of disqiiaUHcation 
 
 by bribery. 
 
 (3) Election' petitions. 
 
 (i) What matter may be enquired 
 
 into. 
 (ii) Inspection of marked register. 
 (iii) Certificate of witness. 
 (iv) Effect of dissolution of Far- 
 
 (v) ■Scrutiny. 
 (vi) Costs. 
 (6) Election expenses: right of returning 
 
 officer. 
 (c) Duties of presiding officer. 
 Id) Return to the clerk of the Crown. 
 (C) Eegisteation. 
 
 {a) Register, how far conclusive. 
 (i) Qualification. 
 
 (1) For covmty vote, 
 
 (i) Feer of Farliament. 
 (ii) Forty shilling freeholder. 
 (iii) Rent-charge. 
 (iv) Interest in land: equitable 
 
 freehold. 
 (v) Lessee of chattel rent-charge. 
 (vi) Sub-lessee. 
 
 (vii) Occupation franchise : rate- 
 able value. 
 (viii) Rating members of firm. 
 (ix) Separatelandlordsandratimg. 
 (x) Borough vote : unity of occu 
 pation. ^ 
 
 (2) For borough vote. 
 
 (i) Rating qualification. 
 
 (ii) Dwelling-home. 
 (iii) Successive occupation. 
 (iv) Occupation as " owner or 
 tenant." 
 
 (v) Residence. 
 (vi) Lodger franchise. 
 
 (c) Notice of claim. 
 
 (d) Notice of objection. 
 
 (1) Sufficiency. 
 
 (2) Service by post. 
 
 (3) Froperty in borough. 
 
 (e) Ame7idment of description, ^o, 
 
 (1) County vote. 
 
 (2) Borough vote. 
 (/) Fractijx on appeals. 
 
 [Amendment of the law relating to the appoint- 
 ment of Eevising Barristers. 35 & 36 Vict. c. 84.] 
 
 [The powers of 28 Vict. c. 27 and 21 & 22 Vict, 
 c. 78 extended to Select Committee of either House 
 of Parliament in the cases of bills for confirming 
 provisional orders. (N.B. The above statutes are 
 mis-described in the Act now under notice, the 
 one as 28 Vict. c. 28, the other as 22 Vict. c. 78.) 
 33 Vict. c. 1.] 
 
 [Institution of voting by ballot at, and amend- 
 ment of the law relatmg to, parliamentary and 
 municipal elections. 35 & 36 Vict. c. 33.] 
 
 (A) PijiTiLEQB OF Parliament. 
 
 1. — A peer of Parliament is subject to the pro- 
 visions of the Bankruptcy Act, 186). The Duke 
 of Newcastle v. Morris, 40 Law J. Eep. (n.s.) 
 Bankr. 4 ; Law Eep. 4 E. & I. App. 661. 
 
 2, — The provisions of the Bankruptcy Act, 
 1869 (sees. 121 and 122), relating to the vacating 
 of his seat in Parliament by a member of the 
 House of Commons who has been adjudged bank- 
 rupt do not apply to the case of a member whose 
 affairs are in liquidation by arrangement. Ex 
 parte Fooley; In re Russell, 41 Law J. Eep. (n.s.) 
 Bankr. 67 ; Law Eep. 7 Chanc. 519. 
 
 The duty cast upon the Court of Bankruptcy 
 by the 122nd section, of certifying a member's 
 bankruptcy to the Speaker, is an ex officio duty aa 
 between the Court and the House of Commous, 
 and application for such a certificate should not be 
 made by a creditor. Ibid. 
 
 As to incapacity of a peer of Parliament to 
 vote. [See infra Nos. 16, 16,] 
 
 (B) Election of Membees. 
 
 (a) Bribery and corruption. 
 
 (1) Corrupt practices by agent before joint 
 candidature. 
 
 3. — In December, 1873, I. assented to have his 
 name as a candidate associated with that of P. at 
 the next election for the borough of B. ; but at 
 that time no dissolution of Parliament was ex- 
 pected to take place before 1876. A dissolution, 
 however, unexpectedly took place towards the end 
 of January, 1874, when I. coalesced with P. in 
 the candidature for the said borough of B., and, 
 3p2 
 
m 
 
 PARLIAMENT (fi). 
 
 after a contest, was returned as duly elected with 
 P. for such borough. Between December, 1873, 
 and the dissolution of Parliament, P. had, thi'ough 
 his agents, distributed coal amongst the voters, 
 under circumstances such as to make him guilty, 
 thoxigh not personally, of corrupt practices, and for 
 this P. was afterwai'ds unseated. I. was out^f 
 England when the coal was so distributed, and up 
 to the time of his election he was ignorant of any 
 such corrupt practices, and had done nothing to 
 sanction them : — Held, that I. was not responsible 
 for what had been so corruptly done before the 
 joint candidature, so as to make him guilty of 
 corrupt practices by an agent. In re this Boston 
 Election Petition ; Malcolm t. Ingram, 44 Law J. 
 Eep. (n.s.) C.P. 121 ; Law Eep. 10 C.P. 168. 
 
 (2) Voteg after notice of disqualification by 
 bribery. 
 
 4. — Bribery by a candidate at a Parliamentary 
 election, thongh rendering his election void, and 
 by 31 & 32 Vict. c. 125, making him incapable of 
 being elected during seven years, does not so affect 
 his capacity to be a candidate at that election as 
 to make all votes given for him by voters, with 
 knowle(Jge of such bribery, the same as if they 
 had not been given at all, and thus to seat an 
 opposing candidate. Laiinceston Election Petition ; 
 Drinkwater v. Dedkin, 43 Law J. Rep. (n.s.) C. P. 
 355 ; Law Eep. 9 0. P. 626. 
 
 Quaere — whether a notice of a candidate's dis- 
 qualification is sufficient which informs the voter 
 of the existence of the fact which has rendered the 
 candidate disqualified, without informing the voter 
 of the consequences of his voting for such dis- 
 qualified candidate. Ibid. 
 
 (3) Election petitions. 
 
 (i) What matter may be enquired into. 
 
 5. — Where the unsuccessful candidate at a par- 
 liamentary election petitions, a recriminatory case 
 of bribery, &c., is gone into against him, and the 
 Judge certifies his opponent not duly elected, and 
 reports a belief in the purity of the election on 
 his part, on a petition against him as the success- 
 ful candidate at a second election, cases of bribery, 
 &c., by and for him at the previous election may 
 be enquired into, at least if not known after the 
 use of due diligence, and so not gone into on the 
 recriminatory c£tse in the previous petition. Ste- 
 vens V. Tillett ; Norwich Election Petition, 40 Law 
 J. Eep. (n.s.) C. p. 63 ; Law Eep. 6 C.P. 147. 
 
 (ii) Inspection of marked register. 
 
 6. — Leave to inspect the marked register of 
 voters will be granted under the Ballot Act, 1872 
 (35 & 36 Vict. c. 33), schedule 1, part 1, rule 42, 
 whether the petition against the return of a can- 
 didate at a parliamentary election does or does not 
 pray for a scrutiny. James v. Henderson, 43 Law 
 J, Eep. (n.s.) C. p. 238. 
 
 7. — A petition, praying a scrutiny, was pre- 
 sented against the retiu'n of the respondent at a 
 parliamentary eleciion for the borough of P. The 
 petitioner now applied for the leave of the Court 
 
 to inspect the marked register of voters, the re- 
 jected ballot papers, and the counterfoils thereof. 
 The foregoing documents had been sealed up 
 together, and the ground of the application was 
 stated to be the saving of expense, for if it conld 
 be known who were the voters whose votes_ had 
 been rejected, it would be unnecessary to incur 
 costs by investigating their qualifications :— Held, 
 that the petitioner ought to be allowed to inspect 
 the marked register ; but, held, per Grove, J., 
 and Denman, J. (Brett, J., dissenting), that he was 
 not entitled to the production of the rejected 
 ballot-papers and the counterfoils thereof. Stowe 
 V. JolUffe (No. 1), 43 Law J. Eep. (n.s.) 0. P. 173 ; 
 Law Eep. 9 C. P. 446. 
 
 (iii) Certificate of witness. 
 8. — A witness who has answered all such ques- 
 tions as are mentioned in 26 & 27 Vict. c. 29, s. 7, 
 is entitled to his certificate ; and if the commis- 
 sioners refuse it, their decision may be reviewed 
 by mandamus. The Queen {on the prosecution of 
 Lovibond) v. Price, Law Eep. 6 Q. B. 411. 
 
 (iv) Effect of dissolution of Parliament. 
 
 9. — Where Parliament was dissolved before 
 the day appointed for the trial of an election pe- 
 tition presented under the Parliamentary Elec- 
 tions Act, 1868 (31 & 32 Vict. c. 125), the Com-t 
 ordered the money which had been deposited as 
 security for costs pursuant to section 6 of that 
 Act, to be returned to the petitioners. Iji re the 
 Exeter Election Petition ; Carter v. Mills, 43 Law 
 J. Eep. (n.s.) C. p. Ill ; Law Eep. 9 C. P. 117. 
 
 10. — The delivery of judgment upon an elec- 
 tion petition upholding the return of the respon- 
 dent thereto and awarding him costs, began at 
 10 a.m. and finished at 10.35 a.m. The report of 
 the Judge and his certificate were sent by 
 post at noon to the Speaker of the House of Com- 
 mons. Upon the same day upon which the fore- 
 going judgment was delivered Parliament was 
 dissolved by a royal proclamation, but the exact 
 time when the proclamation was issued by the 
 Queen was not ascertained. The Judge's report 
 and certificate did not reach the Speaker before 
 the dissolution : — Held, that the delivery of the 
 judgment and the order for the payment of the 
 costs being judicial acts, must be taten to have 
 happened before the dissolution, and that by 
 force thereof the respondent was entitled to his 
 costs after the Parliament had ceased to exist. 
 Marshall T. James, 43 Law J. Eep. (n.s.) C. P. 
 281 ; Law Eep. 9 0. P. 702. 
 
 (v) Scrutiny. 
 
 11.— The Ballot Act, 1872, s. 25, enacts that 
 " where a candidate, on the trial of an election 
 petition claiming the seat for any person, is proved 
 to have been guilty by himself or by any person 
 on his behalf of bribery .... in respect of any 
 
 person who voted at such election there 
 
 shall, on a scrutiny, be struck off from the number 
 of votes appearing to have been given to such 
 candidate one vote for every person who voted at 
 
PABLIAME'NT (B), (C). 
 
 40^ 
 
 such election, and is proved to have been so bribed.' 
 P. having been accepted by the Liberal party in the 
 borough of B. as a candidate at the next election, 
 he afterwards distributed amongst the inhabitants 
 coals by means of tickets bearing the signature of 
 his political agent. Many of the inhabitants who 
 accepted the coals were voters in the borough, 
 and were not objects of charity. The coals were 
 given corruptly. Parliament being soon after dis- 
 solved, P. was declared to be returned as member 
 by a majority of votes over M., another candidate. 
 A petition having been presented against the 
 return of P. claiming the seat for M., P. was ad- 
 judged to be unseated on the ground of bribery. 
 A scrutiny having been held, M. claimed to strike 
 off the poll for P. one vote for every elector who 
 had accepted the coals, and had voted at the 
 election, without ascertaining for whom he had in 
 fact voted. The voters were not called to deny 
 that they had received the coals corruptly: — 
 Held (per Lord Coleridge, C.J., and Brett, J., 
 d/ubitante Grove, J.), that the bribery contem- 
 plated in the Ballot Act, 1872, s. 25, was a corrupt 
 bargain made with an elector by or on behalf of 
 the candidate, and that under that enactment it 
 was necessary to prove a guilty intent in the voter. 
 But Held (per Lord Coleridge, C.J., and Grove, J., 
 luBsitante Brett, J.), that a primA facie ease of 
 corruption had been made out against the voters, 
 which they were bound to displace ; and that as 
 they were not called to rebut the inference of 
 corruption, one vote for every elector who re- 
 ceived the coals and voted at the election must be 
 struck off the poll of P. Malcolm v. Ingram, 43 
 Law J. Eep. (n.s.) C. P. 331 ; Law Eep. 9 C. P. 
 610, nom. Malcolm v. Parry. 
 
 QiuEre, whether the voters inculpated were en- 
 titled, after P. had been unseated, to appear by 
 counsel upon the petition, and defend themselves 
 from the charge of bribery. Ibid. 
 
 (vi) Costs. 
 
 [See supra No. 10.] 
 
 Taxation : allowance of lump sum : in- 
 structions for brief. [See Costs at 
 Law, No. 23.] 
 
 (6) Election expenses : right of returning officer. 
 
 12. — A returning oflScer at a parliamentary 
 election has no right to insist, as a condition to 
 taking the poll, on a candidate paying or giving 
 security for paying his proportion of the money 
 reqiiired to meet the election expenses. The Ha- 
 verfordwest Election Petition ; Davis v. Kensington, 
 43 Law J. Eep. (n.s.) C. P. 370 ; Law Eep. 9 C. P. 
 720, nom. Davies. 
 
 Where, therefore, at an election for a borough 
 returning only one member to Parliament two 
 candidates were duly nominated as required by 
 the Ballot Act, 1872, but, because one of them 
 would not deposit or give security for the sum 
 required of him to meet his proportion of the 
 election expenses the returning officer refused to 
 notice his nomination, and without taking a poll 
 returned the name of the other candidate as duly 
 
 elected, it was held that such election was void. 
 Ibid. 
 
 (c) Duties of presiding officer. 
 [See Ballot Act,] 
 
 {d) Return to the clerk of the Crown. 
 
 13. — The return of an elected candidate under 
 section 2 of the Ballot Act, 1872, has not been 
 made to the clerk of theljrown in Chancery within 
 the meaning of the enactment until he or some 
 clerk in his office has had an opportunity of re- 
 cording the receipt of it, and making the proper 
 return to the clerk in Parliament; therefore, 
 where the certificate of return was received at the 
 office of the clerk of the Crown at eight in the 
 evening, after office hours, by only a woman in 
 charge of the office, who had avithority to receive 
 the same and to give a receipt for it, but not to do 
 any other act with reference to it, the return was 
 held not to have been made before the following 
 day. The Poole Election Petition ; Hurdle r. 
 Waring, 43 Law J. Eep. (n.s.) C. P. 209 ; Law 
 Eep. 9 C. P. 435. 
 
 (C) Eegisteation. 
 
 (a) Register, how far conclusive. 
 
 14. — The register of parliamentary voters is, 
 by force of the Ballot Act, 1872, conclusive not 
 only on the returning officer, but also on any 
 tribunal which has to enquire into elections, ex- 
 cept in the case of persons ascertained by the 
 proviso in section 7. The persons " prohibited " 
 from voting by the proviso are not those who, 
 from failure in the incidents or elements of the 
 franchise, could be successfully objected to on the 
 revision of the register on the ground of the 
 receipt of alms, the receipt of parochial relief, 
 non-residence within the proper distance of a 
 borough, non-occupation, or insufficient qualifica- 
 tion; the persons "prohibited" from voting are 
 those who, from some inherent or for the time 
 irremovable quality in themselves, have not the 
 status of parliamentary electors, for instance, 
 peers, women, persons holding certain offices or 
 employments, and persons convicted of crimes, 
 which disqualify them ffom voting. Stowe v. 
 Jolliffe (No. 2), 43 Law J. Eep. (n,s,) C. P. 268 ; 
 Law Eep. 9 C.P. 734. 
 
 (b) Qualification. 
 
 (1) For county vote. 
 
 (i) Peer of Parliament. 
 
 15. — A peer of Parliament is incapacitated by 
 law from voting at elections for members of the 
 House of Commons, and is therefore not entitled 
 to have his name on the register of voters. Earl 
 BeauchampY. The Overseers of Madresfield ; Mar- 
 quis of Salisbury v. The Overseers of South Mimms; 
 Same v. Bontems ; Same v. Bulwer, 42 Law J. 
 Eep. (n.s.) C. p. 32 ; Law Eep. 8 C. P. 245. 
 
 16. — An Irish peer, who, at the time of regis- 
 tration, is not /a member of the House of Com- 
 mons, is incapacitated by law from voting at 
 parliamentary electioas, and therefore is not en- 
 
406 
 
 tAELIAMENT (C). 
 
 titled to have his name inserted on the register of 
 parliamentary electors. Rendkskam t. Haward, 43 
 Law J. Rep. (n.s.) C. P. 33 ; Law Rep. 9 C. P. 252. 
 
 (ii) Forty shilling freeholder. 
 
 17. — The claimant to a county vote borrowed 
 300Z. of a building society in which he held three 
 shares, and mortgaged freehold tenements of 
 which he was the owner in fee to such society for 
 securing to it " the subscriptions, payments, re- 
 demption moneys, and fines in relation to the sum 
 of 300Z. by monthly instalments of Zl. 9s.," ex- 
 tending over ten years. The annual value of the 
 tenements was 312. 4s., and the annual payment to 
 the society was ill. 8s., two-thirds of which were 
 in discharge of principal, and one-third of interest. 
 The claimant had only two years more of such 
 payments to make, and he might redeem the pro- 
 perty for 73Z. Is.: — Held, that the claimant had 
 an interest in the property of the value of 40s., by 
 the year, within the meaning of 8 Hen. 6. c. 7, 
 and was therefore entitled to a vote for the county. 
 Eolleston v. Cope, 40 Law J. Rep. (n.s.)C. P. 160; 
 Law Rep. 6 0. P. 292. 
 
 18. — Where a number of persons were pos- 
 sessed of land as tenants in common in fee, and 
 duxing the year ending the 31st of July, 1871, a 
 Slim was expended by them in laying on water for 
 the convenience of their tenants, and the rental 
 was slightly increased in consequence, and if the 
 sum so expended were added to the other de- 
 ductions proper to be made from the gross annual 
 value, the interest of each tenant w^ould be re- 
 duced below 40s. a year : — Held, that the sum ex- 
 pended for laying on water ought not to be deducted, 
 as it did not appear that the original rental could 
 not have been obtained from the premises without 
 such expenditure being made. B^uikley v. Wrig- 
 ley, Law Rep. 7 C. P. 185. 
 
 (iii) Bent-charge. 
 
 19. — A rent-charge was granted to A., B., and 
 C. to hold to the said A., B., and C. to the use of 
 the said A., B., and C, their heirs and assigns for 
 ever as tenants in common : — Held, that such 
 grant took effect at common law and not by ope- 
 ration of the Statute of Uses (27 Hen. 8, c. 10), 
 and that therefore neither A., B., or C. had the 
 actual possession of such rent-charge as required 
 by 2 Will. 4, c. 45, s. 26, to entitle him to be re- 
 gistered as a voter in respect of his interest in the 
 same until he had actually received such rent or 
 some part thereof. Webster v. The Overseers of 
 Ashtoii-mnder-Lyne ; Orme's case, 42 Law J. Rep. 
 (n.s.) C.P. 38 ; Law Rep. 8 C. P. 281. 
 
 20. — Where the conveyance granting a rent- 
 charge operates under the Statute of Uses, 27 
 Hen. 8, c. 10, the person to whose use the rent 
 charge is granted is, by force of the statute, in 
 the actual possession of such rent-charge, within 
 the meaning of section 26 of the Reform Act, 2 
 Will. 4, e. 46, as soon as the grant is executed, 
 according to the decision in Heclis v. Blain, 42 
 Law J. Rep. (n.s.) C. P. 146 ; Law'Rep. 8 C. P. 306, 
 which the Court followed. Webster v. The Overseers 
 of Ashton-under-Lt/ne ; Hadjield's case. 42 Law 
 J, Rep. (n.s.) C. p. 38 ; Law Rep. 8 C. P. 306. 
 
 21. — In a claim to vote for a county the quali- 
 fication was stated to be " rent-charge on freehold 
 house ":— Held, that, inasmuch as there is but 
 one kind of rent-charge, namely, a freehold rent- 
 charge, which can confer a vote, the qualification 
 was sufficiently stated ; but that if it were in- 
 accurate, it could be amended by inserting the 
 word "freehold" before the word "rent-charge." 
 Sherwin v. Whyman, 43 Law J. Rep. (n.s.) C. P. 
 36 ; Law Rep. 9 0. P. 243. 
 
 (iv) Interest in land : equitable freehold. 
 
 22. — Before the Thames Navigation Act, 1870, 
 the shareholders in Putney Bridge had only a 
 right to the toll for the passage over the bridge, 
 but not to any land belonging to the bridge (the 
 toll being vested in trustees, in trust for the share- 
 holders, and the land in trustees, in trust for 
 certain other persons), and therefore such share- 
 holders were not qualified to be on the list of 
 county voters as having, in respect of their shares, 
 any estate in land. By the Thames Navigation 
 Act, 1870, the bridge and lands belonging thereto, 
 as well as the tolls, were vested in a committee 
 of management appointed from the shareholders 
 of the bridge, but they were so vested, " subject 
 to the trusts " on which the same were held at the 
 passing of that Act : — Held, therefore, that such 
 shareholders were no more qualified as such to be 
 on the list of county voters, than they had been 
 before the passing of that Act. Wadmore v. 
 Bear ; Same v. The Overseers of Putney, 41 Law 
 J. Rep. (N.s.) C. P. 49 ; Law Rep. 7 C. P. 212. 
 
 23. — A hospital, consisting of a master and 
 three "ancient brethren," was incorporated, and 
 by the terms of its constitution, as afterwards 
 regulated by statute, its revenues, derived from 
 lands vested in the corporation, were received by 
 the master, who annually, after paying thereout 
 taxes and other outgoings and reserving one-third 
 to himself, was to pay 25Z. to each of the three 
 ancient brethren, 70/. to the chaplain, and after 
 reserving a balance, not exceeding 60Z., to meet 
 current expenses, was to divide the residue be- 
 tween certain other brethren called "younger 
 brethren," who were added to the number of the 
 brethren from to time, as the revenues of the 
 charity increased, but no younger brother was to 
 take under such division more than 2bl., and the 
 surplus, if any, was left to accumulate until 
 further additional brethren were appointed : — 
 Held, that the younger brethren had no equitable 
 estate in the lands of the hospital and that the 
 annual payment to which they were entitled, not 
 being a rent-charge nor a free tenement within 
 the statute 8 Hen. 6, c. 7, they were not entitled 
 to the county franchise. Simey v. Marshall, 42 
 Law J. Rep. (n.s.) C. P. 49 ; Law Rep. 8 C. P. 269. 
 
 24. — Previous to the Municipal Corporation 
 Act, 1836, the mayor, aldermen, and burgesses of 
 S. were possessed of certain land, and the custom 
 and practice of the mayor, &c., was that each 
 member of the common council should have two 
 acres for his life, and his widow after his decease, so 
 long as she remained such widow and resided in 
 the borough, but that non-residence, or receipt of 
 
PAELIAMENT (0). 
 
 407 
 
 parish relief, should be a forfeiture ; and that the 
 other acres should be distributed by the mayor 
 among such persons as he selected, to be. held on 
 the samo' tenure and customs, certain small en- 
 trance fees and yearly rents being paid. In 1836 
 it was enacted by a bye-law of the corporation 
 that in fiiture, as vacancies occurred, this land 
 should only be held by poor burgesses entitled to 
 vote at the parliamentary election for the borough 
 and their widows, resident within the borough ; 
 that they should occupy only one acre, at a rent to 
 be from time to time fixed by the council, which 
 was to declare whether they wore poor ; that the 
 then present holders should pay an advanced rent 
 to be fixed by the council, and should be ejected 
 if they did not pay it ; and that all former incon- 
 sistent orders, &c., as to this land should be an- 
 nulled. One J. A. was, by order of the council, 
 given possession of an acre as a poor burgess, " as 
 tenant thereof to the council," paying a certain 
 entrance fee, " and five shillings per annum as and 
 for rent until further notice," subject to the right 
 of the council to dig sand, &c. : — Held, that he 
 had no such freehold interest as entitled him to a 
 county vote as a freeholder. Fernie v. Scott, 41 
 Law J. Eep. (n.s.) C. P. 20 ; Law Eep. 7 C. P. 202. 
 
 (v) Lessee of chattel rent-charge. 
 
 25. — The part of the 5th section of the Repre- 
 sentation of the People Act, 1867 (30 & 31 Vict. 
 c. 102), which gives a county franchise to a person 
 entitled, as lessee or assignee, to any lands or 
 tenements for the unexpired residue of a term 
 originally created for not less than sixty years, of 
 the clear yearly value of not less than 51., does 
 not alter the subject-matter of the qualification, 
 as provided for by section 20 of the Reform Act 
 (2 WiU. 4, c. 45), and therefore the person claiming 
 to be so entitled must be lessee or assignee of 
 something capable of occupation, and not merely 
 of a chattel rent-charge. Warburton v. The Over- 
 seers of Denton, 40 Law J. Eep. (n.s.) C. P. 49; 
 Law Eep. 6 C. P. 267. 
 
 (vi) Sub-lessee. 
 
 26. — A sub-lessee is a lessee within 30 & 31 
 Viet. c. 102, o. 6 ; but it is doubtful whether he 
 must be in occupation like a sub-lessee under 2 
 Will. 4, c. 45, s. 20. Chorltmi v. The Overseers 
 of Slretford, 41 Law J. Eep. (n.s.) C. P. 37 ; Law 
 Eep. 7C.P. 198. 
 
 ( vii) Occupation franchise : rateable value. 
 
 27. — The rateable value of the premises re- 
 quired by section 6, sub-section 2, of the Eepre- 
 sentation of the People Act, 1867 (30 & 31 Vict, 
 c. 102), for the \1l. occupation franchise in coun- 
 ties, is the real rateable value (which the Re- 
 vising Barrister is at liberty to ascertain for him- 
 self), and is not necessarily the value at which 
 such premises are rated in the rate-book. Cooke 
 V. Butler, 42 Law J. Eep. (n.s.) C. P. 25 ; Law 
 Eep. 8 C. P. 256. 
 
 (viii) Rating members of jvrm. 
 28. — ^A., who had been solely rated in respect 
 
 of the pi'emises occupied by him in his business, 
 got the overseers to alter the rating to " A. & 
 Sons " on the occasion of his taking his two sons 
 into partnership, and carrying on' business with 
 them on the said premises under the partnership 
 name of " A. & Sons." When A. retired from the 
 business, which he did some time afterwards, 
 the two sons continued the business under the 
 same name of " A. & Sons," and paid the rates 
 when called for ; — Held, that the sons were rated 
 within the meaning of section 6 of the Eepresen- 
 tation of the People Act, 1867 (30 & 31 Vict. 
 u. 102), being described on the rate, though in- 
 accurately, by the partnership name, and that 
 such inaccuracy was cured by 6 & 7 Vict. c. 18, 
 sec. 75. lAttle v. The Overseers of Penrith, 4c2 Law 
 J. Eep. (n.s.) O.P. 28; Law Eep. 8 C.P. 259. 
 
 (ix) Separate landlords and rating. 
 
 29. — A man who occupies several pieces of 
 land under different landlords, and is separately 
 rated for them, may add their rateable values 
 together for the purposes of a qualification under 
 30 & 31 Vict. c. 102, s. 6. Hnckle v. Piper, 41 
 Law J. Rep. (n.s.) C. P. 42 ; Law Eep. 7 C P. 193. 
 
 (x) Borough vote : unity of occupation. 
 
 30. — A., a minister of a churcli, was stated to 
 have, as minister, such a freehold interest in the 
 rents received from the letting of pews in the 
 church as entitled him to a vote for the county. 
 He occupied as such minister the parsonage-house, 
 and in respect of such occupation acquired a right 
 to a vote for the borough : — Held, that there was 
 no such unity of occupation as would, according to 
 section 24 of 2 Will. 4, c. 45, disentitle A. to the 
 county vote. Beswick v. Alker, 42 Law J. Eep. 
 (n.s.) C. p. 26 ; Law Eep. 8 0. P. 265. 
 
 (2) For borough vote. 
 
 (i) Eating qualification. 
 
 31. — By section 19 of the Poor Eate Assess- 
 ment and Collection Act (32 & 33 Vict. c. 41), it 
 is enacted "that the overseers in making out the 
 poor-rate shall in every case, whether the rate is 
 collected from the owner or occupier, or the owner 
 is liable to the payment of the rate instead of the 
 occupier, enter in the occupiers' column of the 
 rate-book the name of the occupier of every rate- 
 able hereditament, and such occupier shall be 
 deemed to be duly rated for any qualification or 
 franchise as aforesaid": — Held, that this applies 
 only where the owner has entered into "an agree- 
 ment in writing with the overseers to become 
 liable to them for the poor-rate," according to 
 section 3 of that Act, or where there has been an 
 order by the vestry under section 4 for rating the 
 owner instead of the occupier, and therefore where 
 there has been neither such agreement or order 
 an occupier of part of a house, who is jointly rated 
 with the occupiers of the rest of the house for the 
 rateable value of the whole house instead of being 
 only separately rated for the value of the part 
 occupied by him, is not to be deemed duly rated 
 for a borough qualification so as to satisfy section 
 
408 
 
 PAELIAMENT (C). 
 
 61 of the Representation of the People Act, 1867, 
 ■which requires part of a house to be separately 
 rated to the relief of the poor in order to be a 
 dwelling-house within the meaning of that Act. 
 Cross V. Alsop, 40 Law J. Eep. (n.s.) C. P. 53 ; 
 Law Rep. 6 0. P. 315. 
 
 32. — The claimant to a borough franchise, who 
 was otherwise duly qualified under 30 & 31 Vict, 
 c. 102, to be on the list of inhabitant occupiers, 
 had never paid a poor-rate which had been made 
 in the June next preceding the qualifying year, 
 and to which he had been rated in i-espect of the 
 qualifying premises, but in the following October 
 he was excused by the justices from the payment 
 of such rate, under the 54 Geo. 3, e. 170, s. 11 : — 
 Held, that the claimant was disqualified by reason 
 of such non-payment, and that the exeusal under 
 54 Geo. 3, c. 170, s. 11, being, after the commence- 
 ment of the qualifying year, did not save him from 
 such disqualification. Abel v. Lee, 40 Law J. Eep. 
 (n.s.) C. p. 154 ; Law Rep. 6 0. P. 369. 
 
 The provision in section 3, sub-section 4, of the 
 Representation of the People Act, 1867 (30 & 31 
 Vict. c. 102), requiring the payment of poor-rates 
 in order to qualify a person for the borough fran- 
 chise, applies to arrears of rates made before the 
 commencement of the qualifying year. Ibid. 
 
 33. — Notwithstanding the largeness of the 
 words in section 3, sub-section 4, of the Eepre- 
 sentatiou of the People Act, 1867 (30 & 31 Vict, 
 c. 102), as to the payment of poor-rates in order 
 to qualify a person for the borough franchise, the 
 only poor-rates which it is necessary for that pur- 
 pose that such person should have paid are those 
 made after the 5th of January of the year pre- 
 ceding the qualifying year. Cull v. Austin; Aus-- 
 tin V. Cull, 41 Law J. Eep. (n.s.) C. P. 153 ; Law 
 Eep. 7 0. P. 227. 
 
 34. — By an agreement between a landlord and 
 tenant, the poor-rates were to be paid by the 
 former and included in the rent. The landlord 
 compounded with the overseers for the poor-rates, 
 and accordingly the premises occupied by the tenant 
 were assessed to a composition of 4s. 6d. in respect 
 of a poor-rate, instead of to the amount of 6s. Sd. 
 as they would have been had they been assessed 
 to an equal amount in the pound to that payable 
 by other occupiers in respect of such rate. The 
 landlord duly paid such 4s. 8A and he afterwards 
 paid two shillings so as to make up the full rate of 
 6s. Sd. : — Held, that there had not been such a 
 payment of an equal amount in the pound to that 
 payable by other occupiers in respect of the poor- 
 rate as is required by 30 & 31 Vict. c. 102, sec. 3, 
 sub-sec. 4, to qualify the occupier to the borough oc- 
 cupation franchise. Durant v. Withers, 43 Law J. 
 Eep. (n.s.) O.P. 113 ; Law Eep. 9 C. P. 257. 
 
 (ii) DwelUng-homse. 
 
 35. — Where a house of ordinary construction, 
 free from structural severance, is wholly let out 
 to several tenants, who are the exclusive rated 
 tenants, either of one room or of two rooms com- 
 municating by the common staircase, with the 
 joint user of the passages and staircases, and equal 
 control over the outer door, fastened or not, and 
 
 with or without the joint user of conveniences out- 
 side such house, — Held, per Bovill, C.J., and 
 Keating, J., that the tenements of such tenants 
 are, and per "Willes, J., and Brett, J., that they 
 are not " dwelling-houses " within the 3rd section 
 of the Eepresentation of the People Act, 1867 (30 
 & 31 Viet. c. 102). Ellis v. Bwrch; Thompson v. 
 Ward, 40 Law J. Eep. (n.s.) C.P. 169 ; Law Eep. 
 6 0. P. 327. 
 
 36. — ^Where the nature of a person's right to 
 vote in the parliamentary election for a borough 
 is inserted in the li.st as " dwelling-house," he is 
 not bound to prove a qualification under 30 & 31 
 Vict. c. 102, s. 3, but may shew he is qualified to 
 vote in respect of a "house" under 2 Will. 4. 
 c. 45, s. 27. — So held by the majority of the Court 
 (Willes, J., Keating, J., and Collier, J.), Brett, J., 
 dissenting. Townshend v. The Overseers of the 
 Poor of St. Marylebone, 41 Law J. Eep. (n.s.) C. P. 
 25 ; Law Rep. 7 C. P. 143. 
 
 Semble — that no amendment is necessary, but 
 that the claimant must prove that the house is a 
 dwelling-house. Ibid. 
 
 37. — The premises in respect of the occupation 
 of which as a dwelling-house a borough franchise 
 was claimed consisted of two rooms, which were 
 not structurally separated from the rest of the 
 house of which they formed part, and were con- 
 nected by a staircase and passages used by the 
 voter in common with the tenants of the other 
 rooms of the house, which were let out in a simi- 
 lar manner, the landlord not living in the house, 
 and the outer door being under the sole control of 
 the several tenants. These two rooms and the 
 voter in respect of them were rated separately to 
 the relief of the poor in all the rates made during 
 the qualifying year, but until the first rate made 
 after the commencement of the qualifying year 
 these rooms had not been separately rated from 
 the rest of the house, and there was therefore a 
 part of the qualifying year during which the rooms 
 were not separately rated. The Revising Barrister 
 found as a fact that the two rooms were occupied 
 by the voter as a separate dwelling, and were 
 separately rated to the relief of the poor : — Held, 
 by Keating, J., and Denman, J., that the rooms 
 constituted " a dwelling-house" within the mean- 
 ing of section 3 of the Representation of the 
 People Act, 1867 (30 & 31 Vict. c. 102); and by 
 Brett, J., and Honyman, J., that they were not " a 
 dwelling-house" within the meaning of that section. 
 Boon V. Howard, 43 Law J. Rep. (n.s.) C. P. 115 ; 
 Law Rep. 9 C.P. 277. 
 
 (iii) Successive occupation. 
 
 38. — ^A claim to be registered as a parliamen- 
 tary voter for a borough, under 30 & 31 Vict, 
 c. 102, ss. 3, 26, as an inhabitant occupier of two 
 houses in succession, is good, although, as respects 
 the second house, the landlord is the person rated, 
 and by his agreement with the claimant has paid 
 the rates. Moger v. Escott, 41 Law J. Rep. (n.s.) 
 C.P. 86; Law Rep. 7 C. P. 158. 
 
 (iv) Occupation as " owner or tenant." 
 39, — The respondent was a sergeant in the 
 
PARLIAMENT (0). 
 
 409 
 
 militia, and lived in a house within the borough of P. 
 The house was adjacent to the stores of the militia, 
 and upon the appointment of the respondent as 
 sergeant it was assigned to him by the oommand- 
 ing-offioer of the regiment ; he could not leave it 
 without the permission of the commanding-officei-, 
 who had also the power of turning him out. The 
 respondent might have performed the duties re- 
 quired of him, if he had resided in another house ; 
 those duties included the care of the arms and 
 clothing required by the militia ; the house was 
 built by the justices of the county, for the accom- 
 modation of the sergeants employed in taking care 
 of the arms and clothing before mentioned: — 
 Held, that the house in which the respondent lived 
 was not occupied by him as tenant within the 
 meaning of the Eepresentation of the People Act, 
 1867, section 3. Fox v. Dalit/, 44 Law J. Eep. 
 (ir.s.)C.P. 42; Law Eep. 10 C.P. 285. 
 
 (v) Sesidence. 
 
 40. — The respondent was the rector of C, a 
 parish lying within the parliamentary borough of 
 W. ; he obtained a license of non-residence, and 
 was absent from C. from October, 1872, to June, 
 1 873, remaining during that period abroad ; during 
 his absence the glebe-house, which the respondent 
 usually inhabited, was occupied by a curate pur- 
 suant to the directions of the bishop, within whose 
 diocese C. lay : — Held, that the respondent was not 
 entitled to vote for "W. under either 2 & 3 "WiU. 4. 
 c. 45, s. 27, or 30 & 31 Viet. c. 102, s. 3. Durani 
 V. Carter, 43 Law J. Eep. (n.s.) C.P. 17; Law 
 Eep. 9 C. P. 26. 
 
 41. — The respondent was tenant of, and Usually 
 resided at a house in E., a city returning members 
 to Parliament ; the house was of greater annual 
 value than lOl. He was a clergyman, and during 
 the months of July and August, 1873, for the sake 
 of relaxation, he exchanged duties with T., who 
 was vicar of S., a parish situate more than seven 
 miles from E. During that period the respondent 
 lived in T.'s vicarage at S., and T. lived in the re- 
 spondent's house at E. In September, 1873, the 
 respondent returned to his house atE. : — Held, that 
 the respondent had not resided in E. for six calen- 
 dar months next previous to the last day of July, 
 1873, and that he was not entitled to be registered 
 as a voter in the lists for E. Ford v. Pt/e, 43 
 Law J. Eep. (n.s.) C. P. 21 ; Law Eep. 9 C. P. 
 269. 
 
 42. — The respondent was a freeman of E., a 
 city returning members to Parliament. He was 
 an ofBcer in the army, and usually was on duty 
 with his regiment more than seven miles from E. 
 He had from time to time leave of absence, and he 
 then lived at his mother's house, who resided 
 within seven mUes of E. During twelve months 
 preceding the last day of July, 1873, he had ob- 
 tained three months' leave of absence, and during 
 that period had lived in his mother's house: — 
 Held, that the respondent had not resided vrithin 
 seven miles of E. for six calendar months next 
 previous to the last day of July, 1873, and that he 
 was not entitled to be registered as a voter in the 
 DiOEST, 1870—1875. 
 
 lists for E. Ford v. Hart, 43 Law J. Eep. (n.S;) 
 C. P. 24 ; Law Eep. 9 0. P. 273. 
 
 (vi) Lodffer fraiwkise, 
 
 43. — The circumstance that the voter, for the 
 convenience of his business, slept at a different 
 place from the lodgings occupied by his wife and 
 family during the twelve months immediately pre- 
 ceding the last day of July in any year, does not 
 prevent his having a suffident residence in such 
 lodgings to qualify him for the lodger franchise, 
 within the meaning of the 4th section of the 
 Eepresentation of the People Act, 1867 (30 & 31 
 Vict. 0. 102), if he was not deprived by contract 
 or otherwise of the power of returning to such 
 lodgings when he chose to do so. Taylor v. The 
 Overseers of St. Mary Abbotts, Kensiiigton, 40 Law 
 J. Eep. (n.s.) 0. P. 45 ; Law Eep. 6 0. P. 309. 
 
 44. — The residence required to qualify for the 
 lo"dger franchise by section 4 of the Eepresentation 
 of the People Act, 1867 (30 & 31 Vict. c. 102), 
 need not be a continued and unbroken one, and is 
 not insufficient merely because the lodger has also 
 another residence elsewhere. Therefore, where 
 the voter had an establishment in the country 
 which he kept all the year round and resided at 
 when not in London, and where when he was in 
 London (which he was usually at different times 
 during some small portion of the year) he resided 
 at lodgings of which he was a yearly and the 
 sole tenant, and which he bon& fide occupied in the 
 above manner during the twelve months required 
 by the Act, — Held, a sufficient residence in the 
 lodgings to satisfy the 4th section. Bond v. 2'he 
 Overseers of St. George, Hanover Square, 40 Law 
 J.'Eep. (n.s.) C.P. 47; Law Eep. 6 C. P. 312. 
 
 (c) Notice of claim. 
 
 45. — A claimant to a county vote in respect of 
 a 12il. occupation qualification, under the Eepre- 
 sentation of the People Act, 1867, gave notice to 
 the overseers that he claimed to be inserted on the 
 list of voters for such county, and that the nature 
 of his qualification was " land as occupier," the 
 situation of which he described : — Held, a suffi- 
 cient notice of such claim without more specifically 
 stating that the claimant claimed to be placed on 
 the list of 12Z. occupiers. Firth v. The Overseers 
 of Widdeconibe-inr-the Moor, 41 Law J. Eep. (n.s.) 
 C. P. 38 ; Law Eep. 7 C. P. 172. 
 
 {d) Notice of objection. 
 (1) Sufficiency. 
 
 46. — Where part of a parish is included in one 
 of the polling districts of a county and the other 
 part is in another of such districts, a notice of 
 objection to a county voter which describes the 
 objector as on the register of voters for the parish 
 is sufficient, notwithstanding 31 & 22 Vict. c. 58, 
 B. 22, which enacts that where a parish forms part 
 of more than one polling district, the part of such 
 parish in each district " shall be deemed to be a 
 separate parish for the purposes of the revision of 
 voters, and the lists and register of voters." 
 3G 
 
410 
 
 PAELIAMENT (0). 
 
 Chorlton v. The Overseers of Tonge, 41 Law J. Rep. 
 (n.s.) C.P. 33 ; Law Eep.'7 C. P. 178. 
 
 (2) Service hy post. 
 
 47. — The list of voters mentioned in 6 & 7 
 Viot. c. 18, s. 100, is, as regards county voters, 
 the copy register sent to the overseers by the 
 Clerk of the Peace of the county, and the over- 
 seers ought to publish it as they receive it, with- 
 out alteration. Where, therefore, the overseers 
 altered the copy of the register by changing the 
 description of the residence of one of the voters 
 thereon from what it had ceased to be, to what 
 was then the real address, and published the list 
 as so altered, and the voter being objected to, the 
 objector, in order to prove service of the notice 
 of objection, proved posting such notice, addressed 
 to the voter according to the altered address pub- 
 lished by the overseers, it was held that the notice 
 was insufficient, not being in compliance with s. 
 100 of 6 & 7 Vict. e. 18, which requires the notice 
 to be directed to the voter " at his place of abode, 
 as described in the said list of voters." Nose- 
 worthy V. The Overseers of BucJeland-irirthe-Moor, 
 
 43 Law J. Eep. (n.s.) C. P. 27 ; Law Eep. 9 C. P. 
 233. 
 
 48. — The respondent resided at a place called 
 W. The notice of objection to his claim to vote 
 at a, parliamentary election was posted at such 
 time that, in the ordinary course of post, it would 
 reach E., the nearest post-office to W., on the 
 morning of the 19th of August. W. was two 
 miles from E. ; there was no delivery by post at 
 W., and unless by some private accidental con- 
 veyance the respondent would not receive the 
 notice of objection. He did not appear before the 
 revising barrister to support his vote : — Held, 
 that there was no evidence under 6 Vict. c. 18, s. 
 100, of the notice having been given to the re- 
 spondent at W. on or before the 20th of August 
 in the ordinary course of post. Lewk v. Evans, 
 
 44 Law J. Eep. (n.s.) C. P. 41 ; Law Eep. 10 C. P. 
 297. 
 
 (3) Property in borough. 
 
 49. — Under a notice of objection to a person's 
 name remaining on the list of county voters as a 
 freeholder, stating that the objection is to the 
 third column, and relates to his interest in the 
 qualifying property, it may be shewn that the pro- 
 perty is within a borough, and gives him such a 
 right to vote for the borough as to disqualify him, 
 under 2 Will. 4. c. 45, s. 24, from having a county 
 vote. Simey v. Dixon, 41 Law J. Eep. (n.s.) C. P. 
 18 ; Law Eep. 7 C. P. 190. 
 
 (e) Amendment. 
 
 (1) County vote. 
 
 50. — A separate list was printed and published 
 of the county voters in respect of the occupation 
 of lands in a parish of the rateable annual value of 
 I2l. It was in alphabetical order and commenced 
 with an appropriate heading, applicable only to 
 such occupation voters ; it commenced towards the 
 end of the last sheet of the list of county voters in 
 such parish who were otherwise qualified, and it 
 
 was continued in like alphabetical order on several 
 succeeding sheets, but the printer by mistake in- 
 terpolated, as a heading to each of these succeed- 
 ing sheets, the general heading applicable to all 
 who were entitled to vote for the county in respect 
 of property situate in such parish : — Held, that 
 the general heading which had been so interpolated, 
 was not inconsistent with the list being that of the 
 occupation voters, and did no harm, and if inaccu- 
 rate the revising barrister otight to correct it under 
 6 Vict. c. 18, s. 40. Mather v. The Overseers of 
 Allendale, 40 Law J. Eep. (n.s.) C. P. 76 ; Law 
 Eep. 6 C. P. 272. 
 
 51. — The qualification in respect of which a 
 county franchise was claimed was described on the 
 list as " freehold rent-charge of Wl. per annum 
 issuing out of freehold houses." In support of 
 this the claimant proved that he was seized in fee 
 of the land on which the houses referred to were 
 built, and that he had let the same out on a long 
 building lease at a yearly rent of 16i. : — Held 
 (Willes, J., chiMtante), that che qualification proved 
 was a different one from that described, and that 
 the revising barrister had no power to amend the 
 description, as the amendment which would be 
 required would alter the qualification described, 
 instead of more clearly and accurately defining it, 
 to which the power of amendment is limited by 
 section 40 of 6 Vict. c. 18. Nicholls v. Bulwer, 40 
 Law J. Eep. (n.s.) C. P. 82 ; Law Eep. 6 C. P. 
 281. 
 
 52. — ^Where the number of a house has been 
 some years back changed by competent authority, 
 and the old number is put in the description of a 
 man's qualification to vote in the parliamentary 
 election in respect of such house, the revising 
 barrister has power and ought to amend under 6 
 Vict. c. 18, s. 40, by substituting the new number, 
 on proper evidence being given. Bendle v. Watson, 
 41 Law J. Eep. (n.s.) C. P. 15 ; Law Eep. 7 C. P. 
 163. 
 
 (2) Borough vote. 
 
 53. — A claimant to a borough vote in a borough 
 in which there existed both occupation and free- 
 hold qualifications, described the nature of his 
 qualification in his notice of claim to the overseers, 
 as " house " : — Held, a sufficient description of a 
 qualification in respect of the occupation of a house 
 of the annual value of lOL, but that if necessary 
 for more clearly describing it, the revising barris- 
 ter had power, under section 40 of 6 & 7 Vict. c. 
 18, to amend it by inserting the correct description 
 in the list of voters. Ford v. Boon, 41 Law J. 
 Eep. (n.s.) C. p. 28 ; Law Eep. 7 C. P. 150. 
 
 (/) Practice on appeals. 
 
 54. — A consolidated case of appeal, naming the 
 returning officer of a borough as respondent, was 
 signed on the 31st of October ; notice of appeal 
 was not given to him till the 4th of November • 
 the first day appointed for hearing appeals was 
 the 13th of November: — Held (the respondent 
 not appearing), that the appeal could not be heard. 
 Brown v. Tamplin, 42 Law J. Eep. (n.s.) C P 37 • 
 Law Eep. PC. P. 241, ' 
 
tABtlAMENT (0)-i'AS,TlES (S). 
 
 411 
 
 66. — Seinble — the Court is not bound by its for- 
 mer decision, though it is a Court of ultimate appeal 
 in registration cases, and its decision in such cases 
 is made final by 6 & 7 Vict. c. 18, s. 66 ; but the 
 Court win not overrule such former decision unless 
 it be shewn to be clearly wrong. Webster v. The 
 Overseers of Askton-under-Lyne ; HadjielcCs case, 
 42 Law J. Eep. (n.s.) C. P. 146 ; Law Eep. 8 C. P. 
 306. 
 
 56. — In a consolidated appeal from the decision 
 of a revising barrister, the indorsement upon the 
 case of the names of the appellant and the re- 
 spondent is sufficient, and it is unnecessary to in- 
 dorse the names of the persons whose appeals are . 
 consolidated. Sherwin v. Whyman, 43 Law J. 
 Bep. (n.s.) C. p. 36 ; Law Rep.' 9 C. P. 243. 
 
 PARTIES. 
 
 (A) To Action at Law. 
 
 (B) To Snrrs in Equity. 
 
 (a) Misjoinder of plaintiff. 
 
 (6) Suits for relief on ground of fraud. 
 
 (c) Parties for costs only. 
 
 (d) Suit to establish common rights. 
 
 (e) Suit for abatement of enclosures. 
 (/) Bepresentative suit by shareholder, 
 (g) Foreclosure suit. 
 
 (A) Administration and partition suits. 
 («) Dispensing with personal representative, 
 (A) Suit by one cestui que trust. 
 If) Bill by bankrupt. 
 
 (A) To Action at Law. 
 [See Action ; Peaotice at Law.] 
 
 (B) To Suits in Equity. 
 (a) Misjoinder of plaintiff. 
 
 1. — A bin was filed by two several landowners 
 to restrain an anticipated nuisance from intended 
 cement worts. The properties of the two plain- 
 tiifs were situate on diametrically opposite sides 
 of the intended works, and the residence of one 
 was close by that of the other at a considerable 
 distance fi-oiii the works. The manufacture was 
 commenced before the evidence was closed, and 
 the result of the evidence was to prove the exist- 
 ence of a nuisance affecting the one plaintiff, 
 whilst the case of the other plaintiff failed : — Held, 
 that the failure of the case of the one plaintiff 
 did not affect the right of the other to relief upon 
 the joint bill. Umfreville v. Johnson, 44 Law J. 
 Rep. (n.s.) Chanc. 752 ; Law Rep. 10 Chanc. 580. 
 
 The bill, so far as concerned the plaintiff whose 
 case failed, was dismissed with so much of the 
 costs as had been occasioned by making him a co- 
 plaintiff, and a decree for an injunction was made 
 in favour of the other plaintiff. Ibid. 
 
 (J) Suits for relief on grownd of fraud. 
 
 2, — The rule that parties to a fraud may be 
 made parties to a bill filed for relief against the 
 
 principal in the fraud if costs be prayed against 
 them, or for the purposes of discovery, is confined 
 to the case of attorneys, agents and arbitrators 
 actively participating in the fraud. Weise v. 
 Wardle, Law Rep. 19 Eq. 171. 
 
 In a suit by a trustee in bankruptcy to set aside 
 a fraudulent conveyance by the bankrupt the 
 bankrupt is not a proper party. Ibid. 
 
 (o) Parties for costs o^Ay. 
 
 3. — The Court disapproves of the practice of 
 making solicitors or others, who are properly 
 witnesses, and who are not primarily chargeable 
 with any part of the relief prayed, parties to suits' 
 with a view of charging them with costs alone. 
 Barnes v. Addy, 43 Law J. Rep. (n.s.) Chanc. 
 513 ; Law Rep. 9 Chanc. 244. 
 
 (d) Suit to establish common rights. 
 
 4. — One freehold tenant may sue the lord of thf 
 manor on behalf of himself and all other tenantf 
 of the manor in respect of common rights. Th 
 origin and nature of the commonable rights »c 
 customary freeholders considered. Decision of the 
 Master of the Rolls (39 Law J. Rep. (n.s.) Chanc. 
 636; Law Rep. 10 Eq. 105) affb-med. War- 
 rick V. The Provost and Scholars of Queen's College, 
 Oxford, 40 Law J. Rep. (n.s.) Chanc. 780 ; Law 
 Rep. 6 Chanc. 716. 
 
 5. — A freehold tenant of a manor may sue on 
 behalf of himself and the other freeholders having 
 commonable rights, without suing also on behalf of 
 the copyholders having rights coextensive with 
 those of the freeholders. Where a freehold tenant 
 sued not only on behalf of himself and the other 
 freeholders having commonable rights, but also on 
 behalf of another class of freeholders not so en- 
 titled, — Held, that this was a mere misjoinder of 
 the plaintiffs, and that relief could be given on the 
 bill. Beits v. Thompson, Law Rep. 6 Chanc. 732. 
 
 (e) Suit for abatement of enclosures. 
 
 6,— When a bill is filed on behalf of all the 
 owners and occupiers of land within a district, 
 except the defendants thereto, praying for the 
 abatement of certain enclosures within the district, 
 the owners and occupiers of the enclosures ought 
 to be made defendants since their interests conflict 
 with those of the plaintiff. If they cannot all be 
 made defendants, some may be chosen to represent 
 the others, and the bill be filed on behalf of all 
 the owners and occupiers, except the defendants 
 and the persons stated to be represented by the 
 defendants. Such a bill is not demurrable, though 
 of course relief can only be obtained by it against 
 the parties before the Court. The Commissioners 
 of Sewers of the City of London v. Glasse, 41 Law J. 
 Rep. (n.s.) Chanc. 409 ; Law Rep. 7 Chanc. 456. 
 
 (/) Eepresentatire suit by shareholder. 
 
 7. — Where there is a corporate body capable of 
 suing, that body only is the proper plaintiff in a 
 suit for the recovery of property, whether from 
 its officers or directors or from any other person , 
 and a bill for that purpose cannut be sustained by 
 o (J 2 
 
412 
 
 PAETIES (B)— PARTITIOIT (B). 
 
 one shareholder on telialf of himself and all others 
 except the defendants. The only exception to this 
 rule is where the directors or majority of share- 
 holders are doing something fraudulent against the 
 minority, who are overwhelmed by them. Gray 
 V. ierojs, and Parker v. Lewis, 43 Law J. Eep. 
 (n.s.) Chanc. 281 ; Law Eep. 8 Chanc. 1035. 
 
 Instance of a suit within the above-stated rule, 
 and in which the whole scheme was held to be a 
 sham, with regard to which no liability could arise, 
 either at law or in equity, between the three com-, 
 parties who were parties to it. Ibid. 
 
 Where the decree in one of two suits was re- 
 versed, the bill in the second suit was dismissed, 
 but without costs. Ibid. 
 
 [And see Compaio', F 2, 3.] 
 
 {g) Foreclosure suit. 
 
 8. — The plaintiff in a foreclosure suit had made 
 parties as defendants certain judgment creditors 
 who had not taken the steps necessary to obtain a 
 charge on the land under 27 & 28 Viet. c. 112. 
 One of these, immediately on being served with a 
 copy of the bill, wrote a letter saying he claimed 
 no interest. The others disclaimed by answer : 
 — Held, that they were not necessary parties. 
 Mildred v. Austin (Law Eep. 8 Eq. 220) disap- 
 proved of. Cork V. Russell, 41 Law J. Eep. (n.s.) 
 Chanc. 226 ; Law Eep. 13 Eq. 210. 
 
 (h) Administration and partition, suits. 
 
 Executor whether necessary party. [See 
 Pleading in EaniTY, 9 ; Pbactiob 
 IN EauiTY, 111.] 
 
 Administration suit : suit by one of several 
 executors against some only of his co- 
 executors. [See ADMunsTRATioN, 36.] 
 
 Suit to marshal securities. [See Pbdioi- 
 
 PAL AND SUEETY, 6.] 
 
 Absence of parties interested on decree for 
 sale Wider Partition Act. [See Par- 
 tition, 17, 18.] 
 
 (i) Dispensing with personal representative. 
 
 0. — One of two joint accounting parties died 
 insolvent after the chief clerk's certificate finding 
 the amount due from them had been settled, but 
 before it was actually signed : — Held, that an 
 order could be made under statute 15 & 16 Vict. 
 t. 86, s. 44, allowing the suit to proceed without 
 a representative of the deceased, and that it was 
 proper it should be made. Moore v. Morris, 41 
 Law J. Eep. (n.s.) Chanc. 161 ; Law Eep. 13 Eq. 
 139. 
 
 [And see Peactiob in Equity, 111.] 
 
 (k) Suit by one cestui que trust. 
 
 10. — One of several cesiuis gue trusts cannot, on 
 a mere allegation that the trustees refuse to take 
 proceedings, sue a debtor to the trust estate. 
 Sharpe v. The San Paulo Railway Company, Law 
 Eep. 8 Chanc. 597. 
 
 {I) Bill by bankrupt, 
 . XI, — A bankrupt cannot file a bill in reference 
 
 to his estate without first applying to the Court 
 of Bankruptcy. A demurrer to such a bill having 
 been allowed without costs and with liberty to 
 amend, — Held, on appeal, that it must be allowed 
 with costs, and without liberty to amend. Payne 
 V. Dicker, Law Eep. 6 Chanc. 678. 
 
 Appearance on behalf of party of unsound 
 mind. [See Practice in Equity, 
 36.] 
 
 Devolution of interest of parties : suit be- 
 coming defective. [See Practice in 
 Equity, 1,04-116.] 
 
 PAETITION. 
 
 (A) Disputed Question or Law. 
 
 (B) Sale under Partition Act, 1868, 31 & 
 
 32 Vict. c. 40. 
 (o) Prayer ofbUlfor sale. 
 (6) Particular persons interested. 
 
 (1) Married women. 
 
 (2) Infants. 
 
 (3) Persons of unsound mind. 
 (o) Interests of persons unascertained. 
 
 (d) Compulsory sale. 
 
 (e) Powers under 5th section. 
 If) Absence of parties interested. 
 
 Ig) Sale under decree made before the Act. 
 (h) Decree against persons out of the Juris- 
 diction, 
 (i) Effect of decree in working conversion, 
 
 (C) Costs. 
 
 (ffl) Infant plaintiffs. 
 (A) Apportionment. 
 
 (A) Disputed Question of Law. 
 
 1. — Qusere — whether in a partition suit the 
 Court will decide a disputed question of law ex- 
 cept by consent. Burt v. Hdlyar, 41 Law J. Eep. 
 (n.s.) Chanc. 430; Law Eep. 14 Eq. 160. 
 
 (B) Saxb under Partition Act, 1868. 
 (a) Prayer of bill for sale. 
 
 2. — To get a sale under the Parti tition Act, 
 1868, it is not necessary to pray for a partition, 
 Aston V. Meredith, 40 Law J. Eep. (n.s.) Chanc. 
 241; Law Eep. UEq.OOl. 
 
 3. — The Court will not make a decree for sale 
 of property under the Partition Act, 1868, unless 
 the bill prays for a partition as well as a sale. — 
 Teall V. Watts (40 Law J. Eep. (n.s.) Chanc. 176 ; 
 Law Eep. 11 Eq. 213) followed. Aston y. Meredith 
 (last case) dissented from. Holland y. Holland, 
 41 Law J. Eep. (n.s.) Chanc. 220 ; Law Eep. 
 13 Eq. 406. 
 
 (6) Particular persons interested. 
 
 (1) Married women. 
 
 4. — A married woman can, under the Partition 
 Act, obtain a decree for sale, instead of partition, 
 of real estate. Higgs v. Dorkis, 41 Law J". Eep. 
 (n.s.) Chanc. 150; Law Eep. 13 Eq. 280. 
 
PAETITIOK (B). 
 
 iU 
 
 5. — A married woman is incapable of \inder- 
 taking, under section 5, to buy the shares of parties 
 who request a sale. Drinkwater v. , Ratcliffe, 44 
 Law J. Eep. (n.s.) Chauc, 605 ; Law Eep. 20 Eq. 
 528. 
 
 6. — ^A married woman must be separately ex- 
 amined in order to request a sale under the Parti- 
 tion Act, 1868. Leigh v. Edwards, 42 Law J. 
 Eep. (n.s.) Chanc. 892. 
 
 7. — Where the proceeds of a sale under the 
 aboTe Act had been paid into Com't, and some of 
 the parties were married women resident in Aus- 
 tralia, the Court nevertheless refused to order 
 payment out to trustees. Aston v. Meredith, Law 
 Eep. 13 Eq. 492. 
 
 (2) Infants. 
 [And see infra Nos. 23, 24.] 
 
 8. — In a suit for confirmation of a conditional 
 sale of land to which the plaintiff and the de- 
 fendant were entitled as infant co-heiresses sub- 
 ject to their mother's dower, a decree for sale was 
 prefaced by a recital that a sale appeared more 
 laeneficial than a division, and that the infant 
 plaintiff requested a sale. Grove v. Comyn, Law 
 Eep. 18 Eq. 387. 
 
 (3) Persons of unsourtd nand. 
 
 9. — A bill for partition or sale cannot be filed 
 on behalf of a person of unsound mind not so 
 found by inquisition. Halfhyde v. Robinson, 43 
 Law J. Eep. (n.s.) Chanc. 398 ; Law Eep. 9 
 Chanc. 373. 
 
 (c) Interests of persons unascertained. 
 
 10. — After a sale under a decree for partition 
 in a suit under the Partition Act of 1868, it 
 appeared that one-sixth of the estate was vested 
 in J. W. B. (one of the parties to the suit), a 
 bachelor, for life, with remainders to his issue in 
 tail, with ultimate remainders to the right heirs 
 of the plaintiff': — Held, that the power (to make 
 declarations as to the interests of " unborn per- 
 sons," and that such persons on coming into 
 existence would be trustees) given by section 30 
 of the Trustee Act, 1 850, which is incorporated 
 in the Partition Act, 1868, enabled the Court to 
 make an order to appoint a person to convey the 
 legal estate in the one-sixth limited to the right 
 heirs of the plaintiff'. Basnett v. Moxon, 44 
 Law J. Eep. (n.s.) Chanc. 557 ; Law Eep. 20 Eq. 
 182. 
 
 11. — In a partition suit, when the title, which 
 Was complicated, was proved at the hearing, and 
 it appeared that all parties in existence having 
 any interest were before the Court, but that one 
 share had been settled, so that persons might 
 hereafter come into existence who would become 
 entitled to legal estates, — Held, that an immedi- 
 ate decree for sale might be made, with a declara- 
 tion that the parties to the suit were trustees of 
 the interests, and that the interests of any persons 
 who on coming into existence would be interested 
 were the interests of persons who on coming into 
 existence would be trustees, and decree accord- 
 ingly. Also, that the appointment of a new 
 
 trustee to convey should be made on a separate 
 application. Lees v. Ooulton ; Less v. Clutton, 44 
 Law J. Eep. (n.s.) Chanc. 566 ; Law Eep. 20 
 Eq. 20. 
 
 (d) Compulsory sale. 
 
 12. — Where in a partition suit the owners of a 
 moiety of the estate desire a sale, the Court is 
 bound under the 4th section of the Partition Act, 
 1868, to decree a sale, unless it sees good reason 
 to the contrary, however large the estate may be, 
 and notwithstanding the opposition of the parties 
 entitled to the residue. Decree of one of the 
 Vice-Chancellors reversed. Pemberton v. Barnes, 
 40 Law J. Eep. (n.s.) Chanc. 675; Law Eep. 6 
 Chanc. 685. 
 
 13. — The circumstance that the owner of one 
 undivided moiety of an estate is in possession of 
 the entirety as yearly tenant, and uses it for the 
 business of brick making, is not sufficient to induce 
 the Court to refuse to decree a sale of the en- 
 tirety. Wilkinson v. Joberns, 42 Law J. Eep. (n.s.) 
 Chanc. 663 ; Law Eep. 16 Eq. 14. 
 
 14. — If the majority of the parties entitled to 
 an estate desire a partition, it is for the minority 
 to prove, if they wish a sale, that it will be more 
 to the advantage of all. To succeed in that they 
 shoald shew that the majority are either perverse 
 in their views, or have mistaken their true in- 
 terests, otherwise a partition will be decreed. 
 Allen V. Allen, 42 Law J. Eep. (n.s.) Chanc. 839. 
 
 (e) Powers under 5th section. 
 
 15. — A part owner of an estate, who has in a 
 partition suit asked that the whole estate may be 
 sold, is at liberty to withdraw his request ; and if 
 he does so, the Court has no power, under section 
 5 of the Partition Act of 1868, to compel him to 
 sell his share at a valuation to the other part 
 owners, or any of them. Decision of Jesse], M.E., 
 reversed. Williams v. Games. 44 Law J. Eep. 
 (n.s.) Chanc. 245 ; Law Rep. 10 Ohane. 204. 
 
 16.— The 5th section of the Partition Act, 1 868, 
 gives the Court a new power of sale distinct from 
 the powers conferred by the 3rd and 4th sections 
 respectively ; and the provisions applying to sales 
 under the 6th section do not apply to sales under 
 the 3rd and 4thsections. Lord Hatherley's remarks 
 on this point in Pemberton v. Barnes (40 Law J. 
 Eep. (n.s.) Chanc. 675 ; Law Eep. 6 Chanc. 693) 
 dissented from. Drinkwater v. Ratcliffe, 44 Law 
 J. Eep. (n.s.) Chanc. 606 ; Law Eep. 20 Eq. 
 528. 
 
 A married woman is incapable of undertaking, 
 under section 6, to buy the shares of parties who 
 request a sale. Ibid. 
 
 (/) Absence of parties interested. 
 
 17.— Section 9 of the Partition Act, 1868, 
 enabling the Court to make a decree in the absence 
 of parties interested, directing enquiries with a, 
 view to an order for partition or sale " on further 
 consideration," allows the Court to make an 
 order for sale in the decree contingently on the 
 result of the enquiries ; but it is essential that 
 the result of the enquiries should be certified 
 
414 
 
 PAETITION (B)-PAIlfM]ESHlf' (A). 
 
 tefore the sale takes'plaoe. Observations of the 
 Lord Chancellor as to the duties and position of a 
 Chief Clerk. Powell v. Powell, 44 Law J. Eep. 
 (n.s.) Chano. 122; Law Eep. 10 Chanc. 130. 
 
 18.— An order for sale under the Partition 
 Act, 1868, cannot be made at the hearing unless 
 all parties interested are parties. Mildmay v. 
 Quick, Law Eep. 20 Eq. 537. 
 
 ( g) Sale under decree made before the Act. 
 
 19. — Though the Partition Act, 1868, is retro- 
 spective, so as to apply to suits pending when 
 it was passed, it does not authorise an order 
 for sale where a decree has been made before 
 the passing of the Act. Pryor v. Pryor, 44 Law 
 J. Eep. (n.s.) Chanc. 535 ; Law Eep. 20 Chanc. 
 469. 
 
 Decision of Bacon, V.C. (Law Eep. 19 Eq. 595) 
 affirmed. Ibid. 
 
 {h) Decree against persons out of jwisdiction. 
 
 20. — Decree for sale where persons interested 
 out of jurisdiction. Teall v. Watts, 40 Law J. 
 Eep. (n.s.) Chanc. 176 ; Law Eep. 11 Eq. 213. 
 
 (i) Effect of decree in working conversion. 
 
 21. — "When real estate of an infant is ordered 
 to be sold for payment of costs or any other 
 special purpose, and more is sold than is re- 
 quired, the surplus proceeds of sale are converted 
 into personal estate, and on the death of the 
 infant go to his personal representatives. Steed 
 V. Preece, 43 Law J. Eep. (n.s.) Chanc. 687 ; Law 
 Eep. 18 Eq. 192. 
 
 Jermy v. Preston (13 Sim. 356) and Cooke v. 
 Dealy (22 Beav. 196) questioned. Ibid. 
 
 22.— Decree for sale of realty under the Par- 
 tition Act, 1868, with consent of all parties. 
 After decree, but before sale, one of the persons 
 entitled died leaving another person entitled as his 
 heir-at-law. The estate having been sold under 
 the decree : — Held, that the estate was suffici- 
 ently converted, and that the share of the de- 
 ceased passed to his personal i-epresentative. 
 Arnold v. Dixon, Law Eep. 19 Eq. 113. 
 
 (C) Costs. 
 (a) Infant ■plaintiffs. 
 
 23. — On bill filed by infant plaintiffs against 
 an infant defendant for partition or sale of land, 
 an order was made for sale, and the infants' costs 
 were charged on their respective shares. France 
 V. France, 41 Law J. Eep. (n.s.) Chanc. 150; Law 
 Eep. 13 Eq. 173 ; and Young v. Young, lb. n. 
 
 24. — On a bill by three out of four infant 
 tenants in common for partition or sale, the 
 Court made a declaration as to the rights of 
 the parties, and directed a sale, but declined to 
 make any order as to costs till the further con- 
 sideration. Davey v. Wietlisbach, Law Eep. 15 
 Eq. 269. 
 
 (J) Apportionment. 
 
 25. — In the absence of special circumstances 
 the entire costs of a partition suit ought to be 
 
 borne by the parties in proportion to the value 
 of their respective shares. Cannon v. Johnson, 
 40 Law J. Eep. (n.s.) Chanc. 46; Law Eep. 11 
 Eq. 90. 
 
 26. — In suits under the Partition Act, 31 & 
 32 Vict. c. 40, the Court is not bound by the 
 old rule as to costs where the parties are inter- 
 ested in unequal shares, but has a discretion 
 under section 10, and will in a proper case 
 order the costs of all parties to be paid out of 
 the estate although the costs of the different 
 parties are unequal. Simpson v. Ritchie, 42 Law 
 J. Rep. (n.s.) Chanc. 643; Law Eep. 16 Eq. 
 103. 
 
 PAETNEESHIP. 
 
 (A) How CONSTITUTED : Paeticipation m 
 
 Profits. 
 
 (B) Constktjction and Effect op Pabtnee- 
 
 SHIP Aeticles. 
 (a) Provisions as to shares of partners on 
 
 death or retirement, 
 ih") Arbitration clause. 
 
 (C) Peopeett op Paetneeship. 
 
 (a) Constructive notice by joint occupation. 
 (J) Distress and seizttre on partnership pro- 
 perty. 
 (c) Conversion of land into personalty. 
 
 (D) What constitute Peofits op Paetnee- 
 
 SHIP. 
 
 (E) Liabilities op Partnees foe Acts of 
 
 Co-Paetnees. 
 
 («) Misapplication of client's money by 
 solicitor. 
 
 ib) Authority to bind co-partner by hank- 
 ing account. 
 
 (c) Acts of co-partner after dissolution. 
 
 (d) Powers of manager of partnership. 
 
 (F) Dissolution op Paetneeship. 
 {a) Accounts : right to interest. 
 (i) Seturn of premium. 
 
 (Gr) Death of Paetnee. 
 
 (a) Liability of executors and surviving 
 partners continuing deceased partner's 
 
 (6) Liability of executors as partners. 
 
 (c) Sights of executors of deceased partner. 
 
 (1) Completion of subsisting contracts. 
 1(2) Valuation of assets which cannot 
 be sold. 
 
 (d) Priority of creditors. 
 
 (H) Eights of Ceeditoes of Bankeupt oe 
 
 Insolvent Paetneeship. 
 (I) Peactice in Paetneeship Suits. 
 
 («) Suit by lunatic partner. 
 
 (J) Costs. 
 
 (A) How constituted : Participation in 
 Peofits. 
 
 1. — P. and E. agreed in writing, that a certain 
 underwriting account should be continued and 
 subscriptions made in P.'s name alone, policies, 
 
PARTNEESHIP (A), (C). 
 
 415 
 
 losses and averages to be settled and signed by 
 P., or by R. as his agent ; that R. should attend 
 to the business obtaining assistance "subject to 
 the approval " of P. ; that R. should be paid a 
 "salary" of 150?. a year; that P. should have 
 four-fifths, R. one-fifth of the profits ; that if 
 any net loss should "accrue to P.," he alone 
 should bear the same ; that unexpected claims 
 in any year should be met by P. and R. pro- 
 portionably to their shares in the profits, R. 
 paying no more than his share of profits in 
 that year: — Held, that having regard to the 
 whole agreement, R.'s participation in profits was 
 not sufficient to establish a partnership business 
 between P. and R. inter se, so as to entitle E. to 
 file a bill for an account. Boss v. Parkyns, 44 
 Law J. Rep. (n.s.) Ohanc. 610 ; Law Rep'. 20 Eq. 
 331. 
 
 2. — ^The question whether a right to participate 
 in the profits of a trade constitutes a partnership, 
 depends on the intention of the parties. An agree- 
 ment by a firm with a creditor, made with the 
 object of securing the repayment of his debt, and 
 under which the business was to be carried on to 
 some extent under his control, and he was to re- 
 ceive a commission on all profits until the debt 
 and interest was repaid, was held not to constitute 
 such creditor a partner. Mollwo March S[ Company 
 V. The Court of Wards, Law Rep. 4 P. 0. 419. 
 
 3, — Semble — there is no fiduciary relation be- 
 tween partners and representatives of deceased 
 partner. Knox v. Chye (H. L.). See Limitations, 
 Statdte of, 14. 
 
 Advance to trader in business : Partnership 
 Act, 1865, section 5. [See Mobtsaoe, 
 24.] 
 
 (B) Consteuction and Effect or Partner- 
 ship Articles. 
 
 (a) Provisions as to shares of partners on death 
 or retirement. 
 
 4. — ^Partnership agreement between A., B., C. 
 and D., providing that on the death or retire- 
 ment of any partner his share was to be ascer- 
 tained and paid by annual instalments with 
 interest "out of the business:" — Held, that on 
 the death of a partner and ascertainment of his 
 share, the debt was joint and several, as the 
 agreement was not intended to alter the existing 
 liability. Willmer v. Currey (2 De a. & S. 347) 
 considered. Beresford v. Brovmimg, Law Rep. 20 
 Eq. 564. 
 
 5, — Business was carried on by W. & T. in 
 partnership under a partnership deed which pro- 
 vided that all the capital in the business should 
 belong to W., and that in case of his death the 
 share of T. in the profits should thenceforth 
 belong to W.'s representatives or nominees, and 
 that T. should continue in it for six months to 
 assist such representatives or nominees. W. 
 died, having appointed T. his executor. The 
 business, which was greatly in debt at W.'s 
 death, was continued by T. for fourteen months. 
 T. then filed a petition for the liquidation of his 
 affairs. The stock in trade at the tiine of the 
 
 liquidation consisted partly of things which had 
 belonged to W. & T. during their partnership, 
 and remained in speoie, partly of things acquired 
 by T. after W.'s death : — Held, that the part- 
 nership deed meant only that the capital, subject 
 to the payment of the debts, should belong to 
 W., and that the proceeds of such part of the 
 stock in trade as had been in existence during 
 the partnership formed joint assets applicable to 
 the payment of the joint debts of the partner- 
 ship, and that so much of the stock-in trade as 
 had been acquired by T. since W.'s death, was 
 separate assets of T. applicable to the payment 
 of his separate debts. Ex parte Morley ; In re 
 White, 43 Law J. Rep. (n.s.) Baukr. 28. 
 
 Tenant for life : accumulation : apportion- 
 ment : construction of partnership 
 deed. [See Apportionment, 1 1 ; Te- 
 nant FOE Life, 10.] 
 
 (i) Arbitration clause. 
 [See Arbitration, 6, 8.] 
 
 (C) Property of Partnership. 
 (a) Constructive notice by joint occwpation. 
 
 6. — B. & C. carried on business together in 
 partnership under articles by which the real estate 
 upon which their business was carried on, and of 
 which they were seised as tenants in common in 
 fee, was made partnership assets. B., to secure 
 a, separate debt, mortgaged his moiety of the 
 estate to bankers, who were aware when they took 
 the mortgage that the premises were in the occu- 
 pation of the partners, and that they carried on 
 their business thereon. B. absconded, leaving 
 partnership debts which C. was obliged to pay : 
 — Held, that the bankers had constructive notice 
 that the property belonged to the partnership, 
 and that C. was entitled to be paid out of the 
 property what was due to him from the partner- 
 ship in priority to the bankers' claim under their 
 mortgage. Cavander v. Bulteel, 43 Law J. Rep. 
 (n.s.) Chanc. 370 ; Law Rep. 9 Chanc. 79. 
 
 (i) Distress and seizure on partnership property. 
 
 7. — P. & P. were in partnership'as brickmakers, 
 and they mortgaged certain lands which they 
 used for their partnership purposes, and of which 
 they were seised as tenants in common, and also 
 each of them separately attorned as tenants to the 
 mortgagees in respect of a moiety of the property 
 which was in their joint occupation and at a sepa- 
 rate rent. Subsequently the mortgagees took out 
 separate distresses against the mortgagors for six 
 years' rent due from each for his one equal undi- 
 vided moiety of the premises, and they seized 
 chattels on the partnership premises. The mort- 
 gagors became bankrupt, and the receiver in the 
 bankruptcy claimed the goods as against the 
 mortgagees : — Held (affirming the decision of the 
 County Court Judge), that the mortgagees having 
 in both cases distrained on goods which were the 
 
416 
 
 PAETNEESHIP (C), (E). 
 
 joint partnership property of the bankrupts had 
 exceeded their rights, and that they could not 
 distrain on goods in which the tenant and another 
 person had an undivided Interest. Ex parte 
 Parke ; In re Potter, 43 Law 3. Rep. (n.s.) Bankr. 
 139; LawEep. 18 Eq. 381. 
 
 (c) Conversion of land into personalty, 
 
 8. — Devise of lands occupied by the testator 
 as a nursery garden to his three sons A., B. and 
 C. as tenants in common. A., B. and C. con- 
 tinued the testator's business, and ultimately 
 A. and B. bought C.'s share, and carried on the 
 business till A.'s death : — Held, that A.'s share, 
 both the part devised and the part purchased, 
 was converted into personalty. Waterer v. Wa- 
 terer, LawEep. 16 Eq. 402. 
 
 Adjudication in bankruptin/ : joint and sepa- 
 rate estates. [See Bankbuftcy, 
 6-9.] 
 
 Double proof. [See Bahkeuptcy, E 
 14-20.] 
 
 Apportionment of dividends on partnership 
 profits. [See Apportionment, 3, 11.] 
 
 Pledge of partnership property for private 
 debts where partnership insolvent. [See 
 Bankbuptot, B 36.] 
 
 (D) What constitute Peofits of Pabt- 
 
 NEBSHIP. 
 
 -9. — In 1861 A., B. and G. agreed to enter 
 into partnership as cotton spinners on a mill and 
 premises belonging to A. A. was credited with a 
 fixed sum as his share of the capital, being the 
 then estimated value of the mill and premises, which 
 were put down at the same sum in the partner - 
 ship books as assets. From time to time moneys 
 were expended on the mill and premises out of 
 the profits of the partnership, which were added 
 in the books to their value, and every year a sum 
 was written off for depreciation. B. died in 1872, 
 and A. and 0. verbally agreed to carry on the 
 partnership. It was admitted that under this 
 partnership the " profits " were to be divided in 
 equal shares ; that there never had been any actual 
 re-valuation of the mill and premises ; but that 
 they were put down in the books of the new part- 
 nership at an amount which had been arrived at 
 by the gradual additions from time to time since 
 1861 made of the sums which had been expended 
 on them and the annual deductions of what had 
 been written off each year for depreciation for 
 wear and tear. In 1 873 the whole partnership 
 property was sold under an agreement, in which 
 separate prices were fixed for the mill and pre- 
 mises, far exceeding the amounts at which they 
 were set in the books : — Held, that, in the absence 
 of proof of special agreement, the " profits " of a 
 partnership included the rise in value of partner- 
 ship assets, and that the partners being entitled 
 to share equally in profits were entitled to share 
 equally in the increased value of the mill and 
 
 premises. Ashton v. Robinson, 44 Law J. Eep. ' 
 (n.s.) Chano. 542 ; Law Eep. 20 Eq. 26. 
 
 (E) Liabilities of Paetnees foe Acts of 
 Oo-Paetnees. 
 
 (a) Misapplication of client's money by solicitor. 
 
 10. — Where a client has entrusted a firm of 
 solicitors with moneys for investment on his behalf, 
 he is at liberty, in the event of their misapplica- 
 tion of the moneys, to sue all or any one or more 
 of the members of the firm, their liability being 
 both joint and several. Atkinson v. Maekreth (35 
 Law J. Eep. (n.s.) Chanc. 624) observed upon. 
 Plumer v. Gregory, 43 Law J. Eep. (n.s.) Chanc. 
 616. 
 
 11, — In order to render one partner in a firm 
 of solicitors liable for the misapplication of money 
 entrusted by a client of the firm to the other 
 partner, it must be shewn that the money was 
 received by that other partner in the ordinary 
 course of business for the purpose of being invested 
 on a specific security. A mere general statement 
 to the client by the partner who receives the 
 money that the money is to be lent on security to 
 another client is not sufficient to bind the other 
 partner ; the receipt of money for the purpose of 
 laying it out generally not being part of a solici- 
 ter's business, or within the scope of a solicitor 
 partnership. Plumer v. Gregory, 43 Law J. 
 Eep. (n.s.) Chanc. 803; LawEep. 18 Eq. 621. 
 
 The plaintiff advanced to W., a member of the 
 firm of J. & W., solicitors, a sum of 1,300Z., which 
 J. & W., by an agreement signed by them both, 
 agreed to invest on a mortgage of certain specified 
 property. Subsequently the plaintiff advanced 
 to W. a further sum of 1,700^., on the alleged re- 
 presentation that "his firm had a client who 
 wanted to borrow the money on landed security," 
 but it did not appear that J. was aware of the 
 latter advance to his partner. W. himself paid 
 the plaintiff interest on both sums during his life- 
 time, the plaintiff believing that they had been 
 duly invested on mortgage. W. survived his 
 partner J. some years, and then died insolvent, 
 when the plaintiff found that there was no invest- 
 ment existing of either of the sums, and that they 
 had in fact been applied by W, to his "own use. 
 Thereupon the plaintiff filed a bill to establish 
 the liability of J.'s estate to repay to her the whole 
 amount, J.'s assets being sufficient to answer the 
 claim : — Held, that J.'s estate was liable for the 
 1,300Z. only, the payment of the 1,700?. to W. 
 being out of the ordinary course of business, and 
 was not discharged from such liability by a deed 
 which W. had, shortly after J.'s death, induced the 
 plaintiff by misrepresentation to execute, and which 
 purported to give W. alone complete control over 
 both sums. 
 
 (J) Authority to bind co-partner by banking 
 account. 
 
 12. — In the absence of the evidence of usage, 
 a partner has no implied authority by law to bind 
 his co-partner by a banking account opened by him 
 in his own separate name, instead of in the name 
 
PAKTNERSHIP (E), (G). 
 
 417 
 
 of tho firn), although suoh account be for the pur- 
 poses of the firm. The Alliance Bank {Lim.) T. 
 Kearsley, 40 Law J. Eep. (n.s.) C. P. 249 ; Law 
 Bep. 6C.P. 433. 
 
 (c) Acts ofco-pariner after dissohition. 
 
 13. — ^After a dissolution of partnership the con- 
 tinuing partner cannot by his act or admission 
 invoive his co-partner in any legal liability. There- 
 fore part payment of a debt by the continuing 
 partner cannot le set up against the retiring part- 
 ner as a, bar to the Statutes of Limitation. A 
 debt from solicitors to a client in respect of 
 moneys received is not an express trust ■within 
 the Statutes of Limitation. Watson r. Woodman, 
 Law Eep. 20 Eq. 721. 
 
 (d) Powers of manager of partnership. 
 
 14. — The powers of a manager of a partnership 
 or company considered. Beveridge v. Beveridge, 
 Law Eep. 2 Sc. App. 183. 
 
 Acceptance of bills of excha/nge. [See Bill 
 OF Exchange, 7, 8.] 
 
 (E) Dissolution of Paetnership. 
 (a) • Accounts : right to interest. 
 
 15. — A claim to have partnership accounts sub- 
 sequent to the dissolution taken with interest as 
 between the parties must, in the absence of facts 
 raising particular equities, be maintained, if at 
 all, upon the footing of an agreement to that 
 effect. There is no principle upon which after 
 dissolution interest is payable between partners 
 merely on the ground that they have still remain- 
 ing in the concern unequal shares of capital on 
 which, during the continuance of the partnership, 
 they were entitled to have interest credited. Pil- 
 ling V. Pilling (3 De Gex, J. & S. 162) dissented 
 from. Barfield v. Loughborough, 42 Law J. Eep. 
 (n.s.) Chanc. 179 ; Law Eep. 8 Chanc. 1. 
 
 By articles of partnership between two solicitors 
 it was agreed that in case either of the partners 
 should at any time or times, with the consent of 
 the other of them, advance or lend to the co- 
 partnership or leave therein at any annual settle- 
 ment of accounts any sum or sums of money, the 
 partners respectively should be considered as cre- 
 ditors of the partnership in respect of such capital 
 and advances, and should be allowed interest for 
 the same. Upon the special terms of this con- 
 tract: — ^Held, varying the order of one of the 
 Vioe-Chancellors, that in taking the accounts 
 after dissolution interest must be allowed to each 
 partner on his share of the capital from time to 
 time remaining in the business, with annual rests 
 up to the time of the dissolution, but without rests 
 from that time. Ibid. 
 
 (6) Beturn of premium. 
 18. — In June, 1869, the plaintiff entered into 
 articles of partnership with the defendant for 
 seven years, and paid a premium of 2,600^. The 
 articles were strict in their provisions as to the 
 conduct of the partners, and other matters. In 
 DiOBST, 1870-187>- 
 
 November, 1870, the term of the partnership was 
 varied, and made to cease on 29th of September, 
 1876. In 1871 the defendant had reason to be 
 dissatisfied with the plaintiff, and, acting under a 
 provision in the articles, called on him to sign 
 (and in November, 1871, he did sign) a notice of 
 dissolution, which was duly gazetted. A corre- 
 spondence ensued, and ultimately the defendant 
 refusing to return any part of the premium, the 
 plaintiff filed a bill to recover it, and to have the 
 partnership accounts taken in the usual way : — ■ 
 Held, that the plaintiff was entitled to a return of 
 a proportionate part of the premium, but on the 
 footing of the partnership term being one of six 
 years and a quarter, and not seven years. Wilson 
 T. Johnstone, i2 listw J. Eep. (n.s.) Chanc. 668; 
 Law Eep. 16 Eq. 606. 
 
 (G) Death of Paetneb. 
 
 (a) Liability of executors cmd swviving partners 
 continuing deceased partner's assets in business. 
 
 17. — Surviving partners, and executors who are 
 not partners, but have continued their testator's 
 assets in the business, are liable to account for 
 profits made in respect of the value of a deceased 
 partner's share only where there is no absolute 
 contract for vesting in the survivors the share of 
 the deceased partner or only an option to take to 
 his share on certain cohditions, and the surviving 
 partners neglect to perform such conditions or to 
 liquidate the affairs of the partnership. Vyse v. 
 Foster (H.L.), 44 Law J. Eep. (n.s.) Chanc. 37 ; 
 Law Eep. 7 E. & I. App. 319. 
 
 A. was partner in a firm under articles, which 
 provided that the surviving' partners should pur- 
 chase the share of a deceased partner at a valua- 
 tion. There was nothing to shew that time was 
 of the essence of the contract. A. died, having 
 by will given his real and personal estate to three 
 executors in trust for his children on their attain- 
 ing the age of twenty-five, and with trusts in the 
 meantime for investing in real or Government se- 
 curities. One of his executors was partner at the 
 date of the testator's will, and at his death another 
 of his executors became a partner ; the third never 
 was a partner. The value of the testator's share in 
 the firm was ascertained in the mode prescribed, 
 but the executors allowed it to remain in the firm 
 until the children arrived at the prescribed'age, 
 and the children were credited in the books of the 
 firm with the ascertained value of their father's 
 share with compound interest at five per cent. 
 The arrangement was most beneficial to the firm, 
 and it was very advantageous to the children : — 
 Held, that the contract for sale and purchase of 
 the deceased partner's share was not affected by 
 the delay in actual payment ; that the relation 
 of debtor and creditor, purchaser and vendor, sub- 
 sisted as well between the partners who were exe- 
 cutor and their co-executors as between the other 
 partners and the executors, and that the executors, 
 who were or afterwards became partners, were not 
 liable to account for the profits made by them in- 
 dividually or by their firm generally tm-ough the 
 use of their testator's capital, nor were the execu- 
 3H 
 
418 
 
 PAETNEBSHIP (G). 
 
 tors who had assented to such employment under 
 any such liability. Ibid. 
 
 The articles provided that the price of a de- 
 ceased partner's share should be secured by pro- 
 missory notes, and also that the surviving partners 
 should enter into a covenant to indemnify the 
 estate of the deceased partner from all partnership 
 liabilities, and the representatives of the deceased 
 partners -were to release their interest in the firm 
 and its effects. The promissory notes -were not 
 given, nor were deeds of indemnity or release 
 executed: — Held, that the purchase was not by 
 the articles made conditional upon the execution 
 of the release or indemnity or upon the giving of 
 the promissory notes, and that the njn-payment 
 of the sums ad diem did not put an end to the con- 
 tract. Also, that the surviving partners ought to 
 be parties to a bill seeking such relief. Ibid. 
 
 The executors invested l,600i. in a substantial, 
 but not expressly authorised, improvement of their 
 testator's property : — Held, that this sum should 
 not be wholly disallowed them, but they might, at 
 the option of the cestuis que trusts, take to the 
 improved property at its original value, repay- 
 ing to the estate what they had spent on the im- 
 provement. Ibid. 
 
 18. — B., the surviving partner in a business, 
 being also the executor of the deceased partner, 
 carried on for eight years the business, which w:is 
 insolvent at the death of the deceased partner, and 
 then sold the business for 1,1001. In a suit for 
 the administration of the deceased partner's estate 
 against B., as executor, — Held, that the value of 
 the goodwill ought to be ascertained at the time 
 of the deceased partner's death, and not at the 
 time of sale. Broughton v. Broughton, 44 Law J, 
 Eep. (n.s.) Chanc. 526. 
 
 (i) Liability of executors as partners. 
 
 19. — T. and two others carried on business in 
 partnership as auctioneers, under a deed providing 
 that in case any one of them should die during 
 the term, the survivors should carry on the part- 
 nership till the end of the term, and should pay to 
 the representatives of the deceased partner the 
 share of the profits to which he would have been 
 entitled if living. T. died during the term, at a 
 time when the firm possessed no capital except 
 office furniture, but had in their hands upwards of 
 600?., to which T. was entitled, though none of it 
 consisted of his capital in the business. His exe- 
 cutors claimed his share of profits, but no settle- 
 ment was ever made between them and the sur- 
 vivors. The executors however received from the 
 survivors at various times sums amounting in all 
 to about 6252. They never interfered with the 
 business in any way. The survivors carried on 
 the business, and in course thereof received the 
 proceeds of the sale of property which the plain- 
 tiff had employed the firm to sell for him. In an 
 action against the firm to recover the balance of 
 this purchase-money, — Held, that the executors 
 of T. were not liable as partners in the firm. 
 Holme V. Hammond 41 Law J. Eep. (n.s.) Exch. 
 157 ; Law Eep. 7 Exch. 218, 
 
 (c) Rights of executors of deceased partner. 
 (1) Completion of existing contracts. 
 
 20. — The executors of a deceased partner are, 
 as a general rule, entitled to have the subsisting 
 contracts of the partnership carried out to com- 
 pletion, in order to ascertain their testator^s share 
 of the profits resulting therefrom, his estate being 
 liable also to contribute rateably to the resulting 
 loss, if any. McClean v. Kmnard, 43 Law J. Eep. 
 (n.s.) Chanc. 323 ; Law Eep. 9 Chanc. 336. 
 
 Five persons as partners entered into a contract 
 for the construction of some public works. Before 
 the contract was completed one of the partners 
 died. By his will he appointed two executors and 
 three trustees, and authorised his trustees to carry 
 on any business in which any part of his trust 
 property should for the time being be invested. 
 Before the will was proved an agreement was 
 drawn up, expressed to be made between the sur- 
 viving partners and the executors and trustees of 
 the testator, the names of the executors and trus- 
 tees being left in blank. The agreement provided 
 {inter alia) that the contract should be carried out 
 on the joint account of the co-contractors, who were 
 to contribute in equal shares to the expenses, and 
 that the executors and trustees of the testator 
 should be sleeping partners, the acting partners 
 being the four survivors. The agreement was 
 executed by the four survivors. The next day the 
 executors named in the will proved it. One of 
 the three trustees disclaimed the trusts. The 
 agreement was afterwards executed by the execu- 
 tors and acting trustees : — Held (on appeal), that 
 the object of the agreement was merely to bind 
 the testator's estate, and that it was sufficient that 
 it was executed by the executors and acting trus- 
 tees. Held, also, that the testator's estate was 
 entitled to his share of the profits of the contract 
 as ascertained on its completion, the estate being 
 also liable to contribute in the same proportion to 
 the losses. Ibid. 
 
 (2) Valuation of assets which cannot be sold. 
 
 21. — A. & B. carried on the business of carry- 
 ing mails under a contract entered into by the 
 Postmaster-General with B. and not assignable. 
 A. died ; B. continued to carry on the business under 
 the contract, and refused to account for the value 
 of the contract to the executors of the deceased 
 partn^er : — Held, that as the contract was not as- 
 signable and its valae could not be ascertained in 
 the usual way by sale, it must be referred to 
 Chambers to ascertain the value, and the surviv- 
 ing partner must pay the value to the executors 
 of the deceased, with a share of the profits since 
 the death of the deceased, a feir sum being allowed 
 to the surviving partner for his services in carry- 
 ing on the business. Ambler v. Bolton, 41 Law J. 
 Eep. (n.s.) Chanc. 783 ; Law Eep. 14 Eq. 427. 
 
 (d) Priority of creditors. 
 
 22. — Four brothers were in business together 
 as cotton spinners. By articles of partnership 
 it was agreed that accounts and balance-sheets 
 
PABTNEEsaiP (G)-I'AT^ENT (A). 
 
 419 
 
 stould be taken half-yearly, and that in case of the 
 death of either of the partners the capital of the 
 deceased partners should not be withdrawn from 
 the business, but that the amount sliould be ascer- 
 tained at the succeeding half-yearly stock-taking, 
 and sliould remain secured by promissory notes at 
 interest in the business half for three and the 
 other half for five years from his decease. Two 
 of the partners died within a few months of each 
 other, and within a year from the death of the one 
 who last died, the two surviving partners filed a 
 petition for liquidation. Part of the assets con- 
 sisted of machinery which had belonged to all four 
 partners. On question raised on special case to 
 decide whether the machinery belonged to the 
 creditors of the four in priority to the other cre- 
 ditors : — Held (reversing the decision of the County 
 Court Judge), that the creditors of the four had 
 no priority, but that the assets must be distributed 
 amongst all the creditors rateably. Ex parte Fiir- 
 niss ; In re Simpson, 43 Law J. Kep. (n.s.) 
 Bankr. 43. 
 
 Affirmed, on appeal — In re Simpson ; Ex parte 
 Fumiss, 43 Law J. Eep. (n.s.) Bankr. 147 ; Law 
 Eep. 9 Chano. 572. 
 
 (H) Rights op Creditoes of BANKiroFr oh 
 Insolvent Pabtnership. 
 
 [See Bankkuptcy, E 11—20.] 
 
 (I) Practice in Partnership Suits. 
 (a) Suit by lunatic partner. 
 
 23. — A partner who has become incurably in- 
 sane may obtain a decree for dissolution of the 
 partnership on this ground, and although he has 
 not been found lunatic by inquisition, may insti- 
 tute a suit for dissolution by his next friend, 
 alleging that the lunatic is incurably insane, and 
 that the dissolution is for the benefit of the lunatic, 
 and the Court will entertain the suit, in orderto pro- 
 tect the property of the lunatic. Jones v. Lloyd, 
 43 Law J. Eep. (n.s.) Chanc. 826; Law Eep. 18 
 Eq. 265, and Fisher v, Melles, Law Eep. 18 Eq. 
 268ra. 
 
 (i) Costs. 
 
 24. — Bill for account and winding-up of a part- 
 nership by executors of a deceased partner against 
 a surviving partner, who was bound to pay them 
 half the annual profits, alleging that no accounts 
 had been rendered, though asked for, for some 
 years, but not alleging that anything was due. 
 The defendant's answer admitted the statements 
 in the bill, and submitted to render an account but 
 did not allege that nothing was due : — Held, that 
 the defendant must pay costs up to the hearing. 
 Norton v. Russell, Law Eep. 19 Eq. 343. 
 
 Apportionment of costs in partnership suit. 
 [See Costs in Equity, 46.] 
 
 Order to tax costs in name of partnership. 
 [See Costs in Equity, 62.] 
 
 PASSENGEE. 
 [See Carrier; NEaLiOENCB; Eailwat Company.] 
 
 PATENT. 
 
 (A) Validity. 
 
 (a) Application of new material to purpose 
 
 not new. 
 
 (b) Combination of Mown articles for new 
 purpose. 
 
 (c) Eight of retiring partner to dilute 
 _ validity of patent. 
 
 (B) Speoieication : whether too large. 
 
 (C) Disclaimer. 
 
 (a) Construction. 
 \b) TaJdng-off jUe. 
 
 (D) SEAxmo. 
 (a) Priority. 
 (A) Practice. 
 
 (E) License: Non-Eegisthation. 
 
 (F) Covenant to assign Future Eights. 
 
 (G) Infrin<}ement. 
 
 (a) What amounts to. 
 (i) Onus of proof. 
 
 (c) Sight of action: articles for use of 
 
 Crown. 
 
 (d) Bight to publish threats of legal pro- 
 ceedings. 
 
 (H) Prolongation of Term. 
 
 (I) Jurisdiction and Practice in Equity. 
 
 (rt) Discovery. 
 
 (A) Inspection. 
 
 (c) Particulars. 
 
 (d) Issues. 
 
 (e) Evidence of user. 
 
 (/) Interlocutory injunction. 
 
 (A) Validity. 
 
 (a) Application of new material to purpose 
 not new. 
 
 1. — A patent claimed in 1849, a new product, 
 the combination of tin and lead, to be brought 
 about by the process described in the specification, 
 and to be employed in the manufacture of capsules 
 for bottles and for other purposes. Metal capsules 
 for bottles had previously been known and used, 
 and a metal formed by a combination of tin and 
 lead had been patented previously in 1804 by one 
 Dobbs, but the proportions mentioned in his patent 
 as those in which the metals should be combined, 
 differed from those mentioned in the plaintiff's 
 patent; the metal produced was of a different 
 character, and was not so fiexible as the metal 
 produced by the plaintiff's patent, the manufac- 
 ture of which, indeed, was only possible by the 
 application of improved machinery, which in 1804 
 had not been invented : — Held, that in the absence 
 of evidence that a skilled workman ever had made, 
 or even with the aid of subsequent knowledge and 
 improved machinery could make, from the former 
 patent a metal with the peculiar consistency and 
 character of that specified in the later patent, the 
 latter was not anticipated by the former. Also, 
 3b2 
 
ii6. 
 
 f-ATENf (A), (t»j. 
 
 that the material being new, the claim for its ap- 
 plication to a purpose that was not new did not 
 aflfect the validity of the specification. Neilson v. 
 Betts (H. L.), 40 Law J. Eep. (n.s.) Chano. 317; 
 Law Rep. 5 E. & I. App. 1. 
 
 The capsules the user of which was complained 
 of were made and purchased abroad, and fixed to 
 the bottles in Scotland. The plaintiflf's patent ex- 
 tended only to England and the Channel Islands. 
 It was proved that some of the bottles to which 
 the capsules were fijced had been sent into Eng- 
 land, consigned to the respondent's agent, for the 
 purpose of exportation only : — Held, that the user 
 during this time of the capsules was sufficient to 
 support a bill for an injunction. Ibid. 
 
 Whether the defendants were liable in respect 
 of capsuled bottles actually sold by them in Scot- 
 land, with the knowledge that they would be im- 
 porfed into England ?— qusere ? Ibid. 
 
 Evidence was given by the plaintiff that the 
 capsules manufactured abroad were made of a 
 material substantially identical with and by a pro- 
 cess not distinguishable from his : — Held, that the 
 onus lay on the defendants of proving that there 
 was any difference in the material or in the pro- 
 cess by which it was produced. Ibid. 
 
 ■ Although the amount of damages to be recovered 
 was infinitesimal, so that the matter practically in 
 dispute was simply costs, the House of Lords en- 
 tertained an appeal in the matter. Ibid. 
 
 The decree appealed from, besides the in- 
 junction, awarded an enquiry as to damages sus- 
 tained by the plaintiff, and also an enquiry of pro- 
 fits made by the defendant. Their Lordships put 
 the plaintiff to his election, and he preferring the 
 direction as to damages, the decree complained of 
 was amended by striking out the direction as to 
 profits. Ibid. 
 
 (b) Comhmation of known articles fornew pwpose. 
 
 2, — An arrangement of apparatus so constructed 
 as to bring into operation a well-known dynamic 
 agent so as to produce a useful effect for a particu- 
 lar result, constitutes an invention of a combina- 
 nation for which a valid patent may be granted. 
 Cannington v. iV«WaB(H.L.), 40Law J. Eep. (n.s.) 
 Chanc. 739 ; Law Rep. 5 E. & I. App. 205. 
 
 3. — To adopt a combination of machinery or 
 arrangement of apparatus originally directed, to 
 one purpose, and to use it for another and addi- 
 tionaL purpose, is an infringement of the patent 
 which first introduced that combination or arrange- 
 ment. Cannington v. Nuttall (H.L.), 40 Law J. Bep. 
 (n.s.) Chanc. 739 ; Law Eep. 5 E. & I. App. 205. 
 
 4. — A patent for a combination of common ele- 
 mentary mechanical materials so as to produce 
 results whioh-have been previously attained by 
 other mechanical combinations, but more economi- 
 cally, expeditiously and completely, is valid. The 
 Talidity of such a patent is not affected by the cir- 
 cumstance that a useless and abortive machine, 
 similar in many respects to that patented, was 
 previously exhibited to the public. Murray r. 
 Clayton, Law Eep. 7 Chanc. 550. 
 
 [And see infra No. 19.] 
 
 (c) Eight ofreti/ring partner to dispute validity of 
 
 5. — A. and B. entered into partnership for the 
 purpose of working a patent taken out by B., the 
 partnership deed providing that the patent rights 
 should belong solely to B. During the continuance 
 of the partnership the partners issued circulars 
 asserting the validity of the patent, and warning 
 the public against its infringement, although they 
 had been advised that the patent was in fact void. 
 The partnership, having continued for seven years, 
 was dissolved by deed, and A. and B each pro- 
 ceeded to manufacturs the patented articles for 
 himself; but shortly afterwards B. commenced 
 issuing circulars to A.'s customers, asserting that 
 A. was infringing his patent, and threatening them 
 with legal proceedings in case they purchased from 
 
 A. A. then moved for an injunction to restrain 
 
 B. from issuing these circulars, contending that, 
 the patent being void, he had an equal right with 
 B. to manufacture the articles intended to be pro- 
 tected by it : — Held, that although A. had, during 
 the continuance of the partnership, precluded him- 
 self from disputing the validity of the patent, yet, 
 after the expiration of the partnership, he was as 
 much at liberty as any other person to dispute its 
 validity, and that B.'s proper course for asserting 
 his claim to the patent was, instead of issuing the 
 circulars complained of, to have instituted proceed- 
 ings against A. to establish its validity. On B. 
 declining to undertake to institute any such pro- 
 ceedings, the Court granted the injunction. 
 'Rollins v. Hinks (41 Law J. Rep. (n.s.) Chanc. 
 358) followed. Axmann v. Lund, 43 Law J. Eep. 
 (n.s.) Chanc. 655; Law Eep. 18 Eq. 330. 
 
 (B) Specification: whether too iaege. 
 
 6. — A specification which professes to do " by 
 machinery " what has never before been done by 
 machinery, and describes the machinery, is not on 
 the face of it too large. Arnold v. Bradbury, Law 
 Eep. 6 Chanc. 706. 
 
 (C) DlSCLAIMBB. 
 
 (a) Construction. 
 
 7. — The plain language of the operative part 
 of a disclaimer is not to be controlled or modified 
 by any introductory sentences with which the 
 patentee may think fit to preface such disclaimer. 
 Cannington v. Nuttall (H. L.), 40 Law J. Eep. 
 (n.s.) Chanc. 739 ; Law Rep. 5 E. & I. App. 205. 
 
 (b) Taking -off file. 
 
 8. — The Master of the Eolls has jurisdiction to 
 take off the file a disclaimer of part of an inven- 
 tion, filed without the authority of the patentee. 
 In re Sharp's Patent (3 Beav. 246; s. c. 10 Law 
 J. Eep. (n.s.) Chanc. 86) distinguished. Inre Ber- 
 dan's Patent, 44 Law J. Eep. (n.s.) Chano. 544 ; 
 Law Eep. 20 Eq. 346. 
 
 (D) Sbaiins. 
 (a) Priority. 
 9. — An applicant for letters patent has ordi- 
 
PATENT (D), (Gj. 
 
 42l 
 
 narily six months from the filing of his provisional 
 specification within which he marj apply to have 
 the great seal afSxed to his invention, and if he 
 maJtes such application earlier than is necessary 
 and then lies by till the six months are nearly 
 expired, the delay will not deprive him of his 
 right to have his patent sealed ; but in such a case 
 if a rival inventor, whose provisional specification 
 is of later date than that of the first applicant, has 
 ty greater diligence got his patent sealed first, the 
 first applicant's patent will be dated the day of ap- 
 plication for sealing, and not, as in ordinary cases, 
 the day of the filing of the provisional specifica- 
 tion. In re Bailey's Application for Letters Patent, 
 42 Law J. Eep. (n.s.) Chanc. 264 ; Law Eep. 8 
 Chanc. 60. 
 
 10. — To an action for infringing letters patent 
 granted to the plaintiff and sealed as of the date 
 of his application for the same, it was held to be 
 no answer that the alleged infringements were 
 done in exercise of certain letters patent for a 
 similar invention granted to the defendant and 
 sealed as of a subsequent date, i.e., the date of his 
 application for the same, although the complete 
 specification of the plaintiff's patent was not filed 
 in the patent office till after the defendant's spe- 
 cification had been filed. Saxby v. Kennett, 42 
 Law J. Eep. (n.s.) Exch. 137 ; Law Eep. 8 Exch. 
 210. 
 
 11. — The 9th section of the Patent Law Amend- 
 ment Act, 1852 (15 & 16 Vict. c. 83), giving to an 
 applicant for a- patent, who has filed his complete 
 specification in the first instance, protection for six 
 months, with the like powers, rights and privi- 
 leges, as might have been conferred upon him by 
 letters patent duly sealed, has not the effect of 
 giving him priority over a rival inventor who has 
 made earlier application so as to prevent the latter 
 from having his patent sealed during that period. 
 Bat^s and Redgat^s case (38 Law J. Eep. (n. s.) 
 Chanc. 501 ; Law Eep. 4 Chanc. 577) distin- 
 guished. In re Henry, and In re Farqiiharson, 42 
 Law J. Eep. (n.s.) Chanc. 363 ; Law Eep. 8 Chanc. 
 167. 
 
 (b) Practice. 
 
 12. — Where upon the hearing of several appli- 
 cations for letters patent by rival inventors before 
 the law officer of the Crown the evidence is con- 
 flicting, it is the duty of the law officer himself to 
 decide upon it, and not by issuing his warrant for 
 the sealing of both patents, to leave the matter to 
 be contested before the Lord Chancellor. In re 
 Henry s Application for Letters Patent; and In re 
 Farquharson's Application for Letters Patent, 42 
 Law J. Eep. (n.s.) Chanc. 363 ; Law Eep. 8 
 Chanc. 167. 
 
 13. — Upon the hearing of an application to 
 affix the great seal to letters patent which have 
 been unsuecessftiUy opposed before the Attorney- 
 General, the Lord Chancellor will not allow facts 
 to be gone into which might have been but were 
 not urged on the previous occasion. In re Sheffield's 
 Application for Letters Patent, 42 Law J. Eep. 
 (n.s.) Chanc. 356 ; Law Eep. 8 Chanc. 237. 
 
 14.— On allegation that the invention of a first 
 applicant for a patent was similar to that of a 
 
 second applicant who had obtained a patent, the 
 Lord Chancellor examined the provisional specifi- 
 cation of the first, and the complete specification 
 of the second, and finding no similarity, directed 
 the letters patent of the first to be sealed. In re 
 Harrison, Law Eep. 9 Chanc. 631. 
 
 Where rival applicants applied on the same 
 day, and mutually agreed to withdraw opposition, 
 two sets of letters patent bearing date on the 
 day of application were granted. Witnesses ex- 
 amined vivS, voce on application to affix the great 
 seal. In re Gething, Law Eep. 9 Chanc. 633. 
 
 15. — Where a servant filed a provisional specifi- 
 cation for an invention, after which the master 
 filed a provisional specification for a similar in- 
 vention, and subsequently filed a complete specifi- 
 cation and obtained letters patent, — Held, that, 
 uuder the circumstances, the great seal might be 
 affixed to the letters patent for the servant's in- 
 vention, and that the letters patent might bear the 
 date of his provisional specification. Ex parte 
 Scott and Young, Law Eep. 6 Chanc. 274. 
 
 16. — Where the law officer has reported that 
 part of an invention sought to be patented is 
 identical with part of an existing patent, a second 
 patent will not, except under special circum- 
 stances, be granted for that part, although the 
 validity of the first patent is disputed. Ex parte 
 Manceaux, Law Eep. 6 Chanc. 272. 
 
 (E) License: Non-kegistration. 
 
 17. — W., a patentee, agreed with H. that H. 
 should he the sole manufacturer under the patent. 
 This agreement was embodied in a deed, which 
 was prepared by the solicitor of W., H. employing 
 no legal adviser. The deed was not registered in 
 compliance with the Patent Law Amendment Act, 
 1852, s. 35, until after bill filed. Subsequently 
 W. granted a right of manufacture to M., who 
 had full notice of the previous agreement with H. 
 The grant to M. was also unregistered : — Held, 
 that under the circumstances W. could not avail 
 himself of an objection based upon the non-regis- 
 tration of the agreement with H., and that as the 
 grant to M. was also unregistered, M. also was 
 not entitled to take the objection. Hassall v. 
 Wright, 40 Law J. Eep. (n.s.) Chanc. 145. 
 
 Semble — that the subsequent registration had 
 relation back to the date of the agreement. Ibid. 
 
 (F) Covenant to assign Futtjbe Eights. 
 
 18. — It is not against public policy for the 
 vendor of a patent to agree to assign to the pur- 
 chaser all luture patent rights which he might 
 afterwards acquire with respect to the inventions 
 sold or any of a like nature. The Printing and 
 Numerical Registering Company v. Sampson, 44 
 Law J. Eep. (n.s.) Chanc. 705 ; Law Eep. 19 Eq. 
 462. 
 
 Specific performance of an agreement to that 
 effect decreed. Ibid. 
 
 (Gr) Infeingement. 
 (ff) What amounts to. 
 10. — A patent for a mechanical arrangement 
 
422 
 
 Patent (q). 
 
 whereby a partioula:!' operation may be performed 
 for a particular purpose, the parts of the appara- 
 tus so arranged not being new in themselves, but 
 thus first combined for that particular purpose, is 
 not infringed by the adoption of the same arrange- 
 ment or combination of parts for a similar pur- 
 pose, if the mode of operation is sufficiently dis- 
 tinct, and different in principle from that which 
 was described or claimed in the patent, and the 
 object achieved is also sufficiently distinct or 
 novel and does not form an essential part of the 
 patent. Saxby v. Climes (H.L.), 43 Law J. Eep. 
 (n.s.) Exch. 228. 
 
 S. obtained in 1856 a patent for "an arrange- 
 ment of mechanism by which the points and the 
 signals used on railways should be simultaneoiuily 
 actuated by one movement and in such a manner 
 that the points could not be wrong when the sig- 
 nals were right, nor the signals wrong when the 
 points were right." The invention efiected this 
 by connecting the rods and pulleys which worked 
 the signals with the lever which moved the points 
 so that when the signalman pushed or pulled the 
 lever to open or shut the points he must of neces- 
 sity raise or depress the signal and place it so that 
 it should rightly indicate the position of the points. 
 After describing the invention in all its parts, the 
 specification stated that the claim was for the 
 mechanical arrangement thereinbefore described, 
 whereby " the signals and the points of each line 
 are worked by the motion of a signal lever, or any 
 modification thereof," and it was declared that the 
 inventor did not confine himself to the precise 
 arrangement of the mechanical details, as the 
 same might be varied without departing from the 
 invention. In 1866, C. obtained a patent "for 
 machinery for actuating railway-points and sig- 
 nals," the object being "to effect a simultaneous 
 adjustment of points and signals, agreeing together 
 so as to prevent the possibility of accident by 
 collision at railway junctions, and to ensure the 
 efficient working of points and signals in com- 
 bination." The system employed under C.'s patent 
 was that the normal position of the signals should 
 be at ' danger,' and they could only be changed to 
 ' safety ' by the moving of a separate lever ; they 
 were not moved by the lever which moved the 
 points. But the lever which moved the signals 
 was connected with the lever which moved the 
 points in such a way that when the line was not 
 open the signal lever was locked, and it could not 
 be moved, consequently the signal could not be 
 changed from danger to safety. But when the 
 point's lever was moved so as to open the line, the 
 signal lever became at the same moment unlocked, 
 and then the signalman might move it and so put 
 the signal to safety. But the line might be opened 
 or closed for shunting, &c., without moiang the 
 signal from danger. Thus C.'s invention was in 
 feet one by which any two or more levers might 
 be made to act upon each other and in communica- 
 tion, and not that one lever should act directly at 
 the same moment upon both points and signals. 
 The result, as described in his specification, was 
 that " when one or more sets of levers were moved, 
 such signals (it shoidd have been signal levers) as 
 
 might be required to be moved in accordance there- 
 with were set at liberty, and all other signal levers 
 which, if moved, would be antagonistic to the 
 position of the points became locked and rendered 
 incapable of motion." C.'s patent was more useful 
 than that of S., but S.'s patent could have been 
 made to effect C.'s result by a slight modification, 
 and the introduction of another lever. The me- 
 chanical contrivances employed in the one patent 
 were of course much the same as those used in the 
 other : — Held, that the working C.'s patent was 
 not an infringement of S.'s patent ; that the prin- 
 ciple of his invention, namely, of simultaneously 
 movingthe points andmakingit possible to move the 
 signal lever, was not equivalent to S.'s principle of 
 simultaneously moving the signals and the points ; 
 and C.'s invention was one of practical importance 
 and distinct from that of S. Ibid. 
 
 20. — To adopt a combination of machinery or 
 arrangement of apparatus originally directed, to 
 one purpose, and to use it for another and addi- 
 tional purpose, is an infringement of the patent 
 which first introduced that combination or ar- 
 rangement. Camdngton v. Nuttall (H.L.), 40 Law 
 J. Eep. (n.s.) Chanc. 739 ; Law Eep. 5 B. & I. 
 App. 205. 
 
 Infringement of patent for new material ap- 
 plicable to purpose not new. [See supra No. 1.] 
 
 {b) Onus of proof. 
 
 21. — In a suit to restrain the sale of a patented 
 article, it is incumbent on the plaintifiF not only to 
 prove the sale, but to prove that the article was 
 not made by himself or his agents, and if he manu- 
 factures the article abroad as well as here, he 
 must prove that it was not so made abroad, the 
 sale of the article abroad being held to imply a 
 license to use it here. James, V.O., aifirmed. 
 Belts V. WillTnott, Law Eep. 6 Chanc. 239. 
 
 (c) Hight of action : articles for use of Crown. 
 
 22. — The defendants, a joint-stock company, 
 under a contract, manufactured and deliveredwer- 
 tain rifles, which were accepted for the use of the 
 Crown and the public service, and for which the 
 defendants were paid money. It was admitted 
 that the rifles so manufactured and delivered 
 would, but for the fact that they were manufac- 
 tured and delivered as above stated, have been 
 infringements of certain patents of which the 
 plaintiff was assignee: — Held, that he was en- 
 titled to maintain an action against the defendants 
 in respect of such infringement. Dixon v. The 
 London Small Arms Company (Lim.), 44 Law J. 
 Eep. (n.s.) Q. B. 63; Law Eep. 10 Q. B. 130. 
 [Eeversed on appeal. Law Eep. 1 Q.B. Div. 384.] 
 
 {d) Bight to publish threats of legal 
 
 23. — There isnosuch^Bja/acse presumption of 
 the validity of a patent as to entitle a patentee, by 
 publishing threats of proceedings for infringement 
 to injure a rival's trade, without by substantive 
 proceedings establishing the validity of his patent. 
 
PATENT (G), (I). 
 
 423 
 
 SoUitis V. Sinks, 41 Law J. Eep. (n.s.) Chano. 
 358 ; Law Eep. 13 Eq. 355. 
 
 (H) Prolonqation op Term. 
 
 24. —Consideration of the principles regulating 
 the exercise of the discretion of the Privy Council 
 in granting extensions of patents previously 
 patented abroad. In re Beits' Patent (1 Moo. P.O. 
 (n s.) 49) approved. Poole's Patent (4 Moo. P. C. 
 (n.s.) 452) observed upon. In re Johnson's Pa- 
 tent {WUlcox ^ Gibbs), Law Eep. 4 P. C. 76. 
 
 25.— The petition for prolongation of a patent 
 must state fully and fairly everything relating to 
 the patent. An omission to state that the patent 
 was a communication from a foreigner, who had 
 previously patented the same invention in America, 
 and that such patent (though renewed) had ex- 
 pired : — Held, fatal to the application. In re 
 PitmarCs Patent, Law Eep. 4 P. C. 84. 
 
 26. — Prolongation for seven years allowed 
 where the patent was a meritorious one, although 
 no profits had been made by the inventor or his 
 assignees. The statement of accounts being prima 
 fade satisfactory, the petitioners were allowed to 
 prove the merits of the invention before going 
 into the accounts. In re Houghton's Patent, Law 
 Eep. 3 P. C. 461. 
 
 27.— 15 & 16 Vict. c. 83, sec. 25, does notapply 
 where an English patent for an invention is taken out 
 before a foreign patent for the same invention is 
 obtained, but on the grounds of public policy the 
 Privy Council declined to entertain an application 
 for the extension of such a patent after the expira- 
 tion of the foreign patent. In re Winan's Patent, 
 Law Eep. 4 P. C. 93 ; and In re Blake's Patent, 
 Law Eep. 4 P. C. 535. 
 
 28. — On considering the question of remunera- 
 tion on an application for prolongation of a patent, 
 allowance was made in respect of the patentee's loss 
 of time in bringing the invention into public use. 
 Extension granted for six years. In re Carr's 
 Patent, Law Eep. 4 P. C. 639. 
 
 29. — Where the accounts filed by a patentee 
 applying for prolongation were primd facie un- 
 satisfiictory, the Court directed the question of 
 accounts to be enquired into before considering the 
 merits of the invention. Bont fide opponents on 
 an application for a prolongation will be given 
 costs, but where two sets of opponents really 
 represent the same kind of opposition, one set of 
 costs only will be allowed. In re Wield's Patent, 
 Law Eep. 4 P. C. 89. 
 
 30. — Upon an application for the prolongation 
 of the term of letters patent, the petitioner is 
 bound to bring his accounts before the Judicial 
 Committee in such a shape as to leave no doubt 
 what remuneration he has received from the pa- 
 tent. In re ClarTds Patent, Law Eep. 3 P. C. 421. 
 
 31. — The Privy Council refused to entertain 
 accounts in a patent case which had not been filed 
 as required by the 9 th rule touching letters patent. 
 Two patents of a kindred nature, having different 
 terms unexpired, prolonged so as to expire on the 
 same day. In re Johnson and Atkinson's Patents, 
 Law Eep. 5 P. 0. 87. 
 
 (I) Jurisdiction and Practiois m Eutjity. 
 
 {a) Discovery. 
 
 32. — An injunction having been granted to 
 restrain the infringement of a patent, with an 
 enquiry as to damages, an order was made in 
 chambers for an affidavit by the defendants as to 
 the number of the patented machines sold by them, 
 and the names and addresses of the purchasers. 
 They gave the number of the machines sold, but 
 not the names of the purchasers. It appeared that 
 the patentee made his profits by charging a roy- 
 alty to the manufacturer on each machine sold. 
 On an application by the plaintiff to consider the 
 sufficiency of the affidavit, and another by the de- 
 fendants to strike out of the order the words they 
 objected to answer, unless the plaintiff would un- 
 dertake not to take proceedings against the pur- 
 chasers, — Held, that the plaintiff was entitled to 
 the discovery, and could be put under no restric- 
 tions ; but the costs of the plaintiff's application 
 were reserved. Murray v. Clayton ; Ex parte the 
 Plaintiff; Ex parte the Defendants, 42 Law J. Eep. 
 (n.s.) Chane. 191 ; Law Eep. 15 Eq. 115. 
 
 (J) Inspection. 
 
 33. — The plaintiffs in a suit for the infringe- 
 ment of a patent held by them for the manufacture 
 of certain cartridges applied by motion for an in- 
 spection of the machinery and premises of the 
 defendants, who were also large cartridge manu- 
 facturers. The defendants alleged by affidavit 
 that the inspection was only asked for to enable 
 the plaintiffs to see their machinery, and that they 
 believed it to be unnecessary for the purposes of 
 the suit : — Held, that as there was no aUegatiou 
 by the plaintiffs that such inspection was neces- 
 sary, and as there was an allegation by the defen- 
 dants that it was not necessary, the motion must 
 be refused. Batleiy v. Kynoch, 44 Law J. Eep. 
 (n.s.) Chanc. 89 ; Law Eep. 19 Eq. 90. 
 
 34. — A rule to enter the verdict for the defen- 
 dants in an action for infringing a patent having 
 been discharged, the defendants gave notice of 
 appeal, and pending the appeal an order was made 
 for an account of profits. This order was not 
 appealed against, but the defendants when before 
 the Master refused to produce their books, where- 
 upon the Court made absolute a rule for inspection 
 of the books, and for administering interrogatories 
 to the defendants. Saxhy v. Easterbrook, 41 Law 
 J. Eep. (n.s.) Exch. 113 ; Law Eep. 7 Exeh. 207. 
 
 [And see Production, 8, 1 8.] 
 (c) Particulars. 
 
 35. — The practice in equity in regard to patent 
 suits must conform, as far as possible, to the 
 practice at law as established by statute (15 & 16 
 Vict. c. 83, s. 41). Therefore, the plaintiff in a 
 patent suit ought to deliver to the defendant par- 
 ticulars of the breaches whereon he means to rely, 
 and having done so, is entitled to discovery from 
 a defendant setting up the defence of prior user 
 of particulars of such prior user. Finnegan v. 
 James, 44 Law J. Eep. (n.s.) Chane. 185; Law 
 Eep. 19 Eq. 73. 
 
424 
 
 PATENT (I)— PENAL SBEVITUDE. 
 
 36. — Wliere a simple article, alleged to be an 
 Infringement, was made an exhibit, the Court 
 refused to order further particulars as to what 
 part of the specification was infringed. BatUy v. 
 Kynoch, 44 Law J. Rep. (n.s.) Chanc. 219 ; Law 
 Eep. 19 Eq. 229. 
 
 (if) Issues. 
 
 37.- -The usual issues may be granted in a 
 patent suit before the hearing, although the de- 
 fendant denies the validity of the plaintiff's 
 patent, on the ground of vagueness of the specifi- 
 cation. Wickens, V.C., reversed. Arnold v. 
 Bradbury, Law Eep. 6 Chanc. 706. 
 
 38. — Questions of fact in a patent suit will be 
 tried by the Court itself without a jury, in the 
 absence of special circumstances. The Patent 
 Marine Inventions Company v. Chadburn, Law 
 Eep. 16 Eq. 447. 
 
 (e) Evidence of user. 
 
 Evidence of user in England of product 
 made abroad. [See supra No. 1 .] 
 
 (/) Interlocutory injunction. 
 
 39. — An injunction to restrain the alleged 
 infringement of a patent will not be granted on an 
 interlocutory application, imless it can be shewn 
 that there has been active user of the invention, 
 even where the patent has been in force for eight 
 years. Plimpton v. Malcolmson, 44 Law J. Eep. 
 (n.s.) Chanc. 257 ; Law Eep. 20 Eq. 37. 
 
 PAUPEE LUNATIC. 
 [See PoOE, 14i] 
 
 PAVING. 
 
 Expenses and rates. [See Metropolis, 
 9-15; PtiBLic Health Act, 12-18.] 
 
 pawnbeoe:ee. 
 
 [Consolidation and amendment of the Acts 
 relating to pawnbrokers. 35 & 36 Vict. c. 93.] 
 
 A person who had pledged goods, having un- 
 knowingly given the ticket amongst other matters 
 to a third person, obtained under the (now re- 
 pealed) statute, 39 & 40 Geo. 3. c. 99, ss. 15, 16, 
 the form of afidavit, &c., therein mentioned, went 
 immediately with it to a magistrate as therein 
 provided, and shewed it afterwards to the pawn- 
 broker : — Held, that under that statute the pawn- 
 broker was not justified in afterwards delivering 
 the goods to the ticket-holder, as the ticket was 
 " lost or mislaid," and it was not necessary to 
 deliver the affidavit and redeem the goods. Burs- 
 Icm V. Attcnborongh, 42 Law J. Eep. (n.s.) C. P. 
 102; Law Eep. 8 C. P. 122. 
 
 PEDLARS. 
 
 [33 & 34 Vict. c. 72 repealed, and new pro- 
 visions made as to the granting of pedlars' certifi- 
 cates, &o. 34 & 35 Vict, 0. 96.] 
 
 The respondent and other ladies purchased 
 materials, which they made into aprons, handker- 
 chiefs, and other articles of wearing apparel. 
 These they carried from door to door for sale in a 
 basket, called "the missionary basket," andapplied 
 the proceeds of the sale to charitable purposes : — 
 Held, that the respondent did not come within the 
 description of " pedlar " in the Pedlars Act, 1871, 
 and did not require a certificate under that Act. 
 Crregg v. Smith, 42 Law J. Eep. (n.s.) M. C. 121 ; 
 Law Eep. 8 Q. B. 302. " 
 
 PEEEAGE. 
 
 Eight to vote. 
 
 1. — When the right to vote in respect of a 
 peerage has been established, the Act 10 & 11 
 Viet. e. 52, s. 4, effectually prevents any other 
 vote from being received in respect of that peer- 
 age. The Breadalbane Peerage Claim, Law Eep. 
 2 Sc. App. 269 . 
 
 Descent of peerage. 
 
 2. — ^The invariable presumption of law is that 
 peerages descend to heirs male, and not to heirs 
 general. The Berries Peerage Claim, Law Eep. 2 
 So. App. 258. 
 
 Attainder. 
 
 3. — A private Aot(l Mary, sess. 2, o. 1), in the 
 form of a petition to the Queen, by two ladies, 
 daughters of H. P., recited the attainder of H. P., 
 and prayed that the daughters and their heirs 
 might be restored, and enabled onely in blood, as 
 daughters and heirs of H. P., and enabled to de- 
 mand and hold all honours, lordships, heredita- 
 ments, &c., which were of the said H. P. in 
 possession, reversion, remainder, or otherwise at 
 the time of his attainder : — Held, that this Act 
 had no effect on the attainder of the mother of 
 H. P., who was not mentioned in the Act, but 
 only entitled the ladies to claim inheritances, the 
 succession to which would have been affected by 
 the attainder of H. P. himself. The Montacute 
 and Monthermer Peerages, Law Eep. 7 E. & I. 
 App. 305. 
 
 Where a son is sitting in Parliament in virtue 
 of a barony of his parent, that circumstance will 
 not save the barony from being affected by the 
 attainder of the parent. Ibid. 
 
 [And see Parliament, 1, 2, 16, 16.] 
 
 PENAL SEEVITUDE. 
 
 [And see Prevention of Crime.] 
 
 1. — To render a sentence of penal servitude for 
 seven years obligatory under the Penal Servitude 
 Act, 1864, which enacts (section 2), amongst 
 
PENAL SEBVITUDE— PENALTY (C). 
 
 425 
 
 other things, that " where any person shall, on in- 
 dictment, be convicted of any crime or offence 
 punishable with penal servitude, after having 
 been previously convicted of felony, the least sen- 
 tence of penal servitude that can be awarded in 
 such case shall be a period of seven years ; " the 
 indictment must charge the previous conviction. 
 Therefore, where a man was convicted of unlaw- 
 fully wounding, on an indictment which charged a 
 wounding with intent to do grievous bodily harm, 
 and did not mention a previous conviction for 
 felony, but such a previous conviction was proved 
 against him, — Held, that the Judge was not 
 bound to pass a sentence of penal servitude for 
 seven years, and that a sentence of penal servi- 
 tude for five years was right. The Queen v. 
 Willis, 41 Law J. Rep. (n.s.) M. C. 102 ; Law 
 Rep. 1 C. C. R.- 363. 
 
 2.— The 12 & 13 Vict. e. 96, by section 1, 
 gives colonial Courts jurisdiction to try prisoners 
 for offences committed on the high seas, and em- 
 powers such Courts to exercise all proceedings 
 "for and auxiliary to and consequent upon the 
 trial." Section 2 provides that persons convicted 
 shaU be subject to the same punishment as " by 
 any law now in force," persons convicted of the 
 same offence would be liable to if " tried and con- 
 victed in England." At the time of the passing of 
 this statute manslaughter was punishable with 
 transportation, but 16 & 17 Vict. c. 99, and 20 & 
 21 Viet. c. 3, substituted penal servitude for 
 transportation, and 16 & 17 Viet., by section 6, 
 enacted that persons sentenced to penal servitude 
 in the colonies may be confined in such prison or 
 place as the Crown may direct. The respondents 
 were convicted of manslaughter on the high seas 
 under the above statute, and were sentenced to 
 penal servitude. No place had been appointed by 
 the Crown for carrying out the sentence : — Held, 
 that the Imperial Acts substituting penal servi- 
 tude for transportation were applicable to persons 
 sentenced under 12 & 13 Vict. c. 96, that the di- 
 rection referred to in section 6 forms no part of 
 this sentence, and that the sentence of penal ser- 
 vitude was therefore a valid sentence, though no 
 place had been appointed for carrying it out. 
 2%« Queen v. Mount, 44 Law J. Rep. (n.s.) P. C. 
 68 ; Law Rep. 6 P. C. 283. 
 
 PENALTY. 
 
 (A) Relief in Eariir. 
 
 (B) Penal Enactment: Mens Rea. 
 
 (C) APPEOFBIATION OF PENALTIES : ReCEIVBR 
 
 OF Metropolitan Police. 
 
 (A) Relief in EauiTT. 
 
 1. — A company incorporated by Act of Parlia- 
 ment for making a dock agreed for the purposes 
 of their undertaking to purchase certain land for 
 4,0002., of which 2,000/. was to be paid at once, 
 the balance at a future date. The agreement 
 DiOEST, 1870-1875. 
 
 contained a proviso empowering the vendors, on 
 default in the payment of the balance or any 
 part of it by a day named, to re-enter and 
 re-possess the land without any obligation to 
 repay any portion of the purchase-money re- 
 ceived: — Held, that this was a penalty from 
 which the Court would relieve the purchasers. 
 In re The Bagenham Thames Dock Company: 
 Hulse's Claim, 43 Law J. Rep. (n.s.) Ohanc. 261 ; 
 Law Rep. 8 Chanc. 1022. 
 
 Semble — that if it was not a penalty, the agree- 
 ment would be void as ultra vires of the company. 
 Ibid. 
 
 (B) Penal Enactment: Mens Rea. 
 
 2. — As a general rule no penal consequences 
 are incurred where there has been no personal 
 neglect or default, and a mens rea is essential to 
 an offence under a penal enactment, unless a con- 
 trary intention appears by express language or 
 necessary inference. Dickinson v. Fletcher, and 
 same v. Fletcher the younger, 43 Law J. Rep. (n.s.) 
 M. C. 25 ; Law Rep. 9 C. P. 1. 
 
 The 23 & 24 Vict. c. 151, s, 10, provides as a 
 general rule to be observed in a coal mine by the 
 owner and agent, that whenever safety lamps are 
 required to be used in a mine they shall be ex- 
 amined and securely locked by a person duly 
 authorised. Section 22 enacts that if any general 
 rule shall be neglected or wilfully violated by any 
 owner, agent or viewer, he shall be liable to a 
 pecuniary penalty. Safety lamps were given out 
 in a mine to which the above Act applied without 
 being duly locked; a competent lampman had 
 been appointed, and there was no personal default 
 in either the owners or the agent of the mine : — 
 Held, that the owners and the agent of the mine 
 were not liable to be convicted under the above 
 statute. Ibid. 
 
 (C) Appropkiation of Penaities : Receiver 
 OF Metropolitan Police. 
 
 3. — By 2 & 3 Vict. u. 71, ». 47, where by any 
 Act penalties or shares of penalties are or shall 
 hereafter be made recoverable in a summary man- 
 ner before any justices of the peace, and by the 
 Act the same are or shall be limited to the Queen, 
 or some person other than the informer or party 
 aggrieved, in every such case the same, if reco- 
 vered or adjudged before any of the said (metro- 
 politan police) magistrates, shall be recovered for 
 and adjudged to be paid to the receiver for the 
 time being. By 3 & 4 Viot. c. 84, s. 6, any two jus- 
 tices having jurisdiction within the Metropolitan 
 Police District shall have, while sitting together 
 publicly in the court or room used for holding 
 special or petty sessions in any part of the district 
 within the limits of their commission, except in 
 the divisions to be assigned to the police courts 
 already established, all the powers, privileges and 
 duties which one magistrate at the police courts 
 has while sitting in one of these courts by the 
 Acts 2 & 3 Vict. c. 47 and 2 & 3 Vict. c. 71 :— 
 Held, that the receiver was not entitled to a 
 moiety of penalties recovered before two justices 
 sitting in the Metropolitan District under the 
 31 
 
426 
 
 PENALTY (C)— PETROLEUM. 
 
 powers of the above-meutioned Act. The He 
 ceiver for the Metropolitan Police District v. Bell, 
 41 Law J. Eep. (n.s.) M. C. 183 ; Law Eep. 7 
 Q. B. 433. 
 
 [See OoNTAGious Diseases Act.] 
 
 Liquidated damages or penalty. [See 
 Damage.?, 1, 2.] 
 
 PENSION. 
 
 To public servant: power to vary. 
 
 COEPOEATION, 1.] 
 
 [See 
 
 PERJURY. 
 An iBdictment for perjury alleged to have been 
 committed on a trial before the Court of Quarter 
 Sessions, averred in substance that a certain in- 
 dictment for misdemeanour, &c., came on to be 
 tried in due form of law, and was tried by a jury 
 duly sworn, and the prisoner, as a witness on the 
 trial, was duly sworn, and contained the other 
 usual averments and conclusion. It did not state 
 the nature of the misdemeanour, or aver that the 
 Court of Quarter Sessions had authority to try the 
 same, or administer an oath on the trial. The 
 statute 14 & 16 Vict. c. 100, s. 20, enacts, " That 
 in every indictment for perjury it shall be suffi- 
 cient to set forth the substance of the offence 
 charged upon the defendant, and by what Court, 
 and before whom the oath was taken, &c., with- 
 out setting forth," &c. : — Held, that the substance 
 of the offence charged against the defendant was 
 sufficiently stated, and under the 14 & 15 Vict. c. 
 100, s. 20, the indictment was good on motion in 
 arrest of judgment. The Queen v. Dunning, 40 
 Law J. Eep. (n.s.) M. C. 58 ; Law Eep. 1 C. C. E. 
 290. 
 
 Conviction for, at hearing of bastardy sum- 
 mons : jurisdiction. [See Bas- 
 
 TAEDY, 2.] 
 
 At coroner's inquiisition before deputy co- 
 roner: absence of coroner from lawful 
 and reasonable cause held a question 
 for the Judge. [See Coeonee.] 
 
 tract. Thomas v. The Queen, 44 Law J. Eep. 
 (n.s.) Q. B. 9 ; Law Eep. 10 Q. B. 31. 
 
 Discovery of documents. 
 
 2. — There is nothing in the Petitions of Eight 
 Act, 23 & 24 Vict. c. 34, to apply the provisions 
 as to discovery in the Common Law Procedure 
 Act, 1854, section 50, to the procedure imder a 
 petition of right, and the suppliant under a peti- 
 tion of right is not therefore entitled to a disco- 
 very of documents. Thomas v. The Queen, 44 
 Law J. Eep. (n.s.) Q. B. 17; Law Eep. 10 Q. B. 
 44. 
 
 When maintainable. 
 
 3. — A petition of right claimed from the Queen 
 payment of debts, which were incurred by the 
 ruler of Oude as part of the public debt of that 
 state before it was annexed by the East India 
 Company: — Held, assuming the liability to pay 
 the debts to have been transferred to the East 
 India Company by the annexation, that such lia- 
 bility was transferred by the 21 & 22 Vict. c. 106, 
 ss. 65-68, from the East India Company to the 
 Secretary of State in Council of India ; that the 
 remedy, if any, was by action against him ; and 
 that the petition of right therefore could not be 
 maintained. Frith v. The Queen, 41 Law J. Eep. 
 (n.s.) Exch. 171 ; Law Eep. 7 Exch. 365. 
 [And see Forest of Dean, 2, 3.] 
 
 PERPETUITY. 
 
 [See Remoteness.] 
 
 PETITION OF EIGHT. 
 
 Breach of contract. 
 
 1. — A petition of right, presented by a subject 
 to the Crown, undfer 23 & 24 Vict. c. 34, is not 
 confined to claims in respect of specific chattels 
 or land, but may be in respect of a breach of con- 
 
 PETROLEUM. 
 
 [25 & 26 Vict. c. 66 and 31 & 32 Vict. c. 56, 
 repealed and new provisions substituted. 34 & 
 35 Vict. e. 105.] 
 
 1. — The appell.nut was charged before justices 
 under the Petroleum Act, 1868, 31 & 32 Vict. u. 
 56, s. 4, for keeping and exposing for sale petro- 
 leum which gave off an inflammable vapour at a 
 temperature of less than 100 degrees of Fahren- 
 heit's thermometer. At the hearing of the com- 
 plaint the inspector of weights and measures 
 proved that in making the test, as authorised under 
 ss. 6 and 8 and the schedule of the Act, he al- 
 lowed the thermometer to rest on the bottom of 
 the vessel in which the petroleum was, which 
 vessel was two inches deep, and iilled with petro- 
 leum as required by the schedule, and the ther- 
 mometer was therefore inserted to the depth of 
 two inches ; and it was objected, on behalf of the 
 appellant, that the test was illegally made, as the 
 schedule says that " the thermometer shall be in- 
 serted in the oil so that the bulb (which is to be 
 about half an inch in diameter) shall be immersed 
 about an inch and a half beneath the surface." 
 The inspector also proved that he had used, to 
 ascertain the " flashing point," a spirit lamp with 
 a small wick which had " a very small flame," as 
 required by the schedule ; but it was proved on 
 behalf of the appellant, that wax twine was the 
 means used by scientific persons for making the 
 test ; which had a still smaller flame. The jus- 
 tices decided that there had been a sufficient com- 
 
PETROLEUM— PLEADING AT LAW (B). 
 
 427 
 
 pliance with the statute on both points, and that the 
 only way the appellant could displace the test was 
 by having a further test made by a " public ana- 
 lyst," as allowed by section 6. This he refused, and 
 the justices convicted the appellant : — Held, that 
 the conviction would not be quashed, as it was a 
 question of fact for the justices, whether the sta- 
 tutory mode of testing the character of the petro- 
 leum had been substantially followed. Beck v. 
 Stringer, 40 Law J. Eep. (n.s.) M. C. 174; Law 
 Rep. 6 ft. B. 497. 
 
 2.— By the Petroleum Act, 1862, s. 1. "petro- 
 leum " for the purposes of that Act shall include 
 any product thereof that gives off an inflammable 
 vapour at a temperature of less than 100 degrees 
 Fahrenheit. By the Petroleum Act, 1868, s. 3, for 
 the purposes of the Petroleum Acts, 1862andl868, 
 "petroleum" shall include all such rock oil, Ran- 
 goon oil, Burmah oil, any product of them, and any 
 oil made from petroleum, coal, schist, shale, peat, 
 or other bituminous substance, as gives off an in- 
 flammable vapour at a temperature of less than 
 100 degrees Fahrenheit : — Held, that the latter 
 section must be taken to include crude petroleum, 
 although it does not give off inflammable vapour 
 at a temperature of less than 100 degrees, and 
 that a license is therefore required for keeping 
 such petroleum within flfty yards of a dwelling- 
 house, except for private use, in accordance with 
 section 4 of the Act. Jones v. Cook, 40 Law J. 
 Rep. (n.s.) M. C. 179 ; Law Rep. 6 Q. B. 505. 
 
 PEER. 
 [See Haeboue, 1.] 
 
 PIRATE SHIP. 
 
 Admiralty jurisdiction, as to. [See An- 
 StlEALTT, 12.] 
 
 PLACES OF WORSHIP SITES ACT. 
 
 The guardian required by the Places of Worship 
 Sites Act, 1873, to concur on behalf of an infant 
 next entitled in remainder in a grant of a site 
 for a place of worship is not the father of the 
 infant, but a guardian to be appointed by the 
 Court. But the Court has no power of its own, 
 and no power is given to it by the Act, to appoint 
 a guardian of the estate for an infant having no 
 estate in possession. In re The Marquis of Salis- 
 bury, 44 Law J. Rep. (n.s.) Chanc. S41 ; Law 
 Rep. 20 Eq. 627 : reversed, on appeal, 46 Law J. 
 Rep. (n.s,) Chanc. 250; Law Rep. 2. Chanc. 
 Div. 29 
 
 PLEADINa AT LAW. 
 
 (A) Declaeation. 
 
 (B) Plea. 
 
 (a) Fraud. 
 
 (6) Law of Scotland. 
 
 (c) Xoti-isstiable plea. 
 
 (d) Defect in plea cured by replication, 
 
 (fl) Plea of release with condition subsequent. 
 (/) In other cases. 
 
 (C) EauiTABLE Pleas. 
 
 (D) Assignment op Eeeoe in Fact. 
 
 (E) In Pabtioulae Actions. 
 
 (A) Declaeation. 
 
 1. — Declaration that the defendants maliciously, 
 &e., caused the plaintiff's ship to be arrested for 
 necessaries under a warrant from a County Court, 
 and to be detained until the proceedings in the 
 Court were determined and the ship released :— 
 Held (by Blackburn, J., and Archibald, J., ftuain, 
 J., dissenting), that it appeared by reasonable in- 
 tendment that the proceedings were determined 
 in the plaintiff's favour, and that the declaration 
 was good. Bedway v. McAndrem, Law Rep. 9 
 Q. B. 74. 
 
 Master and servant : defect in machinery : 
 averment of ignorance of servant. [See 
 Mastee aSd Servant, 5.] 
 Declaration for breach of duty under Con- 
 tagious Diseases {Animah) Act, 1869. 
 [See Action, 3.] 
 For fraudulent impulsion of member of 
 insurance society. [See Action, 4.] 
 
 (B) Plea. 
 (a) Fraud. 
 
 2. — The ordinary plea of fraud in an action on 
 a contract contains an averment by implication 
 that the defendant repudiated the contract, and if 
 the defendant has affirmed the contract, the plea 
 is not proved, and no special replication is needed. 
 Dawes v. Harness, 44 Law J. Rep. (n.s.) C. P. 
 194; Law Rep. 10 C.P. 166. 
 
 To an action upon a cheque the defendant 
 pleaded that he was induced to write it by the 
 plaintiff's fraud. The plaintiff merely joined issue. 
 It appeared that the cheque was part of the 
 consideration for the transfer by the plaintiff 
 to the defendant of a business, and that the plain- 
 tiff had fraudulently misrepresented the value of 
 the goods at the premises where the business was 
 carried on. The defendant had kept the business 
 and goods : — Held, that the plea of fraud was not 
 proved, and that no special replication alleging 
 aflBrmance by the defendant was needed. Ibid. 
 
 Frattdulent preference : non-averment of 
 bankruptcy. [See Peincipal and 
 SUEETY, 2.] 
 
 (6) Law of Scotland. 
 
 3, — To a declaration in an action for breach of 
 an agreement by the defendant to build a ship 
 3i3 
 
428 
 
 PLEADING AT LAW (B), (C). 
 
 for the plaintiffs, the defendant pleaded that the 
 agreement was made in Scotland by the plaintiffs 
 with a trading partnership or firm domiciled and 
 carrying on business there, and was to be per- 
 formed wholly in Scotland ; that by the law of 
 Scotland the said firm was and is a separate and 
 distinct person from any or the whole of the indi- 
 vidual members thereof, of whom the defendant was 
 and is one, and that by the law of Scotland the 
 said firm has the capacity of suing and being sued 
 as such separate firm, by its name of Messrs. 
 Caird & Co., and the alleged agreement was made 
 by the firm as such separate person, and not jointly 
 and severally by the individual members thereof ; 
 that the firm consisted of, &c., who at the time of 
 the making of the alleged agreement were and 
 still are domiciled and carrying on business in 
 Scotland ; that by the law of Scotland the defend- 
 ant became and was, as a partner of the said firm, 
 liable to the plaintiffs for the satisfaction of any 
 judgment which might be obtained against the 
 said firm, or the whole of the individual partners 
 thereof jointly, and, save as aforesaid, no liability 
 by the law of Scotland attached to the defendant 
 in respect of the said agreement ; that by the law 
 of Scotland it is a condition precedent to any indi- 
 vidual liability attaching to the defendant in 
 respect of the said agreement that the firm, as 
 such person as aforesaid or the whole individual 
 partners thereof, jointly, should first have been 
 sued, &c. : — Held, a bad plea, as it merely stated 
 the form of proceeding in Scotland, while the 
 remedy and mode of proceeding were regulated by 
 the law of England. Bullock v. Caird, 44 Law J. 
 Eep. (n.s.) Q.B. 124; Law Eep. 10 a.B. 276. 
 
 (c) Noii-issuable plea. 
 
 4. — To a declaration in detinue the defendant, 
 being under terms of pleading issuably, pleaded 
 upon equitable grounds that after the commence- 
 ment of the action, under the terms of a master's 
 order to stay the action, the goods were returned ; 
 that the costs and \l. for damages were paid to 
 the plaintiff; and that afterwards the order to 
 stay proceedings was set aside upon a false affida- 
 vit of the plaintiff that the defendant had not 
 returned all the goods : — Held, that the plea was 
 not issuable. Ellis v. Saxon, 44 Law J. Eep. (n.s.) 
 C.P. 193. 
 
 {d) Defect in plea cured by replication. 
 
 5. — Declaration against the defendant, as sheriff, 
 for an escape. Pleas, first, not guilty ; secondly, 
 that the judgment debtor was di.'^charged from 
 custody on the production of a certificate of the 
 registration of a trust deed under the Bankruptcy 
 Act, 1861. Demurrer to the second plea, joinder 
 of issue, and replication that the plaintiff was not 
 a creditor bound or intended to be bound by the 
 deed. Demurrer to the replication and joinder of 
 issiie. Judgment on demurrers that the second 
 plea was bad, and the replication good. At the 
 trial there was a verdict for the plaintiff on the 
 plea of not guilty, and for the defendant on the 
 other issues. The Court of Queen's Bench having 
 decided that on the whole record the defendant 
 
 was entitled to judgmen-.t, — Held, by the Exche- 
 quer Chamber, that the decision was right, by 
 Kelly, C.B., Martin, B., and Brett, J., on the 
 ground that the defect (if any) in the second plea 
 was cured by the replication which tendered the 
 true issue in the cause, and the defendant having 
 succeeded in this issue was entitled to judgment ; 
 by Channell, B., Cleasby, B., Keating, J., and Mon- 
 tague Smith, J., that the second plea, though 
 perhaps informal, was sufficient, and the repliea. 
 tion to it also sufficient, but the defendant having 
 succeeded on this replication, was entitled to judg- 
 ment. Dignam v. Baily (Exch. Ch.), 40 Law J. 
 Kep. (n.s.) a. B. 68 ; Law Eep. 6 a. B. 47. 
 
 (e) Flea of release with condition subseqiient. 
 
 Belease with condition subsequent: confes- 
 sion of plea an estoppel to fresh action. 
 [See Action, 8.] 
 
 (/) In other cases. 
 
 Pleading written agreement. [See Shipping 
 Law, E 13.] 
 
 Pleading agree-ment to refer to arbitration. 
 [See Akbiteation, 9, 10.] 
 
 Pleading composition deed. [See Composi- 
 tion Deed, 7.] 
 
 Plea of resolution for composition. [See 
 Bankruptcy, M 23-25.] 
 
 Plea of bankruptcy of plaintiff in action 
 against attorneys for breach of duty in 
 not selling an equity of redemption ad- 
 vantageously. [SeeBANKBUPTCY, G41.] 
 
 Plea to jwrisdiction of Lord Mayors Court. 
 [See London, 7.] 
 
 (0) EauiTABUi Pleas. 
 
 6. — It is a good equitable defence to an action 
 against the maker of a promissory note, that the 
 note was made by the defendant and E. jointly 
 and severally, that the defendant, as the plaintiff 
 knew, was only surety for E., that afterwards, 
 without the defendant's consent, the plaintiff be- 
 came indebted to E., in an amount equal to that of 
 the note and all moneys due from E., in the fol- 
 lowing way, namely, that the plaintiff and E. were 
 partners, and the plaintiff sold to E. his interest 
 in the partnership debts, and the note was to 
 secure part of the price, but the plaintiff received 
 a large part of the debts though he knew that the 
 defendant made the note in consideration that E. 
 should receive them, Bechervaise v. Lewis, 41 Law 
 J. Eep. (N.s.) C.P. 161 ; Law Eep. 7 C.P. 372. 
 
 7. —To a- declaration for money lent, money 
 paid, commission on payment of bills of exchange, 
 interest, and on accounts stated, it is not a good 
 equitable defence, that the defendant assigned 
 goods to the plaintiff under an agreement that he 
 was to accept and pay bills of exchange against 
 them, make advances, and pay charges, and sell 
 the goods, and satisfy his claims in respect there- 
 of out of the proceeds, and pay over the balance ; 
 that the goods would have been sufficient to satisfy 
 such claims, but by the defendant's negligence the 
 proceeds became insufficient, and the claim in the 
 
PLEADING AT LAW (O)-PLEADING W EQUITY (A). 
 
 429 
 
 declaration was for the insufficiency caused by 
 that negligence. Best v. Hill, 42 Law J. Eep. (n.s.; 
 C. P. 10 ; Law Eep. 8 C. P. 10. 
 
 8. — Action by a mortgagee, who had sold under 
 his power of sale, against the mortagor for the 
 balance remaining due after the sale. A plea by 
 the defendant, on equitable grounds, that after 
 default in payment made, the plaintiiF had entered 
 into possession, and sold the mortgaged property 
 under his power, and had thereby deprived the de- 
 fendant of his right to have the property recon- 
 veyed to him on payment of the amount due on 
 the mortgage : — Held, a bad plea, and rightly 
 struck out by the Judge in chambers. Budge t. 
 Richens, 42 Law J. Eep. (n.s.) O.P. 127; Law 
 Rep. 8 C. P. 358. 
 
 [And see Judqmbnt, 10.] 
 
 (D) Assignment op Ebeob in Fact. 
 
 9. — After judgment for the plaintiffs, who sued, 
 as husband and wife in an action of tort for injuries 
 to the wife, the defendants were held to have no 
 right to assign for error in fact, that the female 
 plaintiff, before her alleged marriage with the male 
 plaintiff, had married one A. B. who was then 
 alive, as this was matter which the defendants 
 might and ought to have pleaded to the action. 
 The Metropolitan Railway Company v. Wilson, 40 
 Law J. Eep. (n.s.) C.P. 208; Law Eep. 6 O.P. 
 376. 
 
 (E) In Paeticttlae Actions. 
 
 In action on award. [See Aebiteation, 18, 
 
 19.] 
 Iti action for malicious prosecution and for 
 
 slander. [See Malicious Peosbcxt- 
 
 tion, 1.] 
 In action hy wife for breach of contract. 
 
 [See Baeon and Feme, 26.] 
 In action of libel. [See Libel, 13-15.] 
 In action on bill of exchange. [See Bill op 
 
 Exchange, 31.] 
 
 PLEADING IN EaUITY. 
 [See Paeties.] 
 
 (A) Bill. 
 
 (a) Scandal. 
 
 lb) Offer to do equity. 
 
 (B) Demubeeb. 
 
 (a) Want of equity. 
 
 (b) Want of parties. 
 (o) Multifariousness. 
 
 (0) Dbmubeee and Answee. 
 
 (D) Pleas and Defences. 
 
 (ffl) Legal personal representative. 
 
 (b) Settled account. 
 
 (c) Delay. 
 
 (E) Answbe: Sufficiency. 
 
 (A) Bill. 
 
 (o) Scandal. 
 
 1.— The bill, after alleging that the plaintiff 
 claimed to be entitled to certain company shares 
 
 which were under the defendant's control, stated 
 that the " defendant was in league with several 
 persons in order to deal with the shares and contrive 
 operations on the Stock Exchange (popularly called 
 rigging the market) for the purpose of bringing 
 the shares up to a fictitious value in the market." 
 The bill then prayed for an injunction to restrain 
 the defendant, not from improperly dealing with 
 the shares, but merely from disposing of them. 
 The defendant excepted to the bill for scandal : — 
 Held, that the statement, being irrelevant to the 
 relief sought, must be expunged as scandalous. 
 Rubery v. Grant, 42 Law J. Eep. (n.s.) Chanc. 19 ; 
 Law Eep. 13 Eq. 443. 
 
 2. — The plaintiffs, C. & C, a long established 
 firm of auctioneers, filed a bill against the defend- 
 ants, 0. & C, to restrain them from carrying on 
 the business as auctioneers in such a manner as to 
 mislead the public into the belief that the defend- 
 ants' business was the plaintiffs'. The bill charged 
 the defendants with fraudulently issuing a pro- 
 spectus stating that a company was being formed 
 "for the purpose of acquiring and working the 
 well-known and rapidly increasing auction business 
 of the Messrs. C. & C." The bill then stated that 
 the defendants' business was neither "well-known" 
 nor " rapidly increasing," that they were in fa^t 
 insolvent, and that the second defendant had been 
 made a bankrupt in 1 869, and obtained his discharge 
 only two years before the commencement of the suit. 
 Exceptions by the defendants to the bill for scandal 
 on the ground that it contained certain other state- 
 ments to the effect that in 1869 the second defend- 
 ant had been committed for trial on a criminal 
 charge, which was subsequently withdrawn, were 
 overruled. Christie v. Christie, 42 Law J. Eep. 
 (n.s.) Chanc. 261 : reversed, on appeal, 42 Law J. 
 (n.s.) Chanc. 544 ; Law Eep. 8 Chanc. 499. 
 
 (i) Offer to do equity. 
 
 3. — The plaintiffs being in negotiation with the 
 vendors, which afterwards resulted in a contract 
 for purchase of an estate, applied to B. for an 
 advance to enable them to pay the deposit, and a 
 verbal agreement was entered into, by which B, was 
 to be substituted as the purchaser of the estate, 
 paying to the plaintiffs 2,OO0Z., and securing to 
 them certain other advantages ; and in order to 
 enable B. to have his name substituted for those 
 of the plaintiffs as purchaser, the plaintiffs signed 
 a memorandum simply transferring to him the 
 benefit of the contract entered into with the 
 vendors in consideration of the 2,000?. B. having 
 paid a large sum under the agreement afterwards 
 refused to perform any more of the verbal agree- 
 ment than was comprised in the written memo- 
 randum, and the plaintiffs filed a bill to set aside 
 the memorandum and to restrain the dealing with 
 the estate on the footing of it, but did not offer to 
 repay the advances. Demurrer overruled. And 
 held also, that the bill was not demurrable, because 
 it did not contain such offer. The cases considered 
 in which an offer by bill to do equity is necessary. 
 Decision of Malins, V.C., affirmed. Jervis v. 
 Berridge, 42 Law J. Eep. (n.s.) Chanc. 518; Law 
 Eep. 8 Chanc. 361. 
 
UO 
 
 PLEAMNG IN EauiTY (B), (D). 
 
 (B) Demurrer. 
 
 (a) Want of equity/. 
 
 4. — Tenders for the supply of stone were in- 
 vited by a corporation. Four neighbouring quarry 
 owners entered into an agreement to supply the 
 stone in certain proportions inter se, and that the 
 plaintiffs should make the lowest tender to the 
 corporation, The plaintiffs entered into contracts 
 with the other quarry owners to purchase the 
 proportion of stone agreed upon from each. Not- 
 withstanding the agreement, the defendants, one of 
 the quarry owners, sent in a tender, which was 
 accepted by the corporation. The plaintiffs then 
 filed a bill for an injunction to restrain the defend 
 ants from supplying the stone during the year 
 1875. The defendants demurred : — Held, over- 
 ruling the demurrer, that the corporation were not 
 necessary parties, and that the agreement was not 
 void either as against public policy, or for want of 
 equity. Jones v. North, 44 Law J. Eep. (n.s.) 
 Chanc. 388 ; Law Eep 19 Eq. 426. 
 
 [And .see next case.] 
 
 (i) Want of parties. 
 
 [See Parties 6, 7, and infra No. 6.] 
 
 5. — To a bill filed by a trustee under an assign- 
 ment for the benefit of creditors to recover from 
 third parties property alleged to be vested in the 
 plaintiff by virtue of the deed, a demurrer will not 
 lie, either on the ground that the creditors are not 
 alleged to have executed the deed, or on the 
 ground that they are not made parties to the suit. 
 Observations on Garrard v. Lord Lauderdale, 3 
 Sim. 1 ; on appeal, 2 Russ. & M. 451. Glegg v. 
 Bees, 41 Law J. Eep. (n.s.) Chanc. 243; Law 
 Eep. 7 Chanc. 71. 
 
 (c) Multifariousness. 
 
 6. — Three only out of four residuary legatees 
 filed a bill to administer their testator's private 
 estate, and for an account of his assets used iu 
 partnership with one of the executors, aud to en- 
 force a lien in respect of a purchase of a moiety of 
 the partnership premises made by one of the exe- 
 cutors under a power in the will, charging wilful 
 default, and praying an injunction and receiver 
 against the partner : — Held, that the biU was not 
 demurrable for either, first, want of parties, or, 
 secondly, multifariousness. Pointon v. Pointon, 
 40 Law J. Eep. (n.s.) Chanc. 609 ; Law Eep. 12 
 Eq. 547. 
 
 7. — Where alternatively to the principal relief, 
 a bill prays relief for which some of the parties are 
 not necessary, it is not midtifarious. Wilson v. 
 Lloyd, 42 Law J. Eep. (n.s.) Chanc. 659 ; Law 
 Eep. 16 Eq. 60. 
 
 8. — Bill by an intended lessee under an agree- 
 ment against the intended lessor and a tenant of 
 his claiming under a prior lease, for specific per- 
 formance by the lessor and an injunction against 
 the tenant from exercising his rights contrary 
 to the agreement, — Held, multifarious. An ob- 
 jection for multifariousness not rai,sed till the 
 
 hearing is too late. Cousens v. Bose, Law Eep. 12 
 Eq. 366. 
 
 Execution of trusts of two settlements prayed 
 for by same bill. [See Administration, 
 38.] 
 
 (0) Demurbbb and Answer. 
 
 9. — A testator bequeathed to his executors his 
 business premises, fixtures, plant, &c., on trust to 
 permit his son J. H. to carry on the business and 
 occupy the premises, and use the plant for that 
 purpose, " upon the terms and conditions" (amongst 
 oihers) of his paying the testator's daughter, 
 S. E. E , an annuity, payable weekly. The testa- 
 tor's executor instituted a suit against J. H. and 
 other beneficiaries under the will for the adminis- 
 tration of the testator's estate. Pending this suit 
 S. E. E. filed her bill against the defendant, J. H., 
 alleging that her annuity had not been paid, and 
 praying, first, a declaration of her being entitled 
 to the annuity ; second, an account of the amoimt 
 due in respect thereof; third, payment; fourth, an 
 account of the profits of the business ; fifth, a de- 
 claration that the annuity was a charge on the 
 business premises and effects ; sixth, a receiver ; 
 seventh, sale or mortgage ; eighth, general accounts 
 aud enquiries ; ninth, payment of costs ; and tenth, 
 general relief. The defendant demurred as to so 
 much of the bill " as seeks that an account may be 
 taken as prayed by the first paragraph," and to 
 the relief prayed by the third and following para- 
 graphs of the bill on the grounds of the pendency 
 of the executor's suit, want of equity, and want of 
 parties, and as to the remainder of the bill he 
 answered. By his answer he claimed to be entitled, 
 under the will, to the sole beneficial interest in the 
 premises: — Held, that the Court would look at 
 the answer filed with the demurrer to see whether 
 the defendant had confessed an equity, that whe- 
 ther the demurrer was to be taken to apply to the 
 first or second paragraph of the prayer of the bill 
 relief must follow, that since the plaintiff's was a 
 personal demand against J. H., the testator's 
 executor was not a necessary party to her suit, 
 and that since, in the executor's suit, full justice 
 could not be done to the plaintiff, she could sus 
 tain this bill. The demurrer was accordingly 
 overruled. Bees v. Engelhack, 40 Law J. Eep. (n.s.) 
 Chanc. 382 ; Law Eep. 12 Eq. 225. 
 
 (D) Pleas and Defences. 
 
 (ffi) Legal personal representative. 
 
 10. — A bill for administration alleged that the 
 defendant was the legal personal representative of 
 the testator, and had entered into possession of all 
 his property. Plea — that the defendant was not 
 the legal personal representative of the testator : 
 — Held, that the plea should stand for an answer, 
 Cooke V. Gittings {H Beav. 497) observed upon, 
 Bayner v. Koehler, 41 Law J. Eep. (n.s.) Chanc. 
 697 ; Law Eep. 14 Eq. 262. 
 
 (6) Settled account. 
 
 11. — The plaintiff and the defendant, being 
 partners, executed articles of partnership by which 
 
PLEADING IN EQUITY (D)-POOR LAW. 
 
 431 
 
 it was stated that the capital of the partnership 
 then consisted of the sum of 6,0001. brought in by 
 ■ the defendant. The plaintiff subsequently filed a 
 bill for a dissolution of the partnership, and for the 
 usual accounts. The bill alleged that it was not 
 the fact that the 6,000Z. had been brought into 
 the partnership by the defendant, and the inter- 
 rogatory founded on that allegation asked how 
 that sum was made up. The defendant declined 
 to answer the interrogatory, pleading by his 
 answer a settled account. The plaintiff having 
 excepted to the answer for insufficiency, — Held, 
 that as the bill did not allege fraud, the defendant 
 was entitled to rely on the settled account. The 
 exception was, therefore, overruled with costs. 
 Lockett V. Loekett (38 Law J. Eep. (H.s.) Chanc, 
 290 ; Law Rep. 4 Chanc. 366) followed. Weir v. 
 Tkcker, 41 Law J. Eep. (n.s.) Chanc. 471 ; Law 
 Bep. 14 Eq. 25. 
 
 (c) Delay. 
 
 Belay as defence to suit grounded on fraud. 
 [See SWtjd, 4.] 
 
 (E) Answeb : SurFiciBNCY. 
 
 12. — A mortgagee in possession, the defendant 
 to a bill for redemption, admitting himself by his 
 answer to be redeemable, cannot decline to answer 
 interrogatories requiring him to set forth an ac- 
 count of the rents and profits of the mortgaged 
 hereditaments, the rule being that when a party 
 answers he is bound to answer fully. Elmer v. 
 Creasy, 43 Law J. Rep. (n.s.) Chanc. 166 ; Law 
 Bep. 9 Chanc. 69. 
 
 13. — The executors of a wine merchant were 
 authorised by his will to carry on his business. 
 His executrix entered into partnership with B. 
 and Gr., and carried on the business in partnership 
 with them for fourteen years. At the end of that 
 term the partnership was dissolved. Shortly after- 
 wards the executrix having discovered that B. and 
 F. were carrying on together the business of wine 
 merchants in the neighbourhood of the old firm, 
 filed her bill against B., F., Gr. and others, alleg- 
 ing that under a scheme concocted by B. and Gr. 
 the good wiU and stock-in-trade and assets belong- 
 ing to the old firm had been appropriated to and 
 used in the business of B. & F., and claiming that 
 the testator's estate was entitled to share in the 
 profits made by B. & F. P. declined to answer an 
 interrogatory asking what sums had been drawn 
 out of the business of B. & F. by the several 
 partners therein: — Held, on exceptions, that F. 
 must answer this interrogatory. Saull v. Browne, 
 43 Law J. Eep. (n.s.) Chanc. 568 ; Law Eep. 9 
 Chanc. 364. 
 
 14. — Where real estate was limited on trust for 
 I. B. H. for life, with remainder to his children, 
 with a proviso for the forfeiture of I. B. H.'s estate 
 upon his charging or incumbering the same, it was 
 held, in a suit instituted by the trustees for the 
 execution of the trusts, to be obligatory upon per- , 
 sons claiming an interest in the estate through 
 I. B. H. to answer an interrogatory as to the nature 
 of their interest, although the discovery might 
 subject them to a forfeiture of the estate. Hm-st 
 
 V. Hurst, 44 Law J. Rep. (n.s.) Chanc. Ill ; Law 
 Rep. 9 Chanc. 762. 
 
 15. — When a sufficient answer has been put in to 
 interrogatories founded on the averments in the 
 original bill, amended interrogatories, which are 
 substantially founded on those averments, need not 
 be answered, though the bill has been amended, 
 and some new charges introduced as foundation 
 for the amended interrogatories. HUl v. The 
 Northern SaUvjay of Bnenos Ayres, 41 Law J. Eep. 
 (n.s.) Chanc. 69. 
 
 PLEDGE. 
 
 [See Bailment.] 
 
 POACHING. 
 [See Game, 3, 4.] 
 
 poisons: 
 
 [14 & 15 Vict. c. 90, 14 & 15 Vict. e. 93, and 
 23 & 24 Vict. c. 84, extended and applied to Ire- 
 '— ^ 33 & 34 Vict. c. 26.] 
 
 land. 
 
 POLICE. 
 
 [See Hackney Cabeiagb.] 
 
 Seceiver of Metropolitan Police : appropria- 
 tion of penalties. [See Penalty, 8.] 
 
 POLLUTION OF STEEAM. 
 [See Nuisance, 1; Injunction, 18, 19.] 
 
 POOE LAW. 
 
 (A) 
 
 (B) 
 
 (C) 
 
 Guaedian: Liability fob Sbllino Goods 
 
 TO Pahish. 
 Overseers' Accounts. 
 
 (a) Certificate of treasurer. 
 
 (b) Passing of jury lists. 
 Compensation to Officees foe Dbpeiva 
 
 TioN OF Office. 
 
 (D) Relief. 
 
 (a) Non-liability of grandchildren. 
 
 (J) "Valuable secwity" belonging to pauper, 
 
 {c) In Scotland. 
 
 (E) Removal. 
 
 (a) Jurisdiction of borough sessions. 
 (6) Irremovability. 
 
 (1) Break of residence. 
 
 (2) Unemanoipated child. 
 
 (3) Division of parish. 
 
 (F) Paupeb Lunatic. 
 
 (a) Order for maintenance of criminal lu- 
 natic. 
 
 (b) Administration to giiardiams. 
 
432 
 
 POOE LAW (A), (B). 
 
 [Further provisions for the boards of guardians 
 after the dissolution of their unions. 33 Vict, 
 c. 2.]' 
 
 [Powers to boards of guardians and manage- 
 ment as to extending time for payment of loans, 
 &c. 3i & 35 Viot. c. 11.] 
 
 [Section 8 of 32 & 33 Vict. c. 45 explained. 
 Section 14 of 30 & 31 Vict. e. 106 declared to 
 apply to the metropolis. The limit of expenditure 
 for building and furnishing schools in the metro- 
 polis extended. 35 Vict. c. 2.] 
 
 [Poor Law Board to define cases in which guar- 
 dians may pay expense of conveying paupers. 33 
 & 34 Vict. c. 48.] 
 
 [Provisions as to the discharge of paupers from 
 workhouses or wards provided for the casual poor. 
 34 & 35 Vict. c. 108.] 
 
 [Provisions for the better management of lands 
 allotted under Local Inclosure Acts for the benefit 
 of the poor. 36 & 37 Vict. c. 19.] 
 
 (A) Guardian : Liability foe Selling Goods 
 TO Parish. 
 
 1.— By 4 & 5 "Will. 4, c. 76, o. 77, it shall not 
 be lawful for any person hereafter to be appointed, 
 in any parish or union, to any office concerned in 
 the administration of the laws for the relief of the 
 poor, or for any person who, after the 25th of 
 March, 1835, shall fill any such office, to furnish 
 or supply for his own profit or on his own account, 
 any goods, materials, or provisions ordered to be 
 given in parochial relief to any person in such 
 parish or union. The appellant was a guardian of 
 the poor for the N. union. He carried on business 
 as a cabinet maker and upholsterer in partnership 
 with his son. The relieving officer purchased at 
 the appellant's shop, from the son and partner of 
 the appellant, an iron bedstead, which was, by the 
 direction of the relieving officer, delivered at the 
 house of an outdoor pauper in the union. The 
 appellant was not present when the bedstead was 
 ordered, nor when it was paid for, nor when it was 
 delivered, and the price was paid to his son alone. 
 The bedstead was only lent to the pauper, and 
 remained the property of the guardians : — Held, 
 first, that the appellant was liable to the penalty 
 imposed by the section, without proof of any guilty 
 knowledge on his part, the bedstead having been 
 supplied by his partner with knowledge of the 
 circumstances, in the ordinary course of the part- 
 nership business. Secondly, that the case was 
 within the words " ordered to be given " in the 
 section, for the word " given " must be taken to 
 include a gratuitous delivery of goods, whether by 
 way of loan or gift. Thirdly, that a guardian of 
 the poor is a person appointed to an office within 
 the meaning of the above section. Davies v. Har- 
 vey, 43 Law J. Eep. (n.s.) M. C. 121 ; Law Eep. 
 9 Q. B. 433. 
 
 (B) OvERSEEEs' Accounts. 
 
 (a) Certificate of treasurer. 
 
 2.- By 11 & 12 Vict. c. 91, s. 9, in any pro- 
 ceedings to be taken by an auditor before justices 
 
 to recover sums certified by him to be due, it shall 
 be sufficient for him to produce a certificate of his 
 appointment, and to state and prove that the audit 
 was held, that the certificate was made in the 
 book of account of the union, and that the sum 
 certified to be due had not been paid to the trea- 
 surer within seven days after the same had been 
 so certified, nor within three clear days of the 
 laying of the information, of which non-payment 
 a certificate in writing, purporting to be signed by 
 the treasurer, shall be sufficient proof on the part 
 of the auditor. Upon an application to justices 
 under this section to issue their warrant to levy 
 the amount due from the assistant overseer of a 
 parish, the evidence prescribed by the above sec- 
 tion was adduced, but the justices refused to treat 
 the certificate of the treasurer as conclusive, but 
 allowed the overseer to prove payments made by 
 him between the date of the certificate of the 
 auditor and that of the treasurer : — Held, that the 
 justices were right as the section made the trea 
 surer's certificate primd fade, but not conclusive 
 evidence. The Queen v. Fordham, 42 Law J. Eep. 
 (n.s.) M.C. 153; Law Eep. 8 Q.B. 501. 
 
 (6) Fassiiigjii/ry lists. 
 
 3. — By 6 Geo. 4, c. 50, ss. 8 and 9, the church- 
 wardens and overseers of every parish are to make 
 out a true list of every man liable to serve on 
 juries within their parishes, and to cause copies of 
 the same to be fixed on church doors, &c., with 
 notices of the time and place when objections to 
 the list will be heard by the justices of the peace. 
 
 By section 10 the justices in every division are 
 to hold a special session "on some day and at 
 some place at which notice shall be given by their 
 clerk .... to the churchwardens and overseers, 
 who shall, then and there produce the list of men 
 liable to serve, by them prepared and made out, 
 and shall answer on oath " all questions put to 
 them by the justices concerning the same. By 
 7 & S'Vict. c. 101, s. 60, "the costs and expenses 
 properly incurred by the officers of the parish in 
 making out, preparing, printing, and collecting 
 {sic) the lists .... according to the provisions of 
 6 Geo. 4, e. 50, and relating thereto, shall be paid 
 and allowed to them out of the poor-rates of the 
 parish." By 11 & 12 Vict. c. 43, s. 30, the fees 
 of justices' clerks are payable according to a table 
 to be made out by justices at quarter sessions, and 
 laid before a Secretary of State, who may certify 
 that such fees are proper to be demanded and 
 received by them: — Held, that the payment of 
 fees to justices' clerks " for notice to parish officers 
 to return and verify jury lists, and for allowance 
 of list and return thereof," were not expenses 
 properly incurred within the meaning of 7 & 8 
 Vict. c. 101, s. 60; and a rule to quash the dis- 
 allowance of the same in the overseers' accounts ■ 
 by the Poor Law Auditor was discharged. The 
 Queen v. The Overseers of Haslingfield, 43 Law J. 
 Eep. (n.s.) Q. B. 38 ; Law Eep. 9 Q. B. 203. 
 
 Semble — that if the fees had been payable by the 
 overseers, the amount ought to have been allowed 
 to them out of the poor-rate. Ibid. 
 
POOR LAW (C), (E). 
 
 433 
 
 (C) Compensation to Officers foe Deprivation 
 OP Office. 
 4. — Upon the dissolution of a Poor Law Union, 
 30 & 31 Viet. u. 106, s. 20, enacts tliat, "if any 
 person shall by means of such dissolution he de- 
 prived of any office or employment, the Poor Law 
 Board may, according to their judgment, award a 
 compensation to be paid to such person," &c. The 
 Board on awarding to a clerk of a dissolved union, 
 who was a solicitor, compensation for the loss of 
 his office, took into consideration, in addition to 
 the amount of his salary as clerk, a sum paid him 
 for professional charges connected with proceed- 
 ings under the Lands Claxises Consolidation Act, 
 to obtain compensation to the guardians for pro- 
 perty belonging to them taken by a railway com- 
 pany : — Held, that the Board were acting within 
 their jurisdiction in exercising their judgment 
 upon such a basis ; and that it was competent for 
 them to take into consideration advantages col- 
 lateral to, though arising out of, the employment 
 as clerk, in addition to the salary attached to the 
 office. The Queen v. The Poor Law Board, 41 
 Law J. Rep. (n.s.) M. C. 16. 
 
 5. — Certain trustees having the management of 
 the relief Of the poor of a metropolitan parish, 
 appointed S. to be solicitor for the arrangement of 
 legal matters, with an annual salary. After the 
 passing of the Metropolitan Poor Act, 1867, the 
 Poor Law Board refused to allow the board of 
 guardians elected under that Act to continue S. in 
 the appointment which he had received from the 
 trustees : — Held, that he was entitled to an award 
 of compensation from the Poor Law Board, under 
 section 76. The Queen v. The Local Government 
 Board, 43 Law J. Rep. (n.s.) Q. B. 49 ; Law Rep. 
 9 a.B. 148. 
 
 (D) Relief. 
 
 (o) Non-lmbility of grandchildren. 
 
 6. — By 43 Eliz. e. 2, s. 7, the father and grand- 
 father, and the mother and grandmother, and the 
 children of every poor, old, blind, lame, and im- 
 potent person, or other poor person not able to 
 • work, being of sufficient ability, shall, at their 
 own charges, relieve and maintain every such poor 
 person, &c. : — Held, that the word " children " 
 djes not include grandchildren, arid therefore that 
 a grandchild cannot be compelled to support his 
 grandfather. Maund v. Mason, 43 Law J. Rep. 
 (n.s.) M. C. 62 ; Law Rep. 9 a. B. 234. 
 
 (5) " Valuable security " belonging to pauper. 
 
 7. — A pauper, while in the receipt of relief, 
 brought an action in the Court of Exchequer, and 
 signed judgment for a sum of money. After he 
 had ceased to receive relief, the judgment debtor 
 paid him the judgment debt: — Held, that the 
 judgment was a "valuable security for money 
 belonging to" the pauper, within 12 & 13 Vict, 
 o. 103, s. 16, so as to enable the guardians of the 
 relieving union to recover from the pauper the 
 relief given during the twelve months prior to the 
 proceeding for the recovery. The Guardians of 
 the West Ham Union v. Ovens, 42 Law J. Rep. 
 (n.s.) M. C. 29 ; Law Rep. 8 Exch. 37. 
 DlQEST, 1870-1875. 
 
 (c) In Scotland. 
 
 8. — Able-bodied persons are absolutely ex- 
 cluded from relief out of funds raised under 8 & 9 
 Vict. c. 83. The Poor Law Board of Scotland 
 have no discretionary power to relieve such per- 
 sons thoiigh in destitution through want of work 
 and willing to work. Jack v. Isdaile, Law Rep. 
 1 Sc. App. 1. 
 
 (E) Removai. 
 (a) Jurisdiction of borough sessions. 
 
 9. — "Where a paiiper becomes chargeable in a 
 union which includes a borough having a separate 
 Court of Quarter Sessions, the guardians may 
 obtain an order for the removal of such pauper 
 to his place of settlement from the justices of 
 the borough, although the particular parish from 
 which he is to be removed is not within the 
 borough, and, in such case, the proper tribunal to 
 hear an appeal against the order is the quarter 
 sessions for the borough and not the quarter ses- 
 sions for the county. The Queen v. The Justices 
 of Staffordshire, 41 Law J. Rep. (n.s.) M. C. 78 ; 
 Law Rep. 7Q..B. 288. 
 
 (i) Irremovability. 
 (1) Break of residence. 
 
 10. — P., a widow, had lived with her husband 
 in the parish of M. continuously for many years 
 up to December, 1868. At that time they were 
 both in the workhouse of the parish. He was 
 removed to a lunatic asylum, where he died ; she 
 remained in the workhouse till October, 1870, 
 when she went into service in the parish. She 
 remained in her place for six weeks, when being 
 too old for service she left, saying that she wished 
 at any rate first to have a holiday. She went to 
 visit her son, who lived out of the parish, and 
 stayed with him for three days, but only on a 
 ■(Hsit, and with no intention of staying. She then 
 went on a visit to E. Clarke, and stayed with her 
 out of the parish for three days. She endeavoured 
 to get work, and if she could have got any, she 
 would not have returned to the parish. She told E. 
 Clarke that she was going back to the workhouse, 
 but asked E. Clarke to let her know if she, E. 
 Clarke, heard of any work that would suit her. 
 Having left the house of E. Clarke, she stayed for 
 one day with a friend in the parish, and then went 
 into the workhouse : — Held, that there was no 
 break of the residence in the parish of M. so as to 
 render her removable. The Queen v. The Guar- 
 dians of St. Ives Union, 41 Law J. Rep. (n.s.) 
 M. C. 94 ; Law Rep. 7 Q- B. 467. 
 
 11. — H. lived in the parish of B. for many years 
 up to the 30th of May, 1872, when he went into 
 the workhouse. After remaining there till No- 
 vember, he agreed with R. to go to S., and there 
 work for R. at his trade, on the understanding 
 that if he and R, agreed, he might stay as long as 
 he thought proper. He boarded and lodged with 
 R. in S. for ten weeks, and then returned to Bir- 
 mingham, because he and R. could not agree : — 
 Held, that there was no actual or constructive 
 residence in B. after H. had gone to S., and there- 
 
434 
 
 POOE LAW (E)— POWER. 
 
 fore that H. had lost his status of irremovability, 
 and was liable to be removed to the place of his 
 last legal settlement. The Queen v. 7/« Worceslir 
 Lam Union, 43 Law J. Eep. (n.s.) M. C. 102 ; Law 
 Eep. Q. B. 340. 
 
 (2) Unemancipatcd child. 
 
 12. — H., a spinster of the age of nineteen, had 
 resided as a domestic servant fur two j'ears in tlie 
 respondent miion previously to becoming charge- 
 able through illness. Her mother was settled in 
 the appellate imion, and was an inmate of a work- 
 house therein. H. never gained a settlement in 
 her own right, and had no other settlement than 
 thit of her mother: — Held, that she was re- 
 movable to the appellant union. The Queen v. 
 The Guardians of St. Olaoc^s Union, 43 Law J. 
 Eep. (n.s.) M.C 15; Law Bep. 9 Cl.B. 38. 
 
 (3) Division of parish. 
 
 13. — Subsequently to the passing of the Union 
 Chargeability Act, 1865, 28 & 29 Vict. c. 79, an 
 order of justices was made for the removal of 
 M. A. S. and her children to the union of S., and 
 adjudging the place of her last legal settlement to 
 be in the parish of 0. in the said union. The alleged 
 settlement was derived from the father of the 
 pauper's husband, who was born in 1804 in the 
 parish of 0. The parish of 0. was an eccle- 
 siastical parish not maintaining its own poor, 
 nor were there ever overseers appointed for it. 
 It was originally made up of a number of town- 
 ships and hamlets, and the alleged birth settle- 
 ment was in the township of U. in the said parish. 
 From time immemorial separate overseers of the 
 poor and separate poor-rates have been appointed 
 and made for two of such townships respectively, 
 and since the year 1842, separate overseers of the 
 poor and separate poor-rates have been duly and 
 legally appointed and made for the other town- 
 ships respectively. The township of U. became 
 lawfully separated for the maintenance of its own 
 poor from the parish of 0. and the other town- 
 ships comprised therein, and maintained its own 
 poor separately : — Held, that under these circum- 
 stances the pauper S. had no settlement in the 
 parish of 0., and that the order of removal was 
 invalid. The Guardians of the Stourbridge Union 
 V. The Guardians of the Broitwich Union, 40 Law 
 J. Eep. (n.s.) M. C. 186 ; Law Eep. 6 Q. B. 769. 
 
 (F) Patjpee Ldnatio. 
 (a) Order for maintenance of criminal lunatic. 
 
 14. — An order of justices adjudging the settle 
 ment of a criminal lunatic and ordering mainte- 
 nance may be made under 3 & 4 Vict. c. 54, s. 7, 
 notwithstanding the repeal of 9 Geo. 4. c. 40, s. 
 54, by 8 & 9 Vict. e. 126, s. 1. The Queen v. The 
 Guardians of Stepney Union, 43 Law J. Eep. (n.s.) 
 M. C. 145 ; Law Eep. 9 Q. B. 383, 
 
 Service of the grounds of appeal with the order 
 is not necessary. Ibid. 
 
 The claim for maintenance is barred if not paid 
 within three months after the half-year at which 
 
 it is incurred, under 22 & 23 Vict. c. 24, s. 1. 
 Ibid. 
 
 {h) Administration to guardians. 
 [See Peoeatr, 25, 26.] 
 
 POET. 
 
 [See Harbotje.] 
 
 By a special Act dues were granted to certain 
 commissioners on all coals " exported " from the 
 port of N. : — Held, that coals taken away by a 
 foreign steamer for the purpose of being wholly 
 consumed on board beyond the limits of the port, 
 were coals " exported " within the meaning of the 
 Act, and therefore that the commissioners might 
 insist upon payment of the dues in respect of such 
 coals. Muller v. Baldwin, 43 Law J. Eep. (n.s.) 
 a. B. 164; Law Eep. 9 Q.B. 457. 
 
 POETIONS. 
 [See Power, 27, 28 ; Advancement, 3.] 
 
 POST-OFFICE. 
 
 [Partial repeal of previous Acts, 38 & 39 Vict. 
 22.] 
 
 Covenant to use premises as a post-office. 
 [See Lease, 18.] 
 
 Tasting letter: contract. [See Company, 
 G 14-16; Contract, 14.] 
 
 POSTAL DUTIES. 
 
 [33 & 34 Vict. c. 79 amended and extended. 34 
 & 35 Vict. c. 30.] 
 
 POWER. 
 [See Election ; Trust ; Scotch Law, 23-25.] 
 
 (A) Constrtjction : Gift by Implication. 
 
 (B) Execution of Power of Appointment. 
 (a) 'Execution by will. 
 
 (1) General absolute bequest. 
 
 (2) General bequest with subsequent 
 special words. 
 
 (3) Construction reddendo singula sin- 
 gulis. 
 
 (4) Execution by deed and will. 
 
 (5) Formalities: instrument delivered, 
 (h) Defective execution when aided. 
 
 (c) Excessive execution. 
 
 (1) Cy-prh. 
 
 (2) Appointment to trustee for objects 
 
 of power. 
 
 (d) Appointment of life interest with power 
 
 to appoint by mil. 
 
POWER (A), (B). 
 
 4S5 
 
 (e) Invalid appointment of life interest to 
 
 hushand. 
 {/) Power of appointment to appointee xuith 
 
 eonseiit of stranger, 
 (g) Nmi- exclusive power : gift of legacies to 
 
 excluded objects of power, 
 (h) Perpetuity and remoteness. 
 (j) Construction and effect of appointment. 
 
 (1) Appointment of "residue" where 
 fund diminished, 
 
 (2) French law of community : reference 
 
 back to instrument of donation. 
 
 (3) Where property converted. 
 
 (4) In general. 
 
 (A) Power (^ revocation. 
 
 {I) Appointment to donee of absolute power. 
 
 (m) Insolvency of donee. 
 
 (C) Power of Sale. 
 
 (D) Powers to Raise and Charge Portions. 
 
 (E) Po"WEB OF Advancement. 
 
 [Appointment under a non-exclusive power of 
 appointment to be valid, notwithstanding one or 
 more otjeets of the power are excluded. 37 & 38 
 Vict, c. 37.] 
 
 (A) CoNSTRircTiON : Gift by Implicatioit. 
 
 1. — Testator gave residuary personalty to trus- 
 tees in trust for his daughter for life, and after her 
 death in trust for her children as she should by 
 deed or will appoint, and in default of such 
 appointment in trust for such persons generally as 
 she should appoint, and in default in trust for her 
 next-of-kin according to the Statute of Distribu- 
 tions. The daughter by her will, after reciling 
 that, as the fact then was, there were no children 
 of the marriage, exercised her general power of 
 appointment in favour of her husband. After the 
 date of the will she had several children, but died 
 without having altered it, or otherwise exercised 
 the power. Upon petition by the husband for pay- 
 ment out to him of the fund, — Held, first, that in 
 default of exercise of the limited power the 
 children took by implication ; secondly, that if not, 
 the motive for the exorcise of the general power 
 being the failure of children, the appointment 
 based upon such motive could not take effect, and 
 the children took in default of appointment as 
 next-of-kin under the Statute of Distributions to 
 the exclusion of the husband. In re ■Ji'ffcry's 
 Trusts, 4-2 Law J. Kep. (n.s.) Chanc. 17 ; Law Rep. 
 14 Eq. 136. 
 
 Construction of gift over in default of 
 appointment until appointee should be- 
 come ban/erupt. [See infra No. 20.] 
 
 (B) Execution ofPo'wer of Appointments, 
 
 (a) Elocution by will. 
 
 (1) General absolute bequest, 
 
 2. — The testator, having a power to appoint the 
 income of a fund to his wife frr life, and no other 
 power of appointment, by his will directed payment 
 of his debts, and f hen, by a sef arate clause, devised 
 all property, of whatever desciiption, l-elonging to 
 him, "or over which he might at his decease hare 
 
 any power, disposition or control,'' to his wife, her 
 heirs and legal representatives, in full property 
 for ever absolutely: — Held, that the will operated 
 as an exercise of the power. Clogstoun v. IValcott 
 (13 Sim. 523) not followed. In re Teape's Trusts 
 43 Law J. Rep. (n.s.) Chanc. 87; Law Rep. 16 
 Eq. 442. 
 
 (2) General bequest with subsequent special words. 
 
 3. — Under his marriage settlement, a testator 
 had a power of appointment by deed or will 
 among the issue of the marriage, of so much of 
 an estate, A., as should not exceed the annual in- 
 come of 3001. after the death of his wife. Ho 
 had the fee of the residue of the estate. By his 
 will he devised and bequeathed the whole of his 
 property, "consisting of a farm, A," "and what- 
 ever may devolve to me by virtue of my marriage 
 settlement," to a trustee for the benefit of his wife 
 for life, and for his children in unequal shares in 
 remainder : — Held, that the will did not operate 
 as an appointment under the power. Wildbore v. 
 Gregory, 41 Law J. Eep. (n.s.) Cliano. 129 ; Law 
 Rep. 12 Eq. 482. 
 
 (3) Construction, Reddendo singula singulis. 
 
 4. — Gift by will of " all my property over which 
 I have any disposing power " on trusts for testa- 
 tor's "nife for life for her separate use with re- 
 mainder for his children who should attain twenty- 
 one equally, with remainder for his wife's brothers 
 and sisters, — Held, an appointment (1) under a 
 special power to appoint among children subject 
 to the wife's life interest during widowhood, (2) 
 under a power to appoint a life interest to the 
 wife in a fund held subject thereto on trusts for 
 the children at twenty-one equally. Thornton v. 
 Thornton, Law Eep. 20 Eq. 599. 
 
 (4) Execution by deed and will. 
 
 5. — By a marriage settlement, power was re- 
 served to A., the wife, to appoint by deed, revoca- 
 ble or irrevocable, or by will, the property com- 
 prised in the settlement. In exercise of this power 
 A. executed a will, by which she appointed a life in- 
 terest in the settled property to her husband, with 
 remainder to her niece. Subsequently, also in exer- 
 cise of the power, she executed a deed, by which 
 she " irrevocably appointed " the settled' property 
 absolutely to her husband, reserving to herself a life 
 interest in the same : — The Court held that the case 
 fell within the principle of Barnes v. Vincent (o 
 Moore P. C. 201) and granted probate of the will, 
 Parkinson v. Townsend, 44 Law J. Rep. (n.s.) P 
 & M. 32. 
 
 6. — E., who had promised his deceased brother 
 to njake fomo provision for tliat brother's illegiti- 
 mate children, made his will containing a residuary 
 bequest in favour of other persons. Five weeks 
 afterwards he executed a settlement of certain 
 stock, the trusts of which, subject to a general 
 power of appointment reserved to himself, were 
 for the Ivenelit of the brothc r's illegil imate children. 
 He then died: — Held, that under the circimi- 
 stanocs, the resiiluary bequest did not operate as 
 3 Ji 2 
 
436 
 
 POWER (B). 
 
 an execution of the general power of appointment, 
 so as to carry the settled fund away from the 
 brother's illegitimate children. In re, Eiiding's 
 Settlement, 41 Law J. Rep. (n s.) Chano. 665 ; 
 Law Rep. 14 Eq. 266. 
 
 (6) Formalities: instrument delivered. 
 
 . 7. — A power to appoint by an instrument in 
 writing with formalities may be exercised by a 
 will with those formalities. Smith v, Adkins, 41 
 Law J. Rep. (n.s.) Chanc. 628 ; Law Rep. 14 Eq. 
 402. 
 
 A will with an attestation clause containing the 
 words, " published, acknowleged and declared," 
 satisfies the requirement of an instrument de- 
 livered, for a deed with such an attestation clause 
 would be a deed delivered. Ibid. 
 
 (J) Defective execution when aided. 
 
 8. — A will made by the donee of a special power 
 to appoint by deed, though it shews that the donee 
 supposed the power to have been extinguished, 
 and purports to be an execution of an invalid power, 
 and of all other powers enabling in that behalf, 
 and though it appoints to persons, some of whom 
 are strangers to the power, is a defective execution 
 which Equity will aid in favour of a child other- 
 wise provided for, and to the prejudice of other 
 children entitled in default of appointment. Bruce 
 v. Bruce, 40 Law J. Rep. (n.s.) Chanc. 141 ; Law 
 Rep. 11 Eq. 371. 
 
 The donee of a power to appoint by deed among 
 the children of her first marriage, who were en- 
 titled to the estate in equal shares in default of 
 appointment, executed deeds which she erroneously 
 supposed to have extinguished that power and 
 couferred upon her an unlimited testamentary 
 power. By her will made during her second cover- 
 ture, expressly in pursuance of the testamentary 
 power and of every other power enabling her in 
 that behalf, she appointed the estate to her eldest 
 son, charged with a sum for the benefit, in equal 
 shares, of all her other children of both marriages : 
 — Held, that the will operated as an exercise of 
 the power to appoint by deed among the children 
 of the first marriage. Ibid. 
 
 9. — A lady, having power to appoint a fund by 
 deed to be sealed and delivered andattested by 
 one witness, in January, 1870, signed an unattested 
 memorandum, stating her -nish that if she died 
 suddenly her eldest son should have the fund, and 
 that her intention was to make it over to him 
 legally if her life was spared. She died in March, 
 1870, after two days' illness: — Held, that her 
 intention to appoint the property by this memo- 
 randum was sufficiently clear, and that the Court 
 would give effect to the memorandum as an execu- 
 tion of the power. Kennard v. Kcnnard, 42 Law 
 J. Rep. (n.s.) Chanc. 280 ; Law Rep. 8 Chanc. 227. 
 
 (c) Excessive execution. 
 
 (1) Cy-prks. 
 
 10. — A testator having power to appoint an 
 estate to any one or more of his children by will. 
 
 gave it with other property of which he was owner 
 in fee, to trustees for a term of 1,000 years, to 
 raise portions for grandchildren (not objects of the 
 power), with the usual proviso for cesser in case 
 the term should be incapable of taking effect, with 
 remainder after the expiration of the term, and 
 in the meantime subject thereto, to G. K. Hall, 
 one of his sons (an object of the power), for life, 
 remainder to his issue in tail. The objects of the 
 term were not satisfied: — Held; that the will 
 operated as an execution of the power, and that 
 G. K. Hall took under the cy-pres doctrine an 
 estate tail. Line v. Hall, 43 Law J. Rep. (n.s.) 
 Chanc. 107. 
 
 (2) Appointment to trustee for objects of power. 
 
 11. — A. by his will bequeathed a fund to trus- 
 tees in trust for the childien of his daughter B., 
 in such shares and in such manner as B. should 
 by will appoint, and gave his trustees usual powers 
 of maintenance and advancement. B. by will 
 appointed the fund to her children in certain pro- 
 portions, and fiirther appointed that the share of 
 any minor should be paid to the trustees of her 
 will, with powers of maintenance and advance- 
 ment. B.'s children being infants, the question 
 arose whether the appointed fund should be re- 
 tained by A.'s trustees or handed over to B.'s 
 trustees : — Held, that A.'s trustees were the proper 
 parties to hold the fund and to administer the 
 trusts of B.'s testamentary appointment. Busk 
 T. Aldam, 44 Law J. Rep. (n.s.) Chanc. 119 ; Law 
 Rep. 19 Eq. 16. 
 
 {d) Appointment of life interest with power to 
 appoint by will. 
 
 12. — A power of appointment in favour of 
 children of the donee is well exercised by an 
 appointment to a child, born before the power was 
 created, of a life interest, with a power to appoint 
 the corpus by will. Fhipson v. Turner (9 Sim. 
 227) approved. Slark v. Dakyns, 44 Law J. Rep. 
 (n.s.) Chanc. 205 ; Law Rep. 10 Chanc. 35. De- 
 cision of Lord Romilly (M. R.) (42 Law .T. Rep. 
 (n.s.) Chanc. '524; Law Rep. 15 Eq. 307) 
 affirmed. 
 
 W. B. by his will gave certain real and personal 
 estate to trustees upon trust for his granddaughter 
 A. JVI. S. for her life, and after her death for all 
 her children or some of them as she should appoint. 
 A. M. S. by her will appointed one-fifth of the 
 trust property to each of her five children (all of 
 whom were living at the time of the death of the 
 original testator), for their respective lives, and 
 after the death of each such child directed that the 
 share of which the annual produce was therein- 
 before given to him or her should go as such child 
 should by will appoint, with limitations over in 
 default of appointment in favour of the five 
 children : — Held, that the power of appointment 
 was well executed by A. M. S. Ibid. 
 
 (e) Invalid appointment of life interest to husband. 
 
 13. — The donee of a power to appoint amongst 
 issue affected to appoint to a daughter for life, 
 
POWER (B). 
 
 437 
 
 and after her death to any husband who might 
 survive her for life or any shorter period as slie 
 might appoint, and, subject thereto, to the daugh- 
 ter's cliildren : — Held, that the power to appoint 
 to a husband not being validly excrciseable might 
 be omitted from consideration, and that the whole 
 amounted to a valid appointment to the daughter 
 for life, and after her death to her children. ' Carr 
 v. Atkbison, 41 Law J. Hep. (n.s.) Chanc. 785 ; 
 Law Eep. 14 Eq. 397. 
 
 (/) Power of appointment to appointee with consent 
 of stranger. 
 
 14. — Parents having under their marriage set- 
 tlement a power of appointment over a trust fund 
 in favour of their children, appointed a portion of 
 the ftmd upon such trusts as H. E. S., oue of the 
 children, should, with the consent of the trustees 
 of the father's will, appoint, and in default of 
 appointment -upon trust for H. E. S. for life, or 
 until he should become bankrupt within the joint 
 lives of the parents or twenty -one years from the 
 death of the survivor of them ; and after his de- 
 cease, if his interest should not have determined, 
 upon trust for his executors or administrators, as 
 part of his personal estate : — Held, varying the 
 decision of one of the Vioc-Chancellors, 42 Law J. 
 Eep. (n.s.) Chanc. 103; Law Eep. 14 Eq. 533, 
 first, that the words requiring the consent of the 
 trustees of the father's will to the exercise of the 
 power by H. E. S., being inseparably connected 
 with the power, rendered the whole power void ; 
 secondly, that the gift over in default of appoint- 
 ment amounted to an absolute appointment in 
 favour of H. E. S., .object to the contingency of 
 his becoming bankrupt, &c., within twenty-one 
 years after the death of the surviving parent. 
 Webb V. Sadler, 42 Law J. Eep. (n.s.) Chanc. 489 ; 
 Law Eep. 8 Chanc. 419. 
 
 {g") Non-exclusive power : gift of legacies to 
 excluded objects of power. 
 
 15. — A testatrix, being entitled to exercise 
 a. non-exclusive testamentary power of appoint- 
 ment amongst her brother and four sisters, made 
 a will giving her brother and two sisters 5/. 
 a-piece, and giving to her other two sisters all 
 the residue of her property of whatever kind and 
 wheresoever situate, and over which she had any 
 power of appointment : — Held, that the effect of 
 giving the residue of the appointable fund with the 
 testatrix's own property, was to make the legacies 
 payable out of both rateably, and so make the 
 power well exercised. Gahisford v. Dunn, 43 
 Law J. Eep. (n.s.) Chanc. 403 ; Law Eep. 17 Eq. 
 405. 
 
 {h) Perpetuity cmd remoteness. 
 
 ig. — By a settlement upon marriage, certain 
 fvmds were vested in trustees upon trust, after the 
 decease of the husband and wife, for the children 
 of the marriage, as the husband and wife or the 
 survivor of them should appoint. After the death 
 of the wife, the husband made an appointment, 
 subject to his own life interest, in favour of one of 
 the children of the marriage, who was a married 
 
 woman, and he directed that the same should be 
 held for her separate use without power of. antici- 
 pation : — Held, that the restraint upon anticipa- 
 tion was void, but that the rest of the appointment 
 was good. In re Cunyngham^s Trusts, 40 Law J. 
 Eep. (n.s.) Chanc. 247; Law Eep. 11 Eq. 324. 
 
 17. — Under a common power in a marriage 
 settlement to appoint amongst children an appoint- 
 ment may be made to such uses as a child may 
 appoint ; but such power to appoint must be 
 given so as necessarily to become effectually exer- 
 ciseable within the time allowed by the law of 
 perpetuities. Under these circumstances, there- 
 fore, a power for a child to appoint by will is void 
 for remoteness, and a power for an unmarried child 
 to make an appointment to take effect on marriage 
 is also void for remoteness. But where the donee 
 of a power to appoint among children had given 
 an unmarried child a power to make appointments 
 to take effect only in case of the child's marriage, 
 and after the child's marriage he executed a fur- 
 ther deed, in the operative part of which he was 
 expressed to confirm the prior appointment, — 
 Held, that this second deed operated as a ni'W 
 appointment, and gave the child a valid general 
 power of appointing exerciseable immediately. 
 Morgan v. (xronow, 42 Law J. Eep. (n.s.) Chauc. 
 410; Law Eep. 16 Eq. 1. 
 
 [And see No. 13 supra.] 
 
 (i) Construction aivd effect of appointment. 
 
 (1) Appointment of " residue" where fund dimi- 
 nished. 
 
 18. — A settlement made in 1822 contained a 
 power for E. H. by deed or will to appoint a sum 
 of 37,914/. 13s. 9rf. consols, among his nephews and 
 nieces, the children of his brothers and sisters 
 named in the settlement. A sum of 800?. consols 
 was afterwards added to the settled funds. In 
 1853, when the plaintiffs were appointed trustees 
 of the fund, and from that time to 1870, it con- 
 sisted of 27,170/. los. id. consols, and 8,000/. on 
 mortgage. Between 1850 and 1870, E. H. made 
 various appointments of the fund, specifying it by 
 its original description, all of which he revoked. 
 In 1870 E. H. by deed appointed " the 37,914/. 
 13s. 9(/. consols, and the 800/. consols," in trust 
 after his death, as to five specified sums of consols, 
 parts of the 37,914/. 13s. 9c/. and 800/. consols, or 
 other the securities of which the same might for 
 the time being consist, for five of his said nephews 
 and nieces (naming them). He appointed " the 
 residue of the said two sums of 37,914/. 13s. 9(/. 
 and 800/. consols, or other the stocks, funds or 
 securities of which the same might 'for the time 
 being consist, or upon which the same might for 
 the time being be invested," in trust for C. H., a 
 daughter of one of his said brothers. The sums 
 so appointed, less the residue, amounted to 37,000/. 
 The appointor died in 1872. At that time the 
 trust funds consisted only of the sum of 27,170/. 
 15s. id. consols, and the 8,000/. mortgage; and 
 they were now represented by a fund in Court of 
 36,901/. Is. 6A, together with the January divi- 
 dend thereon, viz., 546/. Us. \ld. cash. On the 
 
438 
 
 POWER (B), (C). 
 
 question ■whether the appointees, prior to C. H., 
 should abate so as to allow her to talve a propor- 
 tionate share of the diminished funds, — Held, 
 that the funds must be distributed rateably between 
 the appointees, exclusive of C. H. De Lisle v. 
 Hodges, 43 Law J. Eep. (n.s.) Chanc. 385 ; Law 
 Rep. 17 Eq. 440. 
 
 (2) French law of community : reference back to 
 instrument of donation. 
 
 19. — The testator bequeathed his residuary 
 estate to trustees, in trust for A. for life, and after 
 her decease to pay the capital to such of the 
 children of A. as might be living at her decease, 
 in such shares as she should appoint, and, in de- 
 fault of appointment, to such children equally. 
 A. had four children, all of whom survived her, 
 and one of whom, a daughter, C, became domiciled 
 in France, and married a Frenchman, by whom 
 she had one child. After his death A., in the 
 exercise of her power, appointed one-fourth of the 
 trust funds to C, "for her separate use," absolutely, 
 and then died. Section 1401 of the Code Napoleon 
 provides that all property belonging to the hus- 
 band and wife at the time of their marriage, or 
 coming to them by succession or donation during 
 the marriage, shall fall into the " community of 
 goods," and vest in them in equal moieties, " if 
 the donor have not expressed himself to the con- 
 trary." C.'s daughter, therefore, according to the 
 law of France, claimed to be entitled to a moiety 
 of the appointed fimd, contending that her mother 
 had an interest or property in the fund at the time 
 of her marriage. Upon bill filed by C. to compel 
 the trustees to pay the whole of the appointed 
 fund to herself, — Held, that C. was entitled to 
 the whole fund, on the ground, first, that her right 
 to it accrued at, and not before the date of the 
 appointment, when, in consequence of her hus- 
 band's death, there was no "community of 
 goods;'' and, secondly, that even assuming she 
 had a property in the fund at the date of her 
 marriage, the donor had, by appointing the 
 fund to her "for her separate use," expressed an 
 intention that the law of community should not 
 attach to it. Be Serre v. Clarke, 43 Law J. Eep. 
 (n.3.) Chanc. 821 ; Law Eep. 18 Eq. 587. 
 
 hi re Vizard's Trusts (35 Law J. Eep. (ns.) 
 Chanc. 804) reluctantly followed. Ibid. 
 
 As the trustees ought to have paid the plaintiff 
 at least the one moiety of the appointed fund to 
 which she was in any case entitled, and might 
 have paid the other moiety into Court, under the 
 Trustee Eelief Acts they were only allowed their 
 costs of the suit as between party and party. 
 Ibid. 
 
 (3) Where property converted. 
 
 20. — Parents having under a settlement of real 
 estate (which contained powers of sale and ex- 
 change with a trust for reinvestment of purchase- 
 monies in land) a power of appointment amongst 
 their children, appointed a share to H. E. S., one 
 of the children, and declared that the shares and 
 interests of the persons beneficially interested in 
 the monies arising from any sale of the premises. 
 
 should be of the quality of personal estate : — Held, 
 that the share of H. R. S. was converted in equity 
 into personalty by the terms of the appointment. 
 Webb V. Sadler, 42 Law J. Eep. (n.s.) Chanc. 498 ; 
 Law Eep. 8 Chanc. 419. 
 
 (4) In general. 
 
 Appointment : death of appointee in life of 
 
 appointor : next-of-Jdn. [See Will, 
 
 Construction, C 2.] 
 Duty of appointees to elect between appointed 
 
 property and other property. [See 
 
 Election.] 
 Appointment specifying spedalmotive. [See 
 
 supra No. 1 .] 
 
 (A) Fower of revocation. 
 
 21. — The donee of a power executed a. deed 
 whereby he was expressed to confirm a prior 
 appointment, and also to appoint certain further 
 funds, and the deed contained a power to revoke 
 the appointment thereby made. The confirmation 
 was in law an appointment : — Held, that the power 
 of revocation applied only to that part of the deed 
 which was expressed in terms of appointment, and 
 not to that part which was expressed in terms of 
 confirmation. Morgan v. Gronow, 42 Law J. Rep. 
 (n.s.) Chanc. 410 ; Law Rep. 16 Eq. 1. 
 
 (l) Appointment to donee of absolute power. 
 
 22. — Shares were settled on trust for such 
 persons as A. might by deed or will appoint. A. 
 took a transfer of the shares into her own name 
 in the ordinary way, executing the transfer under 
 hand and seal : — Held, that this amounted to an 
 appointment by A. in her own favour. Fletcher v. 
 Green (33 Beav. 426 (1864) explained. Marler v. 
 Tommas, 43 Law J. Eep. (n.s.) Chanc. 73 ; Law 
 Rep. 17 Eq. 8. 
 
 {m) Insolvency of donee. 
 
 23. — A power given to an insolvent to appoint 
 among his children held to be capable of being 
 exercised after the insolvency. Aylwin's Trusts, 
 42 Law J. Eep. (n.s.) Chanc. 745 ; Law Eep. 16 
 Eq. 585. 
 
 (C) Power of Sale. 
 
 24.— The trustees of a settlement of real esbite 
 having power to sell the fee at the request of the 
 tenant for life can, by an exercise of the power 
 upon his request, after he has alienated his par- 
 tieidar estate and with the consent of his alienee, 
 make a good title in foe to a purchaser. Alexander 
 V. Mills, 40 Law J. Eep. (n.s.) Chanc. 73 ; Law 
 Eep. 6 Chanc. 124. 
 
 Swgden on Powers, Slh edit. p. 70, commented 
 on and disapproved. Ibid. 
 
 25. — A testator by his will devised his real 
 estates to trustees for 1,000 years, and subject 
 thereto in strict settlement. Ihe trusts of the 
 term were to pay the testator's wife a life annuity ot 
 200^., and, subject thereto, for the peri-rns entitled 
 under the prior limitations. He also gave the 
 tnv tees a power to se'l the property, tl e power to 
 
POWER (C)— PRACTICE AT LAW. 
 
 439 
 
 be exercised during the life of any tenant for life, 
 who should be for the time being entitled to the 
 possession, or to the receipt of the rents of the 
 estates, ■with his consent. The sale monies were 
 to be reinvested in land. By a codicil the testator 
 directed his trustees to stand possessed of the 
 term, and of the like term to arise in the real 
 estates which might be purchased under the trusts 
 of the will, on trust to pay the surplus of the 
 rents of all the said estates (after, paying the in- 
 terest on his mortgage and other debts) to his wife, 
 during her widowhood, in lieu of the annuity. ' In 
 ease she should marry again, the trust for payment 
 of the annuity was to take the place of the trust 
 for payment of the surplus rents. The testator's 
 debts haying been all paid, — Held, that the trus- 
 tees could exercise the power of sale with the con- 
 sent of the tenant for life, the widow also consent- 
 ing. Robertson v. Walker, 44 Law J. Rep. (n.s.) 
 Chanc. 220. 
 
 26. — ^An administrator durante minoritate can 
 exercise a power of sale given by a testator to his 
 executor or administrator for the time being. 
 Monsell v. Armstrong, 41 Law J. Rep. (n.s.) Chanc, 
 715; Law Rep. 14 Eij. 423. 
 
 Power of aale of minerals and awrjace 
 separately. [See Confiema.tion of 
 Sales Act.] 
 
 (D) Powers to Raise and Chaese Portions. 
 
 27. — ^A tenant foi. liie under a power charged 
 the estate with portions lor younger children vary- 
 ing according to the nuiuber, being, if there were 
 four or more, 5,000/. There were four younger 
 children, two of whom died before the portions 
 were raisable. The tenant for life having subse- 
 quently appointed by will the full sum of 5,000/., 
 — Held, that the appointment was effectual, not- 
 withstanding the death of the children. Knapp v. 
 Knapp, Law Rep. 13 Eq. 238. 
 
 28. — Power to raise a sum of money by mort- 
 gage includes power to raise also by mortgage the 
 costs of effecting the security. Armstrong v. Arm- 
 strong, 43 Law J. Rep. (n.s.) Chanc. 719 ; Law Rep. 
 18 Eq. 541. 
 
 (E) Powers of Advancement. 
 
 [See Advancement.] 
 
 29. — A testator bequeathed a legacy to trus- 
 tees upon trust to pay the income to A. B. for his 
 life, and after his death for such trusts as he should 
 by his will appoint, and in default of appointment 
 in trust for his children. And he declared that 
 his trustees might, at any time during the life of 
 A. B., apply any part of the trust fund not exceed- 
 ing a moiety, for the preferment or advancement 
 of A. B., or otherwise for his benefit. A. B. was 
 thirty years of age at the date of the will. After 
 the testator's death he borrowed considerable sums 
 of money on the security of his life interest in the 
 fund, and being unable to pay off these debts, re- 
 quested the trustees to pay them off under the 
 power above mentioned. On a bill being iiled to 
 restrain the trustees from so doing, — Held, that 
 the words of the power authorised the trustees to 
 
 pay off the debts. Lowther v. Bentinch, 44 Law 
 J. Rep. (n.s.) Chanc. 197; Law Rep. 19 Eq. 167. 
 
 30. — By deed of settlement a sum of money 
 was settled upon trust for A. for life, and after his 
 death for B. for life, or until alienation, and after- 
 wards in trust for B.'s children, and it was de- 
 clared that the trustees might in their absolute 
 discretion, but with the consent of the Rrst tenant 
 fur life, if living, advance any sum not exceeding 
 2,000/. for the promotion in the army of B. The 
 purchase of commissions in the army having been 
 abolished, — Held, that the power of applying the 
 fund for the promotion in the army of B. could not 
 now be exercised. Palmer v. Flower (41 Law J. 
 Rep. (n.s.) Chanc. 193 ; Law Rep. 13 Eq. 250) 
 distinguished. In re Ward's Trusts, 42 Law J. 
 Rop. (n.s.) Chanc. 4 ; Law Rep. 7 Chanc. 727. 
 
 PRACTICE AT LAW. 
 
 [See Costs at Law ; Interpleadee ; Jurisdiction 
 AT Law ; Mandamus ; Quo Warranto ; 
 Venue.] 
 
 (A) Service of Process. 
 (rt) Service on company. 
 
 (b) Service out of jurisdiction. 
 
 (c) Service out of jurisdiction of Palatine 
 
 Court, 
 
 (B) Amendment. 
 
 (C) Inteeeoqatohies. 
 
 (a) By plaintiff. 
 
 (1) As to defendants title. 
 
 (2) As to payment by defendant where 
 
 discovery would be granted in equity. 
 
 (3) In action for negligence. 
 
 (4) In action for seduction. 
 
 (5) In libel : tendency to criminate. 
 
 (6) Oross interrogatories discrediting wit- 
 ness. 
 
 (b) By defendant. 
 
 (1) Before plea. 
 
 (2) Privileged communication. 
 
 (3) When money paid into Court. 
 
 (4) In ejectment. 
 
 (c) Answer. 
 
 (1) Insufficiency. 
 
 (2) Abandonment of right to answer. 
 
 (D) Witnesses : Oeder for ExAMOfATioN 
 
 BEFORE TeIAL. 
 
 (E) Affidavit. 
 
 (F) Payment into Court. 
 
 (G) Contempt of Couet. 
 (H) Notice of Trial. 
 
 (I) Signing Judgment at Master's Office. 
 
 (K) Judge's Notes : Stamp. 
 
 (L) Trial of Issue of Nul Tiel Record. 
 
 (M) Teial at Bae. 
 
 (N) Teial of Undefended Cause. 
 
 (0) New Teial. 
 
 (P) Abatement: Judgment Nunc pro tunc. 
 
 (Q,) Taking Documents off Eile. 
 
 (R) Stating Prooeedinos. 
 
 (a) On injunction by Cowrt of Admvralty. 
 
 [b) Action brought without authority. 
 
410 
 
 PRACTICE AT LAW (A), (B). 
 
 (e) On, ground of non-payment of costs of 
 previous trial. 
 
 (d) Until security for costs is given. 
 (S) Ereob. 
 (T) Appeax. 
 
 (A) Service op Process. 
 (rt) Service on company. 
 
 1. — The defendants, a Scotch railway company, 
 having their line of rail^way and their principal 
 office in Scotland, employed an ordinary booking 
 clerk to issue tickets at the Carlisle station of the 
 Caledonian railway, over the southernmost portion 
 of whose line the defendants had running p.'wers : 
 — Held, that such clerk, although the only officer 
 of the defendants resident in England, was not a 
 " head officer " or " clerk," within the 16th section 
 of the Common Law Procedure Act, 1852, so as to 
 render service on him of an ordinary writ of sum- 
 mons a good service on the company. Mackreth 
 V. The (Glasgow and Sout/ir- Western Railway Com- 
 pany, 42 Law J. Eep. (n.s.) Exch. 82 ; Law Eep. 
 8 Exch. 149. 
 
 2. — An American Company, incorporated by 
 American law in the United States, had a place of 
 business in England, where it, de facto, carried on 
 business, although its manufactory, and also its 
 principal place of business, where the meetings of 
 its directors and shareholders were held, were in 
 America. The plaintiff claimed a sum of money 
 as being due from the corporation to him as the 
 balance of commission on the sale of goods. He 
 commenced an action against the corporation and 
 their agent in England, including both in the same 
 writ, and served two copies upon the agent, one 
 for himself and the other for the corporation. One 
 of the Masters of this Court made an order that 
 the writ and subsequent proceedings should be 
 amended by striking out the name of the corpora- 
 tion : — Held, rescinding the said order, that this 
 Court would not, upon the ground that a foreign 
 corporation cannot be sued in England, prevent 
 the plaintiff from proceeding in the action ; and 
 secondly, that, inasmuch as the corporation had a 
 place of business in this country and traded here, 
 it must be treated as resident here, and that the 
 service upon its agent was sufficient. Neviby v. 
 Von Oppen and the Coifs Patent Fire Arms Manu- 
 factimng Company, 41 Law J. Eep. (n.s.) Q. B. 
 148 ; Law Eep. 7 Q. B. 293. 
 
 (J) Service out of jurisdiction. 
 3. — The defendant while abroad was served with 
 a writ of summons in an action for breach of pro- 
 mise of marriage, under the provisions of the 18th 
 section of the Common Law Procedure Act, 1852. 
 The promise of marriage was made abroad, and 
 broken in this country : — Held, per Martin, B., 
 Pigott, B., and Cleasby, B., that the case was 
 within the section, and the service of the writ 
 good {disseniiente Kelly, C.B.). Per Pigott, B., and 
 Cleasby, B. — In actions of contract the " breach " is 
 the " cause of action " within the meaning of the 
 18th section. Per Kelly, C.B. — The " cause of 
 
 action " in that section includes both contract and 
 breach. Durham v. Spence, 40 Law J. Eep. (n.s.) 
 Exch. 3 ; Law Rep. 6 Exch. 46. 
 
 4. — In the Common Law Procedure Act, 1852, 
 ss. 18, 19, the words "cause of action" mean the 
 act on the part of the defendant which gives the 
 plaintiff his cause of complaint ; and, therefore, a 
 plaintiff who has issued a writ under either of 
 these Sections is not bound to prove that every 
 circumstance necessary to sustain his case occurred 
 within the jurisdiction. The rule laid down in 
 Jackson v. Spittal (39 Law J. Eep. (n:s.) C. P. 
 321 ; Law Eep. 5 C. P. 542) wiU henceforward be 
 observed in all the Superior Courts of Law. 
 Vaughan v. Weldon, 44 Law J. Eep. (n.s.) C. P. 
 64; Law Eep. 10 C. P. 47. 
 
 (c) Service out of jurisdiction of Palatine Court. 
 
 5. — The Court of the County Palatine of Lan- 
 caster being a superior Court of record, has juris- 
 diction in an action where the cause of action arises 
 outside the county, and if the defendant volun- 
 tarily enters an appearance to such action he comes 
 within the jurisdiction of the Court, and cannot 
 then object that he does not reside within the 
 county, and that the writ was served beyond the 
 jurisdiction of the Court. Oulton v. Radcliffe, 
 43 Law J. Eep. (n.s.) C. P. 87 ; Law Rep. 9 C. P. 
 189. 
 
 Service of sumrrums for assault. [See Ser- 
 vice OF Summons.] 
 
 (B) Amendment. 
 
 6. — The plaintiff having sued a local board in 
 their clerk's name instead of their own, the writ 
 of summons was held to be amendable by substi- 
 tuting the name of the clerk for that of the board. 
 Bolingbroke v. Townsend, 42 Law J. Eep. (n.s.) 
 C. P. 255 ; Law Eep. 8 C. P. 646. 
 
 7. — In an action against a tenant for dilapida- 
 tions to furniture, the first count was for damages 
 for breach of the agreement under which the fur- 
 niture had been let, and the second count was for 
 the amount of dilapidations as awarded by valuers. 
 It appearing that though the plaintiff was the 
 party to the submission under which the award 
 was made, the agreement for letting had been made 
 only between one C. (who was the plaintiff's trustee) 
 and the defendant, the plaintiff applied for and 
 obtained a Master's order, under section 34 of the 
 Common Law Procedure Act, 1852, to add C. as 
 plaintiff to the action : — Held, that the Master 
 had power to make such order, and that he rightly 
 exercised his discretion in making it, since, if re- 
 fused, the plaintiff could bring a fresh action in 
 the joint names of the plaintiff and C, and accord- 
 ing to section 19 of the Common Law Procedure 
 Act, 1860, succeed as to the one who was entitled 
 to recover, subject only to the right of the defend- 
 ant to the costs occasioned by such joinder. Be 
 Gendre v. Bogardiis, 41 Law J. Rep. (n.s.) C. P. 
 107; Law Eep. 7 C.P. 409. 
 
 8. — ^A declaration, which claimed only 600Z. for 
 two years' instalments, was allowed to bo amended 
 before verdict by increasing the claim to 760/., 
 
PRACTICE AT LAW (B), (C). 
 
 441 
 
 this teing an amendable " defect " within the Com- 
 mon Law Procedure Act, 1862, s. 222. Knowlman 
 V. Bluett, 43 Law J. Kep. (n,s.) Exch. 29 ; Law 
 Eep. 9 Exch. 1. 
 
 9. — Where there is a variance between the de- 
 claration and the proof, the proper time to amend 
 is at the conclusion of the plaintiff's case ; but a 
 Judge in a civil action, sitting without a jury, may 
 allow an amendment after he has begun to deliver 
 his decision. Bainy v. Bravo, Law Eep. 4 P. C. 
 287. 
 
 Amendment of declaration at Nisi Prius by 
 stating that plaintiff sued as adminis- 
 tratrix de bonis non, not as adminis- 
 tratrix. [See ExEOOTOE, 16.] 
 Amendment of declaration : turning action 
 of trover or trespass into action for 
 account. [See Tenants in Common, 
 3.] 
 
 (C) Interbogatokies. 
 
 (a) By plaintiff. 
 
 (1) As to defendant's title, 
 
 10. — Although interrogatories as to the means 
 by which a defendant proposes to establish an ad- 
 verse title to an hereditament are not admissible, 
 yet interrogatories seeking only to ascertain the 
 character of his title and the quality of his posses- 
 sion may be allowed. Toume v. Cocks, 43 Law J. 
 Eep. (n.s.) Exch. 41 ; Law Eep. 9 Exch. 45. 
 
 (2) As to payment by defendant where discovery 
 would be granted in equity. 
 
 11. — Where in an action against the maker of 
 a promissory note by the executors of a deceased 
 payee, the defendant pleaded payment to the payee 
 in his lifetime, the Court, on the authority of 
 Hawkins v. Carr (35 Law J. Eep. (n.s.) Q. B. 81 ; 
 Law Eep. 1 Q. B. 89), and because the person to 
 whom the payment was stated to have been made 
 was dead, allowed the plaintiffs to interrogate the 
 defendant by interrogatories under the -Common 
 Law Procedure Act, 1854, as to the mode, time 
 and circumstances of such payment. Hills v. 
 Wates, 43 Law J. Eep. (n.s.) C.J. 380 ; Law Eep. 
 9 C. P. 688. 
 
 (3) In action for negligence. 
 
 12. — ^In an action against a railway company 
 for damages sustained by a passenger from a col- 
 lision on the line, through the alleged negligence 
 of the company's servants, the plaintiff was not 
 allowed, without an af&davit disclosing special cir- 
 cumstances, to administer interrogatories to the 
 company as to what was the cause of the accident, 
 or as to whether they possessed or had the care of 
 that with which the train came into collision. 
 Beekervaise v. The Great Western Railway Com- 
 pany, 40 Law J. Eep. (n.s.) C. P. 8 ; Law Eep. 6 
 C. P. 36. 
 
 (4) In action for seduction. 
 
 13. — In an action for seduction it is not allow- 
 able to interrogate the defendant as to his present 
 means or what property he is possessed of. But 
 DioEST, 1870-1875. 
 
 it is allowable to interrogate him with a view of 
 obtaining admissions from him as to his having 
 had sexual intercourse with the plaintiff 'sdaughter. 
 Hodsott V. Taylor, 43 Law J. Eep. (n.s.) Q. B. 14 ; 
 Law Eep. 9 Q. B. 79. 
 
 (6) /» libel: tendency to criminate. 
 
 14. — An alleged libel was contained in a printed 
 notice or handbill, on which the name of the printer 
 did not appear. The defendant had been seen 
 with the person who distributed the notices, and 
 had himself posted up one of them. On an appli- 
 cation to administer interrogatories to him directed 
 to ascertain if and to what extent he gave instruc- 
 tions for the printing and circulation of the hand- 
 bills, — Held, that the special circumstances took 
 the case out of the ordinary rule that interroga- 
 tories which tend to criminate will not usually be 
 allowed in an action of libel. Greenfieldy. Beay, 44 
 Law J. Eep. (n.s.) Q.B. 81 ; Law Eep. 10 Q. B. 
 217. 
 
 (6) Cross interrogatories discrediting witness. 
 
 15. — An action having been brought against 
 the defendant for the unskilful spinning of yarn, 
 the defendant obtained an order for the examina- 
 tion by interrogatories of a person whom he had 
 employed as manager of his works, and who had 
 gone to America. The plaintiff proposed to ex- 
 amine him upoli cross interrogatories, several of 
 which were directed to the question whether or not 
 he had left his wife and children in England, and 
 whether or not he had taken another woman with 
 him to America : — Held, that as these questions 
 were not relevant to the issue, and had a tendency 
 to deter the witness from coming to England to 
 give evidence, they could not be allowed. Stocks 
 V. Ellis, 42 Law J. Eep. (n.s.) Q,. B. 241 ; Law 
 Eep. 8 ft.B. 454. 
 
 (i) By defendant. 
 (1) Before plea. 
 
 16. — Though there is no rule to preclude a de- 
 fendant from being allowed to deliver interroga- 
 tories to the plaintiff before he has pleaded, yet if 
 he seeks to be allowed to deliver them before plea, 
 he must first disclose the nature of his defence, in 
 order to shew that the interrogatories are for the 
 purpose of supporting such defence. Gov/rley v. 
 PUmsoU, 42 Law J. Eep. (n.s.) C. P. 244 ; Law 
 Eep. 8 C. P. 362. 
 
 AVhere, therefore, in an action for libel the de- 
 fendant pleaded a justification in a general form, 
 he was not allowed to deliver interrogatories to 
 the plaintiff until, either by afftdavit or by par- 
 ticulars, he had first disclosed the matters on 
 which his justification was founded. Ibid. 
 
 (2) Privileged commtmication. 
 
 17. — Where a plaintiff ordered goods, to be 
 shipped by the defendant to London from New 
 York, at which place the defendant carried on 
 business in partnership with E., who conducted 
 the transaction, and, in answer to interrogatories 
 enquiring into the particulars thereof, the defend- 
 3L 
 
442 
 
 PEACTICE AT LAW (C), (E). 
 
 ant swore that before action he had no information 
 as to them, but had since by letters and telegrams, 
 sent with respect to his defence to the action, ob- 
 tained it and refused to communicate it as it was 
 pri'V'ileged : — Held, that such information was pri- 
 vileged. Phillips V. Eoutk, 41 Law J. Eep. (n.s.) 
 0. P. 1 11 ; Law Eep. 7 C P. 287. 
 
 (3) When money paid into Court. 
 
 18. — Where in an action for breach of contract 
 the defendant admits himself to be liable to com- 
 pensate the plaintiff, and intends to pay into Court 
 a sum suificient to cover the damage sustained, 
 the defendant will be allowed to administer inter- 
 rogatories in order to ascertain the extent of the 
 loss which the plaintiff has incurred. Home v. 
 Hough, 43 Law J. Eep. (n.s.) C. P. 70 : Law Eep. 
 9C.P. 735. 
 
 (4) In ejectment. 
 
 19. — A defendant in ejectment, who has, by 
 the plaintiff, been let into possession of the pre- 
 mises, the subject of the action, for a term, and 
 holds over at the expiration of the term without 
 attorning or paying rent to any other claiming 
 title, will not be allowed to interrogate the plain- 
 tiff with a view to shew that, at the time of pos- 
 session being given, the plaintiff's interest was 
 a term of years which had expired before the 
 action. Wallen v. Forrest, 41 Law J. Eep. (n.s.) 
 Q. B. 96 ; Law Eep. 7 Q. B. 239. 
 
 Interrogatory as to documents. [See Peo- 
 
 DTJCTION AT Law.] 
 
 (c) Answer. 
 (1) Insufficiency. 
 
 20. — When the answers to interrogatories ad- 
 ministered pursuant to the Common Law Proce- 
 dure Act, 1854, contain statements irrelevant 
 to the questions asked, the interrogatories are 
 insufficiently answered within the meaning of the 
 53rd section of that statute, and an oral examina- 
 tion may be ordered in the discretion of a Judge 
 at chambei's. Peyton v. Harting, 43 Law J. Eep. 
 Eep. (n.s.) C.P. 10; Law Eep. 9 C.P. 9. 
 
 An order directing that a person interrogated 
 pursuant to the Common Law Procedure Act, 
 1854, shall be orally examined as to the matters 
 concerning which he has refused or omitted to 
 make an affidavit, is sufficient within the 53rd 
 section. Ibid. 
 
 (2) Abandonment of right to answer. 
 21. — In an action of detinue judgment was 
 signed by consent for certain damages, subject to 
 a stay of farther proceedings on the defendant deli- 
 vering up, within a specified time, the articles 
 which had been detained. The defendant neg- 
 lected to deliver such articles, and the plain- 
 tiff caused a writ of execution to issue for the 
 retiim of them, but the sheriff was unable to find 
 the articles, and therefore could not execute the 
 writ. In order to assist the sheriff, the plaintiff 
 applied to the Court to enforce by attachment 
 
 answers to interrogatories which had been deli- 
 vered to the defendant under the Common Law 
 Procedure Act, 1854, previously to the signing of 
 the judgment, but which had never been answered. 
 The Court refused the application, as the judg- 
 ment by consent had been a virtual abandonment 
 of the right to have the interrogatories answered, 
 and as also interrogatories could not be used in 
 aid of execution. Hayne v. Pratt, 40 Law J. Eep. 
 (n.s.) C.P. 119 ; Law Eep. 6 C.P. 105. 
 
 (D) Witnesses: Obder fob Examination 
 
 BEFORE TbIAI. 
 
 22. — The application by one party to an action 
 for a rule nisi for an attachment against the 
 other is a motion, upon the hearing of which the 
 Court has power to order the examination of wit- 
 nesses under the Common Law Procedure Act, 
 1854, section 46, and the order for examination 
 may be made absolute in the first instance. So 
 held by Lord Coleridge, C.J. ; Keating, J. ; and 
 Denman, J. ; dubitante Grove, J. Morgan v. 
 Alexander, 44 Law J. Eep. (n.s.) C.P. 167; Law 
 Eep. 10 C. P. 184. 
 
 The plaintiff was the assured upon a policy of 
 marine insurance purporting to be underwritten 
 by the defendant through the intervention of a 
 certain co-partnership acting as agents. A loss 
 having accrued to the plaintiff upon the policy, 
 the present action was brought, and interroga- 
 tories pursuant to the Common Law Procedure 
 Act, 1854, section 61, were administered to the 
 defendant through the attorneys appearing for 
 him ; these interrogatories remained unanswered. 
 Enquiry was then made for the defendant on 
 behalf of the plaintiff. No underwriter bearing 
 the defendant's name could be found, but infor- 
 mation was obtained raising a suspicion that the 
 defendant was either a fictitious personage or one 
 of the members of the co-partnership above men- 
 tioned acting under an assumed name. The plain- 
 tiff thereupon applied to the Court for a rule nisi 
 for an attachment against the defendant for a 
 contempt in not answering the interrogatories, and 
 also applied at the same time for an order to exa- 
 mine two of the members of the co-partnership vivd 
 voce before a Master : — Held (per Lord Coleridge, 
 C.J. ; Keating, J. ;aud Denman, J. ; dubitante 
 Grove, J.), that the Court had jurisdiction upon 
 the hearing of the motion for the attachment to 
 order by a rule, absolute in the first instance, the 
 examination of the two members of the co-part- 
 nership to take place forthwith before the Master, 
 Ibid. 
 
 (E) Affidavit. 
 
 23. — The rule that a party shewing cause 
 against a rule must take office copies of the affi- 
 davits in support is imperative. In re Chaffers, 
 LawEep. 8 C.P. 376. 
 
 24. — AVhere a rule nisi had been obtained 
 against two persons, and one of them succeeded 
 in getting the rule quashed, on the ground of the 
 want of the deponent's addition in the affidavit on 
 which the rule was granted, the Court allowed 
 
PEACTICE AT LAW (E), (0). 
 
 US 
 
 the other to Tvaive the objection, and have the 
 rule discussed, as far as he was coucerued. jEr 
 parte King, 41 Law J. Eep. (n.s.) C. P. 59 ; Law 
 Eep. 7C.P. 74. 
 
 (F) Payment into Court. 
 
 25. — The defendants in an action upon a bill 
 of exchange paid a turn of money into Court to 
 abide the event. The matters in dispute were 
 subsequently referred to arbitration, and before 
 any award had been made by the arbitrator, the 
 defendants went into liquidation of their affairs 
 by arrangement. The trustee in the liquidation 
 claimed the money in Court : — Held, that the plain- 
 tiffin the action was entitled to be paid thereout the 
 amount of his debt and costs, and there must be an 
 enquiry to ascertain this amount. Ex parte Tate ; 
 In re Keyworth, 43 Law J. Eep. (n.s.) Bankr. 
 102 ; Law Eep. 9 Ohauc. 379. 
 
 26. — The plaintiff .sued for the penalty in a 
 bond conditioned for avoidance if half the penalty 
 with interest were paid by instalments on several 
 fixed days, and alleged as a breach the non-pay- 
 ment of one of the instalments, the time for the 
 payment of the subsequent instalments not having 
 yet arrived. The defendant paid into Court the 
 sum due in respect of the one instalment with 
 interest: — Held, a bad plea, such o, bond not 
 being within section 25 of the Common Law Pro- 
 cedure Act, 1860. Preston v. Dania, 42 Law J. 
 Eep. (n.s.) Exch. 33 ; Law Eep. 8 Exch. 19. 
 
 Ejectment: forfeiture for breach of cove- 
 nant : waiver of, by payment into Court 
 of rent due after forfeiture. [See 
 Ejectment.] 
 
 (6) Contempt of Coitrt. 
 
 27. — It is contempt of Court to state at public 
 meetings that a defendant who is on his trial is 
 the victim of a conspiracy, and will not have a 
 &ir trial. When a true bill has been found and 
 the indictment removed into the Queen's Bench, 
 and the day fixed for the trial, the case is pend- 
 ing. Parties committing contempt will be ruled 
 to appear in Court, and on appearance fined or 
 imprisoned. Lechmere Charlton's case (2 Myl. & 
 Cr. 316) considered. The Queen -v. Castro, Law 
 Eep. 9Q.B. 219. 
 
 28. — Where a party has been guilty of con- 
 tempt in not answering interrogatories under an 
 order in a cause in the Court of Common Pleas at 
 Lancaster, proceedings for an attachment against 
 him may be taken by rule in any one of the supe- 
 rior Courts at Westminster. Coston v. Blackburn, 
 Law Eep. 8 Q. B. 54. 
 
 (H) Notiob op Trial. 
 
 29. — A defendant under terms to take "short 
 notice of trial if necessary," is not entitled to full 
 notice if the plaintiff,.using reasonable diligence, is 
 unable to give it. Pretty v. Nausoawen, 43 Law 
 J. Eep. (N.s.) Exch. 3 ; Law Eep. 9 Exch. 42. 
 
 (I) SlGNTNG JUDOMENT AT MasTEr's OfTICE. 
 
 30. — All the proceedings in an action at law 
 
 in one of the superior Courts are deemed to be 
 taken before the Court itself; and although the 
 Master's ofBce of the Queen's Bench is situate in 
 the city of London, yet a judgment signed thereat 
 is in contemplation of law a step in a suit taken 
 before the Court itself sitting at Westminster ; 
 therefore a judgment of that Court does not 
 create a caxise of action within the city of Lon- 
 don, upon which a suit in the Mayor's Court can 
 be founded. Tapp v. Joms, 43 Law J. Eep. (n.s.) 
 C. P. 250 ; Law Eep. 9 0. P. 418. 
 
 (K) Judge's Notes : Stamp. 
 
 31. — The stamp of 5s. on bespeaking Judge's 
 notes is not suflicient where the cause is tried 
 before the Judge of a Court other than that in 
 which the rule nisi is granted. In such case a 
 further fee of M. per folio is payable. Evans v. 
 Boe, Law Eep. 7 C. P. 138. 
 
 (L) Trial of Issue of Ncl Tiel Eecord. 
 
 32. — The issue of nul tiel record is tried by 
 the Court and not by a jury. Richardson v. Willis, 
 42 Law J. Eep. (n.s.) Exch. 15 ; Law Eep. 8 
 Exch. 69. 
 
 (M) Trial at Bab. •. 
 
 [See Trial at Bab.] 
 
 (N) Trial of Undefended Cause. 
 
 33. — When a cause has been entered for trial 
 as undefended, it is the duty of the plaintiff's 
 attorney, upon notice from the defendant of his 
 intention to defend, to inform the Court that the 
 cause will be defended ; and if it afterwards be 
 tried as undefended out of its proper turn, a new 
 trial will be granted without an afBdavitof merits. 
 Wolff Y. GtoUring, 44 Law J. Eep. (n.s.) C. P, 214. 
 
 (0) New Trial. 
 
 34, — The rule that a new trial will not be 
 granted for either party when the sum given cr 
 recoverable is under 20Z., does not apply to re- 
 plevin. Edgson v. Cardwell, Law Eep. 8 C. P. 
 647. 
 
 35 i — In moving in the Court of Exchequer for 
 rules for a new trial or to enter a nonsuit in cases 
 tried in the Liverpool Court of Passage, a rule to 
 shew cause will not be granted unless either the 
 counsel moving was present at the trial, or the 
 assessor's notes are produced with an aflSdavit 
 verifying the assessor's signature. When cause 
 is shewn the assessor's notes must be produced 
 with a similar affidavit. Welsh v. Mercer, 42 Law 
 J. Eep. (n.s.) Exch. 52 ; Law Eep. 8 Exch. 71. 
 
 86. — In an action for slander imputing that 
 the plaintiff had committed perjury, the jury 
 found a verdict for the plaintiff; damages, one 
 fcirthing. The verdict was not satisfactory to 
 the Judge who tried the cause : — Held, that there 
 ought to be a new trial, inasmuch as the amount 
 of damages seemed to have been arrived at by a 
 compromise, without duly weighing the circum- 
 stances of the case. Falvey v. Stanford, 44 Law 
 J. Eep. (n.s.) Q. B. 7 ; Law Eep. 10 Q. B. 54. 
 3l2 
 
444 
 
 PRACTICE At LAW (01, (T). 
 
 37. — "Wlieve at a trial the Judge, on being 
 asked to direct the jury to find a verdict for the 
 defendants, refused to do so, but an objection 
 which, if substantiated, -would have justified his 
 so doing, was not then raised, — Held, that such 
 objection could not be afterwards received, and 
 that the mere refusal of the Judge was not a 
 misdirection. Greene and King v. Bateman, Law 
 Eep. 5 E. & I. App. 591. 
 
 (P) Abatement :- Jtjbgment Nunc peg Tdnc. 
 
 38. — An action for negligence causing per- 
 sonal injury was tried in the sittings out of term. 
 The Judge directed a nonsuit upon the ground that 
 there was no evidence of negligence, but stayed 
 execution until the fifth day of the following 
 term, that the plaintiff might move to set aside 
 the nonsuit. The jjlaintiff died before the next 
 term. In that term a rule was obtained by the 
 defendant to enter judgment of nonsuit nunc pro 
 tunc, so that he might tax costs thereon ; but the 
 Court taking into consideration the fact that the 
 nonsuit was only provisional and subject to their 
 approval, and that the action abated before any 
 final judgment could be pronounced, discharged 
 the rule. Hemming v. Batchelor, 44 Law J. llep. 
 (n.s.) Exch. 54 ; Law Eep. 10 Exch. 54. 
 
 (Q) Takingi Documents off File. 
 
 39. — Where documents sent from Bombay 
 were in the custody of the Court of Common 
 Pleas awaiting the decision of the Court of error, 
 and the same documents were required to be sent 
 out to Bombay on a mandamus for the examina- 
 tion of witnesses issued in an action in the Court 
 of Exchequer, an application for leave to take the 
 documents from the ofl6.ce of the Common Pleas 
 was refused, as they might still be required ; but 
 it was siiggested that the Court of Exchequer 
 should be applied to for leave to annex office or 
 photographic copies to the mandamus. In re 
 Stephens, Law Rep. 9 C. P. 187. 
 
 (R) Statino Pkoceedings. 
 (a) On injunction hy Court of Admiralty. 
 
 40. — An order made by the Higlj Court of 
 Admiralty under 24 Vict. c. 10, s. 13 (which 
 confers on that Court the same powers of stop- 
 ping proceedings as were conferred on the Court 
 of Chancery by the 514th section of the Merchant 
 Shipping Act, 1 854), is not a " writ of injunction, 
 rule, or order of either of the Superior Courts of 
 Common Law or Equity at Westminster," within 
 the meaning of section 226 of the Common Law 
 Procedure Act, 1852 ; and therefore proceedings 
 in aa action in the Court of Exchequer will not 
 be stayed upon the production of such an order 
 made by the Court of Admiralty. Milburn v. 
 The London and South-Western Railway Company, 
 40 Law J. Eep. (n.s.) Exch. 1 ; Law Rep. 6 
 Exch. 4. 
 
 (b) Action brought without authority. 
 
 41, — If an attorney brings an action in the 
 name of a person who has not given him any 
 
 authority to do so, such person is entitled to have 
 the proceedings stayed. Reynolds v. Howell, 42 
 Law J. Eep. (n.s.) Q. B. 181 ; Law Rep. 8 Q. B. 
 398. 
 
 (c) On ground of non-payment of costs 
 of previous trial. 
 
 42. — Where the plaintiff brought two actions 
 for ejectment, each of which depended on the 
 same title and question, and in each the defend- 
 ants were substantially the same, being trustees 
 for an infant heir, who was the real defendant in 
 each, and the plaintiff elected to be nonsuited at 
 the trial of the first of such actions, the Court, 
 on the application of the defendants in the second 
 action, stayed proceedings in it until the plaintiff 
 paid the costs of the first action, notwithstanding 
 the defendants had given the plaintiff twenty 
 days' notice under section 202 of the Common 
 Law Procedure Act, 1862, to proceed with the 
 trial of this second action; but the amount of 
 such costs being large, the Court extended the 
 time of such notice beyond the twenty days. 
 Tichbome v. Mostyn, 41 Law J. Eep. (n.s.) C. P. 
 1)3; Law Rep. 8 C.P. 29. . 
 
 (d) Until secwrity for costs is given. 
 [See Costs at Law, 19.] 
 
 (S) Eeeob. 
 
 [And see Jueisdiction at Law, 1, 2.] 
 
 43. — The decision of one of the Superior 
 Courts pronounced on motion is not the subject of 
 a proceeding in error. A Court has power by 
 consent to discharge a jury from giving a verdict 
 upon any of the issues in a case, and where the 
 record does not shew the contrary, the discharge 
 will be taken to be with consent. So where a 
 Court has power to give costs upon a certificate 
 or order, and it is not shewn that there was no 
 such certificate or order, the taxation is not the 
 subject of a proceeding in error. Banks'^. Newton 
 (11 Q. B. 340) overruled. Scott v. Bennett (H.L.), 
 Law Rep. 5 E. & I. App. 234. 
 
 (T) Appeai,. 
 
 44. — On an appeal from chambers aU material 
 aflidavits used at chambers must be referred to in 
 the rule. Holmes v. Mountstephen, Law Rep. 10 
 C. P. 474. 
 
 Appeal from County Court. [See Countt 
 
 Court, 23-27.] 
 County Court a'ppeal: time for giving secu- 
 rity. [See County Couet, 26.] 
 Leave to appeal from Lord Mayor's Court. 
 
 [See London, 4.] 
 Practice as to setting aside award. [See 
 
 Aebiteation, 24, 25.] 
 As to enlarging time for award. [See Ak- 
 EITEATION, 27.] 
 
 As to garnishee order and summo?is. [See 
 Attachment, 4, 5.] 
 
PEACTICE IN EQUITY (A), (B). 
 
 US 
 
 PRACTICE IN EQUITY. 
 
 [N.B. — See also Costs in Eqtjitt; Jukisdic- 
 TioN m Eqtiitt; Pleading in 
 Equity, and for cases relating to the 
 practice in winding np joint-stock com- 
 panies, see Company.] 
 
 (A) Abatembnt. 
 
 (B) Administuation Summons. 
 
 (C) Affidavit. 
 
 (a) F<mn of jurat ; lunatic witness. 
 (6) Affidavit sworn abroad. 
 
 (c) Taking off file. 
 
 (d) Unfiled affidavits. 
 
 (e) Affidavit after evidence closed. 
 (/) Cross-examination on affidavit. 
 
 (D) Amendment. 
 
 (a) Of hill or information. 
 (6) Of interrogatories. 
 (e) of petition. 
 
 (E) Ajts-web. 
 
 (a) Form of. 
 
 (i) AdmissiMlity in evidence. 
 
 (c) Flea coupled with answer : irregularity. 
 
 (d) Sufficiency. 
 
 (E) Appeal and RE-HEAKma. 
 (a) Bight to appeal. 
 (6) Effect of enrolment of order. 
 (o) Mode of appealing. 
 
 (d) Advancing appeal. 
 («) Hearing of. 
 
 (/) From County Court, 
 (G) Appbaeancb. 
 (H) Bill. 
 
 (a) Delivery of copy to person not party. 
 
 (J) Taking pro confesso, 
 
 (fi) Schedules. 
 (I) Cebtiohabi. 
 
 (K) Chief Clehk's Certificate. 
 (L) Conoithrbnt Suits. 
 (M) Contempt. 
 (N) Damages. 
 
 (0) Demukkbr : Setting Down, 
 (P) Deposition: Taking off Pile. 
 (Q) Dismissal. 
 
 (o) For want of prosecution. 
 
 lb) Charges of fraud not proved. 
 (B) Enrolment of Decree or Order. 
 (S) Eteobnoe. 
 
 (a) Notice to read. 
 
 (6) VivA voce at hearing. 
 
 (c) Cross cav^e. 
 
 {d) Burden of proof . 
 
 (e) Oral examination on oath. 
 (T) Heabino in Private. 
 
 (U) Interest on Money Repaid. 
 
 (V) Interrogatories. 
 
 (W) Investment. 
 
 (X) Issue. 
 
 (Y) Lis Pendens. 
 
 (Z) Long Vacation. 
 
 (AA) Motion. 
 
 (BB) Ne exeat Regno. 
 
 (CO) Next Feibnd. 
 
 (DD) New Trial. 
 
 (EE) Orders and Decrees, 
 
 (a) Service : effect of. 
 
 (6) Correction of error. 
 
 (c) Form of. 
 (FF) Partition Suits. 
 (GO) Parties. 
 (HH) Payment and Transfer. 
 
 (a) Into Cowrt. 
 
 (b) Out of Court. 
 
 (1) To tenant in tail. 
 
 (2) To married woman. 
 
 (3) In other cases. 
 (II) Petitions. 
 
 (KK) Pro Confesso. 
 (LL) Production of Documents. 
 (MM) Receiver. 
 
 (NN) Revivor and Supplement. 
 (a) Order of revivor. 
 
 (1) Death of sole plaintiff. 
 
 (2) Transfer of plaintiff's interest. 
 
 (3) Death of petitioner. 
 
 (4) Devolution of defendant's interest 
 on co-plaintiff. 
 
 (5) Absence of personal representative. 
 
 (6) Defective suit : leave to take pro- 
 
 ceedings off file. 
 
 (7) Special circumstances. 
 (i) Eevivorfor costs. 
 
 (c) Supplemental hill. 
 
 (1) Change of interest after decree. 
 
 (2) Facts discovered since decree. 
 (00) Sales and Purchases under Direction 
 
 OF the Court. 
 
 (a) Mode of conducting. 
 
 (A) Opening biddings. 
 
 (c) Sale of infant's property. 
 (PP) Sequestration. 
 (QQ) Service. 
 
 (o) Of petition. 
 
 lb) Of decree. 
 
 (c) Out of jurisdiction. 
 (ER) Short Cause. 
 (SS) Special Case. 
 (TT) Special Examiner. 
 (UU) Staying Proceeding?. 
 
 (a) Pending appeal. 
 
 {b) In other cases. 
 (VV) Stop Order. 
 (WW) Subject-matter. 
 (XX) Suit in Forma Pauperis. 
 (YY) Transfer of Cause. 
 (ZZ) Witness. 
 
 [Rules under Chancery (Funds) Act, 1872, 21 st 
 December, 1872, and 23rd December, 1872, 42 
 Law J. Rep. (n.s.) Chanc. 1.] 
 
 (A) Abatement. 
 [See infra Revivor.] 
 
 (B) Administration Summons. 
 
 1. — Land was devised to trustees, who were 
 also executors, on trust to sell, with a declaration • 
 postponing the sale of part for five years unless a 
 certain price could be obtained, the first trust of 
 the proceeds being to pay funeral and testamen 
 
US 
 
 PRACTICE In equity (B), (D). 
 
 tary expenses and legacies at the expiration of 
 five years ; — Held, that an order for the adminis- 
 tration of the estate was properly made on sum- 
 mons. Moorat v. Moorat, and De la Salle v. 
 Moorat, 40 Law J. Eep. (n.s.) Chanc. 44 ; Law 
 Eep. 11 Eq. 8. 
 
 (C) Affidavit. 
 (a) Form ofjwat. 
 
 2. — The jurat of an affidavit sworn by a person 
 sxiflering from monomania, and confined in a luna- 
 tic asylum, should state the fact that it was 
 sworn in an asylum, otherwise the affidavit' is irre- 
 gular, and will be taken off the file. Spittle v. 
 Walton, 40 Law J. Eep. (n.s.) Ghanc. 368 ; Law 
 Eep. 11 Eq. 420. 
 
 Before the evidence of a lunatic, subject to in- 
 sane hallucinations, can be received, there must 
 be an enquiry as to his mental condition. 
 
 (J) Affidavit sworn abroad. 
 
 3. — Statutory declaration made in New South 
 Wales by husband and wife allowed to be annexed 
 as an exhibit to an affidavit filed in the cause. 
 Whiting v. Bassett, 41 Law J. Eep. (n.s.) Chanc. 
 851 ; Law Eep. 14 Eq. 70. 
 
 4. — Affidavits sworn irregularly in a foreign 
 country allowed to be filed on the consent of all 
 parties. Lyle v. Elwood, 42 Law J. Eep. (n.s.) 
 Chanc. 80 ; Law Eep. 15 Eq. 67. 
 
 5. — An affidavit by the defendants sworn in 
 Germany before a burgermeister instead of a Bri- 
 tish consul or vice-consul, allowed to be filed with 
 the consent of the only adult plaintiff, the mo- 
 ther of the infant plaintiifs. Bell v. Turner, Law 
 Eep. 17 Eq. 439. 
 
 (c) Taking off' file. 
 6. — A plaintiff filed an affidavit made by a 
 dying witness, and offered an opportunity for cross- 
 examination, and afterwards filed replication, and, 
 having omitted to give notice of reading the 
 affidavit within the prescribed time, took out a 
 summons for leave to read the affidavit which 
 summons was adjourned to the hearing of the 
 cause. The plaintiff printed the affidavit, with 
 the others proposed to be read at the hearing, and 
 thereupon the defendant moved to take it off the 
 file and expunge it from the printed affidavits : — 
 Held, that this motion was irregtdar. Lautour 
 V. The Attorney- General, iS Law J. Eep. (n.s.) 
 Chanc. 313. 
 
 {d) Unfiled affidavits. 
 
 7. — Although imfiled affidavits may be read on 
 an exparte application, they cannot be read when 
 the respondent has been served but does not appear, 
 and the application is made on affidavit of ser- 
 vice on him of the notice of motion. Farrer v. 
 Sykes, 43 Law J. Eep. (n.s.) Chanc. 392. 
 
 -(«) Affidavit after evidence closed. 
 
 8. — Where a plaintiff's evidence after replica- 
 tion raised new issues of fact, the defendant was 
 allowed to file affidavits after the time for closing 
 
 evidence, such evidence to be confined to the new 
 issues and the plaintiff to be at liberty to cross- 
 examine. Leech v. Bolland, Law Eep. 10 Chane. 
 362. 
 
 (/) Cross-examination on affidavit. 
 
 9. — A party who swears an affidavit, which is 
 used at the hearing of a motion, on which an order 
 is made for the motion to stand on terms till the 
 hearing of the cause, cannot be cross-examined on 
 that affidavit, even although the one party may 
 have given notice to the other that he means to 
 use the affidavit at the hearing of the cause. 
 Singer v. Audsley, 41 Law J. Eep. (n.s.) Chanc. 
 229; Law Eep. 13 Eq. 401. 
 
 10. — As a general rule a party should file his 
 affidavits before cross-examining a party on the 
 other side. Consequently an affidavit filed in a 
 creditor's administration suit by defendant exe- 
 cutors subsequently to their cross-examination of 
 the plaintiff upon his affidavit in support of his 
 claim is not generally admissible in proceedings 
 in chambers for adjudication of the plaintiff's 
 claim, but it was allowed to be used upon leave 
 given to the deponent to reply. Lancefi^ld v. Ig- 
 gtdden, 41 Law J. Eep. (n.s.) Chanc. 473. 
 
 11. — -The fourteen days from the filing of an 
 affidavit in support of a petition having been 
 allowed to expire without notice having been given 
 to cross-examine on the affidavit as provided by 
 rule 19 of Order of the 5th of February, 1861,— 
 Held, that the Court was not thereby precluded 
 from exercising its discretionary power under sec- 
 tion 40 of the Chancery Improvement Act, 1862 
 (16 & 16 Vict. u. 86), and leave to cross-examine 
 was granted accordingly. In re Sadler's Wells 
 Theatre, 42 Law J. Eep. (n.s.) Chane. 737. 
 
 12. — An accounting defendant who has carried 
 in an account and verified it by affidavit, may be 
 cross-examined on his affidavit as well before he 
 has vouched his account as afterwards. Meacham 
 V. Cooper, 42 Law J. Eep. (n.s.) Chane. 876 ; Law 
 Eep. 16 Eq. 102. 
 
 13. — Where only one day's notice was given 
 that a witness, as to whom notice of cross-exam- 
 ination had been given, was about to leave the 
 country, his affidavit was not allowed to be read. 
 Where it appears by a defendant's affidavit filed 
 on an enquiry, that he has money in his hands, he 
 may be ordered to pay it in after decree and before 
 further consideration. Dv,nne v. English, Law 
 Eep. 18 Eq. 524. 
 
 Cross-examination of solicitor on affidavit 
 on taxation. [See Attorney, 36.] 
 
 [And see infra Evidence, Witness.] 
 
 (D) Amendment. 
 (a) Of bill or information. 
 14. — An injunction, granted upon the merits, is 
 not dissolved by the amendment of the bill. Har- 
 vey v. Hall, Law Eep. 11 Eq. 31. 
 
 15. — Upon application for special leave to 
 amend an information and bill, the affidavits 
 mentioned in Consolidated Order IX. rr. 14, 15, 
 16, may be made by the solicitor to the relator 
 
PEACTICB IN EQUITY (D), (F). 
 
 447 
 
 and the plaintiff alone. The Attorney- General v. 
 The Castleford Local, Board of Health, 40 Law J. 
 Eep. (n.s.) Chanc. 636 ; LaV Rep. 6 Chanc. 853. 
 
 (4) Of interrogatories. 
 
 16, — After exceptions to an answer for insuf- 
 ficiency had been allowed, and before a siifiicient 
 answer had been filed, the plaintiff, on an order 
 of course, amended his bill and interrogatories. 
 The interrogatories as amended comprised much of 
 the matter contained in the original interrogatories. 
 On motion by the defendant to take the amended 
 interrogatories off the file as irregular, — Held, that 
 since the insufficient answer was technically no 
 answer, and the plaintiff at the time of obtaining 
 his order to amend had a olear right to an answer, 
 the amended interrogatories were not irregular. 
 Nemry v. KiVmorey, 40 Law J. Eep. (n.s.) Chanc. 
 371 ; Law Eep. I'l Eq. 425. 
 
 (e) Of petition. 
 
 17. — "When upon the hearing of a petition, leave 
 is given to amend the petition, any facts, whether 
 occurring before or after the leave given, may be 
 inserted by amendment. Inre Westbrook's Trusts, 40 
 Law J. Eep. (n.s.) Chanc. 224; Law Eep. 11 Eq. 
 252. 
 
 (E) Answer. 
 
 («) Form of. 
 
 18. — An answer not containing the words " In 
 answer to the said bill, we say as follows," was 
 directed to be filed. Bowes v. Farrar, Law Eep. 
 14 Eq. 71. 
 
 19. — The paper on which Chancery pleadings 
 are printed must be of the quality prescribed by 
 Consolidated Order IX. r. 3, but need not be 
 weighed in the Eecord and Writ Clerks' Office in 
 order to ascertain the quality. An answer a little 
 under the prescribed weight, and with a margin 
 less than the prescribed size, was ordered to be 
 filed. Calthrop v. Bm/imens, Law Eep. 6 Chanc. 
 151. 
 
 (i) Admissibility in evidence. 
 
 20. — The answer of a defendant who was unable 
 to be cross-examined on account of illness was not 
 allowed to be read as evidence on his behalf. 
 Parker v. M'Kenna, 43 Law J. Eep. (n.s.) Chanc. 
 802. 
 
 21. — An admission in an answer of one defend- 
 ant of a certain fact, is not evidence of that fact 
 against another defendant upon motion for decree, 
 though notice to read the answer has been given. 
 Where, however, a defendant objected to such 
 evidence, the Court allowed the case to stand over, 
 with leave for the plaintiff to file affidavits, de- 
 posing to the fact in question. Saltmarshy. Hardy, 
 42 Law J. Eep. (n.s.) Chanc. 422. 
 
 (c) Blea coupled with answer : irregularity. 
 
 22. — The defendant, having put in a plea which 
 was overruled with costs, obtained the common 
 order in chambers to " plead answer or demur," 
 and then put in a second plea in the same terms, 
 coupled with his answer. Upon motion by the 
 
 plaintiff to take the second plea off the file for 
 irregularity, it was ordered that the plea and 
 answer should stand for the answer only, the 
 defendant paying the costs of the motion; the 
 plaintiff to have a fortnight to except. McKewan 
 V. Sanderson, 42 Law J. Eep. (N.s.) Chanc. 
 788; Law Eep. 16 Eq. 317. 
 
 {d) Sufficiency. 
 [See Pleadino in Equity, 12-15.] 
 
 (E) Appeal and Ee-hbaeino. 
 (a) Bight to appeal. 
 
 23. — An appeal will not be allowed where the 
 amount in dispute is only \l. 15s. In re the Na- 
 tional Assii/rance and Investment Society, 41 Law 
 J. Eep. (n.s.) Chanc. 341 ; Law Eep. 7 Chanc. 
 221. 
 
 24. — The making of an order to dismiss a bill 
 for want of prosecution is a matter within the dis- 
 cretion of the Judge to whose Court the cause is 
 attached, and his refusal to make such an order 
 ought not to be made the subject of an appeal. 
 Sheffield v. Sheffield, 44 Law J. Eep. (n.s.) Chanc. 
 304; Law Eep. 10 Chanc. 206. 
 
 25. — The Court will not entertain an appeal 
 from an order directing an issue, if it appears 
 that there was any real question on which, in the 
 exercise of his discretion, the Judge could order 
 an issue to be tried. Williams v.' Chuest, 44 
 Law J. Eep. (n.s.) Chanc. 659; Law Eep. 10 
 Chanc. 467. 
 
 26. — The appointment of an official Uquidator 
 is within the discretion of a Judge, and no appeal 
 can be had from his decision unless under very 
 special circumstances. In re the Albert Average 
 Assurance Association, 40 Law J. Eep. (n.sI) 
 Chanc. 34. 
 
 The fact that a Judge has laid down as a rule 
 for his own guidance that, ceteris paribus he will 
 appoint the nominee of the petitioner, is not a 
 ground for an appeal. Ibid. 
 
 27. — On a summons that in taking accounts in 
 chambers, the Chief Clerk might treat a certain 
 statement as conclusive evidence, the Judge, after 
 deciding the question, thought fit only to give a 
 direction to his Chief Clerk without making any 
 formal order: — Held, that no appeal could be 
 brought from his decision, but that the party 
 aggrieved must wait for the certificate. Vyse v. 
 ^Fosier, 44 Law J. Eep. (n.s.) Chanc. 344; Law 
 Eep. 10 Chanc. 236. 
 
 Decision as to the extent of the decree in Vyse 
 V. Foster, 42 Law J. Eep. (n.s.) Chanc. 245; 
 Law Eep. 8 Chanc. 309, on appeal to the House 
 of Lords, 44 Law J. Eep. (n.s.) Chanc. 37 ; Law 
 Eep. 7 E. & I. App. 318. Ibid. 
 
 Appeal from decision of Judge as arbitrator. 
 [See Abbitbation, 3.] 
 
 (b) Effect of enrolment of order. 
 
 28. — A petition which has been dismissed on 
 the merits will not be heard after enrolment of 
 the order. OUerenshaw v. Harrop, 43 Law J. 
 Eep. (n.s.) Chanc. 684. 
 
448 
 
 PEACTICE IN EQUITY (F), 
 
 29. — Notice of an appeal motion which was 
 served upon the respondent's solicitors was irre- 
 gular by reason of it being neither dated nor 
 signed by the appellants' solicitors, although 
 their names appeared on the back of it. The 
 irregularity having been discovered, the appel- 
 lants' solicitors applied to the respondent to waive 
 it, but he refused to do so and stated ihat he would 
 avail himself of every technical objection. The 
 appeal was afterwards set down for hearing, bat 
 no proper notice of its ha'V'ing been set down was 
 served on the respondent's solicitors. Before the 
 , appeal came on to be heard, the respondent's 
 solicitors enrolled the order appealed from. The 
 appellant moved to have the enrolment vacated : 
 —Held, that the respondent was under the cir- 
 cumstances entitled to avail himself of the irre- 
 gularity in the notice of motion of appeal and to 
 retain his enrolment. In re the lAmehouse Works 
 Company {lAm.), 43 Law J. Eep. (n.s.) Chanc. 
 483 ; Law Eep. 9 Chanc. 266. 
 
 (c) Mode of appealing. 
 
 30. — Where a Judge of a Court of first in- 
 stance declines to decide a question on a petition, 
 and .expresses his wish that it should be brought 
 before the Appeal Court, the proper course is for 
 the petitioner to present a short petition of appeal 
 pro formcL. In re Earl Berkeley's Will, 44 Law J. 
 Eep. (n.s.) Chanc. 3. 
 
 (i) Advancmg appeal. 
 
 31. — An appeal from a decree granting an in- 
 junction against the use of a trade-mark will be 
 advanced, where the injury done by the con- 
 tinuance of the injunction would be irreparable. 
 Lazenby v. White, lua-w Eep. 6 Chanc. 89. 
 
 (e) Hearing of. 
 
 32. — In ordinary cases of appeal only two 
 counsel will be heard on the same side. Hoare v. 
 Bremridge, 42 Law J. Eep. (n.s.) Chanc. 1. 
 
 33. — The rule that upon an appeal the whole 
 case is open to the respondent applies where a 
 motion has been ordered to stand over to the 
 hearing of the cause and the order on the motion 
 and the decree have been drawn up together. 
 Therefore where an appeal was in such a case 
 brought from the decree only, it was held that the 
 respondents were entitled to have the order on the 
 motion also disposed of by the Court of Appeal. 
 Middlemas v. Wilson, 44 Law J. Eep. (n.s.) Chanc. 
 476 ; Law Eep. 10 Chanc. 232. 
 
 (/) From County Cowrt. 
 
 34. — Parties who consented to the signing of a 
 case for appeal from a County Court after the ex- 
 piration of the thirty days limited by the above 
 section, — Held, to have waived the objection as 
 to time. Ward, v. 'Raw, Law Eep. 15 Eq. 83. 
 
 . 35. — On a County Court appeal, no question 
 will be entertained which is not submitted by the 
 case as signed by the County Court Judge. Wil- 
 liams V. Evans, 44 Law J. Eep. (n.s.) Chanc. 319; 
 Law Eep. 19 Eq. 647. 
 
 (G) Appeaeance. 
 
 86. — It is irregular for a plaintiff to instruct a 
 solicitor to take steps on behalf of a defendant of 
 unsound mind. Where a plaintiff in a redemption 
 suit, a co-mortgagor and brother of the defendant, 
 adopted this course, and had appearance entered 
 for the defendant, and obtained an order appoint- 
 ing her a guardian, the appearance and order were 
 set aside. Camps v. Marshall, Law Eep. 8 Chanc. 
 462. 
 
 (H) Bill. 
 
 [See Pleading in Equity, 1-3.] 
 
 (a) Delivery of copy. 
 
 37.^The pi-actice of the Eecord and Writ > 
 Clerks' Office is to produce the bill in a suit, or 
 furnish a copy of it, after decree, to any person 
 who desires it, but not before -except in a repre- 
 sentative suit to members of the class represented 
 — unless with the plaintiff's consent, or under 
 special circumstances. Coates v. Brown, 42 Law 
 J. Eep. (n.s.) Chanc. 378. 
 
 Where, in a suit for specific performance of a 
 contract to sell, it was discovered that some other 
 specific performance suit had been commenced 
 against the defendants, but compromised, — Held, 
 that the plaintiffs were entitled to a copy of the 
 bill in the compromised suit, notwithstanding the 
 opposition of the plaintiffs in that suit to any copy 
 being furnished. Ibid. 
 
 (6) Taking pro confesso. 
 
 38. — A decree was taken pro confesso under 
 3 & 4 Will. 4. c. 36, against an absconding defen- 
 dant. Service of the decree on the defendant 
 under G. 0. 22, rule 11, was dispensed with. 
 Manser v. Manser, 42 Law J. Eep. (n.s.) Chanc. 
 390; Law Eep. 15 Eq. 259. 
 
 39. — Where a suit has been duly set down to 
 take the bill pro. confesso, the Court has, under 
 the General Orders, discretion to require evidence 
 of the truth of the statements in the bill. And in 
 a case where it did not appear that the defendant 
 had personal knowledge of the suit, such evidence 
 was required. Borrell v. Barr, 42 Law J. Eep. 
 (n.s.) Chanc. 879. 
 
 40. — Where a bill for foreclosure had been taken 
 pro confesso against the defendants out of the 
 jurisdiction, advertisements were allowed to be 
 substituted for service of decree and the summons 
 to proceed under the same and the plaintiff was 
 allowed to proceed under the decree at the end of 
 three months from the date of the advertisements. 
 Hyde v. Large, Law Eep. 19 Eq. 48. 
 
 (c) Schedule to. 
 
 41. — Leave given to file a bill of complaint, 
 with a schedule containing copies of pleadings in 
 former suits which it was necessary to set out. 
 ?%c Credit Fonder and Mobilier of England v. 
 Lord Sondes, Law Eep. 6 Chanc. 477. 
 
 (I) Cbetiojbaei. 
 
 42. — A writ of certiorari had been granted to 
 bring up a suit' in the Lord Mayor's Court into 
 
PRACTICE IN EQUITY (I), (0). 
 
 449 
 
 the Court of Chancery. It then appeared upon 
 the face of the bill in the Lord Mayor's Court 
 that some of the parties were out of the jurisdiction 
 of that Court. An order was made ex parte that the 
 suit be retained in the Court of Chancery, without 
 any enquiry or other preliminary proceedings in 
 chambers. Tracy v. The Open Stock Exchange 
 Company, 40 Law J. Eep. (n.s.) Chanc. 159 ; Law 
 Eep. 11 Eq. 556. 
 
 (K) Chief Cuiek's Cebtifioatb. 
 
 43. — On a summons to vary the chief clerk's 
 certificate no evidence can be used which is not 
 mentioned in the certificate as having been before 
 the chief clerk. Budge v. Gv/mmow, 42 Law J. 
 Eep. (n.s.) Chanc. 22. 
 
 44. — Upon the hearing of a summons to vary 
 a chief clerk's certificate, evidence not mentioned 
 in the certificate was not admitted. Budge v. 
 Gummow, 41 Law J. Eep. (n.s.) Chanc. 620 ; Law 
 Eep. 7 Chanc. 719. 
 
 (L) CONCTJEBENT SuiTS. 
 
 45. — ^The hearing of a summons taken out by a 
 creditor for administration of a testator's real and 
 personal estate was directed to stand over upon 
 an application on behalf of the defendants, the 
 testator's personal representatives. The next day 
 a second suit for administration of the same estate 
 was instituted by another creditor against the 
 same defendants, and (by the bill as amended) 
 against the testator's heir-at-law. All the parties in 
 that suit appeared by the same solicitors, who 
 represented the defendants in the first suit. A 
 decree was obtained in the second suit before the 
 summons could be heard. Upon the application 
 of the plaintiff in the first suit, — -Held, that he 
 was entitled to the conduct of the second suit by 
 reason of the unfair advantage taken over him in 
 the manner in which the decree in the first suit 
 was obtained. Rhodes v. Barrett; Singleton v. 
 Barrett, 41 Law J. Eep. (n.s.) Chanc. 103; Law 
 Eep. 12 Eq. 470. 
 
 46. — After a suit had been instituted by trus- 
 tees for executing the trusts of a settlement, two 
 of the cestuis que trust, who were the defendants 
 to the suit, filed their bill in another branch of the 
 Court for a declaration that the settlement was 
 void, or for its rectification, and so far as neces- 
 sary, for the execution of the trusts thereof: — 
 Held, that there was such common ground between 
 the two suits as to bring them within the rule re- 
 quiring a second bill relating to the same subject- 
 matter as an existing suit to be instituted in that 
 branch of the Court to which the first suit is at- 
 tached, and that the second suit must be trans- 
 ferred accordingly, and the plaintiffs in that suit 
 must pay the costs of the application for siieh 
 transfer. Bayers v. Corrie; Carrie v. Bayers, 
 43 Law J. Eep. (n.s.) Chanc. 337 ; Law Eep. 9 
 Chanc. 52. 
 
 47. — Where a person knowing that a suit has 
 
 been instituted in one branch of the Court for the 
 
 administration of a testator's estate, files a bill in 
 
 another branch of the Court for the same pui-pose, 
 
 DiOEST, 1870-1875. 
 
 the second cause will be ordered to be transferred 
 to the Court to which the first cause is attached 
 even after a decree has been made in the second 
 cause, while no decree has been made in the first ; 
 and the plaintiff in the second cause will be 
 ordered to pay the costs of the motion for transfer. 
 Imcos v. Biggers; Gray v. Siggers, 41 Law J. 
 Eep. (n.s.) Chanc. 364; Law Eep. 7 Chanc. 517. 
 
 48. — Where two suits as to the same matter 
 are instituted in different branches of the Court, 
 the plaintiff in the first suit ought, before moving 
 to transfer the second suit to the branch of the 
 Court in which the first is, to ask the plaintiff in 
 the second suit for his consent to the application, 
 and if he neglects to do so he may have to pay the 
 costs of the application. LyaM v. Weldhen, Law 
 Eep. 9 Chanc. 287. 
 
 49. — A plaintiff in an administration suit, who 
 charges trustees with breach of trust, may bring 
 his suit to a, hearing, although the ordinary ad- 
 ministration decree has already been obtained in 
 a subsequent suit to which the plaintiff is not a 
 party. If a second decree is made, both decrees 
 ought to be prosecuted in the same branch of the 
 Court. Where a iirst suit is stayed by reason of 
 a decree in a second suit, the plaintiff in the first 
 suit will ordinarily have the conduct of the decree. 
 Zambaco v. Cassavetti, Law Eep. 11 Eq. 439. 
 
 (M) Contempt. 
 
 50. — A plaintiff on whom a defendant, in con- 
 tempt for not answering in time, leaves an office 
 copy of his answer, but without any tender of 
 costs, must be taken to have waived such tender 
 if he silently retains the answer. Roberts v. The 
 Albert Bridge Company, 42 Law J. Eep. (n.s.) 
 Chanc. 767 ; Law Eep. 8 Chanc. 753. 
 
 51. — Although a piiblication by a newspaper 
 proprietor in his paper of comments on a suit, 
 before it comes to a hearing, is clearly a contempt 
 of Court, yet where such comments are not 
 malevolent or libellous, and the party coming to 
 complain of them himself furnished the materials 
 upon which they are founded, he will not be per- 
 mitted, especially ■ after a public apology in the 
 offending newspaper, to take advantage of the 
 technical contempt, and will not have his costs of 
 proceedings instituted by him for a committal for 
 the contempt. Venuiii v. Vernon, 40 Law J. Eep. 
 (n.s.) Chanc. 118. 
 
 Order for payment of money : committal 
 for contempt. [See Debtoes Act, 
 2,3.] 
 
 (N) Damaoes. 
 [See Injunction, 37-40]. 
 
 (0) Demubber. 
 
 62. — When an order is made for the transfer 
 of a cause during the time for setting down a de- 
 murrer and the order is not drawn up until the 
 time has expired, the Court will allow the de- 
 murrer to be set down within four days after the 
 order is drawn up. Woodbridge v. Hoare, 41 Law 
 J. Eep. (n.s.) Chanc. 563. 
 3M 
 
450 
 
 PEACTICE IN EQUITY (P), (E). 
 
 (P) Deposition. 
 
 53. — Semble — the Court -will not take the de- 
 position of a witness off the file for irregularity in 
 taking it. Be Britto t. Hillel, 42 Law J. Eep. 
 (n.s.) Chane. 307; Law Eep. 15 Eq. 213. 
 
 Notice was given by the party that had ob- 
 tained a commission to examine witnesses at 
 Lisbon that their agent was proceeding there, and 
 notice of the time and place of examination could 
 be obtained of him at the Hotel D. at Lisbon. 
 The Court refused to take the deposition of a 
 witness examined at Lisbon off the file. Ibid. 
 
 The Court has power to dispense with notice 
 under rule 22 of the Orders of the 5th of 
 February, 1861, ex yosi/acio. Ibid. 
 
 (Q) DisinssAi,. 
 (a) For want of prosecution. 
 
 54. — A plaintiff, on being served with a notice 
 of motion to dismiss for want of prosecution to 
 which he was open, at once proceeded with the 
 suit, and tendered to the defendants twenty shil- 
 lings for their costs of the motion. The defendants 
 had, however, already delivered their counsel's 
 briefs, and incurred costs to a greater extent than 
 the tender : — Held, that the plaintiff was liable 
 to pay the defendants their costs actually incurred. 
 Wakefield v. Cruikshank, 41 Law J. Eep. (n.s.) 
 Chanc. 277. 
 
 55. — Upon a motion to dismiss a biU for want 
 of prosecution, on the plaintiff's undertaking to 
 speed the cause, the usual order was made, where- 
 by the plaintiff was to file replication within four- 
 teen days or the bill was to stand dismissed. The 
 plaintiff, who was desirous to amend his biU, and 
 had alrea.dy prepared the amendments, omitted to 
 state that fact to the Court, and being under a 
 mistake as to the form in which the order had 
 been drawn failed to file replication within the 
 fourteen days, but filed one within the time within 
 which he might have amended. The plaintiff 
 moved to have the bill restored, but the motion 
 was refused with costs. Bwhinshaw v. Wilson, 40 
 Law J. Eep. (N.s.)Chanc. 612; Law Eep. 12Eq. 103. 
 
 56. — The making of an order to dismiss a bill 
 for want of prosecution is a matter within the 
 discretion of a Judge to whose Court the cause is 
 attached, and his refusal to make such an order 
 ought not to be made the subject of an appeal. 
 Sheffield v. Sheffield, 44 Law J. Eep. (n.s.) Chanc. 
 304 ; Law Eep. 10 Chanc. 206. 
 
 (6) Charges of fraud not proved. 
 
 57, — Where a bill to set aside a deed contains 
 charges of fraud which are not proved, the bill, 
 though dismissed as to those charges, need not be 
 altogether dismissed if there are other charges 
 which would be a ground for relief. When notice 
 of intention to give in evidence the probate of a 
 will must be given under 20 & 21 Vict. c. 79, 
 B. 68. Hilliard v. Eiffe, Law Eep. 7 E. & I. App. 
 39. 
 
 (E) Enrolment. 
 
 58.— A plaintiff, after having allowed all but a 
 
 few weeks of five years from the date of a decree 
 dismissing his bill to elapse, obtained an order to 
 enrol the decree. He was unable to complete the 
 em'olment within the five years by reason of the 
 necessity of reviving the suit in consequence of 
 the death of a defendant of which he had not 
 known when he obtained the order for enrolment. 
 He then applied for liberty to enrol the decree 
 notwithstanding the expiration of the five years. 
 The application was refused. Patch v. Ward, 43 
 Law J. Eep. (n.s.) Chanc. 486; Law Eep. 7 Chanc. 
 269. 
 
 59. — Under the rule that an order is not to be 
 enrolled after six months without special leave the 
 Court has a discretion whether enrolment should 
 be allowed, and where after an order as to the 
 mode in which a case was to be tried an official 
 liquidator had allowed much expense to be in- 
 curred under the order the discretion was exer- 
 cised against him. In re Charles Laffitte ^ Com- 
 pany, Law Eep. 10 Chanc. 316. 
 
 60. — The plaintiff was a day too late in pro- 
 ceeding on a caveat against the enrolment of an 
 adverse decree in consequence of a petition of 
 appeal presented by him on the last day not being 
 then answered, owing to the absence from office of 
 the Lord Chancellor's principal secretary, and the 
 defendant enrolled the decree. On the plaintiff's 
 application the enrolment was vacated, but he 
 was required to pay all the costs. Blackman v. 
 Cornish, 42 Law J. Eep. (n.s.) Chanc. 576. 
 
 The twenty-eight days, within which by Con- 
 solidated Order xxiii., rule 27, the party who has 
 entered a caveat mxist proceed after a docket for 
 enrolment has been left, is not to be extended, 
 because, according to the practice of the office, he 
 only receives notice of the docket being left next 
 day. Ibid. 
 
 61. — A fund was held in trust for a class of 
 persons. B., who claimed to be a member of the 
 class, obtained a decree against the trustees for 
 the distribution of the fund. In this decree was 
 inserted a declaration to the effect that B. was 
 entitled to participate in the fund, and enquiries 
 were directed as to what other persons were en- 
 titled. A., who was not a party to the suit, put 
 in a claim to be a member of the class, and there- 
 fore entitled to participate in the fund ; he also 
 claimed the whole of the fund in case no other 
 person should establish his membership of the 
 class. Being desirous of disputing the title of the 
 plaintiff, he presented a petition of rehearing, in 
 order to strike out of the decree the declaration 
 as to the plaintiff's title. This petition could not 
 be heard in consequence of the decree having been 
 enrolled. He therefore moved to vacate the en- 
 rolment: — Held, under such circumstances, that 
 he was entitled to have the enrolment vacated, 
 the costs of the application being ordered to be 
 dealt with by the Judge on the rehearing. Bruff 
 V. Cobbold; Ex parte Ayres, 41 Law J. Eep. (n.s.) 
 Chanc. 402 ; Law Eep. 7 Chane. 217. 
 
 62. — Sharp practice is no ground for vacating 
 the enrolment of an order. OUerenshaw v. Harrop, 
 43 Law J. Eep. (n.s.) Chanc. 684 ; Law Eep. 9 
 Chanc. 480. 
 
PRACTICE IN EQUITY (E), (V). 
 
 4,jl 
 
 A petition wbieli lias been dismissed upon the 
 merits in the Court below will not be reheard in 
 the Appeal Court -when the order dismissing it has 
 been enrolled. Ibid. 
 
 IhrolmeHi of order after irregular notice of 
 appeal. [See supra No. 29.] 
 
 (S) Evidence. 
 (a) Notice to read. 
 
 63. — "When notice of intention to give in evi- 
 dence the probate of a will must be given under 
 20 & 21 Vict. c. 79, s. 68, considered. Hilliard v. 
 Eiffe, La-w Eep. 7 E. & I. App. 39. 
 
 64. — Where on an appeal notice is given to a 
 party of the intention of his adversary to read a 
 mass of affidavits to the admission of ■which such 
 parly objects, he -will not, if the Court allows the 
 objection, be entitled to the cost of taking copies. 
 His proper course is to wait until the Court has 
 considered the question of admissibility. In re the 
 Brampton and Longtovm Bailway Company, 
 Shaw's Claim, Law Eep. 10 Chanc. 186. 
 
 (6) Viv& voce at hearing. 
 
 65. — A party will not be allowed to prove vivA 
 voce, at the hearing of a cause, documents affecting 
 a material issue, of which no notice has been pre- 
 viously given to his opponent. The common 
 order to prove documents vivd, voce at the hearing 
 applies only to making good a merely technical 
 defect or to curing an accidental slip. Wilson v. 
 Thornbury, 44 Law J. Eep. (n.s.) Chanc. 242 ; 
 Law Eep. 10 Chanc. 239. 
 
 66. — The making of an order, under rule 3 of 
 the General Order of the 5th of February, 1861, 
 to take evidence vivd, voce at the hearing of a 
 cause, is a matter within the discretion of the 
 Judge who has the conduct of the cause, and his 
 decision upon an application to have the evidence 
 so taken cannot be appealed from. Ohlsen v. 
 Terrero, 44 Law J. Eep. (n.s.) Chanc. 155; Law 
 Eep. 10 Chanc. 127. 
 
 Semble — an examiner has a discretion to allow a 
 witness to be treated by the person who calls him 
 as a hostile witness. Ibid. 
 
 (c) Cross-cause. 
 
 67. — The defendants to an original cause, in 
 which replication had been filed, having instituted 
 another suit which was in fact held to be a cross 
 cause, filed only a small amount of evidence in the 
 original cause ; but two days before the evidence 
 was closed in that cause, they filed a large bulk of 
 evidence in the cross-cause, and on the day of 
 publication in the original cause gave notice of 
 motion for a decree in the cross-cause. They then 
 obtained an order to use in the original cause all 
 the evidence filed in the cross-cause. Both par- 
 ties gave notice to cross-examine the other wit- 
 nesses, and the plaintiflFs in the cross-cause filed 
 affidavits in reply in that cause. A motion by the 
 plaintiff in the original cause, to have the last- 
 mentioned affidavits suppressed, or to obtain 
 leave to file further affidavits in reply to them, on 
 the ground that they were in reply to his evidence 
 
 in the original cause, was refased, but the Court 
 ordered the witnesses in both causes to be cross- 
 examined in Court, at the hearing. Hargreavcs v. 
 Hall; Hall v. Hwrqreaves, 40 Law J. Rep. (n.s.) 
 Chanc. 265; Law Eep. 11 Eq. 415. 
 
 {d) Burden of proof. 
 
 Evidence on summons to vary chief clerk's 
 certificate. [See supra Nos. 43, 44.] 
 
 («) Oral examination on oath. 
 
 68. — A decision having been partly founded on 
 answers given by one of the parties in Court to 
 questions from the Judge, it was ordered that the 
 evidence should be mentioned in the decree. 
 Bousguet v. Bent, 42 Law J. Eep. (n.s.) Chanc. 
 575. 
 
 (T) Heabinq in private. 
 
 69. — Except where lunatics or wards of Court 
 are affected, causes will not be heard in private 
 unless with consent of both parties. Quaere — 
 whether it would not be otherwise if the whole 
 object of the suit would be defeated by a public 
 hearing. Andrew v. Baeburn, Law Eep. 9 Chanc. 
 522. 
 
 (U) Interest. 
 
 70. — Interest at il. per cent, was allowed on 
 money which had been paid on an order which 
 was reversed on appeal. The Merchant Banking 
 Company of London v. Maud, 43 Law J. Eep. (n.s.) 
 Chanc. 861 ; Law Eep. 18 Eq. 659. 
 
 (V) Intbsbosatoeibs. 
 
 Amendment of Interrogatories. [See supra 
 No. 16.] 
 
 71. — The plaintiff being shortly about to go to 
 India, effected with the defendant company a 
 policy of assurance which contained conditions for 
 the payment of extra premiums if the assured 
 went beyond European limits, and for the policy 
 being reinstated within six months after the ex- 
 piration of the days of grace, upon payment of the 
 premium, with a fine. A special premium was 
 required from the plaintiff, but, as the defendants 
 alleged, on account of his bad health, and not as 
 the extra rate for residence in India. The plain- 
 tiff went to India and paid the premiums regu- 
 larly for some years, but upon default having been 
 then made in payment of one of the premiums 
 within the days of grace, the defendants refused 
 to reinstate the policy, except on the terms of the 
 plaintiff paying the extra Indian rate for the whole 
 period from the date when he went to India. The 
 plaintiff filed his bill to enforce his claim to have 
 a policy granted him at the rate of premium 
 originally charged, with liberty to reside in India; 
 and he interrogated the defendants as to their 
 habit in similar cases, and called upon them to 
 state, as examples of their practice, the particu- 
 lars of the ten insurances effected by them on 
 lives of persons about to start for India imme- 
 diately preceding, and of the ten of such insur- 
 ances immediately subsequent to the plaintiff's 
 3m2 
 
452 
 
 PRACTICE In equity (V), (BB). 
 
 insurance. The defendants haying declined to answer 
 this interrogatory : — Held, on exception, that the 
 plaintiff was entitled to this discovery as evidence of 
 the defendants' conduct, Girdlestone v. The North 
 British Mercantile Insurance Company, 40 Law J. 
 Eep. (n.s.) Chanc. 230 ; Law Eep. 11 Eq. 197. 
 
 72. -tA bill was filed by a company to make 
 the defendants (a solicitor and a mining agent) 
 account for a secret profit made on the sale to the 
 company of a colliery which ■ the defendants were 
 alleged to have purchased on their own account in 
 the name of the ostensible vendor, and resold to 
 the company at an advanced price while they were 
 engaged in getting up the company, and acting in 
 a fiduciary relation towards it. The defendants 
 were interrogated as to the cheques drawn on a 
 banking account opened for the purposes of the 
 purchase : — Held, that the required discovery was 
 immaterial to the real question in the suit 
 (whether an agency had existed at the time of 
 the purchase), and that the Court woxild not com- 
 pel the defendants to answer the interrogatory. 
 The Great Western Colliery Company v. Tucker, 
 43 Law J. Eep. (n.s.) Chanc. 518; Law Eep. 9 
 Chanc. 376. 
 
 73. — A defendant cannot compel a plaintiff to 
 answer an interrogatory, which in effect asks him 
 what evidence he has in favour of his case. Each 
 party may obtain discovery of all matters relating 
 to his own case, and is entitled to know what the 
 opponent's case is, but not what is his evidence of 
 it. The Commissioners of Sewers of the City of 
 London v. Glasse ; Epping Forest case (No. 2), 42 
 Law J. Eep. (n.s.) Chanc. 345 ; Law Eep. 15 Eq. 
 302. 
 
 Bin on behalf of the occupiers of land within a 
 forest, whether residing within or without a cer- 
 tain manor, to establish rights of common over 
 waste lands within that manor. Interrogatory by 
 the defendant asking for instances in which rights 
 of common over lands within the manor had been 
 exercised by persons residing without it. Answer, 
 declining to set out instances. Exception over- 
 ruled, with costs. Ibid. 
 
 [And see PtEAJDiNO in Equity, 12-15.] 
 
 (W) Investment. 
 
 74. — An order was made for the payment of 
 1,200^. (proceeds of a sale under the Settled 
 Estates Act) into Court, and for re-investment 
 thereof in land, and for interim investment in 
 Consols : — Held, that the Accountant General was 
 not bound to invest the money in Consols without 
 a written request of the solicitor who paid it in. 
 In re WoodcocKs Settled Estates, 41 Law J. Eep. 
 (n.s.) Chanc. 22; Law Eep. 13 Eq. 183. 
 
 " Cash under the control of the Cotirt." 
 [See Settled Estates Act, 13-15, 
 17.] 
 
 (X) Issue. 
 
 75. — In a suit charging a defendant with fraud 
 in the purchase of land, issues are not bad because 
 they throw the burden of proving the affirmative, 
 and shewing that the sale was bond fide, on the 
 
 defendant. The Court of Equity havea wide dis- 
 cretion in reviewing the decisions of juries, with 
 which the Court of Appeal will be slow to inter- 
 fere. The delay which will constitute a defence 
 to a suit for relief founded on fraud must be delay 
 commencing after the party had knowledge of the 
 circumstances concerning the fraud. Browne v. 
 McClintooJc, Law Eep. 6 E. & I. App. 456. 
 
 76. — Suit to set aside certain sales on the 
 ground of collusion to procure a sale at an under- 
 value, alleging that, although the purchases were 
 ostensibly made by XJ., B. was the real purchaser. 
 Issues having been directed, it was found that as 
 to one of the sales U. was tlie real purchaser. On 
 further directions the Viee-Chancellor reviewed 
 the evidence, and came to the conclusion that 
 though this purchase had been really made by TJ., 
 there was a secret understanding that B. should 
 have the benefit of it, and he made an order de- 
 claring the purchase void : — Held, that this order 
 could not be sustained, as it proceeded on a ground 
 not raised by the pleadings. Browne v. McClin- 
 took, Law Eep. 6 E. & I. App. 434. 
 
 Appeal from order directing issue. [See 
 supra No. 25.] 
 
 In patent swit. [See Patent, 37, 38.] 
 
 (Y) Lis pendens. 
 [See that title.] 
 
 (Z) Long Vacation. 
 
 77. — An application for payment out of a Par- 
 liamentary deposit not previously payable is long 
 vacation business. In re the Wigan Junction 
 Railway Act, 44 Law J. Eep. (n.s.) Chanc. 774 ; 
 Law Eep. 10 Chanc. 541. 
 
 78. — Wiere a person, entitled to a vested 
 interest in trust funds in Court, to be paid at 
 twenty-one, would attain that age in the long 
 vacation, a prospective order was made for the 
 payment out of tlie fund to her at such date. In re 
 Pern's Trust Estate, 42 Law J. Eep. (n.s.) Chanc. 
 880. 
 
 (AA) Motion. 
 
 79. — ^When the Court orders a motion to stand 
 till the hearing of the cause, it in effect reserves 
 to itself the right of dealing differently with the 
 costs of the motion, and those of the cause. Singer 
 V. Aiidsley, 41 Law J. Eep. (n.s.) Chanc. 229 ; 
 Law Eep. 13 Eq. 401. 
 
 Costs of motion. [See Costs in Equity, 
 38, 39.] 
 
 (BB) Nb exeat Eegno. 
 
 80. — Where a sum admitted to be due is 
 ordered to be paid on or before a certain day, a 
 writ ne exeat regno may be issued against the 
 debtor before the day has arrived ; the order 
 amounting to an immediate judgment, though pay- 
 ment is deferred. Sohey v. Sohey, 42 Law J. Eep. 
 (n.s.) Chanc. 271 ; Law Eep. l."; Eq. 200. 
 
 In a suit for an account the writ ne exeat regn^ 
 can be obtained against a co-defendant. Ibid. 
 
PRACTICE TN EaUITY (CC), (HH). 
 
 453 
 
 (CC) Next Fkiend. 
 
 81. — A bill was filed in the name of an infant 
 having a very small interest: — Held, that the 
 Court could not loot into the motives of the next 
 friend. Dance v. Goldingham, 42 Law J. Rep. 
 (n.s.) Chanc. 777 ; Law Rep. 8 Ohano. 902. 
 
 Such a suit can be maintained by one cestui que 
 trust without making the others parties. Ibid. 
 
 82. — On the death of the next friend of an infant 
 plaintiff whose father and mother were dead, 
 the infant's paternal uncle, by his solicitors (who 
 were not the solicitors of the plaintiff on the 
 record), obtained an order of course appointing 
 them solicitors of the plaintiff in the suit, and 
 another appointing the uncle next friend. On 
 motion by the former solicitors of the plaintiff to 
 discharge these orders, — Held, that they were 
 properly obtained, and motion dismissed with 
 costs. Talbot v. Talbot, 43 Law J. Rep. (n.s.) 
 Chanc. 352 ; Law Rep. 17 Eq. 347. 
 
 83. — A suit instituted by a next friend on be- 
 half of a person of unsound mind, not so found by 
 inquisition, becomes absolutely paralysed by a 
 change in the status of the plaintiflK If he be- 
 comes of sound mind there is no pretext for the 
 continued intervention of the next friend ; if he 
 is found a lunatic by inquisition, and is thus placed 
 under the protection of the Crown, the suit should 
 be continued only with the sanction of the Court 
 in Lunacy. Beall v. Smith, 43 Law J. Rep. (n.s.) 
 Chanc. 245 ; Law Rep. 9 Chanc. 85. 
 
 Every proceeding taken in the suit after the in- 
 quisition, whether or not a committee has been 
 appointed, is irregular and void and a contempt of 
 the Court in Lunacy. A suit on behalf of a trader 
 who had become deranged, for an accoimt against 
 his agent and manager, and the appointment of a 
 receiver of his stock-in-trade, &c., was instituted 
 by solicitors who had occasionally acted for the 
 plaintiff, but were not his ordinary family solici- 
 tors. A receiver was appointed in the suit with 
 the concurrence of the family solicitor, who con- 
 sented upon the understanding that no further 
 steps should be taken without notice to him. The 
 suit was proceeded with without such notice. A 
 decree directing accounts and enquiries was ob- 
 tained, the accounts were taken, the chief clerk 
 made his certificate, and an order on further con- 
 sideration was obtained directing taxation and 
 payment of the costs of suit, which were paid out 
 of the plaintiff^s estate. Meanwhile, previously 
 to the last-mentioned order, the plaintiff was found 
 a lunatic by inquisition, but no committee was ap- 
 pointed until after the said order. The committee 
 with the sanction of the M^ter in Lunacy presented 
 a petition for the pm-pose of setting aside as in- 
 valid the proceedings in the suit subsequent to the 
 finding in lunacy: — Held, that all proceedings after 
 the appointment of the receiver were unauthorized 
 and improper, and all after the finding on the in- 
 quisition were irregular and void, and that the 
 solicitors of the next friend were liable to refund 
 the costs so paid out of the lunatic's estate under 
 the orders so irregularly obtained and to pay the 
 costs of the petition. Ibid. 
 
 (DD) New Teial. 
 
 84. — ihe Courts of Equity have a wide juris- 
 diction in reviewing the decisions of juries with 
 which the Court of Appeal will be slow to inter- 
 fere. Ilrowne v. McOlintock, Law Rep. 6 E. & I. 
 App. 456. 
 
 (EE) Orders and Dechbes. 
 (a) Service : ejfect of, S[C. 
 [See infra Nos. 122-129.] 
 
 85. — A testator invested certain moneys in the 
 name of his sister, and made a will giving her an 
 annuity and appointing the plaintiffs his residuary 
 legatees. The plaintiffs then obtained the ordi- 
 nary administratito decree against the executors, 
 served it on the testator's sister, and moved for an 
 injunction to restrain her from dealing with the 
 fund invested in her nauie by the testator which 
 she claimed as her own : — Held, that the question 
 between the testator's estate and his sister could 
 not be tried in this way, but required the institu- 
 tion of a distinct suit. Walker v. Seligmann, 40 
 Law J. Rep. (n.s.) Chanc. 601 ; Law Rep. 12 Eq. 
 152. 
 
 86. — An expectant heir not properly made a 
 party to a suit, who puts in an answer disputing 
 the plaintiff's title, and allows a decree to be 
 made against him, instead of getting himself dis- 
 missed from the suit, will be bound by the decree 
 so made. Collier v. Walters, 43 Law J, Rep. (n.s.) 
 Chanc. 216 ; Law Rep. 17 Eq. 252. 
 
 (J) Correction of error. 
 
 87. — An order which had been drawn up for 
 payment of a share of a fund to a married woman 
 described under her previous name and as discovert 
 corrected on her ex parte application. In re Bobin- 
 son's Trusts, 42 Law J. Rep. (n.s.) Chanfi. 354. 
 
 (c) Form of. 
 
 Entering evidence taken orally. [See supra 
 
 No. 68.] - 
 Form of order on payment in of miscellaneous 
 
 security. [See infra No. 88.] 
 
 (I'l;') Partition Suits. 
 [See Paetition.] 
 
 (GG) Parties. 
 [See that title.] 
 
 (HH) Payment and Transfhe. 
 («) Into Court. 
 
 88. — Form of order where miscellaneous secu- 
 rities are brought into Court under the Court of 
 Chancery (Funds) Act, 1872, ss. 3,6, 10. I'ovah 
 V. Walker, Law Rep. 15 Eq. 316. 
 
 89. — Stocks and shares to be paid into Court 
 under the Court of Chancery (Funds) Act, 1872, 
 should be transferred to " the account of the 
 Paymaster-General for the time being on behalf 
 
454 
 
 PEACTlCE IN EQUITY (HH), (II). 
 
 of the Court of Chancery." In re Stephens, Law 
 Eep. 8 Chanc. 466. 
 
 90. — In urgent oases, and especially in injunc- 
 tion suits, parties should now proceed under the 
 Chancery Funds Act and Rules, 1872, rule 12, and 
 thereby obviate all unnecessary delay in obtaining 
 their orders. Brand v. Blow, 43 Law J. Eep. 
 (n.s.) Chanc. 628. 
 
 91, — A curator bonis and factor loco tutoris of 
 Scotch infants, — Held, not bound to pay into 
 Court assets belonging to the infants, receivable 
 under an English will, of which the curator was 
 administrator, and which was in course of adminis- 
 tration by the Court. Mackie v. Barhng, Law 
 Eep. 12 Eq. 319. 
 
 92. — Where it appears by a defendant's affi- 
 davit, filed on an enquiry, that he has money in 
 his hands, he may be ordered to pay it in irfter 
 decree and before further consideration. Bmme 
 V. English, Law Rep. 18 Eq. 524. 
 
 Order against person not a party to suit. 
 
 [See SEftUESTBATION.] 
 
 (b) Out of Court. 
 (1) To tenant in tail. 
 
 93. — Fund in Court exceeding 400?. paid to 
 tenant in tail without a disentailing deed having 
 been executed. In re Bow's Estate, 43 Law J. 
 Eep. (n.s.) Chanc. 347 ; Law Rep. 17 Eq. 300. 
 
 94. — Per Malins, V.C., on payment out under the 
 Leases and Sales of Settled Estates Act to a tenant 
 in tail a disentailing deed is unnecessary. In re 
 Wood's Settled Estates, Law Rep. 20 Eq. 372. 
 
 [And see Lands Ci.AnsES Act, 39.] 
 
 (2) To married woman. 
 
 95. — Where a woman, aged forty-nine years 
 and nine months, had been married to her husband 
 twenty-six years without issue, the Court presumed 
 that she would never have a child by him. In re 
 Millner's Estate, 42 Law J. Rep. (n.s.) Chanc. 44 ; 
 Law Eep. 14 Eq. 246. 
 
 96. — Where a married woman entitled to a 
 fund in Court was resident abroad, the Court ac- 
 cepted as evidence of no settlement, the affidavit 
 of a solicitor, stating that be had been distinctly 
 informed by her and her husband that there was 
 no settlement, and also facts which rendered the 
 existence of any settlement improbable. Wood- 
 ward V. Pratt, 42 Law J. Rep. (n.s.) Chanc. 891 ; 
 Law Rep. 16 Eq. 127. 
 
 97. — Payment out to married woman resident 
 abroad under power of attorney. Allen v. Forbes, 
 40 Law J. Rep. (n.s.) Chanc. 530. 
 
 (3) In other cases. 
 
 98. — In the absence abroad of one of several 
 trustees the Court ordered a sum of money to be 
 paid to the other trustees without requiring the 
 absent trustes to join in giving the receipt by 
 power of attorney. Clark v. Fenwick, 42 Law J. 
 Eep. (n.s.) Chanc. 320. 
 
 99. — Purchase-money paid into Court by a rail- 
 way company for charity lands taken by them was 
 
 ordered to be paid out to the trustees of the charity 
 as persons absolutely entitled under section 78 of 
 the Lands Clauses Act. In re Spurstowe's Charity, 
 43 Law J. Rep. (n.s.) Chanc. 612 ; Law Rep. 18 
 Eq. 279. 
 
 100. — A., entitled for life to the dividends of 
 a fund in Court, charged them by way of mortgage 
 with the payment of an annuity to B. during the 
 life of A. In 1827 an order was made for pay- 
 ment to B. during the life of A. of a sufficient part 
 of the dividends to answer the annuity. The an- 
 nuitant died in 1873, in the lifetime of the grantor : 
 — Held, that the case was within Rule 22 of the 
 Chancery Funds Eules of 1872, and that the exe- 
 cutor of the annuitant was entitled to have the 
 payment continued to him without any fresh 
 order. Chapman v. Chapman, 43 Law J. Rep. 
 (n.s.) Chanc. 600 ; Law Eep. 17 Eq. 350. 
 
 101. — When it is required to transfer a fund in 
 Court from the credit of a cause or matter in the 
 Court of Chancery in England to the credit of a 
 cause or matter in the Court of Chancery in Ire- 
 land, the order should direct the fund to be trans- 
 ferred into the name of the Accountant-General 
 of the Court of Chancery in Ireland, to be by him 
 forthwith transferred, with his name as Account- 
 ant-General of the Court of Chancery in Ireland, 
 to the credit of the cause or matter in question. 
 Vaughan v. The Marquis of Headfort ; Cockhurn 
 V. The Marquis of Headfort, 42 Law J. Rep. (n.s.) 
 Chanc. 456; Law Eep. 15 Eq. 173. 
 
 [And see Lands Clauses Act ; Settled Estates 
 Act; Teustee, D.] 
 
 (II) Petitions. 
 
 102. — A testator bequeathed a legacy to Mrs. 
 C. " for her absolute use and benefit, except as 
 hereinafter limited," and directed the same with 
 other legacies to females, to be invested and the 
 interest therefrom to be for the legatees' separate 
 use ; and in case any of the legatees should become 
 banirupt, or assign the interest bequeathed to her, 
 the same was to fall into the testator's residuary es- 
 tate, " except in respect of Mrs. C, whose legacy 
 is to go to her children, according to her appoint- 
 ment, and in default, to them absolutely." By 
 Mrs. C.'s marriage settlement her husband had 
 covenanted to settle all after-acquired property of 
 his wife. Mrs. C. died without having become 
 bankrupt or assigned her interest in the legacy, 
 and having by will appointed the same to her 
 children equally. The Commissioners of Inland 
 Eevenue thereupon insisCfed that Mrs. C.'s share 
 did not go to her children directly under the will, 
 but that her husband must take out administration 
 to her estate, in order to obtain possession of it. 
 By consent the question was raised upon a petition 
 for the opinion of the Court under Lord St. Leo- 
 nards' Act (22 & 23 Vict. c. 35, s. 30) :— Held 
 (not without doubt), that by consent the question, 
 although between the Crown and the sxibject, 
 might be decided on this petition. Also, that under 
 the will the legacy upon Mrs. C.'s death went 
 directly to her children. In re Ware's Trusts, 41 
 Law J. Eep. (n.s.) Chanc. 121. 
 
PRACTICE IN EQUITY (II), NN), 
 
 455 
 
 Seheariiiff petition. [See supra Nos. 28, 29.] 
 Costs of petition. [See Costs in Equity, 
 
 29-37.] 
 Bevivor on death of petitioner. [See infra 
 
 No. 109.] 
 Amendment of petition. [See supra 
 
 No. 17.] 
 Service of petition. [See infra Nos. 123, 
 
 124.] 
 
 (KK) Pbo confesso. 
 [See supra Nos. 38-40.] 
 
 (LL) Production of Documents. 
 [See that title.] 
 
 (MM) Eeceiter. 
 [See that title.] 
 
 (NN) Eevivob and Supplement. 
 
 (a) Order of revivor. 
 
 (1) Beath of sole plaintiff. 
 
 103. — On death of sole plaintiff before decree, 
 leaving a defendant his executor the common order 
 to revire cannot he made. Bates v. Bates, 41 Law 
 J. Eep. (n.s.) Chane. 280 ; Law Eep. 13 Eq. 138. 
 
 104.— On the 14th of July, 1868, the plain- 
 tiff's bill was dismissed. On the 10th of July, 
 1871, the plaintiff presented a petition of appeal, 
 but he died before it was heard. In May, 1872, 
 his devisee and executor obtained an order of 
 course to revive the suit, but this order was dis- 
 charged by Wickens, V.C., as irregular. Applica- 
 tion was then made to the Court of Appeal by an 
 original motion. An order was made that the 
 cause and the petition of appeal which had be- 
 come abated by the death of the plaintiff should 
 stand revived at the suit of the devisee and exe- 
 cutor, and that he should be at liberty to carry on 
 and prosecute the cause'and the proceedings therein, 
 including the petition of appeal, and liberty was 
 given to amend the petition of appeal. Chadvnck 
 V. Chadwick, 42 Law J. Eep. (n.s.) Chane. 805 ; 
 Law Eep. 8 Chane. 926. 
 
 105. — The death of a sole plaintiff, after argu- 
 ment and before judgment, does not prevent the 
 delivery thereof, and it will be entered " nunc pro 
 tunc," as of the date when the arguments were 
 concluded. Tamer v. The London and South- 
 Western Railway Company and Bingwood. ^c., 
 BaiVmay Company, 43 Law J. Eep. (n.s.) Chane. 
 430 ; Law Eep. 17 Eq. 561. 
 
 106. — An administration suit by a trustee 
 against the residuary devisees and legatees, one of 
 whom was co-trustee, was allowed to be revived 
 by the common order upon the death of the plain- 
 tiff. Edmonson v. Sharp ; Bean v. Sharp, Law 
 Eep. 12 Eq. 198. 
 
 (2) Transfer of plaintiff's interest. 
 
 107. — Order of revivor on supplement upon 
 transfer of interest of co-plaintiff after decree in 
 foreclosure suit. Ingham v. Waskett, 40 Law J. 
 Eep. (n.s.) Chane, 339; Law Eep. 11 Eq. 283. 
 
 108. — When a decree has been-made in a fore- 
 closure suit, and the plaintiff has subsequently 
 transferred his interest, the transferee may obtain 
 an order of revivor under 15 & 16 Vict. c. 86, 
 s. 62, whether the transfer took place before or 
 after the chief clerk had made his certificate. 
 Bihhy v. Naylor, 43 Law J. Eep. (n.s.) Chane. 
 405; Law Eep. 17 Eq. 14. 
 
 (3) Beath of petitioner. 
 
 109. — On a petition under the Lands Clauses 
 Act to sanction an investment in laud, an order was 
 made approving the investment and directing a 
 reference as to title. Before the order was fully 
 worked out, the petitioner died. On the applica- 
 tion of his executors, it was ordered that the proceed- 
 ings should be revived for their benefit. In re Youl, 
 42 Law J. Eep. (n.s.) Chane. 900 ; Law Eep. ] 6 
 Eq. 106. 
 
 (4) Bevolution of defendant's interest on co-plaintiff. 
 
 110. — An order of revivor may be obtained on 
 application of a plaintiff against a co-plaintiff on 
 whom the interest of a defendant has devolved 
 after an order on further consideration. Battison 
 v. Hobson, 40 Law J. Eep. (n.s.) Chane. 378. 
 
 (5) Absence of personal representative. 
 
 111. — The plaintiff in an administration suit, 
 tenant for life of the estate, died after decree and 
 before further consideration. There being no legal 
 personal representative of the plaintiff constituted, 
 one defendant obtained an order to revive without 
 a representative of the deceased plaintiff, but with- 
 out prejudice to such representative, when consti- 
 tuted, intervening. Hayward v. Pile, 41 Law J. 
 Eep. (n.s.) Chane. 778 ; Law Eep. 7 Chane. 634. 
 
 (6) Befective suit . 
 
 leave to take proceedings 
 off file. 
 
 112. — When a suit has become defective, 
 and further proceedings have unwittingly been 
 taken in it, the Court will give leave to take such 
 further proceedings off the file, in order to save 
 the necessity of filing a supplemental bill. Cuth- 
 hert V. WharmMy, 41 Law J. Eep. (n.s.) Chano. 216 ; 
 Law Eep. 13 Eq. 202. 
 
 (7) Special circumstances. 
 
 113. — Order of revivor made under special cir- 
 cumstances. Scott V. Maxwell, 41 Law J. Eep. 
 (n.s.) Chane. 600. 
 
 (J) Bevivor for costs. 
 
 114. — The provision, abolishing the rule that 
 there shall be no revivor for costs, contained in 
 33 & 34 Vict. c. 28, s. 19, does not apply where 
 the abatement took place before the passing of 
 the Act. Boggeit v. 2'he Eastern Counties Railway 
 Company, 40 Law J. Eep. (n.s.) Chane. 262 ; Law 
 Eep. 6 Chane. 474. 
 
 A decree was made in 1842, in the usual form, 
 for specific performance of a purchase and for pay- 
 ment by the defendants of the purchase-money 
 and costs of the suit, certain enquiries and accounts 
 
456 
 
 PEACTICE IN EQUITY (NN), (QQ). 
 
 being directed. By arrangement the purchase- 
 money was paid and the conveyance completed, 
 the solicitors for the defendants undertaking to 
 pay the costs. In the year 1857 the suit became 
 abated by the deaths of the plaintiffs : — Held, that 
 no revivor could be had under the recent Act for 
 the purpose of obtaining payment of the costs. 
 Ibid. 
 
 The application was madeby the representative 
 of the plaintiff, who pre-deceased his co-plaintiff : 
 — Held, that he was not the proper person to make 
 the application. Ibid. 
 
 (e) Supplemental bill. 
 
 (1) Change of interest after decree. 
 
 115. — -After the decree was made in an adminis 
 tration suit the number of a class interested in 
 the residue of the estate of the testatrix was in- 
 creased by the birth of a child of one of the ten- 
 ants for life. Some proceedings were taken in the 
 suit after his birth : — Held, that the infant could 
 not be bound by the proceedings by means of the 
 common order to revive, but that a supplemental 
 bill must be filed. Askew v. Booth, 44 Law J. 
 Eep. (n.s.) Chanc. 200. 
 
 (2) Facts discovered since decree. 
 
 116. — A common administration decree having 
 been made, an infant interested in the estate some 
 years afterwards presented a petition by her next 
 friend for leave to file a supplemental bill, with 
 the object of charging' a trustee of the estate with 
 a breach of trust, which she alleged had been dis- 
 covered since the date of the decree. The Court 
 granted leave accordingly, without requiring an 
 affidavit by the next friend that the alleged breach 
 of trust could not with reasonable diligence have 
 been discovered at the date of the decree. In re 
 Hoghton's Estate ; Hoghton v. Fiddey, 43 Law J. 
 Eep. (n.s.) Chanc. 758 ; Law Eep_. 18 Eq. 673. 
 
 Semble — ^in such a case, the object being to ob- 
 tain an addition to a decree already made, the 
 proper mode of applying for leave is by petition. 
 Ibid. 
 
 (00) Sales and Pdbohases under Dieeotion 
 op the couet. 
 
 (a) Mode of conducting sate. 
 
 117. — The Court has jurisdiction to direct an 
 estate to be sold by auction by the Chief Clerk, 
 without the employment of an auctioneer. And, 
 semble — this jurisdiction will be exercised, if all 
 parties interested are before the Court, and concur 
 in desiring the sale so to be made. Pemberton v. 
 Barnes (So. 2), 41 Law J. Eep. (n.s.) Chanc. 209 ; 
 Law Eep. 13 Eq. 349. 
 
 118. — When the Court has made an order for 
 the sale of property by public auction, and the 
 sale has proved abortive, the parties cannot make 
 a valid contract for sale of the property under 
 the order by private tender without the per- 
 sonal sanction of the Jiidge who made the order ; 
 it is not sufficient for them to have obtained the 
 sanction of the chief clerk. Berry v. Gibbons, 42 
 
 Law J. Eep. (n.s.) Chano. 231 ; Law Eep. 15 Eq. 
 159. 
 
 119. — Although in sales directed by the Court, 
 it is usual to fix the reserved price at the amount 
 at which the estate has been valued, an exception 
 will be made where a mortgagee, who being also 
 a trustee, is incapable of bidding, is desirous of 
 having it fixed at an amount suiEcient to cover his 
 debt. Tennant v. Trmchard, 41 Law J. Eep. 
 (n.s.) Chanc. 779. 
 
 (A) Opening biddings. 
 
 120. — In order to justify opening the biddings 
 under the Sales of Land by Auction Act, 1867 (30 
 & 31 Vict. e. 48), after a sale by the Court there 
 must be fraud or conduct bordering on fraud, i.e., 
 there must be some impropriety of conduct, not 
 merely error of judgment, which shews that the 
 owners of the estate have not been fairly dealt 
 with. Delves v. Delves, Law Eep. 20 Eq. 77. 
 
 (e) Sale of infant's property. 
 [See Infant, 7, 8.] 
 
 (PP) Sequesteation. 
 [And see SEatrBSTKATioN.] 
 
 121. — Dividends already accrued on a fund in 
 Court to which a married woman was entitled for 
 life for her separate use without power of antici- 
 pation ordered to be paid to the sequestrators of 
 her property on their petition. Clay don v. Finch, 
 42 Law J. Eep. (n.s.) Chanc. 416; Law Eep. 15 
 Eq. 266. 
 
 122. — Sequestrators were held entitled to at- 
 tach a deposit on an appeal made by, and which 
 had been ordered to be returned to, the person 
 against whom the writ of sequestration had is- 
 sued. Conn v. Garland, Law Eep. 9 Chanc. 101. 
 
 (QQ,) Service. 
 (a) Of petition. 
 
 123. — Petition for the opinion of the Court as 
 to investments by English and Irish trustees of 
 the will of a testator whose domieil was Irish, 
 the domieil of the tenant for life being English, 
 No application having been made to the Irish 
 Court of Chancery, this Court exercised jurisdic- 
 tion and did not require the petition to be served 
 on any person. In re French's Trusts, Law Eep. 
 15 Eq. 68. 
 
 124. — The Court has power to order service of 
 a petition under the Trustees Eelief Act upon a 
 respondent out of the jurisdiction, in the same 
 manner as in the case of proceedings commenced 
 by bill. In re John Haney, 44 Law J. Eep. (n.s.) 
 Chanc. 272 ; Law Eep. 10 Chanc. 275. 
 
 (6) Of decrees. 
 
 As to service of decree on taking bill pro 
 confcsso. [See supra 38-40.] 
 
 (o) Out of jurisdiction, 
 
 125. — On an ex parte motion, founded on an 
 affidavit that the defendant was in Glasgow, leave 
 
PEACTICE IN EQUITY (QQ), (UU). 
 
 457 
 
 Tras given to serve a copy of the till and interro- 
 gatories on the defendant in Scotland, "or else- 
 where out of the jurisdiction." Service was 
 effected in Glasgow. On motion to set aside the 
 order for irregularity,— Held, that the order, 
 though irregular in form, would not be set aside, 
 but no costs were given to the respondent. The 
 Phospho-Cruaiw Company (lAm.) v. Chtild, 43 
 Law J. Eep. (n.s.) Chanc. 360 ; Law Eep. 17 Eq. 
 432. 
 
 A bill was filed by the P. Company, which had 
 its registered office in England, against G., who 
 was resident out of the jurisdiction, asking for a 
 declaration that G. was a trustee of certain shares 
 held by him in the company for the benefit of the 
 company, and for incidental relief: — Held, that 
 this Court was the proper forimi in which to try 
 the matter. Ibid. 
 
 126.— Upon a petition under the Trustees Re- 
 lief Act, the Court has jurisdiction to order service 
 on a respondent out of the jurisdiction, and also 
 substituted service. In re Bonelli's Electric Tele- 
 graph Company ; Cook's Claim, 43 Law J. Eep. 
 (n.s.) Chauc. 720; Law Eep. 18 Eq. 655. 
 
 {d) Substituted service. 
 [See last case.] 
 
 127. — Substituted service of a notice of motion 
 for an injunction and receiver allowed on three 
 out of five partners, the other two being out of 
 the jurisdiction. Leese v. Martin, Law Eep. 13 
 Eq. 77. 
 
 128. — Where, in a creditor's suit for adminis- 
 tration of the real and personal estate of an in- 
 testate, the heir-at-law had gone out of the 
 jurisdiction after the service of the bill, but with- 
 out having appeared, and it appeared that the 
 real estate had been sold by a mortgage, and an 
 appearance had been entered for the heir-at-law : — 
 Held, that substituted ser^dce of the notice of 
 motion for decree upon the administratrix for the 
 heir was sufficient. Deanes v. Kitchin, Law Eep. 
 13 Eq. 461. 
 
 129. — Where the medical officer of an asylum 
 refused to allow service of a bill on a lunatic who 
 was not so found by inquisition the Court allowed 
 substituted service on the medical officer. Baine 
 V. Wilson, 43 Law J. Eep. (n.s.) Chanc. 469 ; 
 Law Eep. 16 Eq. 576. 
 
 (EE) Shobt Catjse. 
 
 130. — The certificate of the plaintiff's counsel 
 is primd facie groimd for setting down a cause as 
 short If a defendant desires it to go into the 
 general paper, he must shew some fair reason : if 
 he do not, it will be heard short. Fclstead v. 6rray, 
 Law Eep. 18 Eq. 92. 
 
 131. — Where a cause for the administration of 
 the real and personal estate of a testator has been 
 instituted by one creditor, and a summons for the 
 administration of the personal estate only has 
 been taken out by another creditor, which is re- 
 turnable before the cause can be heard as a short 
 cause, the Court will, with the consent of all 
 parties to the cause, make an immediate adminis- 
 DiOEST, 1870—1875. 
 
 tration decree on motion, without requiring the 
 cause to be in the paper, and heard as a short 
 cause. Scaffold v. Hampton, 43 Law J. Eep. 
 (n.s.) Chanc. 137. 
 
 Semble — the rvile is the same, even if the sum- 
 mons is for the administration of the real as well 
 as the personal estate. Ibid. 
 
 (SS) Speciai, Case. 
 
 132. — Where, after a special case has been set 
 down for hearing a female party to it marries, the 
 order setting down the case for hearing should be 
 discharged, the case should be amended by making 
 the husband a party, and a new order for setting 
 it Sown should be obtained. Atty v. Etough, 41 
 Law .1. Eep. (n.s.) Chanc. 782; Law Eep. 13 Eq. 
 462. 
 
 133. — When, after a special ease has been set 
 down for hearing, a child is born who is a neces- 
 sary party to the case, the order for setting down 
 the original case should be discharged, and the 
 child brought before the Court by amendment of 
 the special case. Savage v. Sfiell, 40 Law J. Eep. 
 (n.s.) Chanc. 216 ; Law Eep. 11 Eq. 264. 
 
 134.— The provisions of Statute, 15 & 16 Vict. 
 c. 86, s. 61, extend to a special ease. Palmer v. 
 Flower, 41 Law J. Eep. (n.s.) Chanc 193 ; Law 
 Eep. 13 Eq. 260. 
 
 135. — On special case under 22 & 23 
 Vict. c. 35 and 23 & 24 Vict. c. 38 the 
 Court declined to give power to trustees to 
 grant leases of real estate for a term not exceed- 
 ing ten years. Naylor v. Arnitt (1 Russ. & M. 
 501) disapproved of. In re Shaw's Trusts, Law 
 Eep. 12 Eq. 124. 
 
 136. — Special case amended by leave at the 
 hearing by adding a party in existence before the 
 case was filed, but accidentally omitted, and or- 
 dered to be set down as amended against the 
 added defendant. Bamaby v. Tassell, Law Eep. 
 11 Eq. 363. 
 
 (TT) Special Examinee. 
 
 137. — A person summoned under section 115 
 of the Companies Act, 1862, is not entitled to be 
 heard on the appointment of the special examiner 
 before whom he is to be examined. In re The 
 Contract Corporatimi ; Hakim's case, 41 Law J. 
 Eep. (n.s.) Chanc. 225 ; Law Eep. 13 Eq. 27. 
 
 (UU) Stating Peoceedinqs. 
 (a) Fending appeal. 
 
 138. — Where a decree has been made for the 
 payment of money, it is the general rule to stay 
 proceedings pending an appeal, when the party 
 against whom the decree is made pays the money 
 into Court, and the appeal is not frivolous. 
 Touche V. The Metropolitan Railway Warehousing 
 Company, 40 Law J. Eep. (n.s.) Chanc. 496. 
 
 A decree was made for payment to two plain- 
 tiffs of the sum of 2,000Z. One of the plaintiffs 
 was abroad. The defendants appealed from the 
 decree, and stated that a Queen's counsel had ad- 
 vised that the appeal would succeed : — Held, that 
 it was a matter of course to stay proceedings upon 
 3N 
 
458 
 
 PRACTICE IN EQUITY (UCJ)— PRESUMPTION (A). 
 
 the defendants paying the money into Court. 
 Ibid. 
 
 (i) In other cases. 
 
 130. — On a bill for an account under a French 
 contract of moneys in the hands of foreign mer- 
 chants in London, and to restrain them from 
 handing over such moneys to one of the parties to 
 the contract, the Court refused to stay proceedings 
 pending litigation in France as to the construc- 
 tion of the contract, there being portions of the 
 relief sought as to which the defendants were 
 boiiud to answer, and the motion being in the 
 nature of a demurrer. Wilson v. Ferrand, Law 
 Rep. 13 Eq. 362. 
 
 140. — ^Wheuthe plaintiff is in contempt for non- 
 payment of costs of an interlocutory application, 
 and the defendant has obtained an order staying 
 farther proceedings on the plaintiff's part until 
 such costs are paid, a motion by the defendant, 
 asking the Court to fix a time for payment of the 
 costs, and in default to dismiss the bill, is irre- 
 gular. Gould. V. Twine, 43 Law .T. Rep. (n.s.) 
 Chanc. 381. 
 
 141. — Proceedings in a suit by a foreign go- 
 vernment were stayed until the means of dis- 
 covery were secured in a cross-suit. Dicta of 
 Lord Chelmsford and Lord Cairns in The United 
 States of America v. Wagner (36 Law J. Rep. 
 (n.s.) Chanc. 624; Law Rep. 2 Chanc. 682) 
 followed. The Eepublic of Peru v. Weguelin ; 
 Weguelin v. The Bepitblic of Peru, 44 Law J. Rep. 
 (n.s.) Chanc. 583 ; Law Rep. 20 Eq. 141. 
 
 (VV) Stop Oedee. 
 
 Stop order: costs of. [See Costs in 
 Equity, 30.] 
 
 (WW) SUBJllOT-MATTEE. 
 
 Suit for suhject-matter less than sixty 
 shillings : " special circumstances " 
 within CoTis. Ord. ix. 1. [See Marote 
 Insurance, 50.] 
 
 Smallness of interest. [See supra No. 81.] 
 
 (XX) Suit in Forma Pauperis. 
 
 142. — A person who has valuable property 
 which he is restrained by injunction from selling 
 or removing, will not be permitted to sue inforrnk 
 •pauperis. Eidgway v. Edwards, Law Rep. 9 
 Chanc. 143. 
 
 (YY) Teansfeb of Cause. 
 
 [See supra Concueeent Suits, Nos. 45-49.] 
 
 (ZZ) Witness. 
 
 143. — A party attending proceedings in cham- 
 bers under an administration decree, is entitled 
 to cross-examine before one of the examiners of 
 the Court, as to matters in question connected with 
 the accounts, a defendant executor, whose ac- 
 counts are being settled by the chief clerk. But 
 notice of such cross-examination should be given 
 before the chief clerk's decision has been stated, 
 and the cross-examination should be strictly con- 
 fined to the particular matter in dispute. Glover 
 V. Ellison, 41 Law J. Rep. (n.s.) Chanc. 288. 
 
 144.— The party called upon to produce his 
 witness for cross-examination by the opposite 
 party in the cause must, in the first instance, pay 
 the expenses of the witness's production. Siehards 
 V. Goddard, 43 Law J. Rep. (n.s.) Chanc. 144 ; 
 Law Rep. 17 Eq. 238. 
 
 145. — A defendant who is summoned to 
 cross-examined on an account he has filed, is en 
 titled to notice of the items objected to. M' Arthur 
 V. Dudgeon, 42 Law J. Rep. (n.s.) Chanc. 263 
 Law Rep. 15 Eq. 102. 
 
 Cross-examination on affidavit. [See supra 
 Nos. 9-13.] 
 
 PRE-EMPTION. 
 
 An Act of Parliament gave a company power to 
 buy lands for the purpose of its undertaking, and 
 to re-seU any lands which it might purchase but 
 not make use of, and directed it before selling any 
 land, to offer the same to the person or persons of 
 whom it was purchased, but it fixed no limit of 
 time within which the sale of surplus land was to 
 be made : — Held, that the right of pre-emption 
 thus given was merely personal to an individual 
 from whom land was purchased, and was extin- 
 guished on his death. The Highgate Archway 
 Company v. Jeakes, 40 Law J. Rep. (n.s.) Chanc. 
 408; Law Rep. 12 Eq. 9. 
 
 PRESCRIPTION. 
 
 The Prescription Act (2 & 3 WiU. 4. c. 71) has 
 not taken away any of the modes of claiming 
 easements which existed before the statute. 
 Aynsley v. Glover, 44 Law J. Rep. (n.s.) Chanc. 
 523 ; Law Rep. 10 Chanc. 283. 
 
 Repair offences. [See Negligence, 12.] 
 Light and air. [See Light and Air, 1, 2, 
 
 4 ; Easement, 5, 6.] 
 Bight of common. [See Common, 2.] 
 Watercourse. [See that title.] 
 
 PRESUMPTION. 
 
 (A) Of Death. 
 
 (B) Of Marriage. 
 
 (C) Age of Child-bearlng. 
 
 (D) Op Ownership of Highway. 
 
 (A) Of Death. 
 
 1. — The death of a legatee is presumed after he 
 has not been heard of for seven years, and there isno 
 presumption of law that he lived beyond the first 
 day of the seven years ; but the onus of proving 
 that he survived a given day, lies on those who 
 claim under him. And the fact that the person 
 who takes in case of lapse, whether as next-of-kin 
 or as residuary legatee, is the one to commence 
 
PRESUMPTION (A)— PRINCIPAL AND AGENT (B). 
 
 4«9 
 
 proceedings to obtain payment of the money to 
 himself, does not shift the onus of proof. In re 
 Lewes' Trusts, 40 Law J. Rep. (n.s.) Chano. 602 ; 
 Law Rep. 6 Chane. 366. 
 
 2. — Where a person in needy circumstances, 
 who was accustomed to receive certain small 
 quarterly sums, disappeared on a tour after re- 
 ceiving payment in March, 1866, never demanded 
 payment in June, 1866, and was, in fact, never 
 heard of after she disappeared, — Held, as between 
 those in remainder and the mortgagees of her life 
 interest, that she must be presumed to have died 
 shortly after June, 1866. Hiohman v. Vpsall, 
 Law Rep. 20 Eq. 136. 
 
 (B) Of Mabeiage. 
 [See LEsrriMAOT Dbci.a.bation Act, 1.] 
 
 (C) Age of Child-beahing. 
 
 3. — ^Money ordered to be paid out of Court on 
 the presumption that a woman aged forty-nine 
 years and nine months, who had been long main;ied 
 to a husband still living, and had never had any 
 children, would not have any children by him. 
 In re Mihier's Estate, 42 Law J. Rep. (n.s.) Chanc. 
 44 ; Law Rep. 14 Eq. 245. 
 
 4. — The Court will presume a woman to Jje 
 past child-bearing when she is in her fifty-fourth 
 year. In re Widdow's TVust, 40 Law J. Rep. 
 (n.s.) Chanc. 380 ; Law Rep. 11 Eq. 408. 
 
 (D) Of Owkebship of Highway. 
 5. — ^Evidence to the effect that the lords of a 
 manor had received tolls and other payments in 
 respect of a certain street was held sufficient 
 to rebut the presumption of law that the owners 
 of the lands abutting on the street, were entitled 
 to the soil ad medium filum vice. Beckett v. The 
 Corporation of Leeds, Law Rep. 7 Chanc. 421. 
 
 PREVENTION OF CRIME. 
 
 [Amendment of Penal Servitude Acts and of 
 Vagrant Act. Provisions as to punishment of cer- 
 tain offences. Regulations as to evidence of 
 vagrancy, previous convictions, and receiving 
 stolen property. 34 & 35 Vict. c. 112.] 
 
 PRINCIPAL AND AGENT. 
 
 (A) Relation of Peincipal and Agent how 
 
 CONSTITUTED. 
 
 (B) Rights aitd Liabilities of Principal. 
 (a) lAoibility to indemnify agent. 
 
 \b) Liability as affected by mage or fustom 
 of trade. 
 
 (1) When usage is binding on prin- 
 cipal. 
 
 (2) Evidence of custom making agent 
 
 (c) Liability of disclosed principal on writ- 
 ten contract by agent, 
 {d) Liability of undisclosed principal. 
 
 (1) Whire principal has settled with 
 agent. 
 
 (2) Election to treat agent as debtor. 
 (e) Bights of principal against third par- 
 ties. 
 
 (1) Eraudident scheme by agent. 
 
 (2) Foreign correspondent of English 
 
 (3) Set-off against principal. 
 (0) Authoeity OF Agent. 
 
 («) Factors' Act : " agent entrusted." 
 
 (J) Commission agent and foreign principal, 
 
 (c) House agent. 
 
 (d) Managing director of company, 
 
 (e) Contract by letter. 
 
 If) Evidetice of extent of authority. 
 
 (D) Liabilities and Duties op Agents. 
 
 (a) Incapacity of agent to profit by his 
 agency. 
 
 (6) Suit for account against agent: da- 
 mages for negligence. 
 
 (c) Liability in respect of money paid by 
 
 mistake. 
 
 (d) Liability of broker in trover. 
 («) Fraud by agent. 
 
 (/) Confidenticd agent : trade secret. 
 
 (E) Right of Agent to Commission. 
 
 (A) Relation of Principal and Agent, how 
 constituted. 
 
 (3) Sides of Stock Exchange. 
 
 ',ed : no relation of principal 
 and agent between trustee and inspec- 
 tors. [See Inspeotoeship Deed, 5.] 
 
 Promise by chairman of Local Board. [See 
 Principal and Surety, 3.] 
 
 (B) Rights and Liabilities of Principal. 
 
 (a) Liability of principal to indemnify agent. 
 Extends to all the liabilities of the agent. 
 [See Stock Exchange, 3.] 
 
 (6) Liability as affected by usage or custom of trade. 
 (] ) When usage is binding on principal. 
 
 1. — Although a person who as principal em- 
 ploys a broker to transact business for him in a 
 particular market is bound by the usage of that 
 market, though unknown to him, provided the 
 usage is one that merely regulates the mode of 
 performing the contract, and does not change the 
 intrinsic character of the contract, yet yphere the 
 usage is one which gives the broker an interest at 
 variance with his duty, as by converting him into 
 a principal instead of a mere agent to establish 
 privity of contract between two principals, such a 
 usage is not binding on a principal who, being 
 ignorant of the usage, employs a broker to whom 
 the usage is known to perform the ordinary and 
 accustomed duties belonging to the office or em- 
 ployment of a broker. The principal is not bound 
 to enquire what the usage may be, or whether 
 3n2 
 
4gO 
 
 tElNCiPAL AND AGSNT (B). 
 
 there be any particular usage affecting the market 
 in which he proposes to deal. Sobinson v. Mollett 
 (H. L.), ii Law J. Eep. (n.s.) C. P. 362 ; Law Rep. 
 7 E. & I. App, 802. 
 
 The appellant, a Liverpool merchant, employed 
 the respondents, brokers of London, to buy tallow 
 for him in the London tallow market. They 
 having other orders, bought in their own name a 
 quantity sufficient to cover all their orders, and by 
 letter they informed the appellant that they had 
 bought on his account so many tons; but they did 
 not mention the name of the seller. A few days 
 after they sent him notice that they were ready 
 to deliver to him so many casks of tallow in fulfil- 
 ment or part fulfilment of his order, but they did 
 allude to any third party as the seller. The 
 appellant acknowledged the receipt of these no- 
 tices without observation. There is a custom on 
 the London tallOvv market for brokers when they 
 receive orders to contract in their own names, and 
 if their principals refuse to accept or deliver, to 
 buy or sell against them, and charge them with 
 the loss. The appellant was ignorant of this cus- 
 tom. On becoming aware of it, and of the mode 
 in which his orders had been executed, tallow 
 having in the meantime fallen, he refused to take 
 the tallow : — Held, reversing the decision of the 
 Court of Exchequer Chamber (41 Law J. Eep. 
 (N.a.) C. P. 66 ; Law Rep. 7 C. P. 84), that as the 
 respondents were employed to act as brokers only, 
 the custom which converted them into principals 
 was inconsistent with the employment, and as the 
 appellant was ignorant of it when he gave his 
 orders, he was not bound by the custom. Also as 
 the first notice sent by the brokers was that they 
 had bought on the appellant's account, he was not 
 thereby put on enquiry as to the custom or as to 
 the name of the seller, and he was not bound to 
 accept when it turned out that his own brokers 
 might in fact be the vendors, or to pay them the 
 difference between the price at which they bought 
 and that at which they sold in consequence of his 
 having refused the contract. 
 
 (2) Evidence of custom making agent liable. 
 
 2.— The defendants, M. & "W., fruit brokers in 
 the City, gave the plaintiffs, who were wholesale 
 grocers there, the following contract note, ad- 
 dressed to plaintiffs — " We have this day sold for 
 your account to our principal fifty to seventy tous 
 of raisins. ((Signed) M. & W., brokers" : — Held, 
 in an action against the defendants as purchasers, 
 first, that evidence was admissible of an usage in 
 the fruit trade, by which in a contract worded as 
 above, without mentioning the buyer, the broker 
 was liable to make good any loss through the 
 default of his principal; secondly, dubitante 
 Cockburn, C.J., that evidence of a similar usage 
 in the colonial market was also admissible, as 
 shewing the liability of brokers in a trade of a 
 similar character. Fleet v. Mnrton, 41 Law J. 
 Rep. (n.s.) a "B. 49 ; Law Rep. 7 Q. B. 126. 
 
 Semble, per Blackburn, J . — That the declaration 
 should have been framed so as to charge the de- 
 feuiiauts, nut ao principals, but as having under- 
 
 taken a liability in the nature of that of a dd eredere 
 agent. Ibid. 
 
 3. — Where a person contracts in the body of a 
 charter-party and signs "as agent," his principal 
 being undisclosed, evidence is admissible to shew 
 a custom that he shall be personally liable if he 
 does not disclose his principal's name within a 
 reasonable time. Hutchinson v. Tatham, 42 Law 
 J. Eep. (n.s.) C. p. 260 ; Law Eep. 8 C. P. 482. 
 
 (3) Bules of Stock Exchange. 
 
 Bules of London Stock Exchange. 
 Stock Exchange, 1, 2, 3.] 
 
 [See 
 
 (c) Liability of disclosed principal on written 
 contract by agent. 
 
 4, — The defendant authorised C, a broker, to 
 buy goods for him, telling him to keep his name 
 out of the transaction ; C. bought of the plaintiffs, 
 who refused to trust him and required the prin- 
 cipal's name, which was given ; a written agree- 
 ment was then entered into in which only C.'s 
 name appeared ; C. then sent the defendant a note 
 saying he had bought on the defendant's account ; 
 afterwards, on breach of the agreement, the plain- 
 tiffs communicated with 0. on the matter : — Held 
 (affirming the decision of the Court of Common 
 Pleas, 40 Law J. Eep. (n.s.) C. P. 89), that though 
 the defendant's name was known at the time of 
 the contract in C.'s name, parol e"\ndence was ad- 
 missible to shew, and it was a question for the 
 jury, whether or not the defendant was liable as 
 principal, and whether or not the plaintiffs had 
 made an election as against C. Calder v. Dobell 
 (Exch. Ch.), 40 Law J. Eep. (n.s.) C. P. 224 ; Law 
 Eep. 6 C. P. 486. 
 
 {d) Liability of undisclosed priticipal. 
 
 (1) Where principal has settled with agent. 
 
 5. — The defendants were merchants at Liver- 
 pool, who were in the habit of giving orders to A. 
 and B. sometimes for grey and sometimes for 
 white or bleached sHirtings. A. and B. were 
 commission merchants carrying on business at 
 Manchester, sometimes for themselves and some- 
 times acting in pursuance of orders from con- 
 stituents. When an order was given to A. and B. 
 for white shirtings, the course of business was for 
 them to procure grey shirtings for the purpose 
 of having them bleached, and when they were 
 bleached, to deliver them to defendants, charging 
 them with the cost of the purchase of the cloth 
 and of the bleaching, with one per cent, commis- 
 sion on the amount, and also with any charges 
 incurred for packing, &c., and this amount the 
 defendants always paid to A. and B., and usually 
 on the next pay day after receiving the goods. 
 The defendants knew that A. and B. must have 
 procured some one to supply the grey cloth and 
 some one to bleach it, but they had never enquired 
 respecting such persons, and had never been 
 brought into communication with them. The 
 plaintiff in his dealings with A. and B. had also 
 never enquired whether they had principals or not. 
 
PRINCIPAL AND AGENT (B). 
 
 46i 
 
 A. and B., in pursuance of an order from the 
 defendants for a quantity of wliite shirtings, 
 bought from the plaintiff a like quantity of grey 
 shirtings to be paid for thirty d^iys after delivery. 
 When the grey shirtings were delivered A. and B. 
 had them bleached and sent them to the defen- 
 dants with an invoice stating that the shirtings 
 had been purchased on their account, and charging 
 them with an amount comprising the price actually 
 payable by A. and B. to the plaintiff, the cost of 
 the bleaching, one per cent, on these sums, and 
 some packing charges. The defendants bond fide 
 paid A. and B. this amount on the first pay-day 
 after receiving the goods. Subsequently, the time 
 for payment by A. and B. to the plaintiff of the 
 price of the grey shirtings having arrived, he 
 applied to them for payment, but was refused. 
 He waited a few days considering what he should 
 do, when they stopped payment. Having dis- 
 covered the relation between them and the defen- 
 dants, he sued the latter for the amount due to 
 him : — ^eld, the Court having power to draw in- 
 ferences of fact, first, that the plaintiff's delay did 
 not by itself prejudice his case. Secondly, that 
 (assuming that the relation of principal and agent 
 subsisted between A. and B., and defendants, so as 
 to establish a privity of contract between the 
 plaintiff and the defendants), after the defendants, 
 as principals, had settled with A. and B. at the 
 time when the plaintiff was unaware that any 
 agency existed, it was too late for him to recover 
 from the defendants. Arinstrong v. Stokes, 41 Law 
 J. Eep. (N.a.) Q. B. 263 ; Law Eep. 7 Q. B. 598. 
 
 (2) Election to treat agent as debtor. 
 
 6. — B., a butty collier, working upon a mine of 
 the defendants, gave orders in his own name to 
 the plaintiffs for a supply of gunpowder to be used 
 in the mine. The gunpowder was supplied, and 
 subsequently the plaintiffs became aware that the 
 defendants were B.'s principals. B. filed a petition 
 in liquidation, whereupon a derk of the plaintiffs 
 made an affidavit of debt, treating B. as the debtor, 
 for the purpose of proving under the liquidation. 
 The af&davit was placed upon the file of proceed- 
 ings, although an endeavour was made by the 
 plaintiffs' attorneys to prevent its being so filed. 
 It remained upon the file, but the plaintiffs took 
 no further step in the liquidation, nor did they 
 receive any dividend: — Held, that there was no 
 such election by the plaintiffs to treat B. as their 
 debtor as would be a bar to their maintaining an 
 action against the defendants, the principals. 
 Curtis V. Williamson, ii Law J. Eep. (k.s.) U- B. 
 27; Law Eep. 10 a. B. 67. 
 
 Eight of undisclosed principal to sue on 
 marine policy. [See Marine Insub- 
 ANCE, 49.] 
 
 (e) Bights of principal against third parties. 
 
 (1) Fraudulent scheme by agent. 
 
 7. — A., as agent, but without the knowledge or 
 authority of his principal, B., and the general 
 manager of a bank without the knowledge or 
 authority of the bank directors, concerted for 
 
 their own purposes the following scheme, which 
 the Court held to be entirely void for fraud, and 
 not binding on B. Two accounts were opened 
 with the bank in the respective names of the 
 agent and the principal. The agent, on behalf of 
 his principal, requested the bank to honour the 
 agent's cheques, and guaranteed the repayment 
 thereof, all moneys standing to the credit of the , 
 principal to be charged with such payment. 
 The agent paid to his principal's account 1,60UZ. 
 belonging to the principal, and drew on his own 
 account for a like sum, which he spent in pro- 
 moting the scheme. He drew other cheques on 
 his own account, and paid the proceeds to his 
 principal's account as moneys belonging to the 
 principal. Thus, in the bank books the agent's 
 account stood with a large debit, and the prin- 
 cipal's account stood with an equal credit charged 
 with the guarantee. The principal having brought 
 an action against the bank to recover the whole 
 amount standing to his credit, — Held, that he 
 could recover 1,600^. thereof, his own money; but 
 not the residue, which never had been his money. 
 The British and American Telegraph Company 
 (Idm.) V. The Albion Bank (Lim.), 41 Law J. Eep. 
 (n.s.) Exch. 67; Law Eep. 7 Exch. 119. 
 
 (2) Foreign correspondent of English agents. 
 
 8. — Where a foreign correspondent instructs 
 his English agents to order goods for him in this 
 country the person contracting with the agent to 
 supply such goods is not, although he knew for 
 whom the goods were intended, liable to an action 
 for breach of his contract at the suit of the prin- 
 cipal. Bie Elbinger Actien-Gesellschaji, jwr Fabri- 
 cation von eisenbahn-Materiel v. Claye, 42 Law J. 
 Eep. (n.s.) Q. B. 161 ; Law Eep. 8 Q. B. 313. 
 
 (3) Set-off against principal. 
 
 9. — Where an agent is permitted to, and does, 
 sell goods, as if he were principal, and becomes 
 bankrupt, it is no defence to an action by the 
 principal against the vendee for not accepting the 
 goods, that there were mutual credits, not alleged 
 to be the subject of ordinary set-off, between the 
 agent and vendee, resulting in a balance in favour 
 of the latter. Turner v. Thomas, 40 Law J. Eep. 
 (n.s.) C. p. 271 ; Law Eep. 6 C. P. 610. 
 
 10.— To an actiun by a principal for the price 
 of goods sold by his agent to the defendant, a plea 
 setting off a debt due to the defendant from such 
 agent, which averred that the agent was entrusted 
 by the plaintiff with the possession of the goods as 
 apparent owner, and that the agent sold the same 
 in his own name and as his own goods with the 
 consent of the plaintiff, and that at the time of 
 such sale the defendant believed the agent to be 
 the owner, and did not know that the plaintiff 
 was the owner, or that the agent was agent, was 
 held good, although it did not by express averment 
 negative either the defendant's means of knowing 
 that the agent was such agent, or that the de- 
 fendant had had notice that the plaintiff was the 
 owner. Borrits v. The Imperial Ottoman Bank, 
 43 Law J. Eep. (n.s.) C. P. 3 ; Law Eep. 9 C. P. 38. 
 
 It being an immaterial averment in a plea so 
 
462 
 
 tEINCIfAL AND AGENT (B), (D). 
 
 pleaded that the defendant had not the means of 
 such knowledge, a replication thereto that at the 
 time of the sale the defendant had the means of 
 knowing that the agent was the plaintiff's agent, 
 and as such sold the goods, was held bad. Ibid. 
 
 Liahility of company for acts of agent. 
 [See Company, D 4-7.] 
 
 (C) Authority of Agent. 
 
 (a) Factor's Act : agent entrusted. 
 
 [See Factor, 1.] 
 
 (A) Commission agent and foreign priiicipal. 
 
 11, — A commission merchant has no authority, 
 in the absence of express agreement to the con- 
 trary, to pledge the credit of his foreign con- 
 stituent. The circumstance that the foreign 
 constituent and the commission merchant had 
 agreed to purchase and ship goods on a "joint 
 account" was held not to affect the application 
 of the rule. Button v. Bullock, Law Rep. 8 Q,. B. 
 331 : affirmed, on appeal, (Exch. Ch.), Law Eep. 
 9 Q.B. 572. 
 
 (c) House agent. 
 
 12. — An estate or house agent to whom in- 
 structions are given to procure a purchaser for 
 property, has not, though the price is named in 
 the instructions, authority to enter into a binding 
 contract with a purchaser to sell such property. 
 Hamer v. Sharp, 44 Law J. Eep. (n.s.) Chano. 53 ; 
 Law Eep. 19 Eq. 108. 
 
 {d) Managing director of company, 
 
 13, — Where the managing director of a com- 
 pany, being aware that by agreement between the 
 company and the defendant certain funds owing to 
 A. were to be appropriated to the payment of a 
 debt due from A. to the company for which the 
 defendant was surety to the company, procured 
 payment out of such funds of a private debt owing 
 to such director from A. : — Held, that the com- 
 pany were not responsible for the act of their 
 managing director, as he was not acting within 
 the scope of his employment. McGowan ^ Co. 
 {Lim.) V. Dyer, Law Eep. 8 Q. B. 141. 
 
 (e) Contract by letter. 
 
 14. — If a principal gives an order to an agent 
 in such uncertain terms as to be susceptible of two 
 different meanings and the agent bond fide adopts 
 one of them and acts upon it, it is not competent 
 to the principal to repudiate the act as unautho- 
 rised because he meant the order to be read in 
 another sense of which it is equally capable. 
 Ireland v. Livingstone (H.L.), 41 Law J. Eep. (n.s.) 
 Q. B. 201 ; Law Eep. 5 E. & I. App. 395. 
 
 (/) Evidence of extent of authority. 
 
 15, — The plaintiffs were partners and creditors 
 of the defendant for 30^, the price of goods sup- 
 plied ; they wrote to their traveller M. a letter, 
 saying, "we should like to draw" upon the de- 
 fendant for that amount. M., who had authority 
 
 to collect debts due to the plaintiffs, shewed this 
 letter to the defendant who thereupon accepted a 
 bill drawn by M. in blank and payable to "my" 
 order. M. subsequently filled in his own name as 
 drawer and received the proceeds of the bill ; he 
 never accounted for it to the plaintiffs, and subse- 
 quently absconded ; the bill was paid by the de- 
 fendant at maturity. Upon two former occasions 
 the defendant had paid the plaintiffs by bills, one 
 of which was drawn in blank. The plaintiffs 
 having sued for the debt of 301., the defendant 
 pleaded payment ; — Held, that the foregoing facts 
 were no evidence of payment by the defendant to 
 the plaintiffs, and that the plaintiffs were entitled 
 as matter of law to have the verdict entered for 
 them. Hogarth v. Wherly, 44 Law J. Eep. (n.s.) 
 C.P. 330; Law Eep. 10 C. P. 630. 
 
 (D) Liabilities and Duties of Agent. 
 
 (a) Incapacity of agent to profit by his agency. 
 
 16. — The defendant having been authoiflsed by 
 the plaintiff to purchase on his behalf a particular 
 ship as cheaply as she could be got, made an ar- 
 rangement, without the plaintiff's knowledge, with 
 the vendor's broker, who had a right to retain the 
 excess of the purchase-money over 8,500Z., by 
 which the defendant purchased the ship for 9,250Z. 
 and retained for his own use 226?., part of the 
 excess:— Held, that the plaintiff was entitled to 
 the amount so retained by the defendant, inas- 
 much as it was a profit acquired by an agent in 
 connection with his agency, without the sanction 
 of his principal, and that it could be recovered in 
 an action for money had and received. Morison 
 V. Thompson, 43 Law J. Eep. (n.s.) Q. B. 216; 
 Law Eep. 9 a B. 480. 
 
 17. — The rule that an agent must account to 
 his principal for any secret profit made in the 
 course of his agency does not apply where the 
 principal is aware that the agent is remunerated 
 by some allowance from the other parties, but is 
 under a misapprehension (but not misinformed) as 
 to its actual extent. The Great Western Insur- 
 ance Company {of New York) v. Cunliffe, 43 Law 
 J. Eep. (n.s.) Chanc. 741 ; Law Eep. 9 Chanc. 628. 
 
 18. — Where A., knowing that B. desired to 
 purchase certain shares, contracted to buy them 
 for 21. a share, and then represented to B. that he 
 could procure them fur B. for 51. a share, which 
 B. directed him to do, and afterwards paid him at 
 that rate, — Held, that A. acted as agent for B., 
 and must pay back to B. the difference between 
 the two prices. Kimber v. Barber, Law Eep. 8 
 Chanc. 56. 
 
 19, — An agent for sale who takes an interest 
 in a purchase negotiated by him is bound tov dis- 
 close to his principal, not merely that he has an 
 interest, but the exact nature of his interest. The 
 onus of proof lies on the agent, and is not dis- 
 charged by his mere oath if contradicted. Dunne 
 V. English, Law Eep. 18 Eq. 524. 
 
 20. — Contract by a telegraph works company 
 with a telegraph cable company, to lay a cable to 
 be paid for by instalments on the certificate of the 
 cable company's engineer. Shortly afterwards the 
 
PEINCIPAL AND AGENT (D). 
 
 463 
 
 engineer entered into a sub-contract witli the 
 works company to lay down the cable for a sum 
 to be paid him as the instalments were received 
 under the original contract : — Held, that this 
 agreement by the engineer was a fraud, and that 
 the cable company were entitled to have the 
 contract set aside and the return of the money 
 paid by them. The Panama and South Pacifio 
 Telegraph Company v. The India Biibber Gwtta 
 Fercha and Telegraph Works Company, Law Eep. 
 10 Chanc. 515. ' 
 Decision of Malins, V.C., afifirmed. Ibid. 
 21. — The shareholders of a joint-stock bank, in 
 pursuance of a proposal of their directors, passed 
 resolutions for the increase of their capital by the 
 issue of 20,000 new shares of 501. each, to be 
 offered, in - the first place, to the old shareholders 
 in the proportion of one new shave to each old 
 share, each allottee paying 251. as a premium and 
 51. as a call per share, the shares unaccepted by 
 the old shareholders to be sold by the directors to 
 other persons at SOL premium per share, out of 
 which each shareholder rejecting the allotment of 
 new shares offered to him was to receive a cash 
 bonus of 51. for each new share so rejected. The 
 directors made an arrangement with S., by which 
 he was to take all the unaccepted new shares at 
 the premium of 301. per share, to be issued to him 
 at the rate of 1,000 a month. Under this ar- 
 rangement 9,778 new shares were allotted to S., 
 who paid thereon 51. per share, and procured the 
 issue of them in batches as he found purchasers, 
 the certificates in the meantime being retained 
 by the bank until the SOI. per share had been 
 paid, when the shares were registered in the 
 names of the purchasers from S. Four of the 
 directors, at the request of S., took over a large 
 number of the new shares, at 301. per share, 
 before they had been issued to S., and sold them 
 at a considerable profit. Bonus shares in the 
 company were subsequently issued to the holders 
 of the new shares, and a considerable number of 
 these were allotted to the same four directors. 
 The bank, by their public officer, subsequently 
 filed a bill against the four directors, alleging that 
 the issue of the new shares and the arrangement 
 with S. was carried into effect in pursuance of a 
 scheme and secret understanding between the de- 
 fendants and S., devised and entered into for their 
 own profit. The bill, which was founded on the 
 ground of fraud in reference to this alleged scheme 
 and also on the ground of breach of trust arising 
 out of the purchase by the defendants as persons 
 in a fiduciary position of trust property, sought to 
 make the defendants jointly and severally ac- 
 countable for the profits made by them out of the 
 transaction. The evidence in support of the al- 
 legations of fraud was extremely voluminous : — 
 Held, first, that so much of the bill as rested on 
 fraud must be dismissed with costs, but that the 
 defendants were trustees for the bank of the profits 
 which they had made from the transaction, and 
 must respectively account for the same. Secondly, 
 since the suit was improperly framed in making 
 unfounded charges of fraud to which the defend- 
 ants could not submit, the plaintiff would not be 
 
 allowed any part of his costs. Parker v. M'Kenna, 
 44 Law J. Rep. (n.s.) Chano. 425; Law Eep. 10 
 Chanc. 96. 
 
 Although charges of fraud which turn out to be 
 unfounded are mixed up with the plaintiff's case 
 and put prominently forward as a ground of relief, 
 yet if the bill alleges also a different case for relief 
 which can be separated from the charges of fraud, 
 the Coiirt may give the plaintiff relief on this 
 second ground, and is not bound to dismiss the 
 bin altogether. Ibid. 
 
 [And see Company, D 27, 28.] 
 
 (J) Suit for account against agent : damages for 
 nei " 
 
 22. — Where a bill against an agent for an 
 account alleges certain specific questions that have 
 arisen as the ground for taking the account, and 
 these questions are decided against the plaintiff, 
 the bill will be dismissed. The Great Western 
 Insurance Company {of New York) v. Cunliffe, 43 
 Law J. Eep. (n.s.) Chanc. 741 ; Law Eep. 9 Chanc. 
 525. 
 
 The rule that an agent must account to his 
 principal for any secret profit made in the course 
 of his agency does not apply where the principal 
 is aware that the agent is remunerated by some 
 allowan''e from the other parties, but is under a 
 misapprehension (but not misinformed) as to its 
 actual extent. Ibid. 
 
 A claim against an agent in the nature of 
 damages for neglect of duty cannot be pai^sed as 
 an item in taking an account between principal 
 and agent, but must be enforced in an action at 
 law. Ibid. 
 
 A marine insurance company in New York enj- 
 ployed merchants in this country as their agents 
 to settle claims and grant insurances, and also to 
 effect reinsurances. A percentage was paid by 
 the company on the first two classes of business, 
 but the agents were remunerated as to the rein- 
 surances by the brokerage allowed to them by the 
 underwriters. They charged the company the full 
 amount of the premiums, but were allowed by the 
 underwiters, fiist, 5 per cent, on the premiums, 
 and secondly, 2 per cent, on the balance (if any) 
 payable by them to the underwriters on the 
 account for the year, crediting the underwriters 
 with the premiums (less the 6 per cent.), and 
 debiting losses. This was according to the usual 
 custom on the credit system as between brokers 
 and underwriters, but the 12 per cent, allowance 
 was for some time unknown to the company: — 
 Held, that the agents were entitled to both the 
 percentages. Ibid. 
 
 A bill was filed by the company, alleging that 
 in taking the accounts questions had arisen, and, 
 after stating three questions — the first as to a loss 
 through the alleged neglect of the agents to re- 
 insure a, vessel, the second a question £is to in- 
 terest, and the third the above question as to the 
 12 per cent, discount — praying a general account 
 against the agents. It being decided (reversing 
 the decision of Bacon, V.C), that the first question 
 must be tried at law, and that on the other two 
 
464 
 
 PEINCIPAL AND AGENT (D) -PRINCIPAL AND SURETY (A). 
 
 the plaintiffs were wrong,— Held, that the bill 
 must be dismissed. Ibid. 
 
 (c) lAability in respect of money paid by mistake. 
 
 23. — On a purchase and sale of cotton by two 
 cotton brokers, A. and B., A. orerpaid B., by mis- 
 take. The mistake was n.ot discovered till some 
 months afterwards, and, in the meantime, B. had 
 allowed the money to be settled in account between 
 himself and his principals, who were indebted to 
 him. By the usage of the cotton market, cotton 
 brokers treated each other as principals : — Held, 
 that A. was entitled to recover back the over- 
 payment from B., and that the case did not come 
 within the rule by which an agent who has bond, 
 fide paid over money to his principal is relieved 
 from liability. Holland y. Bussell (i 'B. & S. 14; 
 32 Law J. Rep. (n..i.) Q. B. 297) commented on. 
 Newall V. Tomlinson, Law Rep. 6 C. P. 406. 
 
 id) Liability >f broker in trover. 
 
 24. — Any person who, however innocently, ob- 
 tains the possession of the goods of a person who 
 has been fraudulently deprived of them, and dis- 
 poses of them, whether for his own benefit or that 
 of any other person, is guilty of a conversion, 
 unless the possession was obtained by him as 
 finder or as bailee, or by purchase in market 
 overt or from an agent, so as to be protected by 
 the Factors Acts. Hollins v. Fowler (H.L.), 44 
 Law J. Rep. (n.s.) Q. B. 169 ; Law Rep. 7 E. & I. 
 App. 767 : aflBrming the Court of Exchequer Cham- 
 ber, 41 Law J. Rep. (n.s.) Q. B. 277 ; Law Rep. 
 7a.B. 617. 
 
 Whether brokers when they purchase as agents 
 are bound at their peril to enquire into the title 
 of selling brokers with whom they deal, Quaere ? 
 Ibid.. 
 
 Also, if brokers are not liable for purchases 
 made by them as agents for principals, and when 
 acting as brokers, whether if they further obtain 
 delivery of and remove the goods so purchased on 
 behalf of their clients, they are liable should the 
 selling broker turn out to have no title. Quaere ? 
 Ibid. 
 
 (e) Fraud by agent. 
 
 Fraud by agent: criminal proceedings. 
 [See Peatto, 8, 9 ; Company, D 7.] 
 
 (/) Confidential agent : trade secret. 
 
 25. — Semble — that a, confidential agent is, in 
 the absence of agreement to the contrary, at 
 liberty to disclose a trade secret of his employers, 
 after the termination of his employment, if he has 
 acquired knowledge of the secret through an inde- 
 pendent investig.ition mafle by himself. Estcowrt 
 V. Estcowrt Hop Essence Company, 44 Law J . Rep. 
 (n.s.) Chanc. 223 ; Law Rep. 10 Chanc. 276. 
 
 (E) Right of Agent to Commission. 
 
 26. — A house agent was entitled to commission, 
 if a house was sold " through his intervention." 
 A purchaser seeing that the house was for sale 
 called at the agent's office and obtained there a 
 
 card to view, but, on viewing the house, thought 
 the price too high and went away ; afterwards .he 
 opened negotiations with a friend of the owner, 
 and bought the house at a lower price : — Held, 
 that there was evidence to go to the jury that the 
 house was sold through the intervention of the 
 agent : — Held, also, that a question was properly 
 put by the Judge to the purchaser whether he 
 would have bought the house if he had not gone 
 to the oifice and got the card. Mansell v. Clements, 
 Law Rep. 9 C.P. 139. 
 
 PRINCIPAL AND SURETY. 
 
 (A) Validity and Constbuotion of Guaeantie. 
 
 (a) Consideration for. 
 
 ( 1 ) Withdrawal of proceedings. 
 
 (2) Fraudulent preference. 
 
 (b) Promise by chairman of local board. 
 
 (c) Continuing gnarantie. 
 
 (B) Payment by Surety : Effect op. 
 
 (n) Rights of sv/rety under limited gua- 
 
 rantie. 
 (A) Set-off. 
 («) - ■ . 
 {d) Contribution between co-sureties. 
 
 (C) Dischaege of Surety. 
 (a) Payment by principal. 
 
 (1 ) Appropriation of payments by cre- 
 
 ditor. 
 
 (2) Fayment in contemplation of 
 bankruptcy. 
 
 (5) Giving time. 
 
 (c) Laches by creditor. 
 
 (d) Composition with principal debtor. 
 
 (e) Gnarantie for honesty of servant. 
 
 (A) Validity and Construction of Guaeantie. 
 
 (a) 
 
 (1) Withdrawal of proceedings. 
 
 1. — A guarantie was given to the plaintiff by 
 the defendants in the following terms : " In con- 
 sideration of your ■withdrawing the petition you 
 have presented for winding up the A. Company 
 (Lim.) we agree to pay all the costs you have in- 
 curred in reference to the petition. We further 
 agree to guarantee the payment to you within 
 eighteen months, by the company or the liquidator 
 thereof, of the principal of your debt of 7221." To 
 a declaration on this guarantie, alleging as a 
 breach the non-payment of the 7221. the defend- 
 ants pleaded that after the alleged withdrawal 
 of the said petition, and before a reasonable time 
 had elapsed, and within the said eighteen months, 
 the plaintiff,pres6nted another petition for wind- 
 ing up the company, which prevented the collec- 
 tion of the assets of the company. At the trials 
 the jury found that the presentation of the se- 
 cond petition did not prevent the collection of 
 assets : — Held, that the withdrawal of the first 
 petition was a sufficient consideration for both 
 promises of the guarantors ; that the plea, as 
 
PRINCIPAL AND SURETY (A). 
 
 405 
 
 proved, aflEbrded no defence ; and that on the 
 finding of the jury the plaintiff was entitled to 
 recover. Harris v. Venables, 41 Law J. Rep. 
 (w.s.) Exch. 180 ; Law Rep. 7 Exob. 235. 
 
 (2) Fraudulent preference. 
 
 2. — The defendant, Gr. S., gave a guarantie to 
 the plaintif&, a' bank, partially indemnifying them 
 against a debt due to them from his brother, J. 
 S., and to recover which the bank had threat- 
 ened to take bankruptcy proceedings against J. S. 
 J. S. subsequently made an arrangement with his 
 other creditors, which the bank did not oppose. 
 No pajment having been made by Gr. S. xmder his 
 guarantie the bank filed a bill, against him to 
 enforce it. The defendant, G. S., pleaded as a 
 defence to the bill, that the guarantie amounted 
 to a fraudulent preference in favour of the bank 
 over his brother's other creditors, but the plea 
 did not contain an averment that at the date of 
 the guarantie bankruptcy proceedings were then 
 pending or imminent. Plea overruled with costs. 
 M^Kewan v. Sanderson, 42 Law J. Rep. (n.s.) 
 Chanc. 296 ; Law Rep. 16 Eq. 316. 
 
 (J) Promise hy chairman oj local board. 
 
 3. — The chairman of a Local Board of Health 
 verbally promised a contractor that if he would 
 do certain work connected with the sewers he 
 would see him paid. The contractor did the work 
 and made his claim against the board, and after- 
 wards, finding that the chairman in fact had no 
 authority to pledge the credit of the board, and 
 that the board refused, and were not legally com- 
 pellable to make the payment, he sued the chair- 
 man : — Held, that whether or not the parties, or 
 either of them, intended only a contract of surety- 
 ship, there was a personal contract by the chair- 
 man on which he was primarily liable, and not 
 merely a promise to answer for the debt, default 
 or miscarriage of another, such as would require 
 a m,emoraDdum thereof in writing under section 
 4 of the Statute of Frauds. LaJceman v. Mount- 
 stephen (H.L.), 43 Law J. Rep. (n.s.) Q. B. 188 ; 
 Law Rep. 7 E. & I. App. 17. 
 
 And by Lord Selborne, there can be no surety- 
 ship unless there be a principal debtor constituted 
 by matters ex post post facto, if not existing at 
 the time of the transaction. Ibid. 
 
 Held also, that the plaintiff's own evidence, 
 thathe said to the chairman — " I have no objection 
 to do the work if you or the board will give me 
 the order," and that the chairman replied, " Do 
 the work and I will see you paid." was evidence 
 which ought to have gone to the jury in support 
 of a declaration to the effect that the chairman 
 had promised, first, as if he were the authorised 
 agent of the board, or secondly, that he would ob- 
 tain a legal contract from the board, or thirdly, 
 that he would pay for the work if the board re- 
 fused. Ibid. 
 
 The plaintiff below, respondent in this appeal, 
 had been employed by a Local Board of Health to 
 construct a main sewer between which and the 
 houses along the line of street connections had 
 yet to be made. The owners of the bouses were. 
 Digest, 1870-1875. 
 
 under section 69 of 11 & 12 Viet. o. 63, liable to 
 make these connections after the expiration of a 
 twenty-one days' notice from the board calling on 
 them to do so. The owners of the houses did not 
 seem disposed to make the connections, and the 
 notices were served on them. The plaintiff had, 
 by direction of the board, brought on the ground 
 the necessary pipes, and one day, as he was leaving 
 the work, which he had completed, and before 
 the expiration of the notices, the surveyor asked 
 him not to go away, as there was more work to be 
 done. The plaintiff asked him who was to be re- 
 sponsible for the payment, and the surveyor said 
 that the defendant was waiting to see him about 
 it. The defendant was the chairman of the Local 
 Board of Health. The plaintiff then saw the 
 defendant,' and, according to his dwn evidence, the 
 defendant there and then asked him, " What ob- 
 jection have you to making the connections ? " 
 to which the plaintiff said, " I have none, if you 
 or the board will order the work, or become re- 
 sponsible for the payment." The defendant, in 
 reply, said, " Go and do the work, and I will see 
 you paid." Accordingly the plaintiff did the work, 
 and applied to the board for payment. The 
 board disclaimed all liability. The plaintiff then 
 sued the defendant on the groxmd that he had, 
 when making the promise, assumed to be the 
 duly authorised agent of the board, and also that 
 he had promised that he would obtain a legal con- 
 tract from the board to pay him. To these counts 
 a third count was by leave of the Judge added, 
 that the defendant had promised to pay for the 
 work if the board refiised. The defendant en- 
 tirely denied that such a conversation as that 
 deposed to by the plaintiff took place. But the 
 jury found that it did take place, and they re- 
 tiu-ned a verdict for the amount claimed ; — Held, 
 that a rule to enter a nonsuit, or that the verdict 
 should be set aside, or a new trial directed, was 
 properly discharged, for that there was evidence 
 of a primary liability on the part of the plaintiff 
 which was properly left to the jury. Ibid. 
 
 (c) Continuing guarantie. 
 
 4. — A father gave his son a promissory note for 
 2,000Z., which was endorsed by the sou, and dis- 
 counted by a banking company, who took from the 
 father an agreement under seal, that in considera- 
 tion of their discotmting the note, certain deeds of 
 the father's, deposited at the same time, should 
 remain a security for all money due or "to become 
 due from the son to the company on any account 
 whatsoever. At the date of the agreement the 
 son owed the company 3,000^. upon a running 
 account, and the amount was subsequently in- 
 creased to 6,000Z. The father having died, — 
 Held, in a suit to administer his estate, that the 
 agreement was a continuing guarantie, and that the 
 bank were entitled to prove against the father's 
 estate, not only for the 2,000^., the amount of the 
 note, but for all sums due to them from the son. 
 Burgess v. Eve, 41 Law J. Rep. (n.s.) Chanc. 
 515 ; Law Rep. 13 Eq. 450. 
 
 For due cause a guarantie may be withdrawn, 
 although tmder seal, upon payment of all sums 
 30 
 
466 
 
 PEINCIPAL AND SURETY (A), (B). 
 
 due thereunder at the date of the notice of -with- 
 drawal. Ibid. 
 
 5.— The plaintiffs (of whom D. had been in the 
 habit of buying goods) having heard of a bill of 
 sale given by D. to the defendants, declined to let 
 D. have certain goods he had then bought of them 
 without a telegram from the defendants that the 
 defendants would be answerable for them. The de- 
 fendants sent such telegram, and D. had the goods, 
 and in due time paid for them. By the post of 
 the same day on which the telegram was de- 
 spatched, the defendants sent to the plaintiffs a 
 letter, in which, after referring to the telegram, 
 and stating that they had done business with D. 
 for five years, and had never known anything dis- 
 honest in his transactions, they wrote, "what you 
 have heard was done to protect him from a dis- 
 honest tradesman, and will in no way we hope be 
 to the injury of his creditors. Having every 
 confidence in him he has but to call upon us for 
 a cheque, and have it with pleasure, for any ac- 
 count he may have with you. When to the con- 
 trary we will write you : " — Held, that this letter 
 was a continuing guarantie for the amount of 
 goods D. should buy of the plaintiffs until they 
 should hear from the defendants to the contrary. 
 The Nottingham Hide, ^c. Market Company v. 
 Bottrill, 42 Law J. Eep. (n.s.) C. P. 256 ; Law 
 Eep. 8 C.P. 694. 
 
 6. — P. gave a guarantie to secure his son's 
 . account current with a bank, the guarantie to con- 
 tinue until six months after notice " under my 
 hand of my intention to discontinue the same." 
 He died, appointing his son his executor, and the 
 account was continued nearly three years after his 
 death, when the son became insolvent. No notice 
 was ever given by the father or his son to deter- 
 mine the guarantie ; but the bank were aware 
 shortly after his death that his personal estate 
 was of trifiing amount, and that his realty was 
 given to persons other than the son. On the bank 
 seeking to prove against the father's estate under 
 the guarantie, — Held, by the Master of the Eolls 
 (Law Eep. 15 Eq. 311), that the power to deter- 
 mine was personal to the guarantor, and could not 
 be exercised by his executors, and therefore that 
 the guarantie determined on his death. On appeal, 
 this view was doubted by the Lords Justices, who 
 held, however, affirming the decision, that the 
 bank, knowing it was the debtor's duty, as execu- 
 tor, to give notice of determination, could not rely 
 on its being given. Held also, on the facts, that 
 the guarantie had been treated by the parties as 
 determined, and that, on that ground also, it could 
 not be relied on. Harris v. Fawceit, 42 Law J. 
 Eep. (n.s.) Chanc. 502; Law Eep. 8 Chanc. 866. 
 
 [And see No. 21 infra.] 
 
 (B) Payment by Sukety: Effect of. 
 
 (a) Eights of surety under limited guarantie. 
 
 7. — A. guaranteed to ]3. & Co. the payment for 
 all goods supplied by them to C, " but so as his 
 liability under the guarantie should not at any 
 time exceed 260^." C. having become bankrupt. 
 
 owing B. & Co. 650Z. for goods, B. & Co. received 
 260?. from A. under the guarantie, and a dividend 
 in the bankruptcy on the 650Z. : — Held, reversing 
 Stuart, V.C., that A. was entitled to a proportionate 
 part of the dividend. Hobson v. Bass, Law Eep. 
 6 Chanc. 792. 
 
 8. — Four directors of a company for the accom- 
 modation of the company made and gave to the 
 manager of a bank a promissory note for 2,009i. 
 for the purpose of the same being transferred to 
 the bank " as a security for any balance which 
 might be due from the company to the bank." The 
 company was subsequently wound up. At the date 
 of the winding-up a balance of 3,659?. was owing 
 by the company to the bank. The bank sued one 
 of the directors on the note, and recovered the 
 sum of 2,0671. for the amount of the note and 
 interest. They also proved in the winding-up for 
 the whole amount of their debt and received a, 
 dividend : — Held, affirming the decision of Bacon, 
 V.C. (41 Law J. Eep. (n.s.) Chanc. 281 ; Law 
 Eep. 7 Chanc. 680), that the security was only for 
 part of the debt, and that the director was to be 
 considered a surety for the company, and was en- 
 titled to a rateable part of the dividend received 
 by the bank in respect' of the amount paid by him 
 to the bank. The form of order in such a case 
 discussed. Gray v. SecJcham, 42 Law J. Eep. 
 (n.s.) Chanc. 127. 
 
 (b) Set-off. 
 Promissory note : 
 
 surety : set-off. [See 
 Law, 6.] 
 
 i") 
 
 defence by 
 Pleading at 
 
 9. — H. was surety to an insurance company for 
 a loan secured on policies on the life of the debtor. 
 The office held another policy as security for 
 another loan from the same debtor. The debtor 
 became bankrupt, and the company sued H. H. 
 paid part of the debt : — Held, that on the falling 
 in of the policies, H. was entitled to have the se- 
 curities marshalled so as to be paid in full, includ- 
 ing the costs of defending the actiot. Heyman v. 
 Dubois, 41 Law J. Eep. (n.s.) Chanc. 224 ; Law 
 Eep. 13 Eq. 158. 
 
 The debtor's wife had paid H. part of the money 
 he had paid as surety out of her separate 
 estate : — Held, that she was not a necessary party 
 to a suit by H. to obtain the benefit of his Security. 
 Ibid. 
 
 (d) Contribution between co-sureties. 
 
 10. — Upon one of the two sureties under a 
 bond compoimding with his creditors, the money 
 under the terms of the bond became immediately 
 payable ; a third person. A., thereupon entered 
 into a separate bond for the whole amount. The 
 principal having become insolvent, the 'creditor 
 sued A., and recovered ; A. then filed his bill 
 against the other surety to the first bond for con- 
 tribution : — Held, that a co-suretyship was in- 
 tended by the parties, but that even if the defend- 
 ant had not known of the plaintiff's suretyship he 
 
PRINCIPAL AND SURKTY (B), (C). 
 
 467 
 
 would have been liable to contribute. Whiting 
 V. Burke, Law Rep. 6 Chanc. 342. 
 
 EquUy of sureties joining in mortgage, as to 
 title deeds. [See Mobtqagb, ll.] 
 
 (C) DiSCHABQE OF SURETT. 
 
 (a) Faymeiit hy principal. 
 
 (1) Appropriation of payments by creditor. 
 
 [See Bm, of Exchange, 27.] 
 
 (2) Payment in contemplation of bankruptcy. 
 
 11. — S. and the defendant as his surety, made 
 and delivered to the plaintiff a joint promissory 
 note, for the payment of money due from S. to 
 the plaintiff. S. paid to the plaintiff the amount 
 of the note, and the plaintiff in good faith received 
 such amount, but at the time of making the pay- 
 ment S. was in insolvent circumstances, and made 
 the payment in contemplation of bankruptcy, of 
 which the plaintiff was ignorant. After the time 
 of payment, S. made an assignment to trustees for 
 the benefit of his creditors. The trustees elected 
 to treat the payment by S. to the plaintiff as a 
 fraudulent preference, and the plaintiff paid the 
 amount to them : — Held, that the plaintiff had a 
 right to maintain an action against the defendant, 
 and that the latter was not discharged from liabi- 
 lity in respect of [the promissory note. Petty v. 
 Cooke, 40 Law J. Rep. (h.s.) ft. B. 285 ; Law 
 Rep. 6 Q. B. 790. 
 
 (J) Giving time. 
 
 12. — Although the mere omission to sue the 
 principal debtor does not discharge the surety, yet 
 if the creditor contracts with the principal 
 debtor to give him time the surety is discharged. 
 So also, if he contracts with the principal to give 
 time to the surety, for this is merely the expres- 
 sion of what is tacitly implied in the contract to 
 give time to the principal. And it makes no dif- 
 ference if, at the time of contracting the debt, the 
 surety was, or was believed by the creditoi: to be 
 a principal. It is, however, competent to a cre- 
 ditor giving time to the principal expressly to 
 reserve his rights against the surety, because in 
 that case the surety's right to sue the principal is 
 preserved. The Oriental Financial Corporation v. 
 Overend, Gurney ^ Company, 41 Law J. Rep. 
 (n.s.) Chanc. 332 ; Law Rep. 7 Chanc. 142. 
 
 13. — If after a right of action accrues to a cre- 
 ditor against two or more persons, he is informed 
 that one of them is a surety, and after that he 
 gives time to the principal debtor without the 
 consent and knowledge of the surety the surety is 
 discharged. Although the giving of additional 
 security by the principal will not of itself dis- 
 charge the surety, yet if the additional security 
 is given as the consideration for a contract to give 
 time, the giving of time vfithout the priAnty of 
 the surety discharges the surety. In order to 
 reserve a creditor's right against a surety there 
 must be a distinct expression of intention to re- 
 
 serve it. Overend, Gwiiey ^ Company v. The 
 Oriental Financial Corporation (H.L.), Law Rep. 
 7 E. & L App. 348. 
 
 Renewal of Bill. [See Bill of Ex- 
 change, 18.] 
 
 (c) Laches by creditor. 
 
 14. — By indenture of mortgage, dated the 26th 
 of August, 1870, the goods of B. & P. were 
 assigned to the plaintiffs, as security for money 
 advanced to them by the plaintiffs. The defendant 
 was a party to the indenture, as surety for B. & 
 P. In that capacity he covenanted for payment, 
 on the 26th of August, 1871, and on other days, 
 of a certain sum of money to the plaintiffs. The 
 first instalment of interest became due from B. & 
 P. uponthe 26th of February, 1871. It was not 
 paid, and to the knowledge of the plaintiffs B. & 
 P. became embarrassed in their affairs. On tlie 
 5th of August they filed a petition in liquidation ; 
 a trustee was appointed, one of the plaintiffs being 
 the solicitor in the liquidation, and the goods were 
 sold by auction. The defendants knew nothing of 
 the embarrassed state of B. & P. By the terms 
 of the deed B. & P. were to remain in possession 
 until default was made ; but upon default being 
 so made, the plaintiffs were also, by the terms of 
 the deed, entitled to take possession of the goods, 
 and after giving a month's notice to sell the 
 goods. They did not avail themselves of this 
 power : — Held, in an action by the plaintiffs 
 against the defendant as surety, that, to the extent 
 of the value of the goods assigned, the defendant 
 was released from liability, by reason of the laches 
 of the plaintiffs in not registering the deed, under 
 the Bills of Sale Act, and in not taking possession 
 of the goods when default was made in the pay- 
 ment of interest, and when bankruptcy was, to 
 their knowledge, impending. Wulff v. Jay, 41 
 Law J. Rep. (n.s.) Q. B. 322 ; Law Rep. 7 Q. B. 
 766. 
 
 {d) Composition with principal debtor. 
 
 15. — Of two obligors of a joint and several 
 bond one executed it as surety for the other, 
 whereof the obligee then had notice. Afterwards, 
 and without the consent of the surety, the princi- 
 pal debtor by deed conveyed to the obligee of the 
 bond, as trustee for the creditors of the principal 
 debtor, all his estate to be administered for the 
 benefit of the creditors, in like manner as if the 
 principal debtor had been at the date thereof duly 
 adjudged bankrupt, and in consideration thereof 
 each of the creditors did thereby release the prin- 
 cipal debtor " from his and their respective debts 
 in like manner as if " the principal debtor "had 
 obtained a discharge in bankruptcy." The obligue 
 having sued the surety on the bond, — Held, by 
 Kelly, C.B., and Bramwell, B* {diss;ntiente Pigott, 
 B.), that the obligee by executing the deed had 
 released the surety. Gragoe v. Jones, 42 Law J. 
 Rep. (n.s.) Exch. 68; Law Rep. 8 Exch. 81, 
 nom. Cragoe v. Jones. 
 
 16, — A surety is not discharged by the creditor 
 voting for a composition under the Bankruptcy 
 Act, 1869, with the principal debtor, without 
 3o2 
 
46^ 
 
 tRtNCIPAL ANl) St/RETY (d). 
 
 reserving Ws rights against the surety. Exparte 
 Jacobs; In re Jacobs, 44 Law J. Rep. (N.s.)Bankr. 
 34 ; Law Eep. 10 Chanc. 211. 
 
 Semble — the rights of creditors against sureties 
 cannot be reserved in a composition, under the Act, 
 ■witli the principal debtor, so as to leave the surety 
 a remedy over against the debtor, as this would 
 prevent the debtor's complete discharge. Ibid. 
 
 17. — Two partners bound themselves jointly and 
 severally to secure partnership debts. A new part- 
 ner was taken in, and one retired. The estate of the 
 new firm was liquidated by arrangement under the 
 Bankruptcy Act, 1869, sectioDS 125, 126 ; the 
 obligees proved and joined with the creditors of 
 the new firm in resolutions accepting a composi- 
 tion, payable by instalments, the ,deed reserving 
 in terms the rights of creditors against sureties 
 though the resolutions did not : — Held, that the 
 obligees thereby released the retiring partner. 
 Wilson V. Lloyd, 42 Law J. Eep. (n.s.) Chanc. 
 659 ; Law Rep. 16 Eq. 60. 
 
 18.T-Ry a trust deed under the Bankruptcy 
 Act, 1861, the principal debtor assigned all his 
 property to trustees to sell, with power to the 
 trustees to advance moneys necessary for convert- 
 ing the prepared earth, part of the property as- 
 signed, into bricks, and for selling the same, and 
 ultimately to pay thereout rateably, so far as it 
 would extend, the debts of the several creditors. 
 It was also declared by such deed that the credi- 
 ditors did, " sutject to the proviso hereinafter- 
 mentioned, acquit, release, and for ever discharge " 
 the said debtor, and then followed a proviso that 
 any creditor who had any security for his demand, 
 or to the payment whereof any person was liable 
 as surety for the said debtor, might execute the 
 deed without prejudice to such security, or to the 
 claim against any surety : — Held, that the deed 
 operated only as a covenant not to sue, and not 
 as a release extinguishing the debts, and that, 
 therefore, the creditors' rights against any surety 
 of the debtor were legally reserved. Bateson v. 
 Gosling, 41 Law J. Rep. (n.s.) C. P. 53 ; Law 
 Rep. 7 C. P. 9. 
 
 19. — When a joint and several bond is executed 
 by one of the obligors as surety for his co-obligor, 
 who afterwards files a, petition for liquidation 
 under the Bankruptcy Act, 1869, and the credi- 
 tors, without the assent of the surety, duly resolve 
 under section 125 that the debtor's discharge be 
 granted, the surety is not discharged from liability, 
 although the obligee of the bond votes in favour 
 of the resolution, and although there is no reser- 
 vation of rights against sureties. Ellis y. Wilmot, 
 44 Law J. Rep. (n.s.) Exch. 10; Law Rep. 10 
 Exch. 10. 
 
 Composition deed: covenant hy surety: 
 right of action against surety after sue- 
 ing principal. [See Composition 
 Deed, 3.] 
 
 (e) Giiarantie for honesty of servant. 
 
 20. — A bond was given by the obligor as 
 surety that a servant would from time to time, 
 and at all times during the service, satisfactorily 
 account for and pay over to the master all moneys 
 
 received by the servant for the master's use. One 
 of the terms of the service was that it should^ be 
 terminable by one month's notice on either side, 
 but this was not known to the surety. After the 
 commencement of the service, the master and ser- 
 vant agreed, without the knowledge of the surety, 
 that the service should be terminable at three 
 months' notice: — Held,"by Kelly, C.B., Pigott, B., 
 and Pollock, B., dubitaiite Martin, B., that the 
 surety was not discharged. But the servant hav- 
 ing fiiiled satisfactorily to account for or pay over 
 moneys which he had received for the master's 
 use, and the master, having with knowledge and 
 without informing the defendant- Dhereof, retained 
 the servant in his service, — Held, that the surety 
 was dischargedas to defaults committed by the ser- 
 vant after he was so retained. Sanderson v. Aston, 
 42 Law J. Rep. (n.s.) Exch. 64 ; Law Rep. 8 
 Exch. 73. 
 
 21. — The defendant guaranteed that he would 
 be answerable for any loss, not exceeding bOL, 
 which the plaintiffmightsustain through any breach 
 of duty by S., her servant, in receiving, collecting 
 and paying over to her moneys due from customers. 
 To an action brought upon such guarantie, the 
 defendant, in respect of moneys received by S. 
 on account of the plaintiff, after the giving by the 
 defendant of the guarantie, and before the 12th of 
 November, 1869, paid money into Court; and with 
 respect to the residue of the plaintiff's claim, the 
 defendant pleaded, by way of defence upon equitable 
 ■grounds, that, after the giving of the guarantie of 
 the defendant, and before the 12th of November, 
 1869, S. embezzled moneys received by him to the 
 amount of 57Z., that the plaintiff became aware of 
 this on or about the 20th of November, 1869, and 
 that without informing the defendant thereof, she 
 agreed with S. that he should continue in her ser- 
 vice, and should pay her 31. a mouth, in liquida- 
 tion of the sum of 67/. ; and thereupon S. agreed 
 to continue and did continue in the service of the 
 plaintiff until the 4th of April, 1871 ; that during 
 that time he paid to the plaintiff sums of money 
 amounting to 48?. ; that during such continuance 
 of pS. in such service, he collected the moneys for 
 and on behalf of the plaintifF comprised in the re- 
 sidue therein pleaded to ; that during the whole 
 of the time S. collected the said sums of money 
 the defendant was ignorant of the embezzlements 
 prior to the said 20th of November, 1869; and 
 that the defendant was prevented from revoking 
 the guarantie, and compelling S. to pay to him, 
 the defendant, the moneys he was liable under the 
 guarantie to pay to the plaintiff : — Held, by Cock- 
 burn, C.J., Lush] J., and Quain, J., that the plea 
 was good, and that in the case of a continuing 
 guarantie for the honesty of a servant, if the mas- 
 ter discovers that the servant has been guilty of 
 acts of dishonesty in the course of the service to 
 which the guarantie relates, and if, instead of dis- 
 missing the servant, as he may do at once, and 
 without notice, he chooses to continue him in his 
 employ without the knowledge and consent of Ihe 
 surety, express or implied, he cannot afterwards 
 have recourse to the surety to make good any loss 
 which may arise from the dishonesty of the ser- 
 
tMNCItAt AND StJEETY (C)— PEOBAfE ASD ADMIKISTHATION. 
 
 46S 
 
 vant during the subsequent service : — Held, by 
 Blackburn, J. (with some hesitation), and on the 
 grounds expressed by Malins, V.O., in Burgess v. 
 Eve (41 Law J. Eep. (n.s.) Chane. 515; Law 
 Eep. 13 Eq. 450; No. 4 supra), that the defend- 
 ant was entitled to judgment upon the demurrer to 
 the plea. Phillips v. FoxhaU, 41 Law J. Eep. 
 (n.s.) Q,. B. 293 ; Law Eep. 7 G. B. 666. 
 
 PEIOEITY. 
 
 Of mortgages. [See Moetgaoe, 10-28.] 
 Of hold^s of bill of sale. [See Bill op 
 
 Sale, 25.] 
 Of 'patentees. [See Patent, 9-11.] 
 
 PEIVILEaE OF PAELIAMENT. 
 
 [See Peerage, 1 ; Paeliament, 1, 2, 15 ; Bank- 
 
 KUPTCT, K.] 
 
 PEIVILEGED COMMUNICATION. 
 
 [See LrBEi,, 8-12; Practice at Law, 17; Pro- 
 duction, 1-4, 14-18.] 
 
 PEIZE OF "WAE. 
 [See FoBKiGN Enlistment Act.] 
 
 PEIVY COUNCIL. 
 Leave to appeal. 
 
 1.— Special leave to appeal from an order of the 
 High Court for the North- West Provinces of India, 
 removing an infant daughter from the custody of 
 her mother, a Mohammedan, on the-ground that the 
 minor's deceased father had been a Christian, and 
 that the mother, who was, as the Court held, living 
 in adultery, was inducing her daugh er to adopt 
 the Mohammedan fe,ith. Liberty given, pending the 
 appeal, for the petitioner to apply to the High 
 Court for access, at suitable times, to her daughter. 
 In the matter of Victoria Skinner, Law Eep. 3 
 P. C. 451. 
 
 2. — Special leave to appeal allowed, where the 
 sum was below the appealable amount,on the ground 
 that the construction of a, Colonial Act, which 
 affected the interests of a large class in the colony, 
 was involved. The appeal limited to the con- 
 struction of the Act. Brown v. McLaughan, Law 
 Eep. 3 P. C. 458. 
 
 3. — Special leave to appeal granted where the 
 Supreme Court of the Straits Settlement had re- 
 fused leave on the ground of want of jurisdiction 
 to grant it. Nco v. Neo, Law Eep. 6 P. C. 89. 
 
 Appeal for Costs. [See Admibalty, 48.] 
 
 Judgnieiu reversed: interest on mon^ paid. 
 
 4. — By Order in Council (1846), regulating ap- 
 peals from Hong Kong, it is provided that the 
 Supreme Court shall in all cases of appeal conform 
 to, execute, and carry into immediate effect such 
 judgment and orders as Her Majesty, in Her Privy 
 Council, shall make thereupon, in such manner as 
 any original judgment or decree of the Supreme 
 Court can or may be executed. In June, 1867, 
 the respondents recovered from the appellants in 
 an action of trover in the Supreme Court at Hong 
 Kong, a large sum of money, as principal, interest 
 and costs, and execution was had, and the 
 money was paid. Upon appeal in February, 1869, 
 this judgment was reversed. In June, 1869, the 
 Supreme Court directed the respondents to repay 
 to the appeUauts the money, but declined to direct 
 interest to be paid during the time the money re- 
 mained in the respondents' possession : — Held, 
 first, that it is the duty of all Courts to take care 
 that the act of the Court does no injury to the 
 suitor, and that by the act of the Court is meant 
 not merely the primary Court, but the act of the 
 Court as a whole, from the lowest Court to the 
 highest, which finally disposes of the case ; se- 
 condly, that it was in the power of the Court at 
 Hong Kong to make every order which weis 
 fairly and properly consequential upon the reversal 
 of the original judgment, and that the appellants 
 were entitled to the current rate of interest, whilst 
 the money remained in possession of the respond- 
 ents, on both the principal and interest, but not on 
 the costs. Roger v. The Comptoir B'Escompt de 
 Paris, 40 Law J. Eep. (n.s.) P. C. 1 ; Law Eep. 3 
 P. C. 465 ; and Rajah, ^c. v. Maharajah, Law 
 Eep. 3 P. C. 471, n. 
 
 Ecclesiastical appeal. 
 
 5. — Before an appeal is presented to the Queen 
 in Council in respect of an order directing the 
 reformation of articles of charge or other 
 pleadings, the actual reformation which appears to 
 the Judge to be required, should be made by Iiira 
 on the iace of the order, so that on appeal the 
 very passages omitted may be clearly brought 
 under the judgment of the Judicial Committee. 
 Sheppard v. BennHt, 41 Law J. Eep. (n.s.) Ecc. 
 1; Law Eep. 4 P. C. 371. 
 
 [And see Colonial Law, 14, 23.] 
 
 PEO CONFESSO. 
 [See Practice in EauiTV, 38-40.] 
 
 PEOBATE AND ADMINISTEATION. 
 
 [See Exeoutoe; Will, Formalities.] 
 
 (A) Jurisdiction of Court of Probate. 
 (a) Will of realty, 
 {b) Probate granted abroad. 
 (c) Setting aside will on ground of undue 
 influence. 
 
470 
 
 JPHOBAf E AND ADMlNISTKATlOlir (A). 
 
 (B) Gbant of Pkobate ob Administbation. 
 (a) To whom granted. 
 
 (1) When refused to executor. 
 
 (2) Executor for all prc^ert^ not 
 named in will. 
 
 (3) Stibstittited executors. 
 
 (4) Substituted trustees. 
 
 (5) To husband of wife convicted of 
 felony. 
 
 (6) When necessary to cite husband. 
 
 (7) To husband's estate after judicial 
 separation. 
 
 (8) Chose in action of wife not reduced ■ 
 into possession. 
 
 (9) To guardian without citing next- 
 of-kin. 
 
 (10) To unsuccessful opponent of will. 
 
 (11) Beceiver. 
 
 (12) Next-of-kin. 
 
 (i) Grant to nominee. 
 (ii) Joint grant. 
 
 (13) Residuary legatee. 
 
 (14) Grant to stranger: special cir- 
 cumstances. 
 
 (15) Guardians of union as creditors 
 of pauper lunatic. 
 
 (16) Equitable creditor. 
 (4) Of what granted. 
 
 (1) Will of married woman having 
 protection order. 
 
 (2) Alterations in military imll. 
 
 (3) Words introduced by mistake. 
 
 (4) Erasure and substitution of legatee. 
 
 (5) Offensive paragraphs in will. 
 
 (6) Two wills. 
 
 (i) French and English : incorpo- 
 tion by reference. 
 
 (ii) Scotch disposition and settle- 
 ment, having testamentary 
 effect. 
 
 (iii) Inconsistent wills. 
 
 (7) Will in execution of power. 
 
 (8) Cotitingent will. 
 
 (9) Will and codicils in England with- 
 out codicils abroad. 
 
 (C) Gbaht of Administbation Limited. 
 
 (a) To bequest to chUd of married woman 
 
 under 1 Vict. v. 26, s. 33. 
 (J) To trust property. 
 (c) To property in Court of Chancery. 
 (rf) To property remitted from India. 
 (e) Grant to legatee where executor out of 
 
 jurisdiction. 
 (/) Supplementing limited grant. 
 
 (D) Administbation Pendente Lite, 
 
 (E) Administration Bond. 
 
 (F) Kendnciation. 
 
 (G) 'Witnesses : Examination. 
 
 (a) Witness described as " elderly person." 
 
 (b) Witness neither old nor infirm. 
 (H) Evidence. 
 
 («) Legitimacy. 
 (i) Execution of lost will. 
 (I) Pleading and Peaotice. 
 (ft) Estoppel. 
 
 (1) Order of Court of Chancery. 
 
 (2) Withdrawal of caveat. 
 (5) Survivorship : form of procedwre. 
 (c) Service. 
 \d) Motion. 
 
 (e) Subpoena. 
 
 (/) Property allowed to be sworn under 
 
 different amounts. 
 (g) Amendment of probate, 
 (h) Revocation suit ; interest, 
 (i) Testamentary suit. 
 
 (1) Examination of next-of-kin. 
 
 (2) New trial. 
 
 (_k) Order to attend for examination. 
 (T) Compromise. 
 
 (to) Change of proctor or attorney. 
 (K) Costs. 
 
 (a) Costs out of estate in testamentary suit. 
 
 (1) Unsuccessful claim. 
 
 (2) Unsuccessful opposition. 
 
 (3) Charge on real estate. 
 
 (4) Estate in hands of purchaser for 
 
 value without notice. 
 (J) Plea of undue influence in testamentary 
 
 suit. 
 (c) Executor condemned in costs. 
 {d) Costs against Queen's Proctor. 
 (c) Calling in probate. 
 
 (f) Taxation of costs : compromise. 
 (L) Pbobatb Duty. 
 
 (A) Jxtbisdiction of Court of Peobate. 
 (a) Will of realty. 
 
 1. — AVhen a -will disposes of real estate only, 
 directions in it for the payment of debts, for the 
 sale of a portion of the estate, and _ the payment 
 of legacies out of the proceeds, do not give the 
 Court jurisdiction to grant probate. And probate 
 of such a will cannot be granted to suit the con- 
 venience of the parties interested. /» the goods of 
 Bootle, 43 Law J. Eep. (n.s.) P. & M. 41 ; Law 
 Kep. 3P.&D. 177. 
 
 2. — The Court has no jurisdiction under 20 & 
 21 Vict. c. 77, s. 61, to determine the validity of 
 a will in respect of realty, unless the same will 
 which regulates the disposition of the personalty 
 also regulates that of the realty. Campbell v. 
 I/ucy, 40 Law J. Eep. (n.s.) P. & M. 22 ; Law 
 Eep. 2 P. & D. 209. 
 
 A domiciled Scotchman entitled to personalty 
 and also to realty in England, executed a will and 
 two codicils affecting the realty, all valid by the 
 law of Scotland, but the will only valid by the 
 law of England. The executors propounded this 
 will and codicils, and cited the coheiresses-at- 
 law to see proceedings : — Held, that as the dispo- 
 sition of the realty in England was regulated by 
 the will only, and that of the personalty by the 
 will and codicils, this Court had no jurisdiction to 
 make a decree binding on the realty in England. 
 Ibid. 
 
 (6) Probate granted abroad. 
 
 3. — Where probate of the will of a testator 
 who dies domiciled abroad has been granted by a 
 competent Court of the domicil, the validity of the 
 will cannot be disputed in this Court, although it 
 
PROBATE AND ADMINISTRATION (A). (B). 
 
 471 
 
 was proved abroad in common form only. Miller 
 V. James, 42 Law J. Rep. (n.s.) P. & M. 21 ; Law 
 Rep. 3 P. & D. 4. 
 
 The executor propounded a will alleging that 
 the deceased died domiciled in Jersey, and that 
 probate had been granted by a competent Court of 
 Jersey. The next-of-kin pleaded, 1, xxndue exe- 
 cution; 2, incapacity ; 3, undue influence. The 
 Court ordered the 2nd and 3rd pleas to be struck 
 out, on the ground that it was bound by the foreign 
 probate. Ibid. 
 
 (c) Setiinff aside will on ground of undue influence. 
 [See Undue Intluence, 7.] 
 County Court Jurisdiction. [See County 
 Court, 16.] 
 
 (B) Grant op Probate or Administration. 
 
 (a) To whom granted. 
 
 (1) When refused to executor. 
 
 4. — The Court cannot refuse probate to an 
 executor on account of the badness of his charac- 
 ter only. But when he is resident out of the 
 United Kingdom at the time of the testator's 
 death, and he is unfitted to act by reason of his 
 position or bad character, the Court may refuse 
 him the appointment, and make a, grant of ad- 
 ministration under 20 & 21 Vict. c. 77, s. 73, to 
 some other person, with such limitations as it may 
 think fit. In the goods of Samson, 42 Law J. 
 Rep. (n.s.) p. & M. 69 ; Law Rep. 3 P. & D. 48. 
 
 Grant to executor according to the tenor. 
 [See Executor, 1-6.] 
 
 (2) Executor for all property not named in mil. 
 
 5. — The testator, by- his will, which did not 
 dispose of the residue of his personal estate, 
 nominated and appointed his daughter A. B. to be 
 his " executrix for all property whatsoever and 
 wheresoever not named in the will : " — Held, that 
 A. B. was not entitled to probate of the will. In 
 the goods of Wakeham, 41 Law J. Rep. (n.s.) P. & 
 M. 46 ; Law Rep. 2 P. & D. 395. 
 
 (3) Substituted executors, 
 
 6. — A will containe 1 this clause : — " I appoint 
 my wife sole executrix, and, in default of her, I 
 appoint K. and F. to be executors " : — Held, that 
 the substitution of executors was not confined to 
 the event of the wife's dying without having taken 
 probate, but that it also took effect where she 
 proved the will and died, without having fully 
 administered. In the goods of Forster, 41 Law J. 
 Rep. (n.s.) p. & M. 18 ; Law Rep. 2 P. & D. 304. 
 
 (4) Substituted trustees. 
 
 7. — A., who died intestate, was one of the exe- 
 cutors and trustees of his fether's will, and applied 
 to his own use considerable sums, part of the trust 
 funds, which came into his hands as trustee. A 
 renunciation and consent having been filed by the 
 next-of-kin, the Court granted, under section 73, 
 administration of the personal estate and effects 
 
 of the deceased to B. and C, the substituted 
 trustees xmder his father's will. In the goods of 
 Bond, 44 Law J. Rep. (n.s.) P. & M. 41. 
 
 8.— The effect of the order made by a Court of 
 Equity under the Trustee Act, 1850, substituting 
 new trustees for those named in the will, is to 
 transfer to the new trustees all the rights and 
 powers of the old ones. The Court, therefore, 
 granted administration (with will a,nnexed) to the 
 substituted trustees without requiring the execu- 
 tion of a deed of conveyance to them by the old 
 trustees. In the goods of Woodfall, 42 Law J. 
 Rep. (n.s.) p. & M. 64 ; Law Rep. 3 P. & D. 108, 
 nom. Woodfall v. Arbuthnot. 
 
 (5) To husband of wife convicted of felony. 
 9, — The wife became entitled to a legacy of 
 lOOl. in 1827. In 1833 she was convicted of 
 felony and transported to Van Diemen's Land for 
 seven years. In 1843 she received a certificate of 
 freedom, and was not heard of afterwards. The 
 legacy, which was the only property to which she 
 was entitled, became payable in 1870. The Court 
 required notice to be served on the Queen's Proc- 
 tor before granting administration of her personal 
 estate and effects to her husband. Bi the goods of 
 Stevens, 42 Law J. Rep. (n.s.) P. & M. 23. 
 
 (6) When necessary to cite husband. 
 
 10. — Husband and wife agreed to live separate 
 and apart, the husband covenanting, among other 
 things, to permit, in the event of the wife prede- 
 ceasing him, administration of her goods and 
 chattels to pass to those who would be entitled to 
 it if he had died, leaving her surviving him. 
 The wife died, and the husband refused to re- 
 nounce. The Court declined to make a grant to 
 the guardian of the children of the deceased for 
 their use and benefit until the husband had been 
 first cited. In the goods of Pigott, 42 Law J. Rep. 
 (n.s.) p. & M. 77. 
 
 11. — A married woman whose personal estate 
 consisted of a legacy which became payable in 
 1864, died in 1856 intestate. In 1845 her husband 
 went abroad, and was last heard of in 1853 : — 
 Held, that as there was no evidence that the 
 deceased died a widow, her next-of-kin was not 
 entitled to administer without citing the represen- 
 tatives of the husband. In the goods of Nichols, 
 41 Law J. Rep. (n.s.) P. & M. 88 ; Law Rep. 2 
 P. & D. 461. 
 
 The rule that where a husband and wife perish 
 together, and there is no evidence that the one 
 survived the other, administration of their personal 
 estate will be granted to their respective next-of- 
 kin, is not applicable to such a case. Ibid. 
 
 (7) To husband! s estate afteir judicial separation. 
 
 12. — A. B., who had obtained a decree of 
 judicial separation against his wife on the ground 
 of cruelty, died intestate, leaving him surviving 
 his widow and two daughters. The Court refused 
 to grant administration of his personal estate to 
 the eldest daughter until the widow was first 
 cited. In the goods of Ihler, 42 Law J. Rep. (n.s.) 
 P. & M. 18; Law Rep. 3 P. & D. 50. 
 
472 
 
 PEOBATK AND ADMINISTRATION (B). 
 
 (8) Chose in action of wife not reduced into pos- 
 session. 
 13. — A., a married woman, died, intestate, 
 entitled to a chose in action. B., the husband, who 
 survived her, did not reduce her property into 
 possession during his lifetime, and died, intestate, 
 ■without having administered to her effects : — ■ 
 Held, that a double administration was necessary 
 to enable C, their only child, to possess himself of 
 his mother's property. In the goods of Harding, 
 41 Law J. Kep. (n.s.) P. & M. 65 ; Law Eep. 2 
 P. & D. 394. 
 
 (9) To guardian without citing next-of-kin. 
 
 14. — The deceased died intestate, leaving a 
 widow and seven children, minors. The widow 
 died without having administered to his effects. 
 The estate consisted of household furniture and 
 money lent at interest, and administration was 
 needed for the purpose of receiving and giving a 
 discharge for this sum and making provision for 
 the maintenance of the children. Two uncles, 
 the next-of-kin, had been abroad, and unheard of 
 for several years. The Court, under these cir- 
 cumstances, allowed the minors to elect their first 
 cousin once removed as their guardian for the 
 purpose of taking out administration to the per- 
 sonal estate and effects of their deceased father, 
 without first citing their next-of-kin. In the goods 
 of 'Bwchmore, 43 Law J. Eep. (n.s.) P. & M. 1 ; 
 Law Eep. 3 P. & D. 139. 
 
 (10) To imsnccessful opponent of will. 
 
 15. — The testator by his will divided the resi- 
 due of his personal estate between his son, his 
 only next-of-kin, and his three illegitimate daugh- 
 ters, who were minors. They propounded the 
 will by their guardian. The son unsuccessfully 
 opposed it, and was condemned in costs. He had 
 a larger interest in the specific legacies than the 
 minors, and it was proved that in fact there was 
 no residue : — The Court refused, under these cir- 
 cumstances, to make the grant to the guardian of 
 the minors, but decreed it to the son. It also 
 declined to make the grant to the son conditional 
 on his payment of the guardian's costs, as by so 
 doing it would delay the payment of the legacy to 
 the widow. Sawhridge v. Hill, 40 Law J. Eep. 
 (n.s.) p. & M. 27 ; Law Eep. 2 P. & D. 219. 
 
 (11) Receiver. 
 
 16. — A. died intestate. It was alleged that 
 his widow had possessed herself of part of his 
 estate, though she had not taken out administra- 
 tion, and a bill in Chancery was in consequence 
 filed against her by persons having claims upon 
 the estate of the deceased. The Court of Chancery 
 appointed a receiver, vrith authority to collect, 
 get in, and receive the estate, at]d to apply to the 
 Court of Probate for administration. 'The re- 
 ceiver cited the widow and all the next-of-kin and 
 persons entitled in distribution, and upon their 
 non-appearence to the citation, the Court made a 
 general grant of administration to him. In the 
 goods of Mayer, 42 Law J. Eep. (n.s.) P. & M. 57 ; 
 Law Eep. 3 P. & D. 39. 
 
 (12) Nead-of-hin. 
 (i) Grant to nominee. 
 
 17.— Administration will not be granted to a 
 nominee of the next-of-kin, except under very 
 special circumstances. Teague v. Wharton, 41 
 Law J. Eep. (n.s.) P. & M. 13 ; Law Eep. 2 P. & 
 D. 360. 
 
 18. — A. died intestate, leaving a niece, who 
 claimed to be her sole next-of-kin, and other 
 relations. A doubt being raised as to the legiti- 
 macy of the niece, she and the other relations of 
 the deceased by deed agreed to divide the estate, and 
 that administration should be granted to a nominee 
 who had no interest. The niece having renounced, 
 and, with the other parties, having consented to the 
 grant being so made, the Court under section 73 
 of 20 & 21 Viet. c. 77, granted administration to 
 their nominee. In the goods of Hopkim, 44 Law 
 J. Eep. (n.s.) p. & M. 42 ; Law Eep. 3 P. & D. 
 235. 
 
 (ii) Joint grant. 
 
 19. — A. by his will gave B., his wife, a life 
 interest in all his property, and directed that on 
 her death it should be sold and divided amongst 
 his six children. He further named his wife sole 
 executrix, and appointed C, his eldest son, 
 trustee to carry into effect the division of the pro- 
 perty on her death. B. disposed of the property 
 for 600Z., and this sum, with 130Z. of her own, she 
 invested in the purchase in her own name of two 
 leasehold houses. She died intestate, leaving C. 
 and five other children, her next-of-kin, her sur- 
 viving. There was no other property than the 
 two leasehold houses. The Court refused to make 
 a joint grant of administration to C. and the 
 nominee of the other next-of-kin, but made the 
 grant to C. alone, he giving justifying security. 
 In the goods of Stainton, 40 Law J. Eep. (n.s.) P. 
 & M. 25 ; Law Eep. 2 P. & D. 212. 
 
 20. — The deceased died intestate, leaving a 
 widow and several minor children by a former 
 wife. During his lifetime he had been assisted in 
 his business by his brother. His widow was un- 
 acquainted with its management, and she was 
 desirous that the brother (who was elected by the 
 children their guardian for the p\irpose) should be 
 joined with her in the grant. The Court held, 
 that the circumstances did not warrant a joint 
 grant, and refused the application. In the goods 
 of Richards, 40 Law J. Eep. (n.s.) P. & M. 29 ; 
 Law Eep. 2 P. & D. 216. 
 
 21. — The Court refused, in the absence of 
 special circumstances, to make a grant under the 
 73rd section of the Probate Act to the nominee 
 of the next-of-kin, who was an old lady of the age 
 of 81, and a party entitled in distribution. In 
 the goods of Riokardsoii, 40 Law J. Eep. (n.s.) 
 P. & M. 36 ; Law Eep. 2 P. & D. 244. 
 
 (13) Residuary legatee. 
 
 22. — Administration with the will annexed will 
 be granted to a residuary legatee only on the re- 
 nunciation, or citation and non-appearance, of the 
 executor: his consent alone is not sufficient. 
 Garrard v. Garrard, Law Eep. 2 P. & M. 238. 
 
PKOBATB AND ADMINISTEATION (B) 
 
 478 
 
 (14) Grant to stranger : special drettmstances. 
 
 23. — The deceased was assisted in the latter 
 years of his life by A. B., his wife's nephew. His 
 personal estate and defects (principally furniture) 
 were valued at 838i. The debts owing by him at 
 the time of his death amounted to 972^., and these 
 were paid by A. B. out of his own money. The 
 next-of-kin having renounced, the Court granted 
 letters of administration of the personal estate 
 and effects of the deceased to A. B. under the 
 73rd section of 20 & 21 Viet. c. 77. In the goods 
 ofBateman, 40 Law J. Eep. (n.s.) P. &M. 24; 
 Law Eep. 2 P. & D. 242. 
 
 24. — The mere feet that the person who would 
 be entitled to administration desires that some 
 ' other person should take the grant, does not oon- 
 Btitute such a special state of ciroum stances as to 
 justify a grant under the 73rd section of 20 & 21 
 Viet. e. 77. In such a case the proper course to 
 be adopted is for the person entitled to adminis- 
 tration to take the grant, and then appoint his 
 nominee to act as his or her attorney. In the 
 goods of Hale, 44 Law J. Eep. (n.s.) P. & M. 45 ; 
 Law Eep. 3 P. & D. 207. 
 
 (15) Guardians of union as (yreditors of pauper 
 luiiaiic. 
 
 25. — The deceased was a pauper lunatic, and 
 &om 1862 until his death in 1870, the cost of his 
 maintenance in the county asylum was paid by the 
 union to which he belonged. On the death of his 
 wife in 1865 he became entitled to a sum of 400^., 
 but no steps were taken by the guardians of the 
 union to obtain an order from the justices under 
 16 & 17 Vict. u. 97, =. 104, to make the fund 
 applicable to his maintenance. The Court refused 
 to make them a grant of administration as credi- 
 tors of the deceased. Windeatt v. Sharland. In 
 the goods of Sharland, 40 Law J. Eep. (n.s.) P. & 
 M. 21 ; Law Eep. 2 P. & D. 217. 
 
 26. — A pauper lunatic died in an asylum, 
 which, although not locally situate within the 
 union to which he belonged, was the proper asylum 
 for persons from that union, and to the support of 
 which the union contributed. The expenses of 
 his maintenance in the asylum during twelve 
 months prior to his death, and of his burial, 
 having been paid by the guardians of the union, 
 — Held, that they were entitled under 12 & 13 
 Vict, c. 103, s. 16, to administration of the 
 deceased's effects as creditors. Windeatt v. Shar- 
 land, 41 Law J. Eep. (n.s.) P. & M. 9 ; Law Eep. 
 2 P. & D. 266. 
 
 (16) Eguitahle credAtor. 
 
 27. — The testator by his will appointed A. and 
 B. executors and trustees, and directed them to 
 allow his wife to receive the rents and profits of 
 his estate, and to carry on his business of a tailor 
 and draper for the term of her natural life, if she 
 should BO long remain his widow. A. & B. declined 
 the trusts and duly renounced probate, and 
 administration, with the will annexed, was granted 
 to the widow, who carried on the business down 
 to the time of her death, in January, 1874. She 
 did not marry again, and she died insolvent and 
 DiSEST, 1870-1875. 
 
 intestate. With the exception of a policy of in- 
 surance for a small amount, the whole of the testa- 
 tor's property was employed by the widow in 
 carrying on the business, and while she did so 0. 
 supplied her with goods in the way of the trade of 
 a tailor to the amount of 399Z. The debt remained 
 unpaid at her decease, and 0. held no security for 
 any part of it. The parties interested under the 
 will having been cited, and there being no opposi- 
 tion to the motion, the Court decreed administra- 
 tion with the will annexed, of the unadministered 
 effects of the testator to C. as an equitable credi- 
 tor of the estate, but required, as, conditions to 
 his obtaining the grant, that he should in the iirst 
 place, as a legal creditor of the widow, take out 
 administration to her estate, and also give justify- 
 ing security. Fairlamh v. Fercy. In the goods of 
 Percy, 44 Law J. Eep. (n.s.) P. & M. 1 1 ; Law 
 Eep. 3 P. & D. 217, nom. Fairland v. Percy. 
 
 (i) Of what granted. 
 
 (1) WUl of married woman having prof ection order. 
 
 28. — The testatrix was deserted by her husband 
 in 1843. She subsequently acquired property by 
 her own industry. In 1851 she made a will, dis- 
 posing of her property, but did not obtain a pro- 
 tection order, under 20 & 21 Vict. c. 85, s. 21, 
 until 1858. The order, however, stated that it 
 was " to protect all earnings and property acquired 
 since 22nd of July, 1843, the commencement of 
 said desertion : " — Held, that the vnll was entitled 
 to probate. In the goods of Elliott, 40 Law J. Eep. 
 (N.s.) P. & M. 76 ; Law Eep. 2 P. & D. 274. 
 
 (2) Alterations in military will. 
 
 29. — The testator, an officer in the Indian 
 army, wrote and signed his will while engaged in 
 actual military service. The will contained 
 material alterations in the hand-writing of the 
 testator, but no information could be obtained as 
 to the time at which they were made: — Held, 
 that, in the absence of evidence to the contrary, 
 the presumption was that the alterations were 
 made while the testator was still engaged in actual 
 military service, and that they were entitled to 
 be included in the probate. In the goods of 
 Tiueedale, 44 Law J. Eep. (n.s.) P. & M. 36 ; 
 Law Eep. 3 P. & D. 204. 
 
 {Z) Words introduced by mistake. 
 
 39. — The testator intended to divide the residue 
 of his personal estate among his sons. The in- 
 tention was expressed in the memorandum of 
 instructions for the will, which dealt with realty 
 as well as personalty, by the words — "and the 
 residue equally among all the sous." In drawing 
 the wiU, the words, " and personal," which should 
 have followed the word " real " in the residuary 
 clause, were omitted by mistake, and the clause 
 in consequence purported to dispose only of the 
 residue of realty. There was no residue of 
 realty, either at the date of the execution 
 of the will or at the death of the testator, 
 but there was residue of personalty of consider- 
 able value: — Held, assuming parol evidence to be 
 3P 
 
474 
 
 PROBATE AND ADMINISTRATION (B). 
 
 admissible to shew the mistake, that it was not in 
 the power of the Court to correct it by inserting 
 the omitted words in the clause, or otherwise to 
 give eifect to the intention of the testator by 
 expunging from the clause the word " real ; " and 
 the will was pronounced for in its existing form. 
 Hartcfr v. Harter, 42 Law J. Kep. (n.s.) P. & M. 
 1; Law Eep. 3 P. & D. 11. 
 
 Semble — if the error in the will had been of a 
 kind which the Court could have rectified, the 
 Court would not have been precluded from doing 
 so by the execution of a codicil, which, after 
 making certain alterations in the will, " in all 
 other respects " confirmed it. Ibid. 
 
 31. — A. having executed a vrill and two codicils, 
 subsequently executed a will, not k;iowing that it 
 contained a clause of revocation which had been 
 inserted without her authority. The Court granted 
 probate of the four testamentary papers, exclusive 
 of the clause of revocation. In the goods of 
 Oswald, 43 Law J. Eep. (n.s.) P. & M. 24; Law 
 Eep. 3 P. & D. 162. 
 
 (4) Erasure and substitution of legatee. 
 
 32. — Where a testator obliterates the name of 
 a legatee and substitutes that of another, intend- 
 ing to revoke the former legacy by substituting 
 the name of the second legatee, but the second 
 bequest cannot take effect for want of compliance 
 with the Wills Act, the will may be pronounced for 
 in its original state, if that is ascertainable by any 
 means of legal proof. In the goods of M' Cabe, 42 
 Law J. Eep. (u.s.) P. & M. 79 ; Law Eep. 3 P. & 
 D. 94. 
 
 (6) Offensive paragraphs in will. 
 
 33. — The Coui't will not exercise its power of 
 omitting from the probate offensive or libellous 
 passages in a will, except in cases of a very special 
 and definite character. It therefore refused to 
 omit from the probate a paragraph in a will which, 
 though offensive, was not calculated to injure. In 
 the goods of Honywood, 40 Law J. Rep. (n.s.) 
 P. & M. 3i5 ; Law Eep. 2 P. & D. 251. 
 
 {%) Two wills. 
 
 (i) French and English : incorporation by reference. 
 
 34. — The testator executed a will in Prance in 
 1858, and added a codicil thereto in 1865, and a 
 second codicil in 1872. In 1860 he executed a 
 second will, which he deposited with his bankers 
 in England, and in it appointed executors, and 
 confirmed and renewed in all its parts the will of 
 1858. The French will (1858) disposed only of 
 his property in France, the English will (1860) 
 disposed only of his property in England, and 
 both contained statements to the effect that they 
 were independent of each other : — Held, that the 
 French papers were incorporated by reference 
 with the English will, and that all should be 
 included in the probate. In the goods of Howden, 
 43 Law J. Rep. (n.s.) P. & M. 26. 
 
 (ii) Scotch disposition and settlement having testa- 
 mentary effect. 
 
 35, — The testator was by origin a Scotchman, 
 
 but for the greater portion of his life and at his 
 death was domiciled in England. By a Scotch 
 disposition and settlement, dated Janti£|.ry, 1851, 
 duly executed, and having a testamentary effect by 
 the law of Scotland, he conveyed to trustees upon 
 certain trusts, his whole heritable and moveable 
 estate then belonging or which shoald belong to 
 him at the time of his death, reserving to himself 
 power to alter the same in whole or in part, and 
 to revoke, cancel and annul the same as he might 
 think proper. He executed a will on the 8th of 
 October, 1865^ by which he disposed of all his 
 real and personal estate, whether in England or 
 Scotland, and appointed his son executor. The 
 will was ineffectual as a conveyance of the Scotch 
 heritage, and it did not revoke the previous trust 
 disposition in' the Scotch form. The Court, under 
 these circumstances, granted probate of both in- 
 struments, as together containing the wiU of the 
 deceased. In the qoodi of Donaldson, 42 Law J. 
 Rep. (N.s.) P. & M. 19 ; Law Rep. 3 P. & D. 45. 
 
 (iii) Inconsistent wills. 
 
 38. — Probate of two wills, the second of which 
 was inconsistent with the first, but did not appoint 
 an executor or revoke the appointment of an exe- 
 cutor contained in the first, or contain a general 
 clause of revocation, granted by consent to the 
 executor named in the first will. In the goods of 
 Griffith, Law Eep. 2 P. & D. 457. 
 
 37. — A testator made two wills. By the first, 
 which disposed of all his property, he appointed 
 his wife executrix. By the second, which disposed 
 of part of his property, and did not revoke the 
 first, he appointed S. his executor : — Held, that 
 the widow was entitled to probate of both instru- 
 ments, leave being reserved to S. to come m and 
 prove. In the goods of Andrew, 42 Law J. Eep. 
 (N.s.) P. & M. 38. 
 
 (7) Will in execution of power. 
 
 Probate of will in execution of power : sub- 
 seqent exercise of power by deed. [See 
 POWEE, 4.] 
 
 (8) Contingent will. 
 
 nil. [See Will, Constbuc- 
 TION, B 1-13.] 
 
 (9) Will and codicils in England without codicils 
 abroad. 
 
 38. — The testator left a will and six codicils. 
 The will and first two codicils were in the posses- 
 sion of the executor in England. The other 
 codicils were in India, and probate of them had 
 been granted by the Court at Calcutta, but no 
 exemplification or authentic copies of them had 
 been sent to this country. It being for the benefit 
 of the estate that the executor in England should 
 be at once qualified to act, the Court decreed to 
 him probate of the will and two codicils in his 
 possession, reserving power to him to prove the 
 other codicils when they reached England, and he 
 filing an undertaking to ,do so. In the goods of 
 
PHOBATE AND ADMINISTRATION (B), (C). 
 
 475 
 
 Boharts, 42 Law J. Eep. (n.s.) P. & M. 63 ; Law 
 Eep. 3P. &D. 118. 
 
 Validity and effect of Canadian ^ohate. 
 [See Colonial Law, 8.] 
 
 (C) (iBANT or Administeation Limited. 
 
 (a) To bequest to child of married woman under 1 
 Vict. c. 26, «. 33. 
 
 39. — A married woman who was a legatee under 
 the will of her father, died in his lifetime and in 
 that of her husband, leaving issue. The husband 
 died before the father, leaving a will of which 
 probate was granted : — Held, that as under 1 Vict. 
 c. 26, s. 33, the bequest took effect as if the legatee 
 had died immediately after her father, in which case 
 she would have died a widow, her son was entitled 
 to administration limited to the bequest, without 
 citing the executor of the husband. In the goods 
 ofCouncell, 41 Law J. Eep. (n.s.) P. & M. 16; 
 Law Eep. 3 P. & D. 314. 
 
 (A) To trust property. 
 
 40. — The testator died insolvent, but leaving 
 trust property of great variety and value to be 
 administered. By his will he appointed his wife 
 sole executrix and residuary legatee, and by a 
 codicil thereto he devised and bequeathed to C. F. 
 " all tenements, hereditaments and premises " held 
 by him upon trust or by way of mortgage, subject 
 to the trusts and equities affecting the same. The 
 widow renounced probate and administration with 
 the will and codicil annexed, and the next-of-kin 
 were also willing to renounce administration. 
 The Court, under these circumstances, granted 
 administration with the will and codicil annexed, 
 to C. F., limited to the trust estates (so far as 
 regarded the personalty) which vested in him. In 
 the goods of Protheroe, 44 Law J. Eep. (n.s.) P. & 
 M. 8 ; Law Eep. 3 P. & D. 209. 
 
 (c) To property in Court of Chancery. 
 
 41. — ^A., on the supposition that he was entitled 
 to a certain share in B.'s estate, assigned by deed 
 such share to C. It was subsequently determined 
 by a decree of the Court of Chancery that the share 
 belonged to D., A.'s. father, but it ultimately 
 devolved upon A. as one of the persons entitled 
 under his father's estate. A. was the administra- 
 tor of D., but the assignment was made in his own 
 right. D.'s share was found to consist of 1,774Z. 
 1 3s. id. This sum was placed to his credit in the 
 name of the Accoimtant-General of the Court of 
 Chancery, in the books of the Governor and Com- 
 pany of the Bank of England, and formed part of 
 his estate left unadministered by A. The person 
 entitled as next-of-kin to the grant of administra- 
 tion of D.'s unadministered estate was in America, 
 and was cited by advertisement, but no appearance 
 ■was entered. The Court, under these circum- 
 stances, refused to make to the executor of C. a 
 grant of the unadministered personal estate of D., 
 limited to the sum which was found to represent 
 his share in B.'s estate, but made a grant limited 
 to enabling the executor to assert C.'s rights as 
 
 assignee under the deed in the Court of Chancery, 
 and to receive what the Court of Chancery might 
 consider him entitled to. Biirdon -v. Morgan ; In 
 the goods of Longhurst, 41 Law J. Eep. (n.s.) P. 
 & M. 26 ; Law Eep. 2 P. & D. 371. 
 
 42.— A_ married woman died at Eome in 1854, 
 in the lifetime of her husband. By an indenture 
 of post-nuptial settlement, it was provided that 
 certain property which was then settled upon 
 certain trusts, and any other property to which 
 she might thereafter beconae entitled, should, in 
 the event of her predeceasing her husband, and 
 other events which happened, be distributable 
 amongst her next-of-kin as if she had died un- 
 married and intestate. Her husband, an Italian, 
 died at Eome in 187), having executed a wiU, in 
 which he appointed executors, but the will was 
 not proved in this country. The deceased was 
 entitled to one-third share of her father's residuary 
 personal estate which became distributable in 
 November, 1874, and by an order of the Court of 
 Chancery the share was carried over to her 
 account. The Court, under these circumstances, 
 granted administration limited to the fund in 
 Chancery, to one of the next-of-kin, without 
 requiring the representative of the husband to be 
 cited. In the goods of Garofolini, 44 Law J. Eep. 
 (n.s.) p. & M. 36. 
 
 (d) lo property remitted from India. 
 
 43. — The deceased, who was in the Indian 
 Civil Service, died in Bengal in 1865, intestate, 
 leaving a widow, his mother, and three brothers, 
 together the only persons entitled in distribution 
 to Ms personal estate and effects. The Adminis- 
 trator-General of Bengal took possession of his 
 property, which was all in India, and paid one 
 moiety of the proceeds thereof to the widow, who 
 was living in India, and remitted the other moiety 
 to the India Office in this country, for distribution 
 amongst those entitled to it. The mother and 
 two of the brothers died subsequently to 1865. 
 The Court made a grant of administration, under 
 20 & 21 Vict. c. 77, s. 73, to A., the surviving 
 brother, limited to the sum in the hands of the 
 authorities at the India Office. In the goods of 
 Hughes, 43 Law J. Eep. (n.s.) P. & M. 31 ; Law 
 Eep. 3 P. & D. 140. 
 
 (e) Grant to legatee where executor oat of jurisdic- 
 tion. 
 
 44.— The Court, under 38 Geo. 3. fl. 87, 
 s. 1, and 21 & 22 Vict. c. 96, «. 18, may, 
 at any time after the expiration of twelve 
 calendar months from the testator's death, grant 
 administration to a creditor, next-of-kin or legatee, 
 if the executors who have proved the will are, at 
 the time of the application, residing out of the 
 jurisdiction. Such a grant, if made to a residuary 
 legatee whose interest in the estate is unascertained, 
 will be limited to enable him to sue in Chancery! 
 If a specific sum of money is payable to the appli- 
 cant, the grant will be limited to receive such sum 
 In the goods of Ruddj/, 41 Law J. Eep (n s 1 P & 
 M. 63 ; Law Eep. 2 P. & D. 330. -^ '' '■' ' 
 3p2 
 
476 
 
 PEOBATB And At)MlNfSTEAl!l01^ (C), (I). 
 
 (/) Supplementing limited grant. 
 
 45. — A grant of administration limited to carry 
 on proceedings in Chancery will not be revoked 
 in order to make a general grant to a person 
 entitled thereto. It will be Bupplemented by a 
 caterorum grant, and the two taken together have 
 the effect of a general grant. In the goods of 
 Srown, Law Eep. 2 P. & D. 455. 
 
 (D) Administbation Pendente Lite. 
 
 46. — In a testamentary suit the Court pro- 
 nounced for the will, and probate was delivered 
 out to the executors, the defendants. The plain- 
 tiff appealed, and pending the appeal the execu- 
 tors were unable to make such a title to certain 
 leasehold property, part of the .testator's estate, 
 as the purchaser was entitled to require. The 
 Court, under these circumstances, and no one op- 
 , posing, allowed the executors to bring in the pro- 
 bate, and made to them a grant of administration 
 pendente lite. Wright v. Rogers, 40 Law J. Eep. 
 (n.s.) p. & M. 8 ; Law Bep. 2 P. & D. 179. 
 
 (E) Administration Bond. 
 
 47. — Where the estate was not under 5,000?., 
 and all the debts of the intestate, with the excep- 
 tion of a few small debts, amounting to 25/., had 
 been paid and satisfied by the administrator, who 
 was the only next-of-kin and the only person en- 
 titled in distribution to the personal estate of 
 the deceased, the Court required only one surety 
 to join in the administration bond. In the goods of 
 Bellamy, 44 Law J. Eep. (n.s.) P. & M. 49. 
 
 (F) Eeitonoiation. 
 
 48, — A renunciation by an executor is not 
 complete until filed in the proper office. In the 
 goods of Moraiit, 43 Law J". Eep. (n.s.) P. & 
 D. 16 ; Law Eep. 3 P. & M. 161. 
 
 An executor signed a renunciation of probate, 
 in order that administration with the will an- 
 nexed might be granted to a creditor. The neces- 
 sary papers, including the renunciation, to lead 
 the grant, were taken into the registry, but a diffi- 
 culty arose in the way of the grant, and all the 
 papers were withdrawn : — Held, that there had 
 been no renunciation by the executor within the 
 meaning of the 79th section of the Probate Act, 
 1857, and that he was entitled to probate of the 
 will. Ibid. 
 
 49. — An executor who has filed a remmcia- 
 tion will not be allowed to retract such renuncia- 
 tion unless he can shew that the retractation will 
 be for the benefit of the parties interested. 
 Whether such renunciation can be retracted in 
 any case is not decided. In the goods of GUI, 
 Law Eep. 3 P. & D. 113. 
 
 (G) Witnesses : Examination. 
 
 [See Eules of 1874, rr. 116-123, 43 Law J. 
 Eep. (n.s.) p. & M. 2.] 
 
 (ffi) Witness described as " elderly person" 
 
 50. — The will purported to have been exe- 
 cuted in the presence of two attesting witnesses. 
 
 One was abroad,. the other in England. The exe- 
 cutors who propounded the will applied for a 
 commission for the examination de bene esse of the 
 second attesting witness, who was resident in 
 London. The af&davit alleged no physical infir- 
 mity, but described him as an " elderly person." 
 The Court ordered the commission to issue, but 
 intimated that if it were proposed at the trial to 
 read the evidence taken under it, strict proof of 
 inability to produce the witness would be required. 
 M'Pherson v. Parnell, 40 Law J. Rep. (n.s.) P. & 
 M. 30. 
 
 (6) Witness neither old nor infirm, 
 
 51. — The Court refused to order a commission 
 to issue for the examination of a witness in a tes- 
 tamentary suit pending before it, the witness not 
 being old or infirm, and there being no circum- 
 stance beyond the allegation that the evidence 
 was material, calling for her examination out of 
 the ordinary course. Andrews v. Brooke, 43 Law 
 J. Eep. (n.s.) p. & M. 39 ; Law Eep. 3 P. & D. 
 181. 
 
 (H) Evidence. 
 
 (a) Legitimacy. 
 
 52. — The only question at issue before thejuryin 
 an administration suit was whether M. D., through 
 whom the defendants claimed, was legitimate. In 
 the course of their case, which was opened first, 
 they tendered his declarations in evidence. The 
 plaintiffs objected to the admissibility of these 
 declarations, and tendered evidence on the voire 
 dire, for the purpose of shewing that the decla- 
 rant was not a member of the family. The Court 
 being of opinion that the defendants had made 
 out a prima facie case of the declarant's legiti- 
 macy, admitted the evidence of the declarations, 
 and rejected the evidence on voire dire tendered 
 by the plaintiffs. Hitchins v. Eardley, 40 Law 
 J. Eep. (N.s.) P. & M. 70 ; Law Eep. 2 P. & D. 
 248. 
 
 {b) Execution of lost win. 
 
 53. — An entry in the ledger of a deceased 
 solicitor in his handwriting, admitting payment 
 of his charges for drawing and attending the exe- 
 cution of a will, — Held, to be evidence of the 
 execution of the will. In the goods of Thomas, 41 
 Law J. Eep. (n.s.) P. & M. 32. 
 
 Burden of proof of imdue influence. [See 
 Undue Ineluencb, 7.] 
 
 (I) Pleadino and Pbactice. 
 
 (a) Estoppel. 
 
 (1) Order of Court of Chancery. 
 
 54. — Administration of the effects of E. had 
 been granted to W. as one of the next-of-kin. A 
 suit was instituted in Chancery to which W. was 
 a party, and in it the question was raised who 
 were the next-of-kin of E. The administratrix 
 of S., who in his lifetime was one of the next-of- 
 kin of E., obtained leave to attend, and took part 
 in the enquiry, which resulted in a decision that 
 W. was not one of the next-of-kin of E. A suit 
 for revocation of the grant of administration was 
 
f HOMtE and administration (I). 
 
 m 
 
 then instituted against W. by A. and B., who 
 ■were the next-of-kin of S., the administratrix of 
 S. having renounced her right to administer the 
 estate of E. : — Held, that, although as against 
 the administratrix of S., W. would have been 
 estopped by the decision of the Court of Chan- 
 cery from alleging that he was one of the next-of-kin 
 of B., he was not estopped as against A. and B., as 
 they did not claim through the administratrix of 
 S., and were not parties to the Chancery suit. 
 Spencer v. Spencer, 40 Law J. Eep. (n.s.) P. & 
 M. 45 ; Law Eep. 2 P. & D. 230. 
 
 (2) Withdrawal of caveat. 
 
 55. — An executor of a will entered a caveat to 
 a will of a later date, but withdrew the caveat 
 before it was warned, and allowed letters of ad- 
 ministration with the earlier will annexed, to be 
 granted to one of the residuary legatees named 
 therein •.—Held, that he was not estopped by the 
 withdrawal of the caveat under the circumstances 
 from calling in the lettters of administration (with 
 the earlier will annexed) and propounding the 
 alleged later 'will. Goddard v. Smith, 42 Law 
 J. Eep. (n.s.) p. & M. 14 ; Law Eep. 3 P. & D. 7. 
 
 (5) Survivorship : form of procedure. 
 
 56. — Where a question whether a husband, 
 who had not been heard of for many years, sur- 
 vived his wife, was raised by a plaintiff by peti- 
 tion, and not by a declaration, and the defendant 
 applied for time to answer : — Held, that by so 
 doing he had waived his right to object to the 
 form of procedure. Peppercorn v. Gardner, Law 
 Eep. 3 P. & D. 149. 
 
 (e) Service. 
 
 [Additional Eules as to service of notices, 43 
 Law J. Eep. (n.s.) P. & M. 1.] 
 
 {d) Motion. 
 
 [See Eules of 1874, n. 124-127, 43 Law J. Eep. 
 (n.s.) p. & M. 2.] 
 
 (e) Subpoena. 
 
 [See Eules of 1874, x. 132, 43 Law J. Eep. (n.s.) 
 P. & M. 3.] 
 
 (/) Property allowed to be sworn under different 
 amounts. 
 
 57. — One of two executors who proved the 
 will swore the property under 60,000i., and paid 
 the duty thereon. The amount of the property 
 depended on the result of a pending suit in Chan- 
 cery. It was essential for the purposes of the 
 suit that the second executor, who believed the 
 property to be of the value of only 2,000?., 
 should take probate of the will, and he had been 
 advised that he might be prejudiced by swearing 
 the property under 60,000?. The Court allowed 
 him, under these circumstances, to swear the pro- 
 perty under the smaller amount. In the goods of 
 Bell, 40 Law J. Eep. (n.s.) P. &M. 67 ; Law Eep. 
 2 P. & D. 247. 
 
 {g) AmendrMni of probate. 
 
 58. — After a probate had issued in which the 
 testator was described as of his residence only, 
 the Court allowed it to be amended by adding to 
 the description the place where the testator car- 
 ried on his business. In the goods of Towgood, 41 
 Law J. Eep. (n.s.) P. & M. 84 ; Law Eep. 2 P. & 
 D. 408. 
 
 {h) Eevooation suit : interest. 
 
 59. — To entitle a person to intervene in a suit 
 for revocation of letters of administration, it is 
 not necessary that he should have had an interest 
 at the time of the death of the deceased ; an in- 
 terest acquired subsequently by purchase of part 
 of the estates from the administrator is sufficient. 
 Lindsay v. Lindsay, 42 Law J. Eep. (n.s.) P. & M. 
 32. 
 
 (i) Testamentary siiit, 
 (1) Examination, of next-of-kin. 
 
 60. — The executor named in the will having 
 determined to propound it, cited certain persons 
 who were next-of-kin of the deceased to see pro- 
 ceedings. They appeared, and there being reason 
 to believe that there were other next-of-kin, the 
 Court made an order upon them, under 20 & 21 
 Vict. c. 77, s. 24, to attend before the registrar, 
 to be examined as to the state of the family. 
 Shepheard v. Beetham, 41 Law J. Eep. (n.s.) P. & 
 M. 44 ; Law Eep. 2 P. & D. 384. 
 
 (2) New trial. 
 
 61. — The plaintiff in a testamentary suit was 
 examined as a witness in his own behalf, and ob- 
 tained the verdict of the jury. He was subse- 
 quently convicted of perjury in the evidence 
 which he gave on the trial, and was sentenced to 
 twelve months' imprisonment. The witnesses on 
 whose evidence he was convicted of the perjury 
 were also called as witnesses in the suit on behalf 
 of the defendant. The Court under these circum- 
 stances refused to grant a new trial of the cause. 
 Davies v. BrecJcnell, 42 Law J. Eep. (n.s.) P. & M. 
 39 ; Law Eep. 3 P. & D. 88. 
 
 {k) Order to attend for examination. 
 
 62. — When an order is made on a person 
 having knowledge of testamentary papers to at- 
 tend to be examined respecting the same, the 
 examination must be in open Court, or upon in- 
 terrogatories. In the goods of Laws, 41 Law J. 
 Eep. (n.s.) p. & M. 41 ; 1/aw Eep. 2 P. & D. 
 458. 
 
 {I) Compromise. 
 
 63. — Where upon a compromise in a testa- 
 mentary suit a verdict was given in favour 
 of the will, but no order made as to costs, the 
 Court refused two years afterwards to embody 
 the terms of the compromise in an order to be 
 enforced as a rule of Court. Carritt v. Christian 
 and Vane, Law Eep. 2 P. & M. 181. 
 
 {m) Change of proctor or attorney. 
 [Additional Eules as to change of proctor, soli- 
 
m 
 
 PEOBAfE AUD administration (I), (K). 
 
 citor, or attorney, 43 Law J. Eep. (n.s.) P. & M. 
 1,2.] 
 
 (K) Costs. 
 
 [See Eules of 1874, rr. 128-131, 43 Law J. 
 Eep. (n.s.) p. & M. 2, 3.]j 
 
 (a) Costs out of estate in testamentary suit. 
 (1) Unsuccessful claim. 
 
 64. — On the death of A., intestate, the Crown 
 claimed the property, on the ground of her ille- 
 gitimacy. B., one of the alleged next-of-kin, dis- 
 puted the claim, and obtained a verdict in his 
 favour. At the trial in 1862 no application was 
 made on his behalf for an order for his costs, and 
 no order on the subject was made by the Court. 
 Shortly afterwards letters of administration of 
 the personal estate and effects of A. were granted 
 to him as next-of-kin, but in subsequent proceed- 
 ings in the Court of Chancery it was found that 
 he was no relation whatever of the deceased. He 
 now applied for an order for payment of his costs 
 in the original suit in the Court of Probate out of 
 the personal estate of A. The Court, looking to 
 the time that had elapsed since the suit, to the 
 fact that the parties interested in the estate of A. 
 had received no notice of the application, that B. 
 was a bankrupt, and that no claim was made either 
 by his assignee or his attorney, refused to make 
 the order. Dyke\. Williams, 40 Law J. Eep. (n.s.) 
 P. & M. 33 ; Law Eep. 2 P. & D. 239. 
 
 Semble — that if a person, believing himself to 
 be next-of-kin of the deceased, should dispute 
 the claim of the Crown to the property and suc- 
 ceed in the suit, thereby protecting the property 
 for those who have a right to it, he woxild be en- 
 titled to have his costs out of the estate, even 
 though it should turn out that he was no relation 
 whatever of the intestate. Ibid. 
 
 (2) Unsuccessful opposition. 
 
 65. — The costs of the unsuccessful opposition 
 to a will on the ground of incapacity will ,be al- 
 lowed out of the estate, if the testator's conduct 
 has been such as naturally to lead to the belief 
 that he was of unsound mind when the will was 
 made, Davis v. Gregory, 42 Law J. Eep. (n.s.) 
 P. & M. 33 ; Law Eep. 3 P. & D. 38. 
 
 66. — The testator was of eccentric habits, but 
 had always managed his own affairs. The execu- 
 tors propounded his will, but failed to support it, 
 the evidence shewing that at the time it was exe- 
 cuted he was not of sound mind. The Court, 
 being of opinion that the executors had acted in 
 the bon& fide belief of the testator's capacity, and 
 that they eoidd have had no knowledge of his 
 true life and character until it was disclosed on 
 the trial, allowed their costs out of the estate. 
 Bouffhton V. Knight, 42 Law J. Eep. (n.s.) P. & 
 M. 41 ; Law Eep. 3 P. & D. 64. 
 
 67. — An executor having propounded a will, 
 and the next-of-kin having opposed it on the 
 ground of undue influence and fraud, and failed in 
 their opposition, the Court being of opinion that 
 the ciicamstances of the case warranted the pleas, 
 
 allowed the next-ofkin, notwithstanding their 
 failure in the suir, costs out of the estate. Orton 
 V. Smith, 42 Law J. Eep. (n.s.) P. & M. 60 ; Law 
 Eep. 3 P. & D. 23. 
 
 (3) Charge on real estate. 
 68. — Where, in a testamentary suit, an order 
 was made that the costs of all parties should be 
 paid out of "the estate," with priority to the 
 costs of the executor, who was universal devise* 
 as well as universal legatee, the Court declined to 
 vary the order so as to charge the costs on the 
 real estate in case the personalty were insufficient. 
 Davies v. Reynolds, Law Eep. 3 P. & D. 90. 
 
 (4) Estate in hands of pwrchaser for value 
 without notice. 
 
 69. — A., under a settlement made upon her 
 marriage, had a power of appointment over a 
 certain fund. B., her husband, in her lifetime, 
 obtained possession of the fund, and after her 
 death transferred it to the trustees of a settle- 
 ment made in contemplation of the marriage of 
 C, his adopted daughter. Neither C, her hus- 
 band, nor the trustees, had notice of the trusts of 
 the original settlement. In a suit instituted after 
 B.'s death, the will of A. (appointing the fund in 
 favour of B.) was pronounced for, and the costs of 
 the opponents of the will were ordered to be paid 
 out of A.'s estate : — Held, that the trustees of the 
 settlement made on the marriage of C. were inno- 
 cent purchasers for valuable consideration of the 
 fund, and that it therefore ceased in their hands 
 to be part of A.'s estate, or to be chargeable with 
 costs. Adamson v. Hammond, 43 Law J. Eep. 
 (n.s.) p. & M. 17 ; Law Eep. 3 P. & D. 141. 
 
 Semble— that where a married woman exercises 
 by will a power of appointment over her separate 
 personal estate, although the estate may be liable 
 to the payment of her debts in the hands of the 
 appointee, it would not be liable to the payment 
 of the costs of a suit touching the validity of her 
 will ordered to be paid out of her estate. Ibid. 
 
 (b) Plea of undue influence in testamentary 
 suit. 
 
 70. — A party pleading undue influence does not 
 exempt himself from liability for costs, by giving 
 notice under rule 41 that he intends only to cross- 
 examine the witnesses produced in support of the . 
 will. Harrington v. Bowyer, 41 Law J. Eep. (n.s.) 
 P. & M. 17 ; Law Eep. 2 P. & D. 264. 
 
 (c) Executor condemned in costs. 
 
 71. — The executor propounded the will. It 
 was opposed on behalf of tlie Crown by the soli- 
 citor for the Duchy of Lancaster, who alleged 
 that the deceased had died intestate, leaving no 
 next-of-kin, and also by persons claiming to be 
 next-of-kin. The Crown and the other defend- 
 ants, whose interest was accepted by the plaintiff, 
 pleaded the same pleas. All p.irties were repre- 
 sented by counsel at the trial, and the will was 
 upset. The Crown did not ask for costs, and it 
 ultimately turned out that the other defendants 
 
PEOBATE AND ADMINISTBATION (K)— PRODUCTION. 
 
 479 
 
 were not next-of-kin. The Court, notwithstand- 
 ing, condemned the executors in the costs incurred 
 by them in the suit. Goss v. Hill, 40 Law J. 
 Eop. (n.s.) p. & M. 39. 
 
 (d) Costs against Queen's Proctor. 
 
 72. — The Queen's Proctor, on behalf of the 
 Crown, unsuccessfully contested the validity of a 
 will under circumstances which, if the litigation 
 had been between subject and subject, woxild have 
 rendered him liable for costs : — Held, that the 
 Court had no power to condemn him in the costs 
 of the suit. Atkinson v. Her Majesty's Proctor, 
 40 Law J. Eep. (n.s.) P. & M. 49 ; Law Eep. 2 
 P. & D. 255. 
 
 (e) Calling in probate. 
 
 73. — A next-of-kin, who vexatiously calls in 
 probate of a will granted in common form, may 
 be condemned in costs, although he has given 
 notice under rule 41 that he intends only to cross- 
 examine the witnesses produced in support of the 
 will. Beale v. Beale, 43 Law J. Eep. (n.s.) P. & 
 M. 70; Law Eep. 3 P. & D. 179. 
 
 But a next-of-kin who calls in probate of a will 
 and gives the usual notice under rule 41, will not, 
 if unsuccessful, be condemned in costs because the 
 sole evidence upon which his opposition to the 
 will is founded must to his knowledge be open 
 to grave suspicion, from being that of an attest- 
 ing witness who had previously made an affidavit 
 of due execution. Such evidence, thovlgh primd 
 fade untrustworthy, may justify the next-of-kin 
 in requiring proof of the will in solemn form. 
 Sheffield v. Sheffield, 43 Law J. Eep. (n.s.) P. & 
 M. 72. 
 
 (/) Taxation of costs : compromise. 
 
 74. — In a testamentary suit a compromise was 
 effected by counsel, one of the terms of the ar- 
 rangement being that the plaintiffs should pay 
 to the defendant's attorney a certain sum for his 
 " agreed costs." The plaintiffs paid him the sum 
 specified : — Held, there being nothing to shew that 
 he had acted improperly in respect of the compro- 
 mise, or other special circumstance in the case, 
 that his bill of costs was not liable to taxation. 
 Holditch T. Carter, 42 Law J. Eep. (n.s.) P. & M. 
 78 ; Law Eep. 3 P. & D. 115. 
 
 (L) Pbobate Duty. 
 
 75. — One seised in fee of realty devised and 
 bequeathed by will all his realty and personalty 
 to trustees in trust to sell, and to stand pos- 
 sessed of the proceeds after making certain pay- 
 ments, and to invest the moneys, and to hold the 
 investments and the income thereof in truit to 
 pay an annuity to his widow for life, and as to 
 the residue in trust for all his children who 
 should attain twenty-one ; in default of such chil- 
 dren the testator bequeathed the investments, as 
 to certain portions thereof, to certain legatees, 
 and as to the residue on certain trusts which failed. 
 On the testator's death his only child, Margaret, 
 was his heiress-at-law and one of his next-of-kin. 
 She died afterwards under twenty-one and un- 
 
 married. The realty at her death was unsold and 
 uncontracted to be sold, but was subsequently 
 sold under the trusts of the will for a sum which 
 was its value, and which was paid to her legal per- 
 sonal representative as such : — ^Held, that probate 
 duty was payable at Margaret's death upon the 
 value of the realty as being part of her estate and 
 effects. The Attorney -G-meral y. Lomas, 43 Law 
 J. Eep. (N.s.) Exch. 32 ; Law Eep. 9 Exch. 29. 
 
 76. — The testator remitted moneys from India 
 to England by means of biUs of exchange, pay- 
 able six months after sight, drawn by an Indian 
 bank upon a Loudon bank in favour of his bankers 
 in London. The bills were in transitu at sea, and 
 unaccepted, when the testator died in India. They 
 arrived, were paid at maturity, and the proceeds 
 were subsequently received by the defendant, 
 who, as the executor in England, had duly proved 
 the testator's will in this country : — Held, that 
 the defenda.nt was liable to pay probate duty upon 
 such proceeds. The Attorney- General v. Pratt, 43 
 Law J. Eep. (n.s.) Exch. 108; Law Eep. 9 Exch. 
 140. 
 
 PEODUCTION. 
 
 (1) AT LAW. 
 
 (A) Eight to Peodtjotion. 
 
 (a) Privileged communications. 
 
 (1) Confidential letters. 
 
 (2) Medical reports. 
 
 (3) Interrogatory evidence. 
 
 (4) In action for breach of promise of 
 marriage. 
 
 (c) Libel. 
 
 (d) Fraudulent misrepresentation. 
 
 (e) Infringement of patent. 
 
 (B) Practice in Paetictjlae Cases. 
 
 (a) Mandamus to directors of company. 
 
 {b) Officer of body corporate. 
 
 (c) Documents not in possession of party 
 
 interrogated, 
 {d) Attachment for non-prodnction. 
 (e) Costs of inspection. 
 
 (2) INEQUITY. 
 
 (A) Eight to Production. 
 
 (a) Privileged communications. 
 
 (1) Solicitor and client. 
 
 (2) Counsel's opinions. 
 
 (b) Belevancy. 
 
 (1) Names and addresses of customers. 
 
 (2) Documents relating to party's own 
 
 title. 
 
 (c) Partnership books. 
 
 (d) Court rolls. 
 
 (e) In suit to establish right of common. 
 (/) Numerous documents: comparison of 
 
 handwriting, 
 (g) Documents in constant use. 
 (h) As against mortgagee, 
 (i) As against executors retaining assets in 
 
 {k) Infringement of patent. 
 (B) Pbaotioe in Particular Cases. 
 (a) Discretion of Court. 
 
480 
 
 PEODUCTION AT LAW (A). 
 
 (6) Plea hy defendant to whole relief. 
 
 (c) Fcrrm of order to malee affidavit. 
 
 (d) Form and sufficiency of affidavit. 
 
 (e) Vexatious delay in making affidavit. 
 (./) Production to agent. 
 
 (g) Sealing up parts of pedigree. 
 
 (h) Documents subject to claims of third 
 parties. 
 
 (i) Cross-examination of secretary of com- 
 pany in winding-up. 
 
 {k) Voluminous documents : hire of room. 
 
 (1) AT LAW. 
 
 (A) Right to Peodttotion. 
 
 (a) Privileged communications. 
 
 (1) Confidential letters. 
 
 1. — The Court, in the exercise of its discretion, 
 ■will refuse to order the production of private and 
 confidential letters passing between the plaintiffs 
 relative to the projected litigation with the de- 
 fendants. Allan V. Eoyden, 43 Law J. Eep. (n.s.) 
 C.P. 206. 
 
 (2) Medical reports. 
 
 2. — An insurance office in accepting a proposal 
 to insui'e the life of a person acted on reports as 
 to his health and habits made by his private 
 friends, a report by his own medical officer on his 
 examination of such person, and a statement by 
 such person written on, the back of the medical 
 report. The private friends' reports consisted of 
 replies to printed questions, with a notice by the 
 office that the replies would be considered strictly 
 private and confidential. The medical report was 
 headed with the words " confidential medical 
 examination." In an action against the office to 
 recover the amount insured, in which the question 
 was whether the policy had been obtained by un- 
 true statements as to the health and habits of the 
 person whose life was so insured, the Court al- 
 lowed the plaintiffs to have inspection of the 
 reports, as well those of the private friends" as of 
 the medical officer. Mahony v. The National 
 Widows' Life Assurance Fund {Lim.), 40 Law J. 
 Eep. (n,s.) C. p. 203 ; Law Eep. 6 C. P. 262. 
 
 3. — A railway company having received from a 
 passenger a claim for compensation for personal 
 injuries caused on their line, instructed a medical 
 man to examine the passenger in order to inform 
 the company's attorneys of the nature and extent 
 of the injuries so that they might be able to ad- 
 vise the company in reference to the claim, and 
 prepare the defence. The medical man accord- 
 ingly twice examined the passenger, and made two 
 reports in writing to the company's attorneys. The 
 passenger having afterwards brought an action 
 against the company to enforce the claim : — Held, 
 that the reports were privileged, and that the 
 plaintiff was not entitled to inspect them, and that 
 the practice in this Court was in accordance with 
 the rule laid down in Cossy v. The London, 
 Brighton and South Coast Eailway Company (39 
 Law J. Eep. (n.s.) C. P. 174 ; Law Eep. 5 C.P. 
 146), and with that in Fenner v. The 8owth-Eastern 
 
 Railway Company (41 Law J. Eep. (n.s.) Q. B. 
 313; Law Eep, 7 Q.B. 767). Skinner v. The 
 Great Northern Railway Company, 43 Law J. Eep. 
 (n.s.) Exch. 150; Law Eep. 9 Exch. 298; and 
 Maiden v. The Great Northern Railway Company, 
 Law Eep. 9 Exch. 300 n. 
 
 (3) Interrogatory evidence. 
 
 4. — Documents which are written in answer to 
 enquiries made by a railway official to the head 
 office of the company after threat of litigation, and 
 which, in the discretion of the Judge, appear to 
 fall short of notes of the case to be laid before the 
 legal advisers of the company, and are not in 
 the nature of proofs for the trial, are not privi- 
 leged from inspection, notwithstanding that the 
 documents were not made in the ordinary course 
 of the duty of the person writing them, but in an- 
 swer to special enquiries. Fenner v. The London 
 and Smith-Eastern Eailway Company, 41 Law J. 
 Eep. (n.s.) Q,. B. 313 ; Law Eep. 7 Q. B. 767. 
 
 (6) In action for breach of promise of marriage. 
 5. — The inspection of letters written by the de- 
 fendant to the plaintiff, and in her possession, was 
 allowed, at the instance of the defendant, in an 
 action for breach of promise of marriage, when 
 the defendant did not deny the promise or breach, 
 and the only question was as to the damages. 
 Pape V. Lister, 40 Law J. Eep. (n.s.) Q. B. 87 ; 
 Law Eep. 6 Q. B. 242. 
 
 (c) Libel. 
 6. — In an action for libel alleged to be con- 
 tained in a letter, which, since it had been received 
 by the person to whom it had been addressed, had 
 been returned to and was in the possession of the 
 defendant who had written it, the plaintiff applied 
 to a Judge at chambers for inspection of such 
 letter, in order to enable him to declare in the 
 action. The learned Judge made an order for 
 such inspection, upon the defendant declining to 
 make an affidavit that the production of the letter 
 would tend to criminate her : — Held (Brett, J., 
 dissentiente), that the Judge had no power to make 
 such order, inasmuch as, although the plaintiff 
 might have obtained such inspection if he had 
 proceeded under section 50 of the Common Law 
 Procedure Act, 1854, he was not entitled to it under 
 section 6 of 14 & 15 Vict. c. 99 (under which the 
 application must be considered as made), as a 
 Court of Equity would not have granted dis-' 
 covery in this case, and the power of the Common 
 Law Court under that section is limited to cases 
 in which discovery could have been obtained in 
 Equity, and that section is not altered or ex- 
 tended by section 50 of the Common Law Proce- 
 dure Act, 1 854. Hill V. Campbell, 44 Law J. Eep. 
 (n.s.) C. p. 97 ; Law Eep. 10 C. P. 222. 
 
 (d) Fraudulent misrepresentation. 
 7, — In an action by a passenger against the 
 agents of a ship for fraudulently misrepresenting 
 her condition, the plaintiff was not allowed to 
 inspect letters written to the defendants by other 
 passengers complaining of the condition of the 
 ship, or letters written by the captain and owner 
 
PROBUCTION AT LAW (A)— IN EQUITY (A). 
 
 481 
 
 to the defendants post litem motam. Richards v. 
 QeUatly, Law Rep. 7 C. P. 127. 
 
 (e) Infriiigement of patent. 
 
 8. — A rule to set aside a verdict for the plain- 
 tiffs and enter the verdict for the defendants in an 
 action for infringing a patent having been dis- 
 charged, the defendants gave notice of appeal, and 
 pending the appeal an order was made for an ac- 
 count of profits. This order was not appealed 
 against, but the defendants, when before the Master, 
 refused to produce their books : — Held, that the 
 plaintiffs were entitled to a rule for inspection of 
 the books, and for administering interrogatories to 
 the defendants. Saxby v. Easterbrook, 41 Law J. 
 Eep. (n.s.) Exch. 113 ; Law Eep. 7 Exch. 207. 
 
 (B) Practice in Pabticulab Cases. 
 
 (o) Mandamus to directors of company. 
 
 9. — ^Where a party applies for a mandamus to 
 compel the directors of an incorporated company 
 to allow him to inspect their accounts, accordiag 
 to the directions of 8 Vict. o. 16, ss. 115, 119 (the 
 Companies Clauses Act), he must state what his 
 object is and what the scope of his demand is, that 
 the company and the Court may see that his de- 
 mand is a reasonable one. The Queen v.^ The 
 Directors of the Londom, and St. Katharine Docks 
 Company, 44 Law J. Eep. (n.s.) Q. B. 4. 
 
 (J) Officer of body corporate, 
 
 10. — The attorney of a body corporate is not 
 an officer thereof within the meaning of the Com- 
 mon Law Procedure Act, 1854, s. 50, and therefore 
 cannot be compelled to make a discovery of docu- 
 ments in an action to which the body corporate is 
 a party. Broum v. The Thames and Mersey Marine 
 Inswrance Company, 43 Law J. Eep. (n.s.) C. P. 
 112. 
 
 (c) Documents not in possession of party 
 interrogated. 
 
 11. — -The 51st section of the Common Law Pro- 
 cedure Act, 1854, does not require an interroga- 
 tory as to documents to be limited to such as are 
 in the possession or power of the party interro- 
 gated ; but the interrogatory may ask such party 
 to stat« what documents relating to the matter in 
 question he has ever had in his possession. Leth- 
 
 ' 'ge y. Cronk, 44 Law J. Eep. (n.s.) C. P. 381. 
 
 ((f) Attachment for Tion-prodvction. 
 
 12. — The Court in the exercise of its discretion 
 will not issue an attachment against a witness for 
 not producing documents in obedience to a subpoena 
 duces tecum, when he has only the possession of 
 such documents as servant to his master, who has 
 refused to allow him to take and produce them at 
 the trial. Crowther v. Appleby, 43 Law J. Eep. 
 (N.s.) 0. P. 7 ; Law Eep. 9 C. P. 23. 
 
 (e) Costs of inspection. 
 
 13. — The general rule laid down under 14 & 15 
 Vict. c. 99, 3. 6, that where inspection of docu- 
 DiGEST, 1870-1875. 
 
 ments is granted the applicant is to pay the costs 
 of inspection, still holds good, and applies to an 
 order to inspect documents of which discovery has 
 been obtained by virtue of the Common Law Pro- 
 cedure Act (17 & 18 Vict. c. 126), 1854, s. 50 ; and 
 the mere fact of the inspection being lengthy and 
 expensive, does not constitute such an exception 
 to the rule that the Court will interfere with an 
 order made in accordance with it. The Republic 
 of Peru V. Weguelin, 41 Law J. Eep. (n.s.) C. P. 
 144 ; Law Eep. 7 C. P. 352. 
 
 (2) IN EQUITY. 
 
 (A) Eight to Production. 
 
 (ffl) Privileged communications. 
 
 (1) Solicitor and client. 
 
 14. — A. and B. were co-defendants in a suit. 
 Their London solicitor employed B., who was also 
 a solicitor, to collect evidence, and a correspond- 
 ence then ensued between A. and B. relating to the 
 subject-matter of the suit : — Held, that the cor- 
 respondence was privileged, and that therefore 
 the plaintiff could not compel its production. 
 Hamilton v. Nott, 42 Law J. Eep. (n.s.) Chanc. 
 612; Law Eep. 16 Eq. 112. 
 
 15. — Letters and telegrams written and sent by 
 the defendants to their solicitors or agent, before 
 any litigation had arisen, and described in the 
 afSdavit of documents as " confidential communi- 
 cations between solicitors and client, with refer- 
 ence to the matters 'now in question in this suit,' " 
 were adjudged to be sufficiently described to pro- 
 tect them from production. Macfarlan v. Rolt, 
 41 Law J. Eep. (n.s.) Chanc. 649 ; Law Eep. 14 
 Eq. 580. 
 
 16. — AU correspondence between solicitor and 
 client relating to the subject-matter of a contract 
 which has been entered into and whijh may lead 
 to litigation is privileged. Wilson v. The North- 
 ampton and Banbury Junction Railway Company, 
 Law Eep. 14 Eq. 477. 
 
 17. — Private and confidential correspondence 
 between a party to the suit and his predecessors 
 in title on the one hand, and his and their solici- 
 tors from time to time on the other, written in 
 contemplation or in the course of the suit or with 
 reference to the subject-matter in dispute, or to 
 questions connected with the matter in dispute in 
 the cause, is privileged from production. Minet 
 V. Morgan, 42 Law J. Eep. (n.s.) Chanc. 627 ; Law 
 Eep. 8 Chanc. 361. 
 
 lAen of solicitor on documents for costs. [See 
 Attorney, 39-42.] 
 
 (2) Counsel's opinions. 
 
 18.— Documents must be produced unless they 
 are protected by being both professional commu- 
 nications and also confidential in their nature. 
 Smith V. Daniell, 44 Law J. Eep. (n.s.) Chanc. 189 ■ 
 Law Eep. 18 Eq. 649. 
 
 In this case an order was made for the produc- 
 tion of opinions of counsel, which were not claimed 
 as confidential, but were made in anticipation of 
 and relative to the litigation. Ibid. 
 3Q 
 
482 
 
 PE0DT7CTI0N m EQUITY (A). 
 
 Lord Westbury, an ex-Lord Chancellor, had 
 given his opinion on the case as a friend ; this was 
 given confidentially, but it was ordered to be pro- 
 duced on the ground that it was not a professional 
 oommunieation. Ibid. 
 
 (b) Relevancy. 
 (1) Names and addresses of customers. 
 
 19. — The Court ought not to compel discovery 
 of matters useless to the plaintiif for any purposes 
 of the hearing but which may be injurious to the 
 defendant in case the plaintiff fails at the hearing. 
 Heugh v. Garrett, 44 Law J. Eep. (n.s.) Ghano. 
 305. 
 
 The plaintiffs employed the defendant as agent 
 for the sale of their manufactures at a commission 
 of 2^ per cent, on sales to their London connection 
 and 4 per cent, on sales to shippers with whom the 
 plaintiffs had not hitherto done business, and it 
 was arranged that he should furnish the plaintiffs 
 with a list of the persons with whom he was doing 
 business for the purpose of enabling them to fix 
 limits of credit. Having, as they alleged, dis- 
 covered that the defendant was in the habit of 
 supplying persons other than shippers and other 
 than those named in the credit lists with the plain- 
 tiffs' manufactures, the plaintiffs filed their bill 
 against the defendant for an account, praying that 
 he might not be allowed to charge the plaintiffs 
 with commission on the goods so sold. The de- 
 fendant by his answer admitted supplying goods 
 as alleged by the biU, but claimed authority to do 
 so, and in answer to the usual order for the pro- 
 duction of documents filed an affidavit declining 
 to produce certain documents on the ground that 
 the whole of his business transactions were con- 
 tained therein, and stating that if and when the 
 time should arrive for an account of such sales he 
 should be prepared to render it : — Held, that he 
 was bound to produce his books shewing the quan- 
 tities. of goods sold and the prices at which they 
 were sold, but that he was entitled to seal up the 
 names and addresses of the customers, as the dis- 
 covery would not be of material assistance to the 
 plaintiffs at the hearing of the cause, and might 
 be injurious to the defendant if the plaintiffs failed 
 to obtain relief. Ibid. 
 
 20. — In a suit to restrain the infringement of 
 trade-marks the defendants refused to disclose the 
 names of their customers, the places to which they 
 had consigned their goods, and the prices which 
 had been paid for them. They also, while pro- 
 ducing their books which confessedly shewed 
 orders for goods bearing some of the trade-marks 
 claimed by the plaintiffs, sealed up such portions 
 of entries therein as they swore contained orders 
 for the impression of devices other thaij those 
 claimed by the plaintiffs : — Held, that the defend- 
 ants need not disclose the names of their customers 
 or the prices of the goods, as such disclosures could 
 not be material to the plaintiffs and might injure 
 the defendants in their business, but that they 
 must make the rest of the disclosure which they 
 objected to, and that where one of a line of trade- 
 marks had been disclosed in the order book, the 
 
 whole line must be disclosed. Howe v. M^Kernan 
 (30 Beav. 547) not followed. Carver v. Finto 
 Leite, 41 Law J. Eep. (n.s.) Chanc. 92 ; Law Eep. 
 7 Chanc. 90, and Moore v. Craven, Law Eep. 7 
 Chanc. 94 ». 
 
 (2) Documents rdatimg to parti/s own title. 
 [And see infra Nos. 24, 27.] 
 
 21. — Documents which a party swears relate 
 exclusively to his own title, and to the best of his 
 knowledge, information and belief, do not contain 
 anything impeaching his case, or forming or sup- 
 porting the title or case of the other party, and 
 are not in any manner material to the case of the 
 other party as to any matter in dispute in the suit, 
 are privileged from production. Minet v. Morgan, 
 42 Law J. Eep. (n.s.) Chanc. 627 ; Law Eep. 8 
 Chanc. 361. 
 
 (c) Partnership books. 
 
 22. — In a suit relating to a joint adventure 
 between the plaintiff and the defendant, the latter, 
 who carried on business in partnership with a 
 person not a party to the suit, was held not to be 
 bound to produce his partnership books without 
 his partner's consent, although he had made entries 
 therein relating to the matters in question. Order 
 of Malins, V.C, reversed. Hadley v. M'Bougal, 
 41 Law J. Eep. (n.s.) Chanc. S04 ; Law Eep. 7 
 Chanc. 312. 
 
 [And see Company, 131.] 
 
 {d) Court rolls. 
 
 23. — Summons by guardian ad litem of infant 
 lord to compel a steward to deliver up court rolls 
 was dismissed. Windham v. Giubilei, 40 Law J. 
 Eep. (n.s.) Chanc. 506. 
 
 (e) In suit to establish right of common. 
 
 24. — Bill to establisha right of common of vicin- 
 age over a common within a manor of which the 
 defendant was lord :- — Held, that the plaintiff was 
 entitled (1) to production of records and documents 
 relating to Court barons within the manor ; (2) 
 to production of accounts and memoranda relating 
 to the digging of gravel and cutting of turf ; (3) 
 to have a list of documents relating to the defend 
 ant's title as lord of the manor ; but not (4) to 
 have such documents produced, the defendant 
 stating by affidavit that they related exclusively 
 to his own title as lord of the manor, Minet v. 
 Morgan, Law Eep. 11 Eq. 285. 
 
 (/) Nuriierous documents : comparison of hand- 
 
 25. — The plaintiff, in support of an alleged gift 
 to her by a testator, relied on a writing in her 
 possession purporting to have been signed by him. 
 The defendant, however, disputed the genuineness 
 of the document, and charged the plaintiff with 
 forgery. The defendant having made the usual 
 affidavit of documents, the plaintiff obtained an 
 order in Chambers that the defendant should 
 make a further affidavit setting forth all cheques in 
 
PRODUCTION IN EQUITY (A), (B). 
 
 483 
 
 his possession dra-n-n by the testator during a period 
 of nine years, covering the date of the alleged gift. 
 The defendant then by his further afiidavit of do- 
 cuments set forth and consented to produce certain 
 cheques bearing the testator's undoubted signa- 
 ture, but declined to set forth or produce others, 
 which he alleged were forged. tJpon a further 
 summons to compel the defendant to set forth and 
 produce the latter cheques, — Held, that the plaiu- 
 tiflf's general right to the production of all docu- 
 ments relating to the matters in question in the suit 
 ought not to be extended to the production of all 
 documents signed by the testator, however numer- 
 ous, and that consequently, on technical groimds, 
 the application must be refused, the Court at, 
 the same time intimating its opinion that, having 
 regard to the charges against the plaintiff, the de- 
 fendant ought, in fairness, to have acceded to the 
 application. Wilson v. Thonibwn/, 43 Law J. Hep. 
 (n.s.) Chanc. 366 > Law Rep. 17 Eq. 517. 
 
 In a suit involving a question of disputed hand- 
 writing the hearing of a summons for production 
 of documents is not the proper stage for ordering 
 the production of writings for purposes of com- 
 parison, inasmuch as by the Common Law Proce- 
 dure Act, 1854, s. 27, disputed writings may be 
 compared only with writings " proved to the satis- 
 fectiou of the Judge to be genuine," and this proof 
 can only be furnished at the hearing. Ibid. 
 
 (g) Documents in constcmt use. 
 
 26. — The minute book of a local board will, in 
 a proper case, be ordered to be deposited in the 
 Record and Writ clerks' office for inspection, not- 
 withstanding that it is in constant use by the 
 board. The Attorney-General v. The Whitwood 
 Local Board, The Mtorney General v. The Castle^ 
 ford Local Board, 40 Law J. Rep. (n.s.) Chanc. 
 592. 
 
 [h) As against mortffagee. 
 
 27. — ^Firm A. were employed by a foreign 
 government, as their agents or contractors, to 
 bring out a loan ; firm B. were employed by the 
 government, as their bankers, to receive from firm 
 A. the subscriptions to the loan. The loan was 
 subscribed for ; firm A. issued scrip certificates, 
 entering in a book called the scrip book the num- 
 bers of the certificates and the names of the holders 
 of them ; and upon payment of the subscriptions 
 they exchanged the scrip certificates for bonds. 
 Many of the bonds had been issued to the public, 
 when the President of the government hypothe- 
 cated certain issued and unissued bonds in the 
 hands of firm A. to firm B., to secure a debt 
 alleged to be due from the government to firm B. 
 A bill was filed by the foreign government against 
 firms A. and B., and others, impeaching as fraudu- 
 lent the transactions connected with tlie loan, and 
 in particular the contract under which the bonds 
 were hypothecated, and seeking accounts against 
 the defendants: — Held, that, although firm B. 
 objected, firm A. were bound to produce, on their 
 cross-examination before the special examiner, the 
 scrip certificates and scrip book, but that they 
 were not bound to produce the bonds or to give 
 
 their numbers, as that might enable the govern 
 ment to destroy the security held by firm B. The 
 BepMic of Costa Rica v. Erlauger, 44 Law J. Rep. 
 (n.s.) Chanc. 281 ; Law Rep. 19 Eq. 33. 
 
 (i) As against executors retaining assets in business. 
 
 28. — Bill against the executors of a testator 
 for administration and account of profits made by 
 the employment of the testator's property after 
 his decease in his partnership business. Two of 
 the executors, together with other persons not 
 parties, had been partners of the testator and had 
 allowed his estate to remain in the firm ; — Held, 
 that the executors must include the books of the 
 firm in the schedule to their affidavit as to docu 
 ments. Vyse v. Foster, Law Rep. 13 Eq. 602. 
 
 ijc) Infringement of patent. 
 [See Patent, 33.] 
 
 (B) Peactice in Paeticclar Cases, 
 
 (rt) Discretion of Court. 
 
 29. — It is within the discretion of the Court 
 to make or refuse an order for production by a 
 defendant upon oath of documents under the 18th 
 section of 15 & 16 Vict. c. 86. And where a suit 
 to administer the estate of an intestate was insti- 
 tuted by a person claiming to be her next-of-kin 
 in a distant degree against the Solicitor to the 
 Treasury, to whom administration had been 
 granted, the Court declined to make the order 
 until the plaintiff had made out a primd, fade case. 
 Lane v. Gray, 43 Law J. Rep. (n.s.) Chanc. 187; 
 Law Rep. 16 Eq. 652. 
 
 (i) Plea by defendant to whole relief. 
 
 30. — In a suit instituted in aid of proceedings 
 at law to establish the plaintiff's title as the heir- 
 at-law of a certain person, the defendants filed a 
 plea to the whole of the relief, traversing the fact 
 of the plaintiff's heirship, and put in an answer 
 to a part of the discovery sought by the bill, merely 
 stating their inability to set forth whether the 
 plaintiff had descended from a certain ancestor of 
 the person whose heir he claimed to be : — Held, 
 that notwithstanding the plea, the plaintiff was 
 entitled to have the usual affidavit as to documents 
 made by the defendants. KettUwell v. Barstow, 
 40 Law J. Rep. (n.s.) Chanc. 376. 
 
 (c) Form of order to malce affidavit. 
 
 31. — A republic suing in its own name, was 
 ordered to make an aflldavit of documents " by 
 one or more of its officers or ministers." — The 
 order in Ranger v. The Great Western Railway 
 Comfany (4 De Gex & J. 74 ; 28 Law J. Rep. (n.s.) 
 Chanc. 741) followed. The Republic of Liberia y. 
 The Impericd Bank, 42 Law J. Rep. (n.s.) Chanc. 
 674; Law Rep. 16 Eq. 179. 
 
 (d) Form and sufficiency of affidavit. 
 
 32. — " Bundles of letters " is not a sufficient 
 description of correspondence in an affidavit oi 
 3q2 
 
iU 
 
 PEODtJCTlON IN EQtlTY (B). 
 
 documents. Hamilton v. iiott, 42 Law J. Eep. 
 (n.s.) Chano. 512 ; Law Eep. 16 Eq. 112. 
 
 33. — The plaintiff's in a suit, in which their 
 title to a piece of land was in issue, made an affi- 
 davit of documents, refusing to produce certain 
 documents as being immaterial to the defendant's 
 case. But amongst the documents produced was 
 one of a kind similar to those sought to be pro- 
 tected, and this one contained entries throwing a 
 doubt upon the accuracy of the allegation in the 
 plaintiffs' affidavit that the documents sought to 
 be protected were immaterial : — Held, that the 
 plaintiff's must make a further affidavit. The 
 Mayor and Corparation of Hastings v. Ivall, 42 
 Law J. Eep. (n.s.) Chanc. 883 ; Law Eep. 8 Chanc. 
 1017. 
 
 34. — Where, from a defendant's answer (setting 
 out a long list of customers of his), it could clearly 
 be inferred that documents not mentioned in his 
 affidavit as to documents (e.g. books relating to his 
 business) were in his possession, he was ordered 
 to make a further affidavit. Saull v. Browne, Law 
 Eep. 17 Eq. 402. 
 
 (e) Vexatious delay in making affidavit. 
 
 35. — When a plaintiff has vexatiously delayed 
 making a sufficient affidavit of documents in his 
 possession relating to the matters in question in 
 the suit, the Court wiU order the bill to be dis- 
 missed with costs, as against the defendant who 
 has sought the discovery. The Repnblic of Liberia 
 V. The Imperial Bank, 43 Law J. Eep. (n.s.) Chanc. 
 640 ; Law Eep. 9 Chanc. 569. 
 
 (/) Frod/uction to agent. 
 
 36.— Under the usual order for production of 
 documents to the plaintiff's, their solicitors or 
 agents, the plaintiffs, a foreign republic, required 
 the defendants to produce the documents to S., 
 who was stated in an affidavit made by the plain- 
 tiffs' solicitor to be the duly appointed agent of 
 the plaintiffs, and the person from whom he re- 
 ceived his instructions in this suit, though Y, was 
 the person named in the bill as the agent in this 
 country of the Eepublic. The defendant having 
 refused to produce the documents to S., — Held, 
 affirming the decision of one of the Vice-Chan- 
 cellors, that S. was the duly authorised agent of 
 the plaintiffs within the meaning of the order. 
 The Eepublic of Costa Bica v. Erlanger (No. 2), 44 
 Law J. Eep. (n.s.) Chanc. 402. 
 
 37. — Under the common order for the inspec- 
 tion of documents made in a suit for restraining a 
 nuisance, the plaintiff has a right to have the 
 documents inspected by his land agent, although 
 he is a witness in the suit. The Attorney- General 
 y. The Whitwood Local Board; The Attorney - 
 General v. The Castleford Local Board, 40 Law J. 
 Eep. (n.s.) Chanc. 692. 
 
 {g") Sealing up parts of pedigree. 
 
 38.— The plaintiff having filed his bill to estab- 
 lish his title by heirship to certain real estate, and 
 being entitled to production by the defendants of a 
 pedigree by which the descent of both parties from 
 a common ancestor was traced, was held entitled to 
 
 see only such parts as were material to his title. 
 Kettlewell v. Barstow, 41 Law J. Eep. (n.s.) Chano. 
 718 ; Law Eep. 7 Chanc. 686. 
 
 (A) Documents subject to claims of third parties. 
 
 39. — 0., after he had made an affidavit that 
 he had certain documents, parted with them, some 
 to his solicitors, and some to the trustees under 
 his liquidation. He afterwards changed his soli- 
 citors. On summonses being taken out for pro- 
 duction and inspection of these documents, 0. 
 made another affidavit, stating in what way he 
 had parted with them, and that they were no 
 longer in his possession or power. He also stated 
 that the solicitors claimed a lien upon the docu- 
 ments : — Held, notwithstanding (affirming the 
 order of Bacon, V.C.), that he must be ordered to 
 produce the documents, but with liberty to apply 
 in case he found it impossible to do so. Vale v. 
 Oppert, 44 Law J. Eep. (n.s.) Chanc. 579 ; Law 
 Eep. 10 Chanc. 340. 
 
 40. — Where the defendants admit that docu- 
 ments are in.their custody, possession or power, they 
 cannot afterwards object to produce them on the 
 ground that others have an interest in them. 
 Plant V. Kendrick, Law Eep. 10 C. P. 692. 
 
 Solicitor's lien for costs. 
 39-42.] 
 
 [See Attoenby, 
 
 (t) Cross-examination of secretary in windilig-v/p. 
 
 41. — Where the secretary of a company has 
 made an affidavit on behalf of the company in 
 opposition to a petition for winding it up the com- 
 pany must for the purposes of his cross-examina- 
 tion on his affidavit, produce the books of the 
 company at the instance of the petitioner. In re 
 the Emma Silver Mining Company, 44 Law J. Eep, 
 (n.s.) Chanc. 456 ; Law Eep. 10 Chanc. 194. 
 
 The power of the Court of Chancery to make 
 an order for the production of documents, for the 
 purpose of their being put into the hands of a 
 witness who is being cross-examined in order to 
 t^st his evidence, is the same as that of a Common 
 Law Court in a trial at Nisi Prius. Ibid. 
 
 [And see Company, I 31-33.] 
 
 {k) Voluminous documents : hire of room. 
 
 42. — Where the documents in the defendant's 
 possession relating to the matters in question in a 
 suit were so numerous that they could not all be 
 contained in the room in which the defendants 
 offered inspection of them, the Court gave leave 
 to the plaintiffs to hire a room, and provide proper 
 safeguards, and ordered the defendants to produce 
 the books to them there. Under the same cir 
 cumstauces the Court ordered inspection to b 
 permitted to any twelve persons the plaintiff 
 might name, the names and addresses of the pro. 
 posed inspectors being furnished to the defendants. 
 The Bepublic of Pent v. Weguelin, 41 Law J. Eep_ 
 (n.s.) Chanc. 165. 
 
 Inspection in patent suit. [See Patent, 
 33, 34.] 
 
fROHIBITiON'— tUBLlC BODY. 
 
 485 
 
 PROHIBITION. 
 
 (A) Discretion of Court as to granting 
 Prohibition. 
 
 (B) Prohibition to Court of Admiralty. 
 
 (C) Prohibition to Lord Mayor's Court. 
 
 (D) Pbactice : Costs. 
 
 (A) Discretion of Court as to qrantino 
 
 Prohibition. 
 
 1. Where it is clear on the facts and the law, 
 that an inferior Court is exceeding its jurisdiction, 
 the granting a prohibition is in the discretion 
 of the superior Court, where the applicant for the 
 prohibition is a stranger. Worthington v. Jeffries 
 (44 Law J. Rep. (n.s.) C. P. 209 ; Law Rep. 10 C. P. 
 379) not followed. CJiamhers v. Green, 44 Law J. 
 Rep. (n.s.) Chane. 600 ; Law Rep. 20 Eq. 552. 
 
 2. — Whether a writ of prohibition be applied 
 for by either of the parties to the suit in the in- 
 ferior Court, or by a stranger to such suit, the 
 only discretion which the superior Court has to 
 refuse such writ is if it doubt in fact or law whe- 
 ther the inferior Court is exceeding its jurisdic- 
 tion or is acting without jurisdiction. Worihing- 
 ton v. Jeffiies, 44 Law J. Rep. (n.s.) C. P. 209 ; 
 Law Rep. IOC. P. 379. 
 
 The party against whom an application is made 
 for a writ of prohibition has no right to an order 
 from the Court that the plaintiff in prohibition 
 should declare in prohibition, but it is always in 
 the discretion of the Court whether such plaintiff 
 shall be put to declare, and where the Court is 
 clear both in fact and law that the inferior Court 
 is acting in excess of, or without jurisdiction, it 
 wiU issue the writ of prohibition without putting 
 the plaintiff in prohibition to declare. Ibid. 
 
 (B) Prohibition to Court of Admiralty. 
 3. — The ship C. ran down the ship B. in the 
 
 river Thames. The C. was arrested under a war- 
 rant of the Court of Admiralty issued in a cause 
 of damage instituted in the said Court on behalf 
 of the owners of the B. A rule nisi was granted 
 for a prohibition on the ground that the C. was 
 the property of the Khedive of Egypt. In shew- 
 ing cause against the rule, affidavits were used 
 alleging that the C. was, at the time of the collision, 
 in reality used for carrying cargo and passengers. 
 The Court declined to issue the prohibition ; the 
 question whether or not the C. was the property 
 of a sovereign potentate, so as by the law of 
 nations to be exempt from liability being one which 
 might properly be decided in the Court of Ad- 
 miralty. In re the Steamship " CharJcieh," 42 Law 
 J. Rep. (n.b.) a. B. 75 ; Law Rep. 8 a.B.197. 
 [And see County Court, 13, and Admiralty, 15.] 
 
 (C) PoHiBiTioN TO Lord Mayor's Court. 
 
 4.— A defendant in a suit in the Lord Mayor's 
 Court cannot move for a writ of prohibition to 
 stay proceedings in a foreign attachment. Baker 
 V. Clarke, Law Rep. 8 C. P. 121. 
 
 5, — The Mayor's Court of London being an in- 
 
 ferior Court, the whole cause of action must arise 
 within its jurisdiction, and therefore, where a 
 material fact necessary to be proved in order to 
 sustain the plaintiffs' case occurs out of the juris- 
 diction of such Court, the garnishee against whom 
 process of foreign attachment has been issued to 
 attach moneys owing by him to the defendant, is 
 entitled to a prohibition against such Court pro- 
 ceeding with the suit. Cooke v. Gill, 42 Law J. 
 Rep. (n.s.)C.P. 98; Law Rep. 8 C.P. 107, and 
 Whinney v. Schmidt, Law Rep. 8 C. P. 118. 
 
 6. — "The defendant in a suit in the Lord Mayor's 
 Court may move a superior Court for a writ of 
 prohibition to stay proceedings in the suit, section 
 16 of the Mayor's Court Act, .1857 (20 & 21 Vict. 
 c. clvii.), applying to objections taken by the de- 
 fendant in that Court only. — Manning v. Fargu- 
 harson (30 Law J. Rep. (n.s.) Q. B. 22), and Baker 
 V. Clark (Law Rep. 8 C. P. 121), not followed. 
 Jacobs V. Brett, 44 Law J. Rep. (n.s.) Chanc. 377 ; 
 Law Rep. 20 Eq. 1. 
 
 [And see London, 6, 8, 9.] 
 
 (D) Practice: Costs. 
 
 7. — Where a rule for a prohibition is made 
 absolute without any pleading, &c., there is no 
 judgment giving a title to costs under 1 Will. 4. 
 c. 21.— The King v. Kealing (1 Dowl. P. C. 440), 
 in the Bail Court, approved of. The Liverpool 
 United Gas Com.'panyy. The Overseers of the Town- 
 ship of Everton, 40 Law J. Rep. (n.s.) C.P. 201 ; 
 Law Rep. 6 C. P. 245, nom. Ex parte Overseers of 
 Everton. 
 
 8. — It is no objection to an affidavit for a rule 
 nisi in prohibition that it is stated to be " In the 
 matter of an action commenced " in the inferior 
 Court. Wallace v. Allan, 44 Law J. Rep. (n.s.) 
 C.P. 351 ; Law Rep. 10 C.P. 607. 
 
 It is no objection to a rule for a prohibition 
 before verdict that a part of the cause of action 
 arose within the jurisdiction of the inferior Court. 
 Ibid. 
 
 Upon making absolute a rule for prohibition the 
 Court has a discretion to give costs. Ibid. 
 
 PUBLIC BODY. 
 
 The Metropolitan Board of Works purchased a 
 metropolitan common. They agreed that if within 
 a stipulated time the common should not be de- 
 voted to the public, having no part of it sold or 
 let on building or other lease, the plaintiff, who 
 had been beneficially entitled to part of the com* 
 mon, should re-purchase his share. The Board 
 prepared a scheme for the Inclosure Commissioners 
 under the above Act, which provided for the sale 
 or letting of a part of the common, which scheme 
 was promulgated by the Commissioners. The 
 Court restrained the Board of Works from promot- 
 ing such scheme. Telford v. The Metropolitan 
 Board of Works, 41 Law J. Rep. (n.s.) Chanc. 589 ; 
 Law Rep. 13 Eq. 674. 
 
486 PUBLIC BODY— PUBLIC HEALTH A.ND LOCAL GOVEENMENT ACTS (B). 
 
 Performance of statutory dmty : exemption 
 from liability to make compensation for 
 omissions of duty. [See NEOLieENOB, 
 33.] 
 
 Injunction against public body. [See In- 
 junction, 33-36.] 
 
 PUBLIC ENTERTAINMENTS. 
 
 [Amendment of law. Saving of certain occa- 
 sional licenses under the Licensing Act, 1872, 38 
 & 39 Vict. c. 21.] 
 
 Under 25 Geo. 2. c. 36, s. 2, -which imposes a 
 penalty upon every person keeping any house for 
 public dancing, or other public entertainment of 
 a like kind, in the cities of London and Westmin- 
 ster, "without a license for that purpose, and em- 
 powers justices to grant such licenses as they in 
 their discretion shall think proper, the justices 
 are at liberty to grant a separate license for music 
 without dancing, and a person who, having a li- 
 cense for music only, keeps open a house for public 
 dancing, \i liable to an action for the penalty. 
 Brown V. Nugent (Exch. Ch.), 41 Law J. Eep. (n.s.) 
 M. C. 166 ; La-w Eep. 7 a. B. 588. 
 
 The judgment of the Court of Queen's Bench 
 (40 Law J. Eep. (n.s.) M.C. 217; Law Eep. 6 
 Q. B. 693) affirmed. Ibid. 
 
 PUBLIC HEALTH AND LOCAL GOVEEN- 
 MENT ACTS. 
 
 (A) Adoption of the Act : Place hatins a 
 
 KNOWN AND DEFINED BoUNDABT. 
 
 (B) Election of Local Board. 
 (o) Notice of qualification. 
 
 (6) Fabrication of voting paper. 
 
 (C) PowEES OF Local Boards. 
 (a) Folding stream. 
 
 (J) Filling up ditches at roadside. 
 (c) Buildings. 
 
 (1) New buildings. 
 
 (2) Lime of buildings. 
 
 (3) Farty-walls. 
 
 (4) Dangerous buildings. 
 
 {d) Borrowing mxney upon security of rates, 
 
 (D) Pavino Streets. 
 
 {a) Highwdy within sect. 69 of the Public 
 
 Health Act, 1848. 
 (6) Apportionment of paving expenses. 
 
 (c) Surveyor's certificate. 
 
 (d) Who liable as "owner" of premises. 
 
 (e) Time to recover paving expenses. 
 
 (/) Service of notice preliminary to informa- 
 tion. 
 
 (E) Sewers. 
 
 (F) Limitation of Sanitary Eates. 
 
 (G) Notice of Action. 
 
 [The law relating to public health amended. 
 35 & 36 Vict. c. 79.] 
 
 [Consolidation and amendment of the Acts relat- 
 ing to public health in England. Eepeal of pre- 
 existing enactments with exceptions in certain 
 cases as to the metropolis. 38 & 39 Vict. e. 55.] 
 
 (A) Adoption of the Act : Place having 
 a known and defined Boundart. 
 
 1,— By the Local Government Act, 1858 (21 & 
 22 Vict. c. 98), it is enacted that the Act may be 
 adopted in corporate boroughs and places under 
 the jurisdiction of a board of competent commis- 
 sioners, and in all other places having a known or 
 defined boundary, by resolution of the OMTiers and 
 ratepayers, subject to appeal to the Local Govern- 
 ment Board : — Held, that in interpreting the 
 words " place having a known or defined boimdary " 
 in the above statute, the word " place " is to be 
 received with the widest possible signification, and 
 is not restricted to the accustomed legal divisions 
 of the country, such as manors, hamlets, townships, 
 or parishes, and may, therefore, consist of portions 
 of different townships or parishes, and a place so 
 composed has a "known or defined boundary," 
 which has a physical, visible and notorious boun- 
 dary, so that there can be no mistake as to its 
 limits. Therefore where the township of Grasmere 
 contained certain small detached portions of the 
 neighbouring townships of Eydal and Loughrigg 
 whoUy surroimded by portions of the township of 
 Grasmere, and included within the boundary of that 
 township, the district so composed was held to be 
 a place having a known or defined boundary within 
 the above statute, and an order of the Local Go- 
 vernment BoLird made under section 17 of that 
 Act, and 34 & 35 Vict. c. 70, s. 2, for the adoption 
 of the first-mentioned Act by such district, was 
 held valid. The Queen v. The Local Board of 
 Grasmere, 42 Law J. Eep. (n.s.) Q. B. 131 ; Law 
 Eep. 8 Q. B. 227, nom. The Queen v. Local Go- 
 vernment Board. 
 
 (B) Election of Local Board. 
 
 (a) Notice of qualification. 
 
 2.— By the Public Health Act, 1848 (11 & 12 
 Vict. c. 63), s. 20, at the election of members of a 
 local board of health, the ratepayers in respect of 
 property in the district, and the owners of such 
 property, shall be entitled to vote according to a 
 certain scale ; and any person who is owner and 
 also occupier of the same property, shall be entitled 
 to vote both in respect of the ownership and occu- 
 pation ; and no owner shall be entitled to vote as 
 such unless, foiu-teen days at least previously to 
 the day of tendering his vote, he shall have de- 
 livered to the clerk a statement in writing of his 
 name and address, and containing a description of 
 the nature of his interest in the property creating 
 the qualification. By section 24 any person entitled 
 to vote may nominate for the office of member of 
 the local board himself, if qualified to be elected, 
 or any other person or persons so qualified (not 
 exceeding the number of persons to be elected) ; 
 and every such nomination shall be in writing, and 
 shall state the names, residences, calling, or quality 
 of the persons nominated, and shall be signed by 
 
PUBLIC HEALTH AND LOCAL GOVERNMENT ACTS (B), (C). 
 
 487 
 
 the party nominating, and be sent to the chairman : 
 — Held, that the statement of the voter's qualifi- 
 cation as owner cannot be delivered once for all, 
 but must be delivered before every election. The 
 Queen v. Morgan, 41 Law J. Eep. (n.s.) ft. B. 65 ; 
 Law Eep. 7 Q. B. 26. 
 
 At an election of members of a local board a 
 nomination paper was signed, " A. B. being duly 
 qualified as owner in the district." A. B. was not 
 qualified as owner, but was qualified as ratepayer : 
 — Held, that the nomination was valid, as the Act 
 did not require the qualification of the nominator 
 to be stated, and the words " as owner " might be 
 rejected as surplusage. Ibid. 
 
 (6) Fabrication of voting paper. 
 
 3. — At an election of a member of a local board 
 of health, the respondent was canvassing for one 
 of the candidates. The wife of a voter, in the 
 absence of her husband, promised his vote, and not 
 being able to write placed a mark on the voting 
 paper, which was in the form prescribed by Sche- 
 dule A of the Local Government Act, 1 848, which 
 requires that in the ease of a voter who cannot 
 write a witness shall attest the voter's mark and 
 place the voter's initials against the name of the 
 persons for whom the voter intends to vote. The 
 respondent, believing that the wife was authorised 
 to fill up the voting paper, and that he was not 
 acting contrary to the Act, attested the mark made 
 by her, describing it as the mark of the voter, and 
 placed the voter's initials against the name of the 
 candidate. On an information under the Local 
 Government Act, 1858, section 13, sub-section 5, 
 for fabricating a voting paper : — Held, that in the 
 absence of an unlawf id intention on the part of the 
 respondent, he had not fabricated a voting paper 
 within the meaning of the Act. The Aberdare 
 Local Board of Health v. Haw/mett, 44 Law J. Eep. 
 (n.s.) M. C. 49 ; Law Eep. 10 Q. B. 162. 
 
 [And see Quo Warranto, 2.] 
 
 (0) Powers of Locai, Boards. 
 
 (ffi) Fowling stream. 
 
 4.— The statute 24 & 26 Vict. c. 61, s. 4, gives 
 power to a local board to make an outfall of drains 
 beyond their district, with a proviso that nothing 
 therein contained shall authorise them to pour any 
 noxious matter into any stream. On an informa- 
 tion to restrain a local board from pouring noxious 
 matter into a stream through an outfall beyond 
 their district, the local board tendered evidence to 
 shew that no damage was caused to any one 
 thereby : — Held, that this was immaterial and an 
 injunction a matter of course. The Workivgton 
 Local Board v. The Cockermouth Local Board ; and 
 The Attorney-General v. The Cockermouth Local 
 Board, 44 Law J. Eep. (n.s.) Chanc. 118; Law 
 Eep. 18 Eq. 172. 
 
 (6) Filling up ditches at roadside. 
 
 5. — Where a local board were empowered to fill 
 up ditches " at the side of" a road, — Held, that 
 they had no right to fill up a ditch, adjoining the 
 
 plaintiff's laud, and which was separated from the 
 road by a strip of greensward one foot wide, and 
 by posts and rails set up by former owners of the 
 plaintiff's land, and usually repaired by the plain- 
 tiff and his predecessors. Tittill v. The West Ham 
 Local Board of Health, Law Eep. 8 0. P. 447. 
 
 (c) Buildings. 
 (1) New buildings. 
 
 6. — A local board of health, acting under the 
 Local Government Act, 1858, s. 34, made a by- 
 law, requiring every person intending to erect a 
 new building to give fourteen days' notice of such 
 intention, and to deliver with such notice detailed 
 plans, and sections, which were to be approved or 
 disapproved by the board within fourteen days after 
 their receipt, and that any person erecting any new 
 building without giving such notice and delivering 
 such plans and sections, or without having them 
 approved by the board, or contrary to plans and 
 sections which had been approved, should be liable 
 to a penalty : — Held, that the by-law was within 
 the powers given by the statute, and was reason- 
 able, and not inconsistent with another by-law 
 which gave power to remove, alter, and pull down 
 work done contrary to any by-law. Hattersley v. 
 Burr (4 Hurl. & 0. 623) and Young v. Edwards 
 (33 Law J. Eep. (n.s.) M. 0. 227) not followed. 
 Hall V. Nixon, 44 Law J. Eep. (n.s.) M. C. 51 ; 
 Law Eep. 10 Q.B. 152. 
 
 7. — The occupier of a house in a town in which 
 a local board was constituted under the Local Go- 
 vernment Act, 1858 (21 & 22 Vict. e. 98), caused 
 a small building, which had been erected against 
 the wall of the yard belonging to his house, to be 
 removed to another side of the yard, using in its 
 reconstruction other parts of the wall of the yard 
 for two sides of it, but in other respects substan- 
 tially the same materials as were used to form it 
 originally. The wall of the yard had been built 
 before the formation of the local board: — Held, 
 that the' building so reconstructed was a new build- 
 ing within the meaning of section 34 of the Local 
 Government Act, 1858, and of a by-law made 
 thereunder by such local board, which required 
 notice to be given to the surveyor of the board 
 before the erection of any new building. Hobbs v. 
 Vance, 43 Law J. Eep. (n.s.) M. C. 21 ; Law Eep. 
 9 C.P. 30. 
 
 (2) Line of buildings. 
 
 8. — The Folkestone Improvement Act, 1855 
 (wherewith the Towns Improvement Clauses Act, 
 1847, is incorporate(^), enacted that in case the 
 width of any street should not be forty feet, the 
 corporation might prescribe the line in which any 
 "house " to be thereafter built should be erected, 
 that no new street should be less than forty feet, 
 and that in case any existing street should not be 
 of that width, the houses to be thereafter erected 
 should be set back so as to allow of that width. 
 Compensation was, however, to be paid to the 
 "owner" of any house required to be set back. 
 Under the provisions of 43 Geo. 3. e. 108, a piece 
 of land in the borough of Folkestone fronting to 
 a road less than forty feet wide was conveyed to 
 
488 
 
 PUBLIC HEALTH AND' LOCAL GOVERNMENT ACTS (C), (D). 
 
 the Vicar of Folkestone and his successors as a site 
 for a church, and the Vicar proceeded to build a 
 church upon it. The corporation did not actually 
 prescribe the line of building until after the 
 foundations of the church had been laid and the 
 walls commenced, when they required the Vicar to 
 set back the church, a part of which was being 
 built within the line so prescribed, offering to pay 
 him compensation : — Held, that the church was a 
 " house " and the Vicar " an owner " within the 
 meaning of the Local Improvement Act, and that 
 under the circumstances the corporation were too 
 late in prescribing the line of building, and were 
 not entitled to have the church set back or to 
 restrain the Vicar from building as he proposed. 
 The Corporation of Folkestone v. Woodward, 42 
 Law J. Eep. (u.s.) Chanc. 782; Law Eep. 15 Eq. 
 159. 
 
 (3) 'Party-walls. 
 
 9. — A local board of health made a by-law 
 under 11 & 12 Viet. e. 63, s. 115, and 21 & 22 
 Vict. i;. 98, s. 34, as to the structure of new build- 
 ings, requiring the party-wall of a house of more 
 than one storey to be built of the thickness of nine 
 inches, subject to a penalty, and by another by- 
 law a penalty was imposed of forty shillings, de 
 die in diem, in case of, a continuing offence under 
 other by-laws after written notice by the board 
 to the offender. A person built a house of more 
 than one storey with a party-wall of the thickness 
 of four and a half inches, and sold and disposed of 
 the house and did nothing more to it. Five months 
 afterwards he was fined under the former by-law. 
 Subsequently, notice having been given to him to 
 make the walls of the requisite thickness, he was 
 fined again under the latter by-law in a con- 
 tinuing penalty for seven days of five shillings a 
 day : — Held, that the latter by-law did not apply 
 to an offence of this description, which was com- 
 plete before the first conviction, and that the latter 
 conviction was, therefore, bad. Marshall v. Smith, 
 42 Law J. Eep. (n.s.) M.C. 108; Law Eep. 8 
 C.P. 416. 
 
 What is a 'party-wall.' 
 
 PBOVEMBNT AcT.] 
 
 [See Bristol Im- 
 
 (4) Dangerous buildings. 
 
 10. — A local Act enacted that " if the surveyor 
 of the City " of M., " or, in his absence, any other 
 duly qualified surveyor, shall certify in writing 
 that there is imminent danger from any building, 
 the corporation" of the city "shall and may, 
 vrithout any presentment, notice or other formality, 
 cause the same to be taken down either wholly or 
 in part, or to be repaired or secured in such man- 
 ner as the corporation shall think requisite." It 
 also enacted that if any summons, demand or 
 notice or other such document under the Act 
 "require authentication by the corporation, the 
 signature of the town clerk thereto shall be a 
 sufficient authentication : " — Held, that the cer- 
 tificate of the surveyor was conclusive as to 
 whether danger was imminent, and that the cor- 
 poration was bound to act upon it ; secondly, that 
 by force of the statutory provisions, the directions 
 
 by the town clerk to the surveyor must be deemed 
 the act of the corporation, which had ratified his 
 proceedings ; and that the certificate of the sur- 
 veyor sufficiently described two houses ha%'ing 
 internal communication as "a building, No. 96, 
 Market Street." Cheetham v. The Mayor, ^o., 
 of Manchester, 44 Law J. Eep. (n.s.) C.P. 139; 
 Law Eep. 10 C.P. 249. 
 
 (d) Borrowing money upon security of rates. 
 
 11. — The commissioners appointed under a local 
 Act were by the Act empowered to raise money 
 upon the security of the rates for the purposes of 
 local improvement. Of the money so borrowed 
 the sum of 1 00^. at the least in every year was to 
 be repaid to such of the mortgagees as should be 
 selected by ballot. The interest upon the mort- 
 gage was duly paid, and annual instalments were 
 paid in the prescribed manner, though not with 
 complete regularity. The plaintiffs, as mort- 
 gagees, gave notice to the commissioners, re- 
 quiring them to pay off their mortgage (800/.) in 
 six months. The commissioners refused to do so, 
 whereupon the plaintiffs filed their bill to establish 
 their right to be paid off, and for a receiver of the 
 riites: — Held, affirming the decision of one of the 
 Vice-Chancellors (41 Law J. Rep. (n.s.) Chanc. 
 310), that the plaintiffs had no right to have their 
 mortgage debt paid off, except under the provi- 
 sions of the Act, and that the Court had no juris- 
 diction to appoint a receiver of the rates, and an 
 appeal against the Vice-Chancellor's order dis- 
 missing the plaintiff's bill was dismissed with 
 costs. Preston v. The Mayor, ^c, of Great Yar- 
 mouth, 41 Law J. Eep. (n.s.) Chanc. 760 ; Law 
 Eep. 7 Chanc. 655. 
 
 lAdbUity of local board for insufficiently 
 
 buoying sunken anchor. [See Nbgli- 
 
 GENCE, 22.] 
 Exemption from stamp-duty of conveyance 
 
 by local board. [See Stamp, 2.] 
 
 (D) Paving Streets. 
 
 (a) Highway within sec. 69 of the Public Health 
 Act, 1848. 
 
 12. — In the year 1798, by a local Act, 8 Geo. 3. 
 c. xliv., for better paving, &c., the streets in the 
 township of H., trustees were appointed to re- 
 pair, &c., the streets, and to levy rates therefor 
 on the inhabitants who on paying them were to be 
 exempt from all other charges for paving, &c., the 
 streets. In the year 1816 A. laid out a street on 
 his laud, which in 1819 became dedicated to the 
 public by user. In the year 1823, by another 
 local Act, 4 Geo. 4. c. xc, -for paving, &c., the 
 streets of H., the former Act was repealed, trus- 
 tees were appointed for similar purposes, and it 
 was provided that all persons should be exonerated 
 from statute duty and compositions and all liability 
 for highway repairs, that surveyors should be ap- 
 pointed who were to be in the position of surveyors 
 of highways, all costs to be paid by the trustees 
 out of rates to be levied by them, and the trustees 
 to be authorised to pave, &c., present and future 
 
PUBLIC HEALTH AND LOCAL GOVEBNMENT ACTS (D). 
 
 489 
 
 streets, and when any new streets already or 
 thereafter laid out and made were properly paved, 
 &c., on application by the owners of adjoining 
 houses to declare them public, whereupon they 
 were to be public and repaired by the trustees, 
 and where any streets then or thereafter set out 
 on private property had been opened and used for 
 three years, to cause them to be paved, &c., where- 
 upon they should be deemed public. In the year 
 1861 the Public Health Act, 1848, was applied to 
 H., and the Local Acts repealed as far as the lia- 
 bility of tlie surveyors, the powers of the trustees 
 to pave and liability of owners to reimburse them ; 
 and the Local Board having duly paved the street 
 before mentioned, called on the appellant to con- 
 tribute as an adjoining 'owner, under section 69 of 
 the last-mentioned Act which excepts highways 
 defined by 15 & 16 Vict. c. 42, s. 13, to be high- 
 ways repairable by the inhabitants at large. 
 Rates had been paid in respect of the premises 
 under the Local Acts, but the street had never 
 been paved, &c., never been dedicated under 5 & 6 
 WiU. 4. c. 513, and no steps taken by the trustees 
 or the Local Board to make it public : — Held, that 
 the first Local Act did not prevent a dedication to 
 the public, that the second only applied to streets 
 then in course of construction or afterwards con- 
 structed, and that therefore the street was a high- 
 way within the exception in section 69 of the 
 Public Health Act, 1848, and the appellant not 
 liable. Hirst v. The Local Bowrd of Health of 
 Halifax, 40 Law J. Rep. (n.s.) M. C. 43 ; Law 
 Rep. 6Q.B. 18. 
 
 WaiUngton v. White {30 Law J. Rep. (n.s.) M. 0. 
 209, aifirmed, 32 Law J. Rep. (n.s.) C.P. 86, svb 
 nom. WUles v. Wallington) distinguished. Ibid. 
 
 13. — A piece of ground dedicated by user to the 
 public as a road is not a " street not being a high- 
 way" within the meaning of section 69 of the 
 Public Health Act, 1848. Healey v. The Corpora- 
 tion ofBatley, 44 Law J. Rep. (n.s.) Chano. 642 ; 
 Law Rep. 19 Eq. 375. 
 
 (6) Apportionment of paving expenses. 
 
 14.— By the Public Health Act, 1848 (11 & 12 
 Vict. c. 63), s. 69, and the Local Government Act, 
 1858 (21 & 22 Vict. c. 98), s. 64, the expenses 
 incurred by local boards in paving, &c., private 
 streets under the powers of the former Act are to 
 be charged upon the owners of premises abutting 
 upon the street, in such proportion as shall be 
 settled by the surveyor, or in case of dispute by 
 arbitration, and where the matter in dispute is less 
 than 20^., by two justices : — Held, first, that the 
 surveyor having made one apportionment upon a 
 wrong principle has a right to make a fresh ap- 
 portionment; secondly, that neither the arbitra- 
 tors nor the justices in settling such proportions 
 are entitled to enquire whether the amount alleged 
 to have been expended by the surveyor has been 
 actually so expended. Cook v. The Ipswich Local 
 Board of Health, 40 Law J. Rep. (n.s.) M. C. 169; 
 Law Rep. 6 Q,. B. 451. 
 
 (c) Bmneyor's certificate. 
 15._By the Public Health Act, 1848 (II & 12 
 Digest, 1870-1876. 
 
 Vict. 0. 68), s. 69, and the Local Government Act, 
 1858 (21 & 22 Viet. c. 98), ss. 63, 64, the expenses 
 
 incurred by local boards in paving, &o 
 
 streets (not being highways), under the powers of 
 the former Act, are to be charged upon the owners 
 of premises abutting upon the street, in such pro- 
 portion as shall be settled by the surveyor, &c., 
 and where such expenses have been so settled as 
 payable by such owners, " such apportionment 
 shall be binding and conclusive upon such owner, 
 unless within the expiration of three months from 
 the time of notice being given by the local board 
 or their surveyor, of the amount of the proportion 
 so settled by the surveyor to be due from such 
 owner, he shall by written notice dispute the 
 same." 
 
 The Local Board of A. gave notice to the owners 
 of the houses forming a street, requesting them to 
 sewer, pave, &c., the street, and upon their default 
 executed the work, the cost of which was appor- 
 tioned by the surveyor, according to the frontage. 
 The appellant, one of the owners, did not give 
 notice within three monl;hs under 21 & 22 
 Vict. c. 98, s. 63, that he disputed the apportion- 
 ment, but when smnmoned before the justices to 
 pay his proportion, contended that he was not 
 liable, on the ground that the street was a high- 
 way repairable by the inhabitants at large. 
 
 The justices having held that the appellant was 
 not entitled to raise before them the question, 
 whether the street was a highway or not: — Held, 
 that the decision was wrong, as the certificate of 
 the surveyor was conclusive as to the apportion- 
 ment, but not as to the original liability of the 
 person charged. HesJceth v. The Local Board of 
 Atherton, 43 Law J. Rep. (n.s.) M. C. 37 ; Law 
 Rep. 9 Q. B. 4. 
 
 (ti) Who liable as " owner " of premises. 
 
 16.— By the PubUc Health Act, 1848 (11 & 12 
 Vict. c. 63), s. 2, the word "owner" shall mean 
 the person for the time being receiving the rack 
 rents of the land or premises in connection with 
 which the word is used, whether on his own ac- 
 count or as agent or trustee for any other person, 
 or who would receive the same if such land or 
 premises were let at rack rent. By section 69, in 
 case any street not being a highway be not 
 sewered, levelled, paved, &c., to the satisfaction 
 of the local board of health, the board may by 
 notice require the owners or occupiers of the pre- 
 mises fronting, &c., such parts of the street as 
 require it to sewer, level, pave, &c., them, and 
 upon default the board may themselves execute 
 the works ; the expenses to be paid by the owners. 
 A school-hoiise and two dwellings for teachers 
 were, under the provisions of 4 & 5 Vict. c. 38, 
 conveyed by deed to the appellant and others as 
 trustees, upon trust to allow them to be used only 
 as a school for the education of the poor in the 
 principles of the Established Church, and for the 
 residence of the master or mistress of the school. 
 The appellant, having no power to let the pre- 
 mises, neither received nor could receive any rent 
 in respect of them: — Held, notwithstanding, that 
 he was liable to contribute as " owner " under seo- 
 3R 
 
490 PUBLIC HEALTH AND LOCAL GOVEENMENT ACTS (D)— QUAEE IMPEDIT. 
 
 tion 69 of the Public Health Act, to the paving, 
 &c., of a street in front of the premises as, 
 although he was not entitled to let them, he would 
 receive the rent if they were actually let. Bow- 
 ditch V. The Wakefield Local Board of Health, 40 
 Law J. Eep. (n.s.) M. C. 214 ; Law Eep. 6 C. P. 
 667. 
 
 (e) Time to recover pavirig expenses. 
 
 17. — In 1858, the respondents, a local board of 
 health, served upon the appellant, who was an 
 owner of premises within -the meaning of 11 & 12 
 Vict. c. 63, a notice to execute certain specified 
 works in paving, &c. The works not having been 
 executed by the appellant, the respondents com- 
 pleted them on the 30th of November, 1860, and 
 on the 21st of January, 1861, apportioned the ex- 
 pense among the appellant and the other owners, 
 giving notice on the same day to the appellant 
 that " unless the amount of this account is paid 
 within fourteen days after delivery, interest at 
 the rate of five per cent, per annum will be 
 charged thereon until fiilly liquidated. To pro- 
 portion of sewering, levelling, paving, flagging, 
 channelling, &e., namely, fifty-ft. frontage, at 
 5s. id., \Zl. 6s. M." The amount was not paid by 
 the appellant, and the respondents, on the 25th of 
 August, 1870, resolved and declared that the said 
 amount of 13Z. 6s. &d. should be " private improve- 
 ment expenses," and subsequently that the amount 
 should be paid by two instalments. The appellant 
 refused to pay, and an information was laid 
 against him : — Held, that the respondents having 
 elected in 1861 to treat the amount as a debt due 
 from the appellant could not now treat it as a 
 private improvement expense, and further, that in 
 order to recover the amount from the appellant 
 proceedings must have been taken within nine 
 months from the service of the notice of the 21st 
 of January, 1861, which must be considered as a 
 demand. Wilson v. The Mayor, ^c, of Bolton, 41 
 Law J. Eep. (n.s.) M. 0. 4 ; Law Eep. 7 Q. B. 
 105. 
 
 (/) Service of notice preliminary to 
 information. 
 
 18, — On an information for not paying an ap- 
 portionment under 11 & 12 Vict. e. 63, s. 69, 
 evidence must be given that the preliminary 
 notice required by that section was served. The 
 Jarrow Local Board of Health v. Kennedy, Law 
 Eep. 6 Q. B. 128. 
 
 (E) Sewbes. 
 
 Award by vrnpire of compensation for 
 TnaJcing sewer. [See Aebiteation, 19.] 
 
 [And see Sewbe.] 
 
 (P) Limitation op Sanitakt Eatbs. 
 19,_In 35 & 36 Vict. c. 79, s. 43, providing 
 that any " limit " imposed in respect of any rate 
 by any local Act shall not apply to any rate for 
 sanitary purposes under the Act, the word " limit " 
 does not mean exemption, and buildings, &c., which 
 under a local Act were whoUy exempt are not 
 rateable. The Walton Commissioners v. Walford, 
 Law Eep. 10 Q. B, 180. 
 
 (G) Notice of Action. 
 
 20,— Section 139 of the Public Health Act, 
 1848, which requires notice of action for anything 
 done or intended to be done under that Act: — 
 Held, to apply to a case where injury was caused 
 by insufficiently buoying a sunken anchor which 
 was part of certain works authorised by a local 
 Act. Jolliffe V. The Wallasey Local Board, 43 
 Law J. Eep. (n.s.) C. P. 41 ; Law Eep. 9 C.P. 
 62. 
 
 Award under ss. 123, 124 of Public Health 
 Act, 1868 : pleading. [See Aebitra- 
 
 TI0N,.19.] 
 
 PUBLIC SCHOOLS. 
 
 [31 & 32 Vict. c. 118, amended. 35 & 36 Viet. 
 CO. 54, 60.] 
 
 [31 & 32 Vict. c. 118, amended as to the pro- 
 perty of Shrewsbury and Harrow Schools. 36 & 
 37 Vict. c. 41. Section 24 amended as to Eton 
 College property. 36 & 37 Vict. c. 62.] 
 
 The governing body of a school constituted 
 under the Public Schools Act, 1868, has, under 
 the 13th section of that Act, absolute power to 
 dismiss the head master of the school " at their 
 pleasure," that is, vpithout assigning any reason ; 
 and so long as this power is fairly and honestly 
 exercised the Court of Chancery cannot interfere. 
 Hayman v. The Governing Body of Rugby School, 
 43 Law J. Eep. (n.s.) Chanc. 834 ; Law Eep. 18 
 Eq. 28. 
 
 They may do so, moreover, although the head 
 master received his appointment from a prior 
 governing body in existence before the passing of 
 the Act, whose powers of dismissal were subject 
 to restrictions as to time and place of exercise. 
 Ibid. 
 
 Semble — if the governing body gives reasons 
 for the dismissal, the Court will look at the suffi- 
 ciency of those reasons. Ibid. 
 
 PUBLIC WOEKS LOANS. 
 
 [Consolidation of the Acts relating to loans for 
 public works. 38 & 39 Vict. c. 89.] 
 [And see Chuech-Eates.] 
 
 QUAEE IMPEDIT. 
 
 The words " next avoidance of, or presenta- 
 tion to, any benefice," as used in 12 Anne, st. 2, 
 c. 12, s. 2, refer only to chattel interests, and do 
 not extend to freehold estates in an advowson, and 
 therefore a clerk in holy orders, who by payment 
 of a pecuniary consideration becomes seized of an 
 advowson for the life of another and claims to be 
 admitted when the benefice is subsequently vacant, 
 does not commit simony within the meaning of 
 
aUAEE IMPEDIT— fiAILAVAY (A). 
 
 491 
 
 that statute. Walsh y. The Bishop of Liwoln, 44 
 Law J. Kep. (n.s.) C. P. 244 ; Law Eep. 10 C. P. 
 518. 
 
 A clerk in holy orders who is seised of a free- 
 hold estate in an advowsou may by the common 
 law offer himself to the ordinary and pray to be 
 admitted whenever the benefice is vacant, and the 
 bishop is bound to institute him. Ibid. 
 
 QUAETEK SESSIONS. 
 [See Justice of the Peace, 5-11.] 
 
 aUO "WAEEANTO. 
 
 1.--A rule for an information, in the nature of 
 a quo warranto, in respect of an annual office of 
 guardian of the poor, the election to which was on 
 the 14th of May, on the ground that the mode of 
 election adopted was not a proper one, was not 
 applied for till the 1 3th of January following, and 
 it was then not shewn that any ratepayer had 
 been prevented from voting, or that the result of 
 the election was affected by the mode adopted. 
 In the exercise of its discretion, the Court dis- 
 charged the rule. The Qiteen v. Cousins, 42 Law 
 J. Eep. (n.s.) Q. B. 124 ; Law Eep. 8 Q. B. 216. 
 
 2. — W. was chairman of a local board, and it 
 was his duty under 11 & 12 Vict. c. 63, s. 21, to 
 conduct and complete the elections of members 
 for the ensuing year, and by the same section if 
 the chairman became unable to act, some other 
 person was to be appointed by the local board to 
 perform such of his duties as then remained to be 
 performed. F. was appointed by the local board to 
 act as returning officer in case of nomination of the 
 chairman as a candidate. W. published a notice, 
 fixing the day of election and the day for receiving 
 nomination papers. He received a nomination paper 
 nominating himself, and afterwards continued to 
 receive other nomination papers. More candidates 
 were nominated than vacancies. W. filled up the 
 form of voting paper under section 23, and sent it 
 to be printed, with directions for the printer to 
 return it to F., and from that time forward every- 
 thing was done by F. W. was elected, and re- 
 turned by F. No improper motive was imputed 
 to W., nor did his acts produce any inconvenience, 
 or in any way influence the result of the election. 
 The Court, in the exercise of its discretion, refused 
 leave to file an information in the nature of a quo 
 warranto. The Queen v. Ward, 42 Law J. Eep. 
 (n.s.) Q. B. 126 ; Law Eep. 8 a. B. 210. 
 
 Office of alderman : time for application. 
 [See Municipal Coepoeation, 6.] 
 
 EAILWAY. 
 
 (A) Consteuction of Speciai, Act. 
 (a) Charges for conveyance of goods. 
 (6) Stopping up streets. 
 {c) " Ordinary train." 
 
 {d) Deposited plavs. 
 (e) Power to lease superfluous lands. 
 (/ ) Solicitor's costs of obtaining Act of 
 Parliament. 
 
 (B) Contracts by. 
 
 (a) Contractor : engineer's certificate. 
 
 (b) Contract to build railway station. 
 
 (c) Covenant to stop trains. 
 
 (d) Sunning powers. 
 
 (e) Branch railway : what is. 
 
 (C) POWBES. 
 
 (a) Compulsory powers to take land. 
 (6) Summary petition for delivery of arbi- 
 trators certificate. 
 
 (D) Eiohts of Unpaid Vendobs. 
 
 (E) EigHTs OF Creditoes. 
 {a) Judgment creditor. 
 
 {b) Creditor leaving claim tmascertained. 
 (o) Dissolution of company. 
 
 (F) Level Crossings. 
 
 (a) Grant of right of way . 
 
 (b) Liability for unsafe condition. 
 
 (G-) Fences ; Duty op Bail way Company. 
 (H) Eepaie of Bridges. 
 (I) Eight to run Engines over Eailway. 
 (K) Communication between Passengees and 
 
 Guard. 
 (L) Deposit under Eailways Constkuctcon 
 
 Facilities Act, 1864. 
 (M) Deposit under Eailways Abandonment 
 
 Act. 
 (N) Opening of Eailway. 
 (0) Arrangement. 
 
 (a) Under Eailway Companies Act, 1867. 
 (A) Under special Act. 
 (P) Liability foe Acts of Servants. 
 (Q,) Liability for Negligence. 
 (R) Liability as Carriers. 
 (S) Eailway and Canal Traffic Act ; UirouE 
 
 Preference. 
 (T) Eates and Assessments. 
 (U) Duty on Passenger Fares. 
 (V) Offences. 
 
 (a) Obstructing signals. 
 (J) Wilful trespass. 
 
 [Provisions as to inspection of railways by the 
 Board of Trade, and of returns of accidents and 
 other statistics by railway companies to the 
 board, &c., 34 & 35 Vict. c. 78.] 
 
 [Appointment of conjmissioners to carry into 
 effect the Eailway and Canal Traffic Act, 1854. 
 Provisions for the regulation of through traffic, 
 &c., 36 & 37 Vict. c. 48.] 
 
 [Provisions for returns of signal arrangements, 
 &c., by railways to the Board of Trade. 36 & 37 
 Vict c. 76.] 
 
 [30 & 31 Vict. r. 126, s. 4 and c. 127, s. 4 aa to 
 liability of rolling stock made perpetual. 38 & 
 39 Vict. e. 31.] 
 
 (A) Construction of Speciai, Act. 
 
 (a) Charges for conveyance of goods. 
 
 1.— The Act under which the appellant company 
 
 was incorporated fixed a maximum charge for the 
 
 Sb2 
 
492 
 
 RAILWAY (A). 
 
 conveyance of goods, " except a reasonable sum 
 for services incidental to the business of a carrier." 
 They permitted the respondent to occupy land at 
 one of their stations for the purpose of depositing 
 his coal : — Held (affirming the judgment of the 
 Exchequer Chamber), that this was not a "ser- 
 vice incidental to the business of a carrier," 
 within the meaning of the Act, and that charges 
 as for such service paid by the respondent to the 
 company over and above the maximum fixed by 
 the Act might be recovered by him as money had 
 and received to his use. Lancashire and Yorkshire 
 Railway Company v. G-idlow, 45 Law J. Rep. (n.s.) 
 Exch. 625 ; Law Eep. 7 E. & I. App. 517. 
 
 The appellants had imposed restrictions on the 
 coal traffic of the respondent which the Court 
 found to be xmreasouable and improper : — Held, 
 that damages for loss of customers arising from 
 such restrictions were not too remote to be re- 
 covered. Ibid. 
 
 Interest will, as a matter of course, be given 
 for the time that execution has been delayed by a 
 proceeding in error. Ibid. 
 
 2. — A special Act relating to the Lancashire 
 and Yorkshire Kailway Company, provided that 
 where goods were carried on. the company's 
 railway, or partly on their railway and partly 
 on some other railway of which they were 
 joint owners, or which they had a right to use, 
 for a less distance than six miles, the com- 
 pany should be entitled to take tolls as for six 
 miles. The Act also provided that the tolls for 
 goods carried over the company's line and over 
 portions of other lines of whicli they were part 
 owners, or which they had a right to use, should 
 be computed as if the company's line and the said 
 portions of the said other lines formed one rail- 
 way. Goods were passed over the line of which 
 the company were sole owners for a distance of 
 less than six miles ; the same goods on their 
 transit to their ultimate destination passed over 
 another line of which the company was part 
 owner for a distance of more than six miles. 
 This latter line was under the sole management of 
 another company. The goods were accompanied 
 by two declaration notes, one made out in the 
 name of the first company and the other in the 
 name of the other company, but the station of 
 ultimate destination mentioned in both notes was 
 the siime : — Held, that the company was not 
 entitled to split the contract, that the two lines 
 must be treated as one, and that the six-mile 
 clause was not applicable. LnMcashire and York- 
 shire Railway Compatiy v. Gidlow (H. L.), 42 Law 
 J. Rep. (n.s.) Exch. 129. 
 
 The same Act of Parliament, while providing 
 the maximum rate nf tolls to be charged, made an 
 exception in respect of special services to be 
 rendered by the company for loading, unloading, 
 collection and delivery of goods : — Held, that the 
 company were not entitled to charge for special 
 services, though found by a jury to have been 
 actually rendered by them ; the custompr charged 
 for such services, not having had the offer and 
 option first distinctly given him of either availing 
 himself of such services at the company's rate of 
 
 charge or of doing them himself, such services 
 being incidental to the ordinary business of a 
 carrier, and such as the customer, without notice, 
 might have supposed were covered by the com- 
 pany's charges for toll. Ibid. 
 
 (4) Stopping up streets. 
 
 3. — A railway company having, under their 
 special Act, stopped up one end of a street which 
 they required for the purposes of their station, 
 and having purchased all the houses in the 
 street were held to be entitled to stop up and ap- 
 propriate the rest of the street and a motion for 
 injunction was refused. Temple v. Flower, 41 
 Law J. Rep. (n.s.) Chanc. 604. 
 
 The railway company and the Attorney-General 
 ought to be parties to such a suit. Ibid. 
 
 4. — Representations made on plans deposited by 
 the promoters of an intended railway in pursuance 
 of the Standing Orders of the Houses of Parliament 
 previous to an application for an Act do not bind 
 the railway company after the Act is obtained nor 
 give other persons any equity against the com- 
 pany, except so far as they are incorporated with 
 the Act. Attorney-General y. The Great Eastern 
 Railway Company, 41 Law J. Rep. (n.s.) Chanc. 
 605 ; Law Rep. 7 Chanc. 475. 
 
 Where a General Act of Parliament is incor- 
 porated with a Special Act, if there is any con- 
 tradiction between them, the Special Act is to 
 prevail. Ibid. 
 
 A Special Act of Parliament, with which was 
 incorporated the Railways Clauses Consolidation 
 Act, 1845, empowered a railway company to stop 
 up all streets within a certain area in the City 
 of London. The deposited plans shewed that S. 
 Street which was within the area was not to be 
 stopped up but to be crossed by an arch. The 
 same plans shewed that other streets within 
 the area were to be stopped up. Subse- 
 quently the company obtained another Act, autho- 
 rising them to make an underground insteaH of an 
 aboveground railway, and re-enacting the powers 
 given them by the previous Act. In a suit for an 
 injunction to restrain the company from stopping 
 up S. Street, — Held (reversing a decision of 
 Bacon, V.C, 41 Law J. Rep. (n.s.) Chanc. 202; 
 Law Rep. 7 Chanc. 478 «), that the plans were not 
 incorporated in the Special Act, and that the 
 power to stop up all streets within the area, in- 
 cluding S. Street, was an existing power and 
 capable of being exercised. Ibid. 
 
 Affirmed on appeal to the House of Lords (Law 
 Rep. 6 E. & I. App. 307). 
 
 (c) " Ordinary train." 
 
 5, — Trains having a special object, not being 
 trains for the ordinary traffic and purposes of a 
 branch line of railway ; being also substantially 
 faster than the other trains ; stopping only at 
 one of the two stations on the branch line ; put on 
 it to be in connection with fast trains on the main 
 line of the London and South-Western Railway, 
 and so materially shortening the through journeys, 
 are not " ordinary " trains within the 27th section 
 
RAILWAY (A), (B). 
 
 4fl3 
 
 of the Eingwood, Christcliuroh and Bournemouth 
 Eail-way Act, 1869. Turner v. The London and 
 South- Western Railway Company, aadi. The Ring- 
 wood, ^c. Railway Company, 43 Law J, Bep. 
 (n.s.) Chanc. 430 ; Law Eep. 17 Eq. 661. 
 
 (d) Deposited plans. 
 
 6. — A Eailway Company's Act empowered them 
 to make their railway " in the line and upon the 
 lands delineated on the said plans, and described 
 in the said book of reference." The deposited 
 plans had numbers placed on some of the pieces of 
 land required by the company ; but those pieces 
 of land were shewn on the plans to be enclosed on 
 three sides only (one of such three sides being the 
 centre line of the railway) and not on all the four 
 sides. Those pieces were mentioned in the notices 
 to treat ; but it was contended that they were not 
 properly " delineated " and could not be taken by 
 the company : — Held, first, that for the construc- 
 tion of the railway itself, lands within the limits 
 of deviation, although not shewn to be bounded on 
 all the four sides, might be taken by the company 
 up to the line of deviation. Secondly, that as the 
 plaintiffs (landowners) had notice that some por- 
 tion of the same lands were outside the line of 
 deviation, the company coidd take those portions. 
 Thirdly, as to the words "delineated and de- 
 scribed," that the word "delineated" does not 
 mean " surrounded on every part by lines," but 
 " sketched or represented or so shewn, that land- 
 owners would have notice that the land might be 
 taken ; " and fourthly, that where Parliament has 
 not clearly defined the position of the centre line 
 of a railway, the company are acting within their 
 powers if they have taken the measurement for the 
 purposes of their Act, from a point which competent 
 engineers consider a proper one from which to find 
 the centre of the line of railway. Bowling v. 
 The Pontypool, Caerleon and Newport Railway 
 Compamt, 43 Law J. Eep. (n.s.) Chanc. 761 ; Law 
 Eep. 18Eq. 714. 
 
 Circumstances under which a piece of land, 
 numbered in the deposited plans, but not included 
 in the notices to treat, was considered to be well 
 taken by the company. Ibid. 
 
 Special circumstances under which the plain- 
 tiffs' bill was dismissed with costs. Ibid. 
 
 (e) Power to lease superfluous lands. 
 
 7. — A railway company had the usual power of 
 selling superfluous lands. By a subsequent exten- 
 sion Act, powers were given to the company of 
 leasing and mortgaging, without limit as to time, 
 such of these lands as were connected with the 
 structure of the railway: — Held, that the exten- 
 sion Act did not take away the power of sale and 
 substitute powers of leasing and mortgaging, bat 
 amplified the power of sale by removing some of 
 the restrictions upon it. Tomlin v. Budd, 43 
 Law J. Eep. (n.s.) Chanc. 627; Law Eep. 18 Eq, 
 368. 
 
 (/) Solicitor's costs of obtaining Act of Parliawunt. 
 
 8. — A solicitor and parliamentary agent, not 
 being promoters of a railway company, expended 
 
 moneys in procuring an Act in 1859 ; the railway 
 was not constructed, and the company had no 
 assets till 1872. On their then obtaining assets, 
 • — Held, that the claims of the solicitor and agent 
 were not barred, as the Statute of Limitations did 
 not run until the company had assets. The 
 special Act gave a right to sue the company for 
 the costs of the Act and incorporated the Com- 
 panies Clauses Act : — Hsld, that this right was 
 additional to, and not substitutional for, the right 
 given by the latter Act. In re The Kensington 
 Station Act, Law Eep. 20 Eq. 197. 
 
 (B) Contracts by. 
 
 {a) Contractor: engineer's certificate. 
 
 9. — Contract under seal by contractors with a 
 railway company to complete works at prices fixed 
 by the specification of the company's engineer, 
 with provisions making the engineer's certificate 
 conclusive between the parties : — Held, first, that 
 the contract coidd not be varied by mere verbal 
 promises made by the engineer, or, secondly, be- 
 cause the amount of the works to be executed was 
 under-stated in the certificate ; and, thirdly, that 
 the engineer's certificate must be conclusive in the 
 absence of fraud. Sharpe v. San Paulo Railway 
 Company, Law Eep. 8 Chanc. 597. 
 
 (6) Contract to build railway station. 
 
 10. — A contract entered into by a railway com- 
 pany with a landowner to build a railway station at 
 a particular spot, nothing being said as to the user 
 of the station, or the degree of convenience and 
 accommodation to be afforded by it, is too vague 
 and indefinite to be enforced by decree for specific 
 performance ; but the Court will give damages 
 for the breach of such contract, and in assessing 
 those damage-, will give the landowner the bene- 
 fit of all such presumptions as, according to the 
 rules of law, are made against wrong doers. 
 Wilson V. The Northampton and Banbury Railway 
 Company, 43 Law J. Eep. (n.s.) Chanc. 503 ; Law 
 Eep. 9 Chanc. 279. 
 
 (c) Covenant to stop trains, 
 
 11, — In a lease by a railway company of their 
 refreshment rooms at S., the company covenanted 
 with the lessee that all trains carrying passengers, 
 not being goods trains or trains to. be sent express 
 or for special purposes, and except trains not under 
 the control of the company, which should pass the 
 S. station either up or down, should, save in case 
 of emergency or unusual delay arising from acci- 
 dents, stop there for refreshment of passengers for 
 a reasonable period of about ten minutes, and 
 that as far as the company could influence' the 
 same, trains not under their control shoidd be 
 induced to stop for the like purpose. The Post- 
 master-General, having in the exercise of his 
 power required that trains carrying mails should 
 not stop at S. more than five minutes, — Held, 
 first, that those trains were not as regards stopping 
 under the control of the company ; and secondly, 
 reversing the decision of one of the Vice-Chancel- 
 lore, that the company were not by their covenant 
 
iH 
 
 RAILWAY (B), (C). 
 
 prohibited from carrying passengers by such 
 trains. Phillips v. The Great Western BaUway 
 Company, 41 Law J. Eep. (n.s.) Chano. 614; 
 Law Kep. 7 Chano. 409. 
 
 {d) Bunning powers. 
 
 12. — A. company, being owner of a station, en- 
 tered into an agreement with B. company to make 
 a new junction between their respective lines, so 
 that B. company might use such station. C. com- 
 pany, having running powers over A. company's 
 line, subsequently entered into agreement with B. 
 company for use of B. company's line. An 
 attempt of C. company to go from B. company's 
 line to A. company's line over the junction was 
 resisted on the ground that G 's agreement^with B. 
 did not give a right to use such junction, and 
 even if it did, such agreement was ultra vires and 
 invalid, as being a delegation of statutory powers 
 and as such against public policy : — Held (re- 
 versing the decision of the Master of the EoUs), 
 that the effect in law of the right to make the 
 junction was to make the two lines one continuous 
 line, which the public had a right to use, and 
 therefore also a company working under arrange- 
 ments with companies owning the two lines. That 
 the agreement as stated did not amount to a 
 delegation of statutary powers, nor was it ultra 
 vires. The Midland Bailway Company v. 2%e 
 Great Western Bailway Company, 42 Law J. Eep, 
 (n.s.) Chanc. 438; Law Eep. 8 Chano. 841. 
 
 13. — By an agreement entered into between the 
 L. company and the N. company, it was agreed 
 that the N. company should, subject to the by- 
 laws from time to time in force of the L. company, 
 have running powers over the L. company's line 
 upon certain terms as to the apportionment of 
 receipts, the maintenance of a staff by the N. 
 company, the establishmeni of a system of through 
 booking, the fixing of rates and fares, and the 
 carriage of trafic. The agreement contained a 
 provision for reference to arbitration in case of 
 dispute. But no limit as to the duration of the 
 agreement was expressed, nor was power given to 
 either company to determine it. No consideration 
 (beyond the reciprocity of some of the terms) was 
 expressed in the agreement, but there was ex- 
 trinsic evidence to shew that the real considera- 
 tion was a loan of 40,0002. by the N. company to 
 the L. company to enable the latter company 
 to construct their line : — Held, that since the 
 evidence of the loan being the real consideration 
 did not contradict anything in the agreement, it 
 »ras admissible, and being admitted it proved that 
 the intention of the parties was that the agree- 
 ment should be permanent, and not determinable 
 by the L. company : — Held also by James, L.J., 
 tliat upon the construction of the document itself, 
 apart from extrinsic evidence, the agreement was 
 permanent and irrevocable. The Llanelly Bailway 
 and Dock Company v. Tlie London and North- 
 western Bailway Company, 42 Law J. Eep. (n.s.) 
 Chanc. 884 ; Law Eep. 8 Chanc. 942. 
 
 Semble — that the question whether or not the 
 agreement was revocable could not be determined 
 under the arbitration clause after a notice by one 
 
 of the parties purporting to revoke the agreement, 
 since, if the notice were operative, the arbitration 
 clause would have been equally revoked with the 
 rest of the agreement. Ibid. 
 
 This case was aflftrmed on appeal to the House 
 of Lords, 45 Law J. Eep. (ir.s.) Chanc. 539 ; Law 
 Eep. 7 E. & I. App. 550. 
 
 (e) Branch railway : what is. 
 
 Covenant: limitation of covenant in its 
 terms general : what is a branch of a 
 railway. [See Covenant, 9.] 
 
 (C) Powers. 
 (o) Compulsory powers to take land. 
 
 14. — A railway company in 1863 agreed with 
 certain landowners to take about ten. acres of land, 
 specified in the schedule to the agreement, at the 
 price of 2,000/., and to erect and maintain a pas- 
 senger station on a certain piece of land not in- 
 cluded, and that one acre of ground should be 
 considered as covered by the said sum of 2,000?. 
 for the site and purposes of such station, and if 
 the company should require more than one acre 
 of ground for the site or purposes of the said 
 station, or any additional ground for any purpose 
 beyond that specified in the schedule, they should 
 pay for the same at the rate of 1002. per acre, and 
 it was agreed that that agreement should be sup- 
 plemental to and not in substitution for the Land 
 Clauses Consolidation Act. In 1866, before the 
 expiration of their compulsory powers, the com- 
 pany served on the landowners notice to treat for 
 additional lands, including the one acre covered by 
 the purchase-money of 2,0002., and afterwards en- 
 tered into possession under the notice, and without 
 proceeding to have the price ascertained under the 
 Lands Clauses Act. Upon a suit instituted by the 
 landowners, for an injunction to restrain the com- 
 pany from continuing in possession of the lands so 
 taken, — Held, reversing the decree of one of the 
 Vice-Chancellors (41 Law J. Eep. (n.s.) Chanc. 
 60; Law Eep. 7 Chanc. 368 n), first, that the 
 agreement was co-extensive in point of duration 
 with the compulsory powers of the company under 
 their Act ; and secondly, that the notice to treat 
 having been given by mistake was not a w;iiver of 
 the agreement. Kemp v. The South-Eastern Bail- 
 wdy Company, 41 Law J. Eep. (n.s.) Chanc. 404 ; 
 Law Eep. 7 Chanc. 364. 
 
 The certificate of the company's engineer as to 
 what lands are required for the purposes of a 
 railway is, in the absence of fraud, conclusive. 
 Ibid. 
 
 [And see Lands Clauses Act, 1-24.] 
 
 (b) Summary petition for delivery of arbitra- 
 tor's certificate. 
 
 15. — The Court of Chancery in Ireland has 
 power under section 21 of the Eailways Act, Ire- 
 land, 1851 (14 & 15 Vict. c. 70), to grant a land- 
 owner's petition for delivery of the arbitrator's 
 certificate (under sections 14 and 16), though the 
 award has not been made till after the com- 
 
RAILWAY (C), (F). 
 
 496 
 
 pulsory power to take lands under the special or 
 local Act has expired. The Proprietors of the 
 Cork and Youghal Railway Company v. Harnett, 
 LawEep. 5 E. & I. App. 111. 
 
 (D) Eights of Unpaid Vendors. 
 [And see last case.] 
 
 16. — An unpaid vendor of land to a railway 
 company is not entitled to an injxinction to re- 
 strain the company from running trains, &c., over 
 the land for the purpose of enforcing his lien. 
 Lycett V. The Stafford and Uttoxcter Railway 
 Company, 41 Law J. Eep. (n.s.) Chanc. 474 ; Law 
 Eep. 13 Eq. 261. 
 
 17. — ^An unpaid vendor of the 0. Eailway Com- 
 pany, whose line was being worked by the L. C. 
 & D. Eailway Company under a resolution of 
 their directors, filed his bill against both com- 
 panies, and a decree was made, declaring that 
 upon default of payment of the purchase-money 
 by the C. Eailway Company (which default was 
 made) the plaintiff would be entitled to a lien on 
 the lands against both companies. Subsequently, 
 under a special Act for the purpose of arranging 
 the affiiirs of the L. C. & D. Company, the suit 
 was stayed as against the L. C. & D. Company. 
 The Act provided for the working and maintaining 
 of the C. Eailway by the L. C. & D. Company, 
 but the rights and remedies of the creditors 
 of the former company were expressly pre- 
 served: — Held, that the plaintiff was entitled 
 to an order on petition in the suit, that the 
 amount due under the decree might be raised by 
 a sale of the land, and in the meantime for an in- 
 junction and receiver. Earl St. Germans v. TJie 
 Crystal Palace Railway Company, Law Eep. 11 
 Eq. 568. 
 
 (E) Eights of Ckeditoes. 
 
 (ffi) Jvdgment creditor. 
 
 18. — A iudgment creditor of a railway com- 
 pany to whom the company's land (including the 
 line) has been delivered under a writ of elegit is 
 entitled to a receiver of the tolls and earnings, and 
 is not accountable as a mortgagee in possession if 
 he has not obtained beneficial possession. King- 
 ston V. The Cowbridge Railway Company, 41 Law 
 J. Eep. (n.s.) Chanc. 152. 
 
 19. — A railway company being indebted to the 
 contractor for its original line in a sum of 5,734Z., 
 obtained an Act of Parliament for the making of 
 an extension line, which Act authorised the 
 raising of 85,000Z. by shares to be called " exten 
 sion shares," and of 28,0002. by mortgage, and 
 enacted that the works thereby authorised should, 
 for financial purposes, form a separate under- 
 taking, and that the capital and new shares 
 should constitute a separate capital, and that the 
 money to be raised by mortgage should he applied 
 only to the purposes authorised by the Act. The 
 contractor having obtained judgment for the 
 amount due to him, extended certain surplus 
 lands acquired under the extension Act, and then 
 petitioned the Court for a sale : — Held (aflSrming 
 the decision of Wickens, V.C), that the judgment 
 
 creditor was entitled to his order for sale ; for 
 that, whatever might be the equities of the share- 
 holders inter se, that could not affect the right of 
 the creditor to have the lands sold to pay the debt 
 due to him. In re Ogilvie, 41 Law J. Rep. (n.s.) 
 Chanc. 330; Law Eep. 7 Chanc. 174. 
 
 .(i) Creditor leaving claim unascertained. 
 
 20. — Where a creditor has voluntarily left his 
 claim unascertained, the right to interest does not 
 accrue until after the claim has been established, 
 and the amount ascertained. The jurisdiction of 
 a Scotch sheriff in cases of railway compensation 
 is final. The Caledonian Railway Company v. 
 Carmichael, Law Eep. 2 Sc. App. 56. 
 
 (c) Dissolution of company. 
 
 Dissolution by Act of Parliament : right of 
 creditor and ordinary shareholder to 
 sue. [See Company, F 2]. 
 
 (F) Level Crossings. 
 (a) Grant of right of way. 
 
 21. — The authorities establishing the principle 
 that a right of way cannot be increased by im- 
 posing an additional burden on the servient tene- 
 ment, do not apply to lands taken by a railway 
 company. The United Land Company {IA7n.) v. 
 The Great Eastern Railway Company, 43 Law J. 
 Eep. (n.s.) Chanc. 363 ; Law Eep. 17 Eq. 158. 
 
 A railway company bought lands, which at 
 the time of the purchase were either waste or 
 marsh lauds, or were used solely for agricultural 
 purposes, subject to the obligation of making 
 communications across their railway for the con- 
 venient occupation and enjoyment of the lands 
 severed by it ; and they contracted to make and 
 maintain, and made and maintained, such commu- 
 nications by means of four level crossings, three 
 of which were thirty feet, and the remaining one 
 twenty feet in width. The several lands after- 
 wards passed into other hands and became build- 
 ing sites :— Held, that the enjoyment of the lands 
 meant, not merely the use and enjoyment thereof 
 for the purposes for which they were used at the 
 time of the contract, but the use and enjoyment 
 thereof in any manner that subsequent events 
 might render expedient, consistent with the exist- 
 ence of the railway ; and that the right of way 
 being unrestricted as to purpose, the subsequent 
 owners and their tenants and assigns of the houses 
 built upon the lands were entitled to the unre- 
 stricted use of the level crossings for all purposes 
 whatever, but so as not to obstruct the proper 
 working of the railway. Ibid. 
 
 (b) Liability for unsafe condition. 
 
 22. — A child, aged four and a half years, 
 lived near a public carriage road and a footpath 
 (both highways) which were crossed on a level 
 by the defendants' railroad at places about 
 300 yards from the child's abode, and thirty 
 yards apart from each other. There were no 
 gates, nor was there a gatekeeper at the carriage 
 
496 
 
 EAILWAY (F), (H). 
 
 road level crossing, as prescribed by 8 Vict, 
 c. 20, e. 47 ; neither was there any gate or etile 
 at the foot-path level crossing, as required by sec- 
 tion 61. One day the child left his home to go to 
 the next house, but was shortly afterwards found 
 upon the railway close to the footpath crossing, 
 with his foot out off by a train. An action having 
 been brought against the defendants for negli- 
 gence in not providing gates, fences and means to 
 protect the crossings, — Held, that the fact of the 
 absence of a gate or stile at the footpath level 
 crossing, and the fact of the child being found in- 
 jured there, were, sufficiently connected to afford 
 evidence for the jury of liability on the part of 
 the defendants. Williams v. T/ie Great Western 
 Eailway Company, 43 Law J. Rep. (n.s.) Exch. 
 105 ; Law Eep. 9 Exch. 1,57. 
 
 23. — A railway crossed a highway at a level. 
 There were gates to stop carriages, horses and 
 cattle, and a watch box and a person to close the 
 gates as soon as such horses, &c., should have 
 passed. There were also swing gates for foot 
 passengers. A boy, aged fourteen, came to the 
 crossing soon after a cart had passed over the 
 line; the .gates were still open, and he went 
 through and got on the line ; but seeing an up 
 train approaching, he waited on the down line till 
 it had passed. While he was thus waiting a 
 down train approached, but the boy did not see 
 it, though he might have done so if he had been 
 on the look-out for it, or if his attention had not 
 been engrossed by the up train. The up train 
 having passed, the boy was just leaving the dowh 
 line to cross, when the train knocked him down : — 
 Held, that there was evidence of negligence to go 
 to a jury ; for the company being bound by sec- 
 tion 47 of 8 Vict. c. 20, to have closed the gates 
 at the time, the fact that they wore open was an 
 invitation to the boy to cross, whereby he was 
 put off his guard, and so, perhaps being embar- 
 rassed by the train which he did see, he was in- 
 jured by the other, which, in consequence of that 
 embarrassment, he failed to see. The North-Eastem 
 Eailway Company v. Wanless (H.L.), 43 Law J. 
 Rep. (n.s.) Q. B. 185 ; Law Rep. 7 E. & I. App. 12. 
 
 24. — The plaintiff had occasion between nine 
 and ten o'clock on an evening in December to 
 cross the defendants' line, where that line crossed 
 a highway on a level crossing. There were gates 
 on each side of the line, which were closed, as was 
 usual when a train was expected ; there was a 
 small gate adjoining, through which foot-pas- 
 sengers could pass, and which was not kept shut. 
 In crossing the line the plaintiff was caught by a 
 train passing along the line, was knocked down 
 and very seriously injured. There was no light at 
 or near the level crossing, by which the plaintiff 
 could see whether the gates, usually closed to 
 prevent carriages from passing when a train was 
 approaching, were open or shut, so as to form a 
 judgment whether a train was likely to pass or 
 not. He saw no light as of an approaching train, 
 and heard no whi.'jtle from the train : — Held (per 
 Bramwell, B., Mellor, J., Pollock, B., and Amph- 
 lett,B., dissenHentibusCodk\iuT-n,GJ.,a,ndL Cleasby, 
 B.), tliat the foregoing circumstances disclosed no 
 
 evidence of negligence in the defendants. Ellis v. 
 The Great Western Eailway Company (Exch. Ch.), 
 43 Law J. Rep. (n.s.) C. P. 304 ; Law Rep. 9 C. P. 
 651. 
 
 25. — Where a railway, under the powers of 
 an Act of Parliament, crosses a highway on the 
 level, it is the duty of the company to keep the 
 part of the way used by the public in a state of 
 repair suitable for the ordinary and regular 
 traffic. Oliver v. The North-Eastem Eailway 
 Company, 43 Law J. Eep, (n.s.) Q. B. 198 ; Law 
 Eep. 9 Q. B. 409. 
 
 (G) Fences; Duty of Railway CoMPAirr, 
 
 26. — The obligation imposed on railway com- 
 panies by section 68 of the Railways Clauses Con- 
 solidation Act, 1846, to fence as regards the 
 cattle of adjoining owners and occupiers, extends 
 to swine, and the fence must be reasonably suffi- 
 cient to prevent ordinary swine from escaping on 
 to the railway. Childs v. Hearn, 43 Law J. Eep. 
 (n.s.) Exch. 100; Law Rep. 9 Exch. 176. 
 
 The defendant kept swine in a field which he 
 occupied, and which adjoined the line of a railway 
 company, who were bound, under section 68 of 
 the Railways Clauses Consolidation Act, 1845, to 
 maintain sufficient fences between their line and 
 the field. The existing fence was sufficient to 
 keep out oxen, sheep and horses, but not swine, 
 and the defendant's swine crawled through the 
 fence and upset a trolly of the company, which 
 was travelling on the line. The plaintiff, a plate- 
 layer in the company's service, who was travelling 
 on the trolly in the course of his service, was in- 
 jured by the accident, and now sued the defen- 
 dant for the damages caused thereby. The de- 
 fendant knew that some of his swine had on a 
 former occasion strayed on to the line and been 
 killed by a train, and he had been warned that 
 the fence was insufficient to keep in the pigs : — 
 Held, that the company could not have sued the 
 defendant for trespass, because they were bound 
 under the statute to maintain a fence sufficient to 
 keep out swine, and that the present action would 
 not lie, because the plaintiff could not be in a 
 better position than the company, his employers. 
 Ibid. 
 
 27. — When a railway company have neglected 
 the duty imposed on them by the Railways 
 Clauses Consolidation Act, 1845, to fence their 
 line from the adjoining lands, and in consequence 
 of such neglect cattle in the adjoining lands pass 
 on to the line and are injured by the company's 
 trains, an action for the injury may be maintained 
 against the company by the owner of the cattle, 
 though he has no more i'terest in the adjoining 
 lands than a license from the occupier thereof to 
 graze the cattle there. Dawson v. The Midland 
 Eailway Company, 42 Law J. Eep. (n.s.) Exch. 
 49 ; Law Rep. 8 Exch. 8. 
 
 (H) Repaie of Bridges. 
 
 28. -The special Act of a railway company (in 
 which was incorporated the Railways Clauses 
 Consolidation Act, 1845, so far as it was not 
 
EAILWAi (H), (0). 
 
 497 
 
 exprasslyjvaried or excepted) provided that if, after 
 notice, the company did not, witli reasonable ex- 
 pedition, repair a bridge over a turnpike road to 
 the satisfaction of the surveyor of the trustees 
 thereof, the latter might repair and recover the 
 costs ; the turnpike trust, however, was suffered 
 to expire : — Held, that though the Railways 
 Clauses Consolidation Act, 1845, section 65, was 
 expressly varied by the special Act, yet it revived 
 on the cessation of the turnpike trust, and an 
 order to repair the bridge might be made under 
 it. The London, Chatham and Dover Ttailway 
 Company v. The Board of Works for the Wands- 
 worth i)istrict, 42 Law J. Eep. (n.s.) M. C. 70 ; 
 Law Rep. 8 C. P. 185. 
 
 (I) Eight to hun Enqinbs ovee Eailwat. 
 
 29. — The Court of Chancery cannot control the 
 working of their points and signals by a railway 
 company, so as to give effect to the desire of a 
 colliery company to run engines over the railway, 
 under section 02 of the Railways Clauses Conso- 
 lidation Act, 1845. The Powell Duffryn Steam 
 Coal Company v. The Taff Vale Railway Company, 
 43 Law J. Rep. (n.s.) Chanc. 575 ; Law Rep. 9 
 Chanc. 331. 
 
 (K) Communication between Passensebs 
 AiTD Guard. 
 
 30. — A railway train is or is not within the 
 operation of section 22 of the Railways Regula- 
 tion Act, 1868 (which requires railway companies 
 to provide communication between passengers 
 and guard when a train runs twenty miles with- 
 out stopping), according to the actual instruc- 
 tions as to stopping, given to the company's ser- 
 vants in charge of the train. And therefore 
 where the primary cause of an accident to a train 
 not provided with such means of communication 
 was the breaking of a wheel-tire (without any 
 negUgeuce on the part of the company or their 
 servants), and several minutes elapsed between 
 the first shock felt by the passengers and the 
 actual disaster resulting in the mischief com- 
 plained of, it was properly left to the jury to say 
 — First, What was the effect of the company's 
 time tables taken together with the special in- 
 structions given to their servants with regard to 
 the train in question, and second. Whether the 
 absence of the statutory precaution was conducive 
 to the accident which occurred. Blamires v. The 
 Lancashire and Yorkshire Bailway Company (Exch. 
 Ch.), 42 Law J. Rep. (n.s.) Exch. 182 ; Law Eep. 
 8 Exch. 283. 
 
 (L) Deposit undbe Railwats Construc- 
 tion Facilities Act, 1864. 
 
 31, — The promoters of a railway bill paid a de- 
 posit into Court upon the warrant of the Board 
 of Trade under the Railways Construction Fa^- 
 cilities Act, 1864. The bill had passed the 
 House of Commons, but was too late in the session 
 to pass the House of Lords, so that the scheme 
 thus became abortive. Upon petition by the pro- 
 moters, the Court ordered the deposit to be paid 
 Disest, 1870-1875. 
 
 out to them, although the 40th section of the 
 above Act does not expressly provide for such a 
 case. In re The Widnes Bailway Company, 42 
 Law J. Rep. (n.s.) Chanc. 352 ; Law Eep. 15 Eq. 
 108. 
 
 (M) Deposit under Eailways Abandon- 
 ment Act. 
 
 32. — Where a railway has been abandoned, the 
 costs of a petition by the depositor for the transfer 
 out to him of the greater part of the deposit were 
 ordered to be paid out of the general assets of 
 the company. In re The Lavyharne Railway Com- 
 pany, Law Eep. 12 Eq. 454. 
 
 (N) Opening op Eailwat. 
 
 33.— A railway, a mile long, constructed, by a 
 railway company parallel to their main line, for 
 the purpose of enabling the trains passing between 
 two branch lines on opposite sides of the main 
 line to cross the main line at one spot, instead of 
 running over it for the distance of the mile, — 
 Held, to be a new line which could not be opened 
 vdthout notice to the Board of Trade. The At- 
 torney-General V. The Great Western Railway 
 Company, Law Eep. 7 Chanc. 767. 
 
 (0) Abeangement, 
 (a) TJnder Railway Companies Act, 1867. 
 
 34. — A debenture holder, although he has ob- 
 tained judgment and issued execution against a 
 railway company before the filing of a scheme of 
 arrangement under the EaUways Companies Act, 
 1867, still remains a debenture holder for the 
 purposes of sections 10 and 18 of that Act, and is 
 therefore bound by the scheme when assented to 
 by three-fourths in value of the holders of the 
 company's debentures, and after em-olment of the 
 scheme will be restrained on bill filed from taking 
 any further steps to enforce his judgment. The 
 Potteries, Shreiuishwry and North Wales Railway 
 Company v. Minor, 40 Law J. Eep. (n.s.) Chanc. 
 685; Law Eep. 6 Chanc. 621. 
 
 35. — An outside creditor is not bound by a 
 scheme of arrangement filed by a railway company 
 under the Eailway Companies Act, 1867, and can- 
 not derive any indirect benefit from it ; his rights 
 are entirely unaffected by it. Stevens v. The Mid 
 Hants Railway Company and The London Finan- 
 cial Association v. Stevens, 42 Law J. Eep. (n.s.) 
 Chanc. 694 ; Law Eep. 8 Chanc. 1064. 
 
 Unpaid vendors of land sold to the company, 
 and debenture holders of the company, do not, by 
 accepting debenture stock under the provisions of 
 a scheme, lose any priority which they previously 
 had over an elegit creditor, who is not bound by 
 the scheme. Ibid. 
 
 Whether Parry v. Wright (6 Euss. 142), and 
 eases of that kind would now be followed, qucsre. 
 Ibid. 
 
 36. — The Court cannot sanction a scheme 
 
 under the Railway Companies Act, 1867, giving 
 
 to the holders of debenture stock the right to vote 
 
 like shareholders. In re The Stafford and Ut- 
 
 3S 
 
408 
 
 EAILWAY (0), (V). 
 
 ioxetir Bailviay Company, 41 Law J. Rep. (n.s.) 
 Chano. 777. 
 
 (i) Under special Act. 
 
 37- — Where under a railway arrangement Act 
 certain debenture stocks were substituted for ex- 
 isting debentures, and it was provided that no 
 action should be brought against the railway com- 
 pany without the leave of the Court, except in 
 respect of liabilities created after the passing of 
 the Act : — Held, on bill by holders of such deben- 
 ture stock for an account and receiver, that these 
 were not liabilities created after the passing of 
 the Act, and that the leave of the Court should 
 have been obtained. The London Financial As- 
 sociation V. The Wrexham Mold mid Connah's 
 Quay Eailway Company, Law Eep. 18 Eq. 566. 
 
 (P) Liability for Acts of Servants. 
 
 [See Master and Servant, 11.] 
 
 Implied authority to station inspector to 
 arrest passengers. [See False Im- 
 prisonment.] 
 
 (Q) Liability for Negligence. 
 
 [See Negligence, 8, 11, 13, 16, 23-26, 34, 35, 
 and supra Nos. 22-25.] 
 
 (R) -Liability as Carriers. 
 [See Carrier.] 
 
 (S) Railway and Canal Traffic Act; 
 Undue Preference. 
 
 38. — A railway company fixed an hour in the 
 evening as the latest time at which goods were to 
 be received at their station for despatch the same 
 night, but although the goods brought by A. (a 
 carrier), were never allowed to enter the station 
 after such prescribed time, the railway com- 
 pany constantly admitted their own vans from 
 their own receiving houses an hour or two later, 
 and forwarded the goods they brought by trains 
 of the same night : — Held, that A. was entitled to 
 an injunction under the Eailway and Canal Traffic 
 Act, 1854 (17 & 18 Vict. c. 31), to restrain the 
 railway company from continuing such undue 
 preference to themselves. And Qumre, whether 
 the railway company would have been justified in 
 giving such preference to themselves to the exclu- 
 sion of other carriers, if it were necessary in 
 order to enable the general public to have the be- 
 nefit of sending late parcels. In re Palmer and 
 The London, Brighton, and South Coast Bailway 
 Company. 40 Law J. Rep. (n.s.) C. P. 133; Law 
 Rep. 6 C. P. 194. 
 
 39, — Where a railway company employed an 
 agent to receive goods arriving at the C. station, 
 and deliver them to the consignees in the town of 
 C, and refused to deliver at the station to carriers 
 who had general written orders from persons in 
 the town authorising delivery of goods arriving 
 for them, but required written orders specifying 
 the goods, the Court held that there was an undue 
 preference of the company's agent, and enjoined 
 the company to act on the general orders. Par- 
 
 kinson V. The Great Western Eailway Company, 40 
 Law J. Rep. (n.s.) C. P. 222 ; Law Rep. 6 C.P. 584. 
 
 (T) Rates and Assessments. 
 
 Branch Ime of railway. [See Rate, 24.] 
 Liability to contribute to expenses of paving 
 
 new streets. [See Metropolis, 10.] 
 Bateability under local Act. [See Rate, 
 
 23.] 
 Bating of stable within premises of railway 
 
 companies. [See Rate, 10.] 
 Eating of land taken for public purposes. 
 
 {See Rate, 15-17-] 
 (U) Duty on Passenger Pares. 
 
 40. — ^A train which travels along a line of rail- 
 way from one terminal station to another, for the 
 conveyance of passengers at fares not exceeding 
 one penny per mile, and fulfils the other require- 
 ments of section 6 of the Cheap Trains Act (7 & 8 
 Vict. c. 85), is a cheap train within the meaning 
 of the Act, although there may be no third-class 
 carriages in, nor third-class tickets issued for such 
 train, and the right of the railway company, under 
 section 9, to exemption from duty in respect of 
 such fares of passengers by any such train is not 
 lost through the passengers being required, for the 
 convenience of traffic, to change from one such 
 train to another at a junction or other station be- 
 tween the termini in the course of transit, pro- 
 vided there is no unreasonable detention at the 
 station where the change is made, so as to reduce 
 the speed at which the passengers travel below 
 the minimum speed of twelve miles an hour re- 
 quired by the Act. But such train must stop, so 
 that passengers travelling at the fares aforesaid 
 may enter and leave it, at every ordinary inter- 
 mediate passenger station between the terminal 
 ones, and the Board of Trade have no power, 
 under section 8, to dispense with this condition 
 The Attorney -General v. The North London Bail- 
 way Company, 43 Law J. Rep. (n.s.) Exch. 223 
 Law Rep. 9 Exch. 330: affirmed, on appeal by the 
 House of Lords, 45 Law J. Rep. (n.s.) Exch. 46 
 Law Rep. 1 App. Cas. 148, nom. The North London 
 Eailway Company v. Attorney- General. 
 
 The fares received for return tickets issued in 
 respect of such train are not exempt from duty 
 unless the fares that would be charged for the 
 single journey over the same distance would not 
 exceed one penny per mile. Ibid. 
 
 Weekly tickets issued to workmen at a fare 
 which, if the holders used them every day in the 
 week, would not exceed one penny per mile, are 
 nevertheless not exempt, unless the trains in 
 respect of which those tickets are issued travel 
 from one end to the other of a trunk, branch or 
 junction line, and the ticket-holders are allowed 
 to take with them half a hundred weight of 
 luggage without extra charge, in compliance with 
 the provisions of the Act. Ibid. 
 
 (V) Offences. 
 
 (a) Obstructing signals. 
 
 41.— By the 24 & 25 Vict. c. 97, s. 36, whoso- 
 ever by any unlawful act shall obstruct or cause 
 
RAILWAY (V), BATES (A). 
 
 499 
 
 to be obstructed any engine or carriage nsing any 
 railway shall be guilty of a misdemeanour. The 
 defendant placed himself on the space between 
 two lines of railway, at a spot between two sta- 
 tions, and held up his arms in the mode used by 
 inspectors of the line when desirous of stopping a 
 train between the two stations, and the driver of 
 a goods train, acting upon the supposition that he 
 was signalled by an inspector to slacken speed, 
 shut off steam, and reduced his speed from twenty 
 miles an hour to four miles an hour, and the de- 
 fendant by this means was enabled to jump into 
 the guard's ran, and thereupon the train resumed 
 its natural speed, and without stopping proceeded 
 onward: — Held, that the defendant had unlaw- 
 fully obstructed the train within the meaning of 
 the above section of the said statute. The Queen 
 V. Hadfield (39 Law J. Bep. (n.s.) M. C. 31) fol- 
 lowed. The Queen v. Hardy, 40 Law J. Bep. 
 (n.s.) M. C. 62 ; Law Bep. 1 C. C. B. 278. 
 
 (J) Wilfid trespass. 
 
 42.— By 3 & 4 "Viet. c. 97, s. 17, " if any per- 
 son shall wilfully trespass upon any railway, or 
 any of the stations or other works, or premises 
 connected therewith, and shall refuse to quit the 
 same npon request to him made by any officer, 
 &e., he shall forfeit," &c. A railway company 
 allowed a portion of the premises connected with 
 their railway station to be occupied as a cab- 
 stand by cabs, the drivers of which paid a weekly 
 sum for the privilege. S., a cab-driver, placed his 
 cab upon the stand and refused to move, although 
 he was requested to do so by an officer of the 
 company. He did not pay the weekly sum 
 charged by the company, and by occupying a 
 place upon the stand he deprived another cab- 
 driver, who had paid the said weekly sum, from 
 occupying a place upon the stand : — Held, that if 
 S. intentionally and purposely kept his cab upon 
 the stand after being requested to move off, he did 
 so wilfuUy, and was liable to the penalty imposed 
 by the above section, although he honestly be- 
 lieved that he was entitled to keep it there with- 
 out making any payment to the company. FovXger 
 V. Steadman, 42 Law J. Bep. (n.s.) M. C. 3 ; Law 
 Bep. 8 Q. B. 65. 
 
 BABE. 
 
 The prisoner was convicted of attempting to 
 rape a girl of fourteen years of age, who had been 
 blind from six weeks old and wrong in her mind, 
 hardly capable of understanding anything that 
 was said to her, but could go up and down stairs 
 by herself. She passively obeyed all directions 
 given to her, but was obliged to be dressed and 
 undressed. She was unable to do any work. 
 There were no marks of violence on her person, 
 but the surgeon thought that there had been re- 
 cent connexion, and that she had been in the 
 habit of having connexion. She was unable to 
 give evidence in Court. The prisoner had known 
 
 the girl and her family fpr two years and more : — 
 Held, that there was siifficient evidence of the 
 girl's incapacity to consent to support the finding 
 of the jury that the prisoner attempted to have 
 connexion with her without her consent, and the 
 conviction was affirmed. The Queen v. Fletcher 
 (28 Law J. Bep, (n.s.) M. C. 85) approved, and 
 The Queen v. Fletcher (35 Law J. Bep. (n.s.) M. 0. 
 172) explained and distinguished. The Queen v. 
 Barratt, 43 Law J. Bep. (n.s.) M. C. 7 ; Law Bep. 
 2 C. C. B. 81. 
 
 BATES. 
 
 (A) Who are kateable to the Poob. 
 (a) Workmen occupying cottages. 
 (6) De facto occupiers. 
 
 (c) Exclusive occupation, 
 {d) Beneficial occupation. 
 
 (B) Bateabilitt of particulak Pbopbrty. 
 
 (a) Common land : rifle butts, area and store 
 shed. 
 
 (b) Coprolites : shifting occupation. 
 
 (c) Moorings. 
 
 (d) Iron mines. 
 
 (e) Stable within premises of railway com- 
 
 pany. 
 
 (/) Cemetery. 
 
 is) Hospital. 
 
 {h) Dock-sheds appropriated to use of ship- 
 owner. 
 
 («) Metropolitan Board of Works. 
 
 (i) Lands taken for public purposes : lia- 
 bility to make up deficiency in poor 
 rate. 
 
 {I) Local statutes : tithes in Isle of Man. 
 
 (wi) General and special legislation: Ser- 
 jeants' Inn. 
 
 {n) Tramways. 
 
 (o) Schools. 
 
 (p) Railways vmder Local Acts, 
 
 (C) Batbaele Value and Peinoiple of Assess- 
 
 ment. 
 (a) Branch line of railway, 
 (J) Land lying near canal. 
 
 (c) Sets of rooms : blocks of buildings. 
 
 (d) Annual value. 
 
 (e) Deductions. 
 
 (/) Parochial and acreage principle, 
 (g) Exceptional principle : hospital. 
 
 (D) Valuation List : Alterations. 
 
 (E) Appeals. - 
 
 [Amendment of the law respecting the liability 
 and valuation of certain property {e.g. land used as 
 plantation, rights of shooting, tin, lead, and copper 
 mines, &c.) for the purpose of rates. 37 & 38 
 Vict. c. 54.] 
 
 (A) Who are rateable to the Poor. 
 {a) Workmen occupying cottages. 
 
 1, — The appellants were colliers, working at 
 a colliery, the owners of which possessed 340 cot- 
 tages, which they filled according to their dis- 
 3s2 
 
500 
 
 RATES (A), (B). 
 
 cretion with their workmen, preferring married 
 meu. Such married mep as they were not able to 
 accommodate received an allowance towards the 
 rent they were compelled to pay in consequence of 
 not occupying one of the cottages. It was not 
 absolutely necessary for their work that any of 
 them should occupy any of the cottages, but the 
 owners desired that they should. The appellants 
 resided in these cottages, paying no rent, and no 
 difference being made from other men as to the 
 earnings, all being paid the same tonnage price. 
 They received no notice to quit, nor were they en- 
 titled to any. The notice to quit their work was 
 a notice to quit their house, and the occupancy of 
 the house ceased the moment when the service 
 ceased. The colliery owners paid the full rate in 
 respect of these houses, and did not compound or 
 make any agreement about it with the men : — 
 Held, that the appellants were occupi(3rs of the 
 cottages, and were entitled to have their names 
 inserted by the overseers in the rate-book under 
 section 19 of 32 & 33 Vict. c. 41. Cross v. Alsop, 
 40 Law J. Rep. (n.s.) C. P. 53 ; Law Rep. 6 C. P. 
 315 (see Paeltambnt, 31), reflected upon. Smith 
 V. The Overseers of the township of Seghill, 44 
 Law J. Rep. (n.s.) M. C. 114 ; Law Rep. 10 Q. B. 
 422. 
 
 (J) Se facto occupiers. 
 
 2. — The appellants were rated to the poor's rate 
 as the occupiers of the surface land of the S. C. 
 Mine, with the houses, buDdings, machinery, tram- 
 ways, and plant. It appeared that they were 
 grantees for a term of years of a sett or license to 
 mine and search for minerals through certain 
 lands, and that they held the license in trust for 
 a Cost Book Company in which they were share- 
 holders, and that the houses, buildings, machinery, 
 &c., were erected within the limits of the land 
 the subject of the license, for the general working 
 of the mine. All the houses, buildings, &c., were 
 on the surface land : — Held, that the appellants 
 were liable to he rated as occupiers of the land so 
 built upon, and that, even assuming that the grant 
 conferred only a license upon the appellants, they 
 were de facto occupiers of the soil, having been 
 allowed to build upon it, and were therefore rate- 
 able. Kittow V. The Assessment Committee of 
 Liskeard Union and the Overseers of St. Cleer, 
 Cornwall, 44 Law J. Rep. (n.s.) M. C. 23; Law 
 Rep. 10 Q.B. 7. 
 
 Guest V. The Overseers of East Dean (41 Law J. 
 Rep. (n.s.) M. C. 129; No. 9 infra) decided that 
 though an iron mine was not rateable, the surface 
 land, if occupied, was so. Ibid. 
 
 (c) Exclusive occupation. 
 [See Nos. 3-7 infra.] 
 
 {d) Beneficial occupation. 
 
 [See Nos. 12, 14, infra.] 
 
 Rating qualijicatioti fur borough vote. [See 
 Parliament, 31-34.] 
 
 ! of firm : description on rate. [See 
 Pabliambnt, 28.] 
 
 (B) RATBABIHTr OF PABTICTTtAU pEOPEETY. 
 
 (a) Common land : rifle butts, area and store shed. 
 3. — Under the provisions of a special Act of 
 Parliament the Conservators of Wimbledon Com- 
 mon were to permit the National Rifle Association 
 to occupy from year to y«ar as a rifle shooting 
 ground and place for an encampment for the pur- 
 poses of the annual Rifle Meeting any part of a 
 certain specified area of the common, together 
 with the butts, targets, and other conveniences for 
 rifle shooting for the time being thereon. The 
 occupation was not to be for more than seventy- 
 seven consecutive days in each year, which days 
 were not to commence earlier than the 1st of May, 
 and were to terminate not later than the 31st of 
 August. The association were empowered to put 
 up a paling round the part occupied by them, and 
 to erect temporary buildings. Prior to the passing 
 of the Special Act, the association erected butts 
 for shooting, and also a store shed, used for the 
 storage of materials, except during the annual 
 meetings, when it was intended tobeiisedasa work- 
 shop for the repair of targets, &c. By the terms 
 of the Act, the asssociation were not to acquire 
 any right in or easement over any part of the 
 common, and were to be deemed to be merely in 
 the enjoyment of a statutory privilege over the 
 common. On the 27th of March last, before the 
 period of occupation in that year commenced, a 
 poor rate was made for the parish of Wimbledon, 
 in which the association were rated in respect of 
 the area, the butts and the store shed: — Held, 
 that with respect to the area and the butts there 
 was no such exclusive occupation as to render them 
 liable to poor rate, but that with respect to the 
 store shed which was occupied by them for their 
 own purposes throughout the year they were 
 liable. Mildmay v. The Churchwardens and Over- 
 seers of Wimbledon, 41 Law J. Rep. (n.s.) M. C. 
 133. 
 
 {b) Coprolites : shifting occupation. 
 
 4. — The owner of land under which there were 
 coprolites granted to a company the exclusive 
 right to dig, raise, and carry them away. The 
 company were to pay for this privilege 116^. per 
 acre, and were to pay a minimum rent of 1,000Z. 
 per annum, payable quarterly, whether they 
 worked out sufficient land to cover that rental or 
 not. The land to be worked was taken by them 
 bit by bit as they required it, but they were not 
 entitled to have more than ten acres a year allotted 
 to them, or to use the land for any purpose but 
 that of digging and preparing the coprolites. 
 After digging out the coprolites more than a year 
 was required to permit the land to dry, after 
 which the subsoil was restored and levelled, the 
 surface soil replaced, and the land again given over 
 by the company to the agricultural tenant. Owing 
 to the time required for this, the company were, 
 at any period of time, in the occupation of ten 
 acres, of which two and a half acres were in pro- 
 cess of digging, one acre was occupied by mills, 
 tramways and other works, and the remainder had 
 been worked out and was in process of drying, but 
 the ten acres so occupied were continually shifting, 
 
MTES (B). 
 
 sol- 
 
 as the company took land at one place to work, 
 and restored it at another worked out. In this 
 manner they actually worked out ten acres per 
 annum. In an appeal against a poor rate for the 
 parish where the lands were situated, in which the 
 rates were made quarterly, — Held (by Mellor, J., 
 Lush, J., and Archibald, J. ; Cockburn, C.J., dis- 
 senting), that the company were rateable, in each 
 quarterly rate, upon ten acres of land, at the 
 enhanced value, although the occupation was a 
 shifting one, and although the company were 
 never at one time in the profitable occupation of 
 more than three and a half acres. The Queen v. 
 The Overseers of Waddon, ii I-aw J. Kep. (n.s.) 
 M. C. 73 ; Law Rep. 10 a. B. 230. 
 
 5. — The owner of land let to a tenant from year 
 to year, subject to a reservation of the minerals, 
 agreed with contractors, in consideration of a sum 
 of money, to permit them to enter upon such land, 
 and to dig, search for, get, carry away and dispose 
 of coprolites in and under the same, and the con- 
 tractors agreed to remove, set apart and preserve 
 the surface of the land during the working, and 
 after the coprolites were gotten to restore the 
 surface fit for agricultural purposes, and after- 
 wards yield and deliver up the same to the tenant 
 of the sur&ce, and to keep the soil hanks free 
 from weeds, and to allow the tenant of the surface 
 to cultivate such soil banks with roots without 
 payment, if he elected so to do : — Held, that the 
 contractors, during the workings under the above 
 agreement, were in exclusive occupation of the 
 laud being worked, and were rateable to the poor 
 rate in respect of such occupation. Roads v. The 
 Ghwchwardens, Sfc, of Trumpington, 40 Law J. 
 Eep. (n.s.) M. C. 35 ; Law Rep. 6 a. B. 56. 
 
 (c) Moorings. 
 
 6. — The appellants were owners of a coal der- 
 rick, which rides afloat on the river Thames within 
 the pariah of Greenwich and is retained at the 
 spot where it floats by two single fluke anchors on 
 the side nearest the shore, by two stones on the 
 channel side, and by two stream anchors, one at 
 the Jiead and the other at the stern. The anchors 
 and stones were merely dropped into the river, but 
 before, dropping the stones a small quantity of 
 ballast was removed in the bed of the river so 
 that the stones might lie flat and securely. The 
 stones were merely to serve the purpose of anchors. 
 The derrick was formerly stationed in another 
 part of the river, and was moved thence to its 
 present position, bringing with it anchors and 
 stones. It had been anchored at the same place 
 for some years, but daily changed its position 
 slightly with the ebb and flow of the tide. By 
 agreement with the Conservators of the Thames, 
 in whom the soil of the bed of the river is vested, 
 and who have the management, and by whose per- 
 mission the derrick was moored where it was, it 
 was liable to be removed by them to another part 
 of the river. On the hearing of summonses 
 against the appellants for non-payment of rates, 
 to which they had been rated in respect of the 
 moorings by which the derrick was atteiched to 
 the soil, the magistrate found as a fact that the 
 
 appellants were occupiers of the soil in the bed of 
 the river, on which the moorings were placed : — 
 Held, that notwithstanding the finding of the 
 magistrate, there was no such occupation of the 
 soil of the river, upon the facts stated in the case, 
 by the appellants as to make them liable to be 
 assessed to the poor rate. Cory v. The Church- 
 wardens and Overseers, Governors and Directors of 
 the Poor of the Parish of Greenwich, 41 Law J, 
 Rep. (n.s.) M. U. 142 ; Law Rep. 7 C P. 499. 
 
 7. — The plaintiffs were proprietors of floating 
 hulks fastened to permanent moorings ; the hulks 
 were placed in the Thames by permission of the 
 Conservators, who reserved to themselves the power 
 of removing them upon giving the plaintiffs one 
 week's notice ; the plaintiffs were rated to the poor 
 in respect of the moorings ; — Held, that the plain- 
 tiffs had not an exclusive occupation of the moor- 
 ings, and were not liable to be rated in respect 
 thereof. Cory v. Bristow, 44 Law J. Rep. (n.s.) 
 M. G. 153 ; Law Rep. 10 C. P. 604, reversed on 
 appeal. Law Rep. 1 C. P. Div. 54. 
 
 SemWe — that the moorings would be rateable 
 in the hands of a person exclusively occupying the 
 same. Ibid. 
 
 ((Q Iron mines. 
 
 8. — Iron mines are, under 43 Eliz. c. 2, exempt 
 from liability to be rated to the relief of the poor. 
 Morgan v. Crawshay (H. L.), 40 Law J. Rep. (n.s.) 
 M. 0. 202 ; Law Rep. 5 H. L. 304. 
 
 Serable — a galee of mines in the Forest of Dean 
 is not a mere licensee of the Crown, but a grantee 
 of &n interest of the nature of real estate, there- 
 fore, if the mine were rateablp, he would be 
 liable to be rated as au occupier of such interest. 
 Ibid. 
 
 9. — The appellant was owner and occupier of 
 iron mines extending over an area of about 310 
 acres. He was also occupier of about two and a 
 half acres of surface land, part of which was above 
 and part separate from the mines. Upon the 
 surface lands were buildings (containing pumping 
 engines, boilers and workshops) and tramways 
 used in bringing and conveying away the ore from 
 the mines. This surface land, &c., apart from the 
 mines, was practically valueless : — Held, that 
 although the appellant was not rateable in respect 
 of the iron mines, yet that he was rateable in 
 respect of the surface land, &c., at a rent calcu- 
 lated with reference to the value of such surface 
 land, &c., to the occupier of the mine. The King 
 V. Bilston (5 B. & C. 851) discussed. Guest v. 
 The Overseers of Hast Dean, 41 Law J. Rep. (n.s.) 
 M- C. 129 ; Law Rep. 7 Q. B. 334. 
 [And see No. 2 supra.] 
 
 (e) Stable within, premises of railway company. 
 
 10. — By agreement between a railway company 
 and the C. C. company, the latter, in consideration 
 of the railway company permitting them " to 
 occupy and use a stable for the accommodation of 
 four horses (at or near the C. station of the rail- 
 way company), undertook and agreed that they 
 would pay the railway compHuy the clear monthly 
 rent or sum of 11. 5s., without any deduction 
 
502 
 
 RATES (B). 
 
 (property tax excepted), and undertoolc and agreed, 
 so long as they should occupy and use the stable, 
 to observe, perform and be bound by the by-laws, 
 rules and regulations which should for the time 
 being be issued or prescribed by the railway com- 
 pany for the government and use of their railway 
 stations, premises and conveniences, and further 
 undertook and agreed to quit and deliver up 
 possession of the stable at the expiration of one 
 month after notice in writing," &e. The stable 
 and the road approaching it were within the 
 station and premises of the railway company. 
 The railway company did not, in point of fact, 
 exercise any control over or use the stables during 
 the currency of the agreement, and none of the 
 by-laws and regulations mentioned in the agree- 
 ment were material with regard to occupation of 
 the stable : — Held (affirming the judgment of the 
 Queen's Bench, 44 Law J. Eep. (n.s.) M. C. 29; 
 Law Bep. 10 Q. B. 70), that the railway company 
 were liable to be rated to the poor rate in respect 
 of the stable, as they remained in occupation of 
 it notwithstanding the agreement. London and 
 'North-Western Railway Company v. Buckmaster, 
 44 Law J. Eep. (n.s.) M. C. 180; Law Eep. 
 10 a. B. 444. 
 
 Semble — that where any one is rated for premises 
 in his occupation, and for others which are not, 
 the whole rate is a nullity, and an action of replevin 
 is maintainable. Ibid. 
 
 (/) Cemetery. 
 
 11. — The appellants, a cemetery company, in 
 1869, according to their usual custom, sold plots 
 of land to purchasers. The plots were respectiTely 
 conveyed to hold unto the said purchaser, his heirs 
 and assigns for ever, upon trust and to the intent 
 that he the said purchaser, his heirs and assigns, 
 might (subject nevertheless to the rules and orders 
 for the time being of the company for the manage- 
 ment and regulation of the cemetery) erect or 
 construct a vault or mausoleum in or upon the 
 same, and might use the said plot as and for a place 
 of burial, &c., and for no other purposes whatever ; 
 and subject to the intent aforesaid in trust for the 
 said trustees and directors, their heirs and assigns 
 for ever, as part of the property of the company. 
 The purchaser covenanted to repair the grave, 
 mausoleum, &c., and to observe the rules and 
 orders made by the company for the management 
 and regulation of the cemetery. Part of the 
 working expenses of the company was the keeping 
 in order the said plots for the purchasers. The 
 gates of the cemetery were closed at specified 
 times, after which thepurchasers were not admitted. 
 In rating the company to the poor-rate, the sum 
 received in 1869, as purchase-money for the sale 
 of the plots of land, was treated as part of the 
 annual value of the occupation of the cemetery by 
 the company in that year : — Held, first, that tlie 
 company was liable to be rated as the occupiers of 
 the whole cemetery, including the plots ; secondly, 
 that the sum received was properlj' treated as part 
 of the annual value. The Queen v. The Ahvey 
 ParJc Cemetery, 42 Law J. Eep. (n.s.) M. C. 124 ; 
 LawEep. 8Q.B. 515. 
 
 {g) Hoipital. 
 
 12. — A hospital founded^by Eoyal Charter as a 
 house for the cure and healing of the diseased and 
 infirm poor, brought to or received in the house, is 
 within the principle of Jones v. The Mersey Bocks 
 and Harbour Board (11 H. L. Cas. 443; 36 Law 
 Eep. (n.s.) M. C. 1), and is rateable to the poor 
 under section 1 of 43 Eliz. c. 2, it being possible 
 that a revenue might be derived from its occupa- 
 tion. The Mayor, ^-c., of London, as Governors of 
 St. Thomas' Hospital v. Straiten, 45 Law J. Eep. 
 (n.s.) M. C. 22 ; LawEep. 7 E. & I. App. 477. 
 
 Semble — the hospital would also have been rate- 
 able had it by charter or statute been prohibited 
 strictly and expressly from being made a source of 
 profit. Ibid. 
 
 (A) Dock sheds appropriated to use of shipowner, 
 
 13. — The appellants were rated as occupiers of 
 a shed situate upon docks, within the rating parish. 
 These docks were managed by a board, according 
 to the provisions of a local Act, which by section 
 64 enacted that the board might from time to time, 
 upon payment of such rents or other sums of 
 money, and subject to such restrictions and regu- 
 lations as they should think proper, set apart and 
 appropriate any particular portion of any dock, 
 sheds, &c., or any other works for the exclusive 
 accommodation and use of any company, &c, en- 
 gaged in carrying on any trade, who sbiould be 
 desirous of having such exclusive accommodation 
 for the reception of the vessels and goods belong- 
 ing to or employed or conveyed by them, provided 
 that every company, &c., to whom such exclusive 
 accommodation should be affijrded, and their 
 vessels, crews, servants, &c., should be subject to 
 the general rules and regulations of the board 
 applicable to their docks, sheds, &e., and the vessels 
 entering the same, and the crews and other per- 
 sons employed in and about such vessels. By s. 
 82 the Board might construct such depots and 
 sheds for the reception of goods, and might pro- 
 vide such other conveniences upon or near the 
 quays as they should think expedient for the 
 accommodation of the trade of the port of Liver- 
 pool, and might let any such sheds, and also any 
 portion of the quays which with or without such 
 sheds they might think fit to appropriate as special 
 berths for ships,- for such periods, and on such 
 rents, terms, and conditions as they might deem 
 expedient. The appellants requested the board to 
 appropriate a berth and other accommodation for 
 their line of steamers, and in reply the board wrote 
 a letter stating they had appropriated for the use of 
 the steamers owned by the appellants the south 
 side of the Wellington Dock, with the sheds 
 attached, and had fixed a charge of 2s. 6d. per 
 square yard per annum for the use of the shed 
 space, such charge to commence from the date of 
 their occupation. The appellants, in pursuance 
 of this letter, used the berth, quay space and sheds 
 appropriated to them for a number of years, pay- 
 ing the stipulated charges. The sheds, which 
 were constructed on the quay, consisted of a range 
 of sheds, covered by one continuous roof, and 
 subdivided, by partitions reaching to the roof, 
 
RATES (B). 
 
 503 
 
 into a store shed, a transit shed, and two open 
 sheds. The store shed was provided with doors 
 and locks, and was used by the appellants for 
 holding stores necessary for their ships when in 
 port. The transit shed was situate at about the 
 centre of the range of sheds, having open sheds 
 at each end of it. There were sliding doors oom- 
 municating at each end with the open sheds, and 
 one on each side communicating with the roadway 
 and the dock respectively. This shed was used 
 for the reception of goods liable to duty, but upon 
 which no duty had at the time been paid. By s. 
 88 of the Act, goods which have been more than 
 forty-eight hours upon any dock quay are liable to 
 pay a rental to the board of 5s. per hour ; goods 
 so lying in the appropriated sheds are liable to 
 this charge, whether they be the goods of those to 
 whom the sheds are appropriated or of any other 
 person. Such charge was sometimes at the 
 instance of the appellants exacted by the board 
 from, and paid to the board, by the owners of 
 goods, not the property of the appellants, but 
 deposited on landing from the appellants' vessels 
 in the sheds appropriated to them. Each door of 
 the transit shed had two locks, the key of one 
 lock was kept at the Custom House, and the key 
 of the other by the appellants, whenever a vessel 
 was discharging, and at all times during the day, 
 the transit shed was open, and the servants of the 
 board went in continually, and at their pleasure, 
 for the purpose of examining the goods therein, 
 or for any other purpose connected with their 
 duties. When the sheds contained goods or ship 
 stores belonging to the appellants they were 
 watched at night by watchmen employed by the 
 appellants : — ^Held, that the board had not parted 
 with the occupation of any part of such sheds so 
 as to render the appellants rateable in respect of 
 such occupation. Allmi v. The Overseers of the 
 Parish of Liverpool and Inman v. 2'he Overseers of 
 the Township of Kirkdale, 43 Law J. Eep. (n.s.) 
 M. C. 69 ; Law Eep. 9 Q. B. 180. 
 
 (j) Metropolitan Board of Works. 
 
 14. — The Metropolitan Board of Works was 
 incorporated by Act of Parliament under which 
 it acquired land in the respondent parish beyond 
 the limits of the Metropolis. Under the powers 
 conferred by the Act, the Board made a sewer 
 which was carried through the respondent parish 
 in an embankment of earth and concrete above the 
 general surface of the ground. The board also, 
 under like powers, erected in the said parish a 
 pumping station and other works and buildings, 
 all forming part of the Metropolitan' Main 
 Drainage Scheme : — Held,' upon an appeal against 
 a poor rate made by the respondents, that the 
 Board was not liable to be rated in respect of the 
 land occupied by the sewer and embankment, but 
 that it was liable in respect of the pumping sta- 
 tion, building and works, at the value for which 
 the same would let to a hypothetical tenant from 
 year to year, supposing they were not used for the 
 purpose of the Main Drainage Scheme, but were 
 entirely disconnected therefrom, and appUed to 
 any other use or purpose for which they could be 
 
 made available by a tenant thereof. The Metro- 
 politan Board of Works v. The Churchwardens of 
 West Ham, Essex, 40 Law J. Eep. (n.s.) M. 0. 30 ; 
 Law Eep. 6 a. B. 193. 
 
 (A:) Lands taken for publio purposes : liability to 
 make up deficiency in poor rate, 
 
 15. — The defendants were incorporated by an 
 Act of Parliament with powers to make and con- 
 struct certain railways, forming together one 
 system. By the 80th section it was enacted that 
 " if and while the company are possessed under 
 this Act of any lands assessed or liable to be 
 assessed to any sewers' rate, consolidated rate, 
 poor rate, police rate, main drainage rate, church 
 rate, tithe rate, or other parochial or ward rate, 
 they shall, from time to time, until the railways or 
 the works thereof are completed and assessed, or 
 liable to be assessed, be liable to make good the 
 deficiency in the assessment for such rates, by 
 reason of those lands being taken or used for the 
 purposes of the railway or other works by this 
 Act authorized, and the deficiency shall be com- 
 puted according to the rental at which those lands, 
 with any buildings thereon^ were rated at the time 
 of the passing of this Act, or according to the 
 amount of the tithe rate payable in respect of such 
 property." The defendants having taken and used 
 land in the parish of the prosecutors, for the pur- 
 poses of their railway and works authorized by the 
 Act, there occurred a deficiency in the assessment 
 for rates made in the parish. Certain parts of the 
 whole intended system of railways had been com- 
 pleted, and the prosecutors rated the defendants 
 in respect of the line in the parish. The assess- 
 ment and rateable value of any portion of the 
 said railways and works, which had become 
 assessed or liable to be assessed, was below the 
 rental at which the lands, through which such 
 portion of the railway was made, was rated at the 
 time of the passing of the Act, and below the rate- 
 able value of such lands with the buildings thereon. 
 The prosecutors demanded of the defendants the 
 payment of the deficiency: — Held, that the 
 defendants were bound to make up sach deficiency, 
 and that, until the whole railway and works 
 authorised by the Act were completed, at which 
 time the rateable value of the different portions 
 of the railway could be ascertained, they must 
 pay to the prosecutors the deficiency to be com- 
 puted according to the rental at which the lands 
 taken with any buildings thereon were rated at 
 the time of the passing of the Act. The Qtteen 
 V. The Metropolitan District Railway Company, 
 40 Law J. Eep. (n.s.) M. C. 113; Law Eep. 6 
 a.B. 698. 
 
 16. — A company was authorised by their special 
 Act to take lands in several parishes, and to con- 
 struct thereon seven railways, which when com- 
 pleted were to be called the East London Eail- 
 way. Section 128 enacted that, "if and while 
 the defendants are possessed under this Act of 
 any lauds assessed, or liable to be assessed, to any 
 sewers rate, consolidated rate, poor rate, church 
 rate, or other parochial or ward rate, they shall, 
 from time to time, until the railway or the works 
 
604 
 
 RATES (B), 
 
 thereof are completed and assessed, or liatle to be 
 assessed, be liable to make good the deficiency in 
 the assessment of such rates by reason of those 
 lands being taken or used for the purposes of the 
 railway or works." The interpretation clause 
 enacted that the expression "the railways," should 
 mean "the railways, stations, works and con- 
 veniences, or any or either of them, or any part 
 by this Act authorised." The defendants took, 
 for the purposes of the Act, lands in R. parish 
 assessed to parochial rates, and completed thereon 
 all that portion of railway No. 1 which lay within 
 R. parish, and also the stations thereof; they 
 were constructing, but had not completed, the 
 rest of railway No. 1. This completed portion 
 they had let to the 3. company, who had opened 
 it for traffic, and now occupied and worked it. 
 The defendants had also taken lands in other 
 parishes, whereon they had completed railway No. 
 4, and were constructing, but had not completed, 
 the remaining five railways : -Held, that under 
 the ]28th section of the above-mentioned local 
 Act, as also the 1 33rd section of the Lands Clauses 
 Act, 1845, railway companies are only liable to be 
 assessed for parochial rates at the original value 
 of the lands token by them for the construction of 
 their lines, so long as they have not substituted for 
 the buildings and-assessable property which they 
 shall have taken another property capable of assess- 
 ment, or actually assessed. When they have done 
 this, as by completing and actually working a line, 
 or part of a line, within any parish, the company 
 can claim, and is liable to be assessed in respect of 
 the actual letting value of the line, or part of a line, 
 so completed and actually worked, whether it be 
 or be not as valuable as the assessable property for 
 which it is substituted, and whether the whole of 
 the line of railway authorised by their Act of 
 Parliament has or has not been completed. T?ie 
 East London Railway Company v. Whitchurch, 
 (H.L.) 43 Law J. Rep. (n.s.) M. C. 159; Law 
 Rep. 7E. &L App. 81. 
 
 The Queen v. ?%« Metropolitan District Railway 
 Company (last case) overruled. Ibid. 
 
 The decision of the Exchequer Chamber, 42 
 Law J". Rep. (n.s.) M. G. 18 ; Law Rep. 7 Exch. 
 424 (reversing a previous decision of the Court of 
 Exchequer, 41 Law J. Rep. (n.s.) M. C. 123 ; Law 
 Rep. 7 Exch. 248) reversed by their Lordships. 
 Ibid. 
 
 17. — The plaintiffs were the churchwardens 
 and overseers of St. Mary, Lambeth, from Easter, 
 1871, to Easter, 1872, but they were not for the 
 previous years. By the Thames Embankment 
 Act, 1863 (26 & 27 Vict. c. 75), the defendants 
 were authorised to construct an embankment on 
 the right bank of the Thames, new streets and 
 other works in the plaintiffs' parish. By section 
 14, when the roadway and new streets respectively 
 were completed, of which completion a certificate 
 signed by the chairman of the defendants' board 
 was to be conclusive evidence, the same with the 
 power of rating the hereditaments within the same 
 respectively, were to be under the jurisdiction of 
 the same persons as the other streets in the parishes 
 in which the same were respectively situate. The 
 
 Thameg\Embankment Act, 1863, also incorporated 
 the Lands Clauses Consolidation Act, 1845, s. 
 133, which enacts that "if the promoters of the 
 undertaking become possessed, by virtue of this 
 or the special Act, or any Act incorporated there- 
 with, of any lands liable to be assessed to the 
 poor-rate, they shall, from time to time, until the 
 works shall be completed and assessed to such 
 poor rate, be liable to make good the deficiency in 
 the several assessments for poor rate by reason of ^ 
 such lands having been taken or used for the pur- '■> 
 pose of the works, and such deficiency shall be 
 computed according to the rental at which sucih 
 lands with any building thereon were rated at the 
 time of the passing of the special Act, and on 
 demand of such deficiency, the promoters of the 
 undertaking or their treasurer shall pay all such 
 deficiency to the collector of the assessments 
 respectively." The defendants in 1865 proceeded 
 with the execution of the works, and took various 
 lands in the plaintiffs' parish. On the 11th of 
 May, 1870, the chairman certified that the road- 
 way and new streets were completed :— =-Hel'd, that 
 the defendants were liable to pay the deficiency in 
 poor rates on lands taken by them under the 
 powers and for the purposes of the Thames 
 Embankment Act up to the 11th of May, 1870, 
 and that the plaintiffs could enforce payment in a 
 lump sum of the arrears of deficiency in the poor 
 rate up to that date. Stratton v. The Metropolitan 
 Board of Works, 44 Law J. Rep. (n.s.) M. C. 33 ; 
 Law Rep. 10 C. P. 76. 
 
 {I) Local statutes : tithes in Isle of Man. 
 
 18. — " An Act for the commutation of tithes 
 in the Isle of Man," (1839) provided that there 
 shall be paid annually, in lieu of tithes, a ceitain 
 aggregate sura, to be apportioned by way of rent 
 charge amongst those entitled thereto. An Act 
 to provide an asylum for lunatics and insane 
 persons, after directing a valuation "at their net 
 annual value, of all lands and all real estate," 
 provided that " as soon as the valuation is com- 
 plete " the Tynwold Court shall lay a rate on the 
 proprietors of all lands and real estate according 
 to valuation : — Held, that a rent-charge under the 
 Act of 1839 was not liable to be included in such 
 valuation, or rateable under the Act of 1860. Ing- 
 ram V. Drinkwater, 44 Law J. Rep. (n.s.) P. C. 83. 
 
 (m) General and special legislation : Serjeants' 
 Inn. 
 
 19. — There being a dispute between the parish 
 of St. Dunstan and Serjeants' Inn, Chancery Lane, 
 as to whether the Inn was parochial or not, the 
 3 & 4 Will. 4. 0. ex., was passed, whereby the 
 Society of the Inn paid fixed sums for poor and 
 church rates, and were exempt from any claim for 
 parochial rates and assessment ; by section 7 of 
 the Representation of the People Act, 1867, no 
 owner of a tenement is to be rated for the poor 
 instead of the occupier, and the full rateable 
 value is to be entered in the rate book ; and by 
 section 27 of the Poor Law Amendment Act, 
 1868, places which were extra-parochial or so 
 
BATES (B)> (CV 
 
 505 
 
 reputed and had no overssers were incorporated 
 in the next adjoining parish having the longest 
 common boundary, whereby the Inn became 
 annexed to the said parish : — ^Held, that -whether 
 the Inn originally were extra-parochial or not the 
 general statutes did not repeal the local one. 
 Thorpe V. Mams, 40 Law J. Eep. (n.s.) M. C. 62 ; 
 LawEep. 6 C.P. 125. 
 
 (»i) Baledbility of tramways, 
 
 20.— By the Tramways Act, 1870, 33 & 34 
 Vict. c. 78, tramway companies shall have the 
 exclusive use of their tramways for carriages with 
 flange wheels or other wheels suitable only to run 
 on the prescribed rail. By section 57, notwith- 
 standing anything in the Act, the promoters of 
 any tramways shall not acquire any right other 
 than that of user of any road along or across 
 which they lay any tramway. By section 62, 
 nothing in the Act is to abridge the right Of the 
 public to pass along or across any road upon which 
 a tramway is laid : — Held, that a tramway com- 
 pany were rateable and liable to be inserted in a 
 valuation list in respect of the occupation of their 
 tramways, as they had an occupation of the soil of 
 the road, like the occupation of gas and water 
 companies. The Pindico, Peokham, and Greenwich 
 Street Tramways Convpany v. the Assessment Com- 
 mittee of the Greenwich Union, 43 Law J. Eep. 
 (n.s.) M. C. 29 ; Law Eep. 9 Q.B. 9. 
 
 (o) Schools. 
 
 21. — Under " The Sunday and Eagged Schools 
 (Exemption from Eating) Act, 1869," 32 & 33 
 Vict. c. 40, s. 1, by which rating authorities may 
 exempt from their rates buildings used as Sunday 
 or ragged schools, the rating authority has a dis- 
 cretion, and is not bound to exempt any such 
 school. Bell V. Crane, 42 Law J. Eep. (n.s.) M. C. 
 122; LawEep. 8 Q.B. 481. . 
 
 22. — An industrial school certified and carried 
 on under 29 & 30 Vict. c. 118, is liable to be as- 
 sessed to the poor-rate. The Queen v. the Overseers 
 of the Poor of West Derby, 44 Law J. Eep. (n.s.) 
 Q. B. 98 ; Law Eep. 10 Q. B. 283. 
 
 (p) Sailways under local Acts. 
 
 23. — The exemptions from poor-rates given to 
 the Dundee and Arbroath and Arbroath and 
 Forfar Eailways by their local Acts of 1836, — 
 Held, to be abrogated by the General Poor Law 
 Amendment Act, 1 845, and the General Valuation 
 of Lands Act, 1864. Duncan v. the Scottish North 
 Eastern Bailway Company, Law Eep. 2 Sc. App. 
 20. 
 
 Qualification of alehouse : premises occupied 
 therewith, [See Alehouse, 14.] 
 
 (C) Eateable Value and PEiNcrPLB or 
 
 Assessment. 
 
 (a) Branch line of railway. 
 
 24. — ^A line of railway originally made by an 
 independent company became vested in the appel- 
 lants, under an agreement by which the appellants 
 guaranteed a certain per-centage upon the money 
 PiOBST, 1870-1876. 
 
 expended upon the line. The line communicated 
 with the main line of the appellants, and with 
 three other main lines of railway owned and 
 worked by three other companies respectively. If 
 the line were in the market, either of such three 
 companies would, in consequence of the traffic 
 which it would bring to their line, be willing to 
 acquire it upon the same terms in every respect as 
 those upon which the appellants held and worked 
 it : — Held, that in ascertaining the rateable value 
 of a part of the line which passed through the 
 parish of G., the fact of there being such four 
 companies who would so compete for the line, 
 might be taken into consideration. The Queen v. 
 the Assessment Committee of the Bedford Union, 
 and the Overseers of Goldington, 43 Law J. Eep. 
 (n.s.) M. C. 81 ; Law Eep. 9 Q. B. 134 nom. The 
 Queen v. the London and North-Western Railway 
 Company. 
 
 (J) Land lying near canal. 
 
 25. — ^By an Act of Parliament, passed in 
 the reign of George 3, under which a canal 
 company was empowered to make and work 
 their canal, the company was to be rated in 
 respect of the lands and grounds already pur- 
 chased or taken, or to be piirchased or taken, and 
 all warehouses and other buildings to be erected 
 by them, " in the same proportion as other lands, 
 grounds, and buildings lying near the same are or 
 shall be rated, and as the same lands, grounds, 
 and buildings so purchased or taken, or to be pur- 
 chased or taken and erected, would be rateable, in 
 case the same were the property of individuals in 
 their natural capacities." In the year 1848 the 
 company adopted the provisions of the 8 & 9 Vict, 
 c. 42, and commenced business as carriers on their 
 own account, and have since carried on the trade 
 and business of carriers, with a tariff of freights 
 and charges different from the tolls chargeable by 
 their private Act. Since the canal has been in 
 operation, a railway has been made running 
 parallel to, and in one place crossing the canal ; 
 and buildings have been erected upon much of the 
 land lying near to the canal : — Held, upon appeal 
 against a poor-rate made by parishes through 
 which the company had made the canal, first, that 
 the rateable value of the land occupied by the 
 canal was not to be taken as being increased by 
 the fact of the company carrying on the business 
 of carriers ; nor was it to be taken as being in 
 creased in proportion to the rateable value of the 
 railway, treating it as a railway. Secondly, that 
 the buildings of the company were to be rated in 
 the same proportion as other buildings near, and 
 that the lands and grounds of the company were 
 to be rated in the same proportion as other lands 
 and groimds near, the enactment as to the lands 
 and grounds, and as to the buildings, being con- 
 strued distributively. The Grand Junction Canal 
 Company v. the Churchwardens and Overseers of 
 Hemel Hempstead and King's Langley, 40 Law J. 
 Eep. (n.s.) M. C. 26 ; Law Eep. 6 Q. B. 173. 
 
 (c) Sets of rooms : blocks of buildings. 
 
 26. — Certain blocks of buildings, with separate 
 entrances to a public street, were divided respec- 
 3T 
 
506 
 
 RATES (0). 
 
 tively into two ranges by an internal staircase, 
 having one door at the street entrance. The 
 blocks were structurally divided into 117 different 
 sets of rooms, distinct from each other, and capable 
 of being let and occupied separately as residences 
 or of&ces. Each set had an outer door opening on 
 to one of the internal staircases. The several sets 
 of rooms were let by the owners, the appellants, to 
 certain tenants under agreements by the terms of 
 which the care of each entrance and the rooms 
 connected therewith were to be in the charge of a 
 resident porter, appointed and removable by the 
 appellants. There were to be duplicate keys to 
 the outer door of every set of rooms, one of which 
 was to be always in the hands of the porter, the 
 other in the care of the tenant while the rooms 
 were in use. The tenants were to have the right, 
 free of charge, to the general services of the por- 
 ter, and to special services upon payment. " Any 
 services, whether special or extra, so rendered by 
 the porter, will be rendered as the servant of the 
 tenant." The outer or street door to each block 
 of building was kept locked at night, and a porter 
 who was hired by the appellants resided in a dis- 
 tinct set of rooms in the basement of each block of 
 building. He had a key of, and access to, the sets 
 of rooms in each block, for the purpose of a general 
 superintendence, and as the servant of the occu- 
 piers respectively, by whom he was, in some cases, 
 employed and paid for looking after the rooms : — 
 Held, that the sets of rooms ought to be valued, in 
 the valu.ation list of the union, as distinct separate 
 rateable hereditaments. The Queen v. the Assess- 
 ment Committee of the St. George's Union, 41 Law J. 
 Eep. (n.s.) M. C. 30 ; Law Rep. 7 Q. B. 90. 
 
 {d) Annual 
 
 27. — The appellants were the occupiers of 
 docks, warehouses and works situate in diflferent 
 townships. By the provisions of various local 
 Acts the docks, &c., were to constitute one estate 
 under an uniform system of management. The 
 appeUauts were rated to the poor-rate in respect 
 of warehouses, &o., which were capable of separate 
 beneficial occupation apart from their proximity 
 to, and connection with, the docks, situate in the 
 rating township, and were enhanced in value by 
 their connection with these docks, though the in- 
 come of the docks taken as a whole, and as one 
 concern, exceeded the income derived from them : 
 — Held, that the rate was good, and that the pre- 
 mises were properly rated at their enhanced value, 
 as above mentioned. The Mersey Docks and Har- 
 bour Board v. the Overseers of Birkenhead, 42 Law 
 J. Eep. (n.s.) M. C. 141 ; Law Eep. 8 a. B. 445. 
 
 Valuation of surface land used with iron 
 mines. [See supra No. 9.] 
 
 Annual value : sale of plots of land by 
 cemetery company. [See supra No, 
 
 («) Deductions. 
 
 28. — IJnder powers given by a drainage Act, 
 the land in a certain district was drained, and an 
 aliquot portion of the expense necessary for main- 
 taining the drainage works was assessed upon the 
 
 owner of a farm within the district. This farm 
 was let to W. The drainage works could not have 
 been maintained without the rate imposed by the 
 Act, and without the said drainage works the farm 
 would be diminished in value. W., having been 
 assessed to a poor-rate, — Held, that the sum paid 
 by his landlord, the owner of the farm, was an 
 expense necessary to maintain the farm in a state 
 to command the estimated rent, and that, there- 
 fore, W. was entitled to claim under 6 & 7 Will. 
 4. c. 96, a deduction in respect of the amount. 
 The Queen v. the Assessment Committee of the 
 Gainsborough Union, 41 Law J. Eep. (n.s.) M. C. 
 1 ; Law Eep. 7 G. B. 64. 
 
 29. — The appellants were the occupiers of cer- 
 tain docks and dock-estates. The value of the 
 occupation depended \ipon the dock rates and dues, 
 all of which were, by Act of Parliament, to be 
 appropriated in payment of the expenses and 
 charges of collecting the rates and dues, and for 
 other purposes therein specified : — Held, that the 
 appellants were not entitled to any deduction in 
 respect of tenants' profits, in calculating the rate- 
 able value of the hereditaments occupied by them. 
 The Mersey Docks and Harbour Board v. the 
 Churchwardens, S[c., of Liverpool, 43 Law J. Eep. 
 (n.s.) M. C. 33 ; Law Eep. 9 Q. B. 84. 
 
 (/) Parochial and acreage principle. 
 
 30. — The appellants occupy docks in several 
 parishes and townships on the Lancashire and 
 Cheshire sides of the Mersey. By the Acts of Par- 
 liament relating to these docks it is provided that 
 they shall constitute one estate under one manage- 
 ment. The rates for using the dock property are 
 for the most part uniform, and any vessel having 
 once paid the dock rate is entitled to use all docks 
 where the rates are not larger, and to use any 
 other docks on paying the difference. The docks 
 on the Lancashire side of the Mersey are by far 
 the most profitable part of the undertaking, which 
 is carried on at a loss on the Cheshire side of the 
 river. The appellants had been rated by the 
 parish of Liverpool on the principle of ascertaining 
 the net income of the docks, &c., within the parish 
 of Liverpool, without taking into account the profit 
 of the whole imdertaking : — Held, that the paro- 
 chial principle must always, except in cases of 
 insuperable difficulty, be preferred, that no such 
 difficulty was shewn in the present case, and that 
 the assessment was accordingly right. The Mersey 
 Docks and Harbour Board v. the Overseers of 
 Liverpool, 41 Law J. Eep. (n.s.) M. C. 161 ; Law 
 Eep. 7Q.B. 643. 
 
 {g) Exceptional principle : hospital. 
 
 31. — By 13 Geo. 2. c. xxix., lands held by the 
 Eoundling Hospital are not to be rated at any 
 higher value than they were rated in 1739. By 34 
 Geo. 3.C. xcvi., the hospital is to be rated to paving 
 and other rates under the Act according to a par- 
 ticular valuation. By the Valuation (Metropolis) 
 Act, 1869, s. 45, the valuation list for the time 
 being in force shall be deemed to have been duly 
 made in accordance with this Act and the Acts 
 incorporated herewith, and shall for all or any of 
 
HATES (0), (E). 
 
 507 
 
 the purposes in this section mentioned be conclu- 
 sive evidence of the gross value and of the rateable 
 value of the several hereditaments included therein 
 for the piirposes of rates, which are afterwards 
 specified (including the poor's rate, county rate, 
 consolidated rate, &c.). By s. 51, the valuation 
 list is to be according to a scheduled form which 
 contains a statement of the gross and of the rate- 
 able valueof the property; and by s. 54, nothing 
 contained in the Act or Acts incorporated there- 
 with shall affect any exemption or d'eduction from, 
 or allowance out of any rate or tax whatever, or 
 any privilege of or provision for being rated or 
 taxed on any exceptional principle of valuation. 
 The assessment committee in preparing a valua- 
 tion list for the parish within which land belong- 
 ing to the hospital was situate assessed this land 
 according to its true gross and rateable value : — 
 Held, that the assessment was right, though when 
 a rate was made the hospital would be entitled to 
 the exceptional prmciples of valuation preserved 
 to it by s. 54 of the Valuation (Metropolis) Act. 
 The Queen v. The Governors of the Foundling Hos- 
 pital, 41 Law J. Kep. (n.s.) M. C. 41 ; Law Eep. 7 
 Q. B. 83. 
 
 (D) Vaitjation List: Axtekations. 
 
 32. — The valuation list of a parish under the 
 Union Assessment Committee Act, 1862 (25 & 26 
 Vict. c. 103), must, when altered by the com- 
 mittee, be deposited for inspection under ss. 17 
 and 21, and if not so deposited, it is invalid, 
 together with any contribution order based upon 
 it. The Queen v. Chorlton Union, 42 Law J. Eep. 
 (N.s.) M. C. 34 ; Law Eep. 8 Q. B. 5. 
 
 (E) Appeals against. 
 
 33. — A ratepayer who has objected before the 
 Assessment Committee, under 25 & 26 Vict. c. 103, 
 B. 18, to the valuation list of a union, on the 
 ground that he is overrated and that others are 
 underrated, and has failed to obtain relief with 
 respect to the valuation of his own property, may, 
 before his other objections have been heard by the 
 assessment committee, withdraw them, and appeal 
 to the sessions against the rate made in conformity 
 with the list, upon the one ground in respect of 
 which he has failed to obtain relief. The ap- 
 pellant gave notice to the assessment committee, 
 under 27 & 28 Vict, c, 39, and 25 & 26 Vict. 
 u. 103, d. 18, of his objection to a valuation list, 
 on the ground of unfairness or incorrectness in 
 the valuation, both of his own property and 
 in that of the property of three other rate- 
 payers. The committee heard the appellant's 
 objection to his own assessment, and refused to 
 allow it ; they then heard his objection to the 
 valuation of one of the three ratepayers, and made 
 a nominal alteration, and the appellant thereupon 
 withdrew his objections to the valuation of the 
 other two ratepayers, which were not heard: — 
 Held, that the appellant might appeal to the 
 sessions against the rate made in conformity with 
 the list, confining his appeal to the grounds in 
 respect of which he had failed to obtain relief. 
 
 The Queen v. The Justices of Kent, 40 Law J. Eep. 
 (n.s.) M. 0. 76; Law Eep. 6 Q.B. 132. 
 
 2%e Queen v. The Justices of Cambridgeshire (19 
 Law J. Eep. (n.s.) M. 0. 130), doubted. Ibid. 
 
 34. — After an appeal from a poor-rate had 
 failed before the assessment committee, there were 
 six days before the next borough sessions beyond 
 the twenty-one days required by the Union Assess- 
 ment Act (27 & 28 Vict. c. 39), for giving notice 
 to the assessment committee. The Eeoorder con- 
 sidered that such six days were not sufficient to 
 enable the appellant to determine as to appealing, 
 and that such sessions were not practicable ses- 
 sions, and he allowed the appeal to be entered at 
 the next subsequent sessions : — Held, that this 
 Court would review the Eecorder's determination 
 of such fact, and being of opinion on such review 
 that the six days were enough, and that therefore 
 the September sessions were practicable, the Court 
 granted a prohibition against the Eecorder trying 
 the appeal. The Liverpool United Gas Light 
 Company v. The Overseers of Everton, and The 
 Union Assessment Committee of West Derby Union, 
 40 Law J. Eep. (n.s.) M. C. 104 ; Law Eep. 6 C. P. 
 414. 
 
 35. — Certain persons rated in a poor-rate made 
 in conformity with a. valuation list, alleged that 
 they were rated in respect of property in which 
 they had no rateable interest, inasmuch as they 
 had the use of it only as bare licensees, and were 
 not occupiers, and they gave due notice of an 
 appeal to the sessions to the assessment committee 
 as well as the overseers of the parish, but did not 
 give any notice of objection to the assessment 
 committee, or go before them, or endeavour to 
 obtain relief in the matter from them. The re- 
 spondents did not appear at the sessions, and the 
 appellants, upon proof of such notice of appeal as 
 above mentioned, obtained an order of the sessions 
 quashing so much of the rate as was appealed 
 against with costs : — Held, that the sessions had 
 no jurisdiction to hear the appeal, and that the 
 notice of objection to the assessment committee 
 and the failnre to obtain relief from them, were 
 conditions precedent, although the objection was 
 not to the valuation of the property but to its 
 rateability. The Queen v. The Justices of Lan- 
 cashire, 43 Law J. Eep. (n.s.) M. C. 116. 
 
 36. — "Where a poor-rate was made under a 
 local Act which regulated the right of appeal, and 
 the valuation list was made under the Valuation 
 (Metropolis) Act, and no notice of assessment was 
 given to the appellant pursuant to s. 9, — Held, 
 that the appellant could not appeal direct to quar- 
 ter sessions under 17 Geo. 2. c. 38, but must pro- 
 ceed in conformity with the local Act. The Queen 
 V. The Jtistices of Middlesex, Law Eep. 7 Q. B. 
 653. 
 
 37. — An appeal was made by a waterworks 
 company to quarter sessions against a poor-rate 
 made on the company. The assessment committee 
 of the union appeared as respondents. The 
 overseers of the parish did not appear. The 
 appeal, and all matters in difference relating to 
 the rating of the waterworks, were referred to arbi- 
 tration by an agreement between the assessment 
 3t2 
 
508 
 
 BATES (E)— EEOEIVING STOLEN GOODS. 
 
 committee and the appellants, with power to the 
 arbitrator to direct at what amount the appellants 
 had been or should be rated before the making of 
 the award, and to order the return of the excess, 
 if any, of any sum paid by them to the overseers 
 of the parish. The award was not made for 
 eighteen months, and in the meantime several 
 rates had been made by the overseers of the parish 
 on the appellants, and paid by them under protest, 
 but without giving notice of appeal or taking any 
 steps to dispute such rates. By the award the 
 rateable value was largely reduced, and the 
 amount paid by the appellants in excess of the 
 sums due, according to the value so fixed, was 
 ordered to be repaid, not only on the rate appealed 
 against, but also the intermediate rates, and the 
 overseers were also ordered to repay out of the 
 next rate the balance due to the appellants, and 
 overpaid by them. The overseers paid the differ- 
 ence on the rate appealed against, but refused to 
 refund the difference on the other rates, on the 
 ground that the assessment committee had acted 
 ultra vires in referring those matters ; and upon a 
 rate being made after the award which the appel- 
 lants refused to pay, setting up the award, ob- 
 tained a distress warrant from the justices, and 
 levied for the amount. The appellants thereupon 
 replevied in the County Court, and now sought by 
 the present rule to restrain all further proceedings 
 by the overseers : — Held, that the overseers had 
 acted contrary to good faith, and upon the au- 
 thority of The London mid North- Western Bailway 
 Company Y. Bedford (17 Q..B. Eep. 978), that this 
 Court would interfere to stop their further pro- 
 ceeding. The Leicester Waterworks Company v. 
 The Overseers and Churchwardens of Cropstone, 
 a Law J. Eep. (n.s.) M. C. 92. 
 
 the Court of Chancery for a receiver of that estate, 
 Tillett v. Pearson, 43 Law J. Eep. (n.s.) Chanc. 
 93. 
 
 (J) in stdt to set aside purchase on groimd of 
 
 EECEIVEE, 
 (I.) m CHANCERY. 
 
 (A) "When appointed. 
 
 (a) In suit by judgment creditor. 
 
 (A) In suit to set aside purchase on ground 
 
 of fraud. 
 (c) Pendente lite, 
 
 (B) SBCUEITy BY EeCEIVEE. 
 
 (C) Gkneeai. Geant of Administeation to 
 
 Eeceivee. 
 
 (D) Peoof by Eeceivee in BANKRtiPTCY. 
 
 (II.) IN BANKRUPTCY. 
 
 2. — In a suit instituted for the purpose of set- 
 ting aside a contract for the purchase of a colliery 
 on the ground of fraud and misrepresentation, the 
 plaintiffs being the purchasers in possession, — 
 Held, considering the nature of the property, it 
 was for the benefit of all parties that, pending the 
 litigation, a receiver and manager should be ap- 
 pointed. Gibbs V. David, 44 Law J. Eep. (n.s.) 
 Chanc. 770 ; Law Eep. 20 Eq. 373. 
 
 (e) Pendente lite. 
 
 3. — The defendant as heir-at-law of a testator 
 entered a caveat against the grant of probate of 
 the will, and also forcibly took possession of part 
 of the testator's real estate. No further proceed- 
 ings were taken in the Probate Court beyond 
 entering the caveat. Upon a motion by the exe- 
 cutor of the will for a receiver of all the real and 
 personal estate, — Held, that this Court had juris- 
 diction to appoint a receiver of the real estate 
 (except that part in the possession of the defen- 
 dant) as well as of the personal estate. Parkins 
 V. Seddons, 42 Law J. Eep. (n.s.) Chanc. 470 ; 
 Law Eep. 16 Eq. 34. 
 
 In suit by unpaid vendor or creditor of rail- 
 way company. [See Eailway, 16-19.] 
 
 (B) Seoueity by Eeceivee. 
 
 4. — The security of a guarantee society may be 
 taken in cases of receivership. Col/more v. North, 
 42 Law J. Eep. (n.s.) Chanc. 4. 
 
 (C) Gbneeal Geant of Administeation to 
 Eeceivee. 
 
 [See Peobatb, 16.] 
 
 (D) Peoof by Eeceivee in Bankettptot. 
 
 5. — Where a receiver without the sanction of 
 the Court, proved in the bankruptcy of a legatee 
 who was a debtor to the estate, — Held, that the 
 receiver must be taken to have acted within the 
 bounds of his authority, and that the right to set 
 off the debt against the legacy was lost. Arm- 
 strong V. Armstrong, Law Eep. 12 Eq. 614. 
 
 (II.) IN BANKRUPTCY. 
 [See Bankeuptcy, .P.] 
 
 (I.) IN CHANCERY. 
 
 (A) When appointed. 
 
 (a) In suit by judgment creditor. 
 
 1.— A judgment creditor who has sued out an 
 
 oiLyit, and got a return from the sheriff that the 
 
 debtor was entitled to a life estate in realty of the 
 
 debtor's, and registered the writ, may file a bill in 
 
 EECEIVING STOLEN GOODS. 
 
 1. — A prisoner was tried and convicted on a 
 count of an indictment which alleged that the 
 defendant unla^vfuUy received goods, unlawfully, 
 &c., obtained " by means of false pretences," with 
 intent, &c., knowing the same to have been ob- 
 tained by means of certain false and fraudulent 
 
RECEIVING STOLEN GOODS— REMOTENESS. 
 
 509 
 
 pretences with intent, &e. : — Held, that whether 
 or not the indictment ought to have described and 
 set out the false pretences, as well on principle as 
 because it had followed the words of the statute, 
 it was cured by verdict, and that it was too late 
 to take such an objection by motion in arrest of 
 judgment, and a conviction on such count was 
 affirmed. The King r. Mason (2 Term Rep. 581) 
 disapproved. The Queen v. Goldsmith, 42 Law J. 
 Rep. (n.s.) M. C. 94 ; Law Eep. 2 0. C. R. 74. 
 
 Of hill of sale. [See Bill or Sale, 1-8.] 
 Of copyright. [See Coptbiqht, 1, 2, 4, 6.] 
 Of company. [See Compant, C 1-4.] 
 Under Land Registry Act. [See Land Re- 
 
 GisTEY Act.] 
 Of stock of married woman. [See BAnoN 
 
 AND Feme, 29.] 
 Of resolutions for composition or liquidation. 
 
 [See Bankehptoy, L 4-8 ; M 6, 6.] 
 Of votes. [See Paklliment, 14-66.] 
 
 REFORMATORY AND INDUSTRIAL 
 SCHOOLS. 
 
 [Extension of power of prison authority as to 
 alteration, &c., of reformatory and industrial 
 schools. 35 & 36 Vict. c. 21.] 
 
 REGIMENTAL EXCHANGES. 
 
 [Regimental exchanges facilitated, and author- 
 ised exchanges exempted from the provisions of 
 the above Acts. 38 & 39 Vict. c. 16.] 
 
 REGISTRATION. 
 
 (A) Of Berths and Deaths. 
 
 (B) Of Deeds, Wills, and Inoumbbances. 
 
 (A) Of Bibths and Deaths. 
 
 [Previous Acts amended and in part repealed. 
 Amendment of the law relating to the registration 
 of births and deaths in England, and consolidation 
 of the law respecting the registration of births and 
 deaths at sea. 37 & 38 Vict. c. 88.] 
 
 (B) Of Deeds, "Wills, and Incumbeances. 
 
 In a register county, a further charge is a 
 conveyance requiring registration, and an unregis- 
 tered further charge is not simply postponed to a 
 subsequent registered mortgage, but is void as 
 against it, so that it cannot be tacked to the first 
 mortgage. Credland v. Totter, 44 Law J. Rep. 
 (n.s.) Chanc. 169; Law Rep. 10 Chane. 8. 
 
 A person taking a security for a past debt was 
 content vrith the mortgagor's statement that a 
 registered deed was a mortgage to secure a certain 
 amount, and that no more was due to the mort- 
 gagees: — Held, that he was not affected with 
 notice of an unregistered further charge. Ibid. 
 
 Decree of Bacon, V.C. (43 Law J. Eep. (n.s.) 
 Chanc. 484; Law Rep. 18 Eq. 350), affirmed. 
 Ibid. 
 
 Triority of mortgagees by registration. [See 
 
 MOETGAQE, 26-27. '\ 
 Irish Eegistration Act. [See Moetgage, 
 
 28.] 
 Of deed under Batavian Law. [See Con- 
 flict OF Laws, 2.] 
 
 RELEASE. 
 
 A. borrowed I.IOOZ. from his stepmother, upon 
 an agreement that the debt should be paid by 
 deductions of lOOi. from each quarterly payment 
 which she made him for her board. After two 
 deductions had been made she declared she would 
 make, no more, and' thenceforward continued to 
 pay the quarterly sums in faU. She appointed 
 him sole executor of her will which contained no 
 disposition of her residuary estate : — Held, that, 
 although in order to have an effectual release in 
 equity of a debt, there must be an actual legal 
 release or transfer of the property, in this case 
 the debt was satisfied on two grounds : first, 
 because the appointment of the debtor as executor 
 operated as a release at law, and all claim in 
 equity to recover the debt was prevented by the 
 intention of the testatrix to release it ; Secondly, 
 because the testatrix by making the full quarterly 
 payments had actually completed the gift of the 
 instalments she was entitled to retain. Strong v. 
 Bird, 43 Law J. Eep. (n.s.) Chanc. 814; Law Rep. 
 18 Eq. 315. 
 
 Selease reserving rights as against surety held 
 to operate only as a covenant not to sue. 
 [See Peinctpal and Subett, 18.] 
 
 Flea of release with condition subsequent. 
 [See Action, 8.] 
 
 REMOTENESS. 
 
 1. — A term limited, after estates for life, but 
 antecedently to estates tail, for the purpose of 
 raising portions on failure of the issue in tail, is 
 void for remoteness ; and a demurrer will lie to a 
 bill to enforce the trusts of the term. Sykes v. 
 Sykes, 41 Law J. Rep. (n.s.) Chanc. 25 ; Law Rep. 
 13 Eq. 56. 
 
 Case V. Drosier (2 Keen, 764; 5 Myl. & Cr. 
 246) followed. 
 
 2. — A testator, before the Wills Act, bequeathed 
 leaseholds to his daughter E. H. He gave his 
 residue, after a life interest to his wife, to E. H., 
 " for her own benefit and her children ; " if his 
 daughter should die without issue he gave the 
 whole to his wife, for life, with remainders over : 
 — Held, that E. H. was entitled to the residue in 
 remainder absolutely, and that the words " without 
 issue " referred to an indefinite failure of issue, 
 and that the gift over was void for remoteness. 
 
610 
 
 REMOTENESS— REVENUE (A). 
 
 Fisher v. Webster, 42 Law J. Eep. (n.s.) Chano. 
 156; Law Eep. U Eq, 283. 
 
 3. — Gift of houses " to be occupied by the de- 
 scendants of A. and B.," and intended to be for 
 the residence of two families, — Held, void for un- 
 certainty and for perpetuity. Neo v. Neo, Law 
 Eep. 6 P. C. 381. 
 
 Devise of land to be used as a family burial 
 place and not mortgaged or sold, — Held, not 
 charitable and void for perpetuity. Ibid. 
 
 Dedication of a house by a testatrix to be used 
 for religious ceremonies to herself and her late 
 husband, — Held, not a charitable gift and void for 
 perpetuity. Ibid. 
 
 [And see Po-wee, 12, 16, 17; Will, Con- 
 STjRUCTioN, I 33, Q, 2, E ; Legact, 
 33.] 
 
 EENT, 
 [See Landlord and Tenant; Lease.] 
 
 EENT-CHAEGE. 
 
 1, — Where land had been sold reserving a rent 
 to the vendor, such land was ordered to be sold 
 to pay arrears of the rent-charge accrued since 
 1853. Citpit V. Jackson (13 Price, 721) followed. 
 Horton v. Hall, Law Eep. 17 Eq. 437. 
 
 2. — The plaintiff seised in fee of land granted 
 it unto and to the use of C, subject to the pay- 
 ment for ever to the plaintiff, his heirs and assigns, 
 of a yearly rent-charge payable out of the land. 
 C. covenanted for himself, &c., that he, his execu- 
 tors, administrators and assigns would pay unto 
 the plaintiff, his heirs or assigns, the said rent- 
 charge. The land became vested in the defendant, 
 after which the rent-charge fell in arrear : — Held, 
 that the plaintiff might maintain an action of debt 
 against the defendant for the arrears, the remedy 
 by real action having been taken away by 3 & 4 
 Will. 4. c. 27, s. 36. Thomas v. Sylvester, 42 
 Law J. Eep. (n.s.) Q. B. 237 ; Law Eep. 8 Q. B. 
 
 operation of, 
 [See Pak- 
 
 Conveyance of rent-charge, 
 
 under Statute of Uses, 
 
 liament, 19-21.] 
 Rateability of, under local statutes of Isle of 
 
 Man. [See Eate, 18.] 
 Apportionment of rent-charge. [See Appob- 
 
 TIONMENT, 4, 8.] 
 
 Legacy duty. [See Legacy and Sccces- 
 
 sioN Duty, 3.] 
 Mortgage by husband and wife. [See 
 
 Baeon AND PeMb, 4.] 
 
 REPLEVIN. 
 
 1. — A judgment for the plaintiff in replevin is 
 a bar to an action for damages for the same taking 
 of the goods in respect of which the replevin was 
 
 brought. Gibbs v. Cruickshank, 42 Law J. Eep. 
 (N.s.) 0. P. 273 ; Law Eep. 8 C. P. 454. 
 
 2. — The rule that a new trial will not be 
 granted for either party when the sum given or 
 recovered is under 20Z., does not apply to replevin, 
 Edgson v. Cardwell, Law Eep. 8 C. P. 647. 
 
 EESEEVATION. 
 
 Of game. [See Game, 12 ; Injunction, 27; 
 
 Inclosuee Act, 2, 3.] 
 Of minerals. [See Mines, 1, 2, 5, 6; 
 
 CONFIKMATION OF SaLES AcT.] 
 
 EESTITUTION OF CONJUGAL EIGHTS. 
 [See DiTOECE, 63, 78.] 
 
 EESTEAINT ON ALIENATION. 
 [See Condition, 1, 2.] 
 
 RESTRAINT ON ANTICIPATION. 
 [See Baeon and Feme, 17, 20, 21.] 
 
 RESTRAINT OF MAEEIAGE. 
 [See Will, Constetjction or, 9, 10.] 
 
 EESTEAINT OF TRADE. 
 Covenants in restraint of trade. 
 
 [See 
 
 Covenant, 1-4.] 
 Covenant by articled clerk. [See Attoenet, 
 
 9.] 
 Bond by smgeon. [See Bond, 3.] 
 
 REVENUE. 
 [See Legacy and Succession Duty ; Stamp.] 
 
 (A) Customs and Excise. 
 
 (B) Inhabited House Duty. 
 
 (C) Income-Tax. 
 
 (D) Duty on Railway Fares. 
 
 (A) Customs and Excise. 
 
 [Acts relating to customs and inland revenue 
 amended and extended. 35 & 36 A'iet. c. 20.] 
 
 [35 & 36 Vict. e. 20, ss. 10, 11, repealed. Ex- 
 emption of hotel-keepers, &c., from duty on ser- 
 vants under 32 & 33 Vict. c. 14. 36 & 37 Vict. 
 c. 18.] 
 
EEVENUE (A)— EEVERSION. 
 
 511 
 
 [New provisions as to customs, taxes and ex- 
 cise. Eepeal of duties charged under former Acts. 
 38 & 39 Vict. c. 23.] 
 
 1. — The Customs Regulation Act, 1845 (New- 
 South Wales), by section 16 provides that an entry 
 of goods shall contain " the particulars of the 
 quantity and quality of the goods and the pack • 
 ages containing the same." Section 18 provides 
 that no entry "shall be deemed valid unless the 
 goods shall have been properly described in such 
 entry, and that any goods taken or delivered out 
 of any ship or out of any warehouse by virtue of 
 any entry not properly describing the same, shall 
 be deemed to be goods lauded without due entry 
 and shall be forfeited." The Customs Duties Act, 
 1871 (New South Wales), by section 8, provides 
 that in all cases in which goods are chargeable to 
 an ad valorem duty according to the value, such 
 value shall be verified at the time of entry, by the 
 genuine invoice, and by a declaration. By section 
 13, if the declaration made with regard to any 
 entry is wilfully false, the goods misdescribed 
 shall be forfeited. Certain " soft " goods were 
 consigned to the appellants in cases which also 
 contained certain other goods consigned to the 
 appellants. AU the goods were liable to an ad 
 valorem duty. On the arrival of the cases, the 
 appellants' agent made an entry and declaration in 
 which the " soft " goods were described, and the 
 value declared, but the other goods were omitted 
 from the entry and declaration, and no value de- 
 clared : — Held, first, that the provisions of sections 
 16 and 18 of tlie Customs Regulations Act, 1845, 
 were not repealed by the Customs Duties Act, 
 1871 ; secondly, that the goods omitted to be de- 
 scribed in the declaration were " goods landed 
 without due entiy," and were therefore forfeited'; 
 thirdly, that the cases not being properly described, 
 the entire contents were forfeited. Prince v. The 
 Collector of Customs of New South Wales, 43 
 Law J. Rep. (n.s.) P. C. 14 ; Law Rep. 5 P. C. 1, 
 nom. Prince v. TTie Queen. 
 
 (B) Inhabited House Duty. 
 
 2. — Whereabuilding assessed to inhabited house 
 duty is used partly as offices by merchants and 
 partly as chambers for professional men, the owner 
 is not entitled to an abatement in respect of the 
 portion occupied by merchants. — So held by 
 Bramwell, B., and Cleasby, B., Kelly, C.B., 
 doubting whether the question was sufficiently 
 raised by the facts stated. Busby v. Newson, 44 
 Law J. Rep. (n.s.) Exch. 143; Law Rep. 10 
 Exch. 322. 
 
 3. — The statute 48 Geo. 3. c. 55, provides rules 
 for charging inhabited house duties. Rule 6 
 directs that, " where any house shall be let in 
 different storeys, tenements, lodgings or landings, 
 and shall be inhabited by two or more persons or 
 families, the same shall nevertheless be subject 
 to and shall in like manner be charged to the said 
 duties as if such house or tenement was inha- 
 bited by one person or femily only, and the land- 
 lord or owner shall be deemed the occupier of 
 auoh dwelling-house, and shall be charged to the 
 said duties." Rule 14 directs that " where any 
 
 dwelling-house shall be divided into different 
 tenements being distinct properties, every such 
 tenement shall be subject to the same duties as if 
 the same was an entire house, which duty shall be 
 paid by the occupiers thereof respectively." Certain 
 blocks of buildings, each having a street entrance 
 and one internal staircase, were structurally di- 
 vided within into different suites of rooms, distinct 
 from each other, a porter in the basement having 
 the care of the door (locked at night) and access 
 to the rooms. Each suite of rooms had a door 
 opening on to the staircase, which was common to 
 all. Some of the suites of rooms were let to 
 tenants imder special agreement not to interfere 
 with the construction or arrangement of the pre- 
 mises, and only to use them as offices or residences, 
 &c. Other of the suites of rooms were unte- 
 nanted : — Held, by Bramwell, B., and Cleasby, B. 
 (Kelly, C.B., dissenting), that the blocks of build- 
 ings were" chargeable under rule 6, not under 
 rule 14. Held also, that each block was properly 
 assessed on the aggregate sum of the values ap- 
 pearing in the' valuation list made under the Me- 
 tropolis Valuation Act, as the values of the suites 
 of rooms. The Attorney-General v. The Mutual 
 Tontine Westminster Chambers Association (lAm.), 
 44 Law J. Rep. (n.s.) Exch. 146 ; Law Rep. 10 
 Exch. 305. 
 
 (C) Income-Tax. 
 
 4. — A Turkish corporation, which by the law 
 of Turkey was established as a state bank for the 
 Ottoman Empire, with its seat at Constantinople, 
 and power to establish as many branches and 
 agencies as it might think fit, established a branch 
 or agency in London, where the ordinary business 
 of bankers was carried on under the management 
 of a committee of persons who resided in England 
 and were elected by the shareholders: — Held, that 
 the corporation did not "reside in the United 
 Kingdom" within the meaning of 16 & 17 Vict. c. 
 24, s. 3, schedule D ; and that for the purpose of 
 being assessed to the income-tax the committee 
 were not bound to make a return of the profits 
 accruing to the bank elsewhere than within the 
 United Kingdom. The Attorney- General v. Alex- 
 ander, 44 Law J. Rep. (n.s.) Exch. 3 ; Law Rep. 
 10 Exch. 20. 
 
 (D) Duty on Railway Pares. 
 
 Duty on fares of railway passengers : Cheap 
 Trains Act. [See Railway, 40.] 
 
 REVERSION. 
 
 [See UsuBY.] 
 
 The Sales of Reversions Amendment Act leaves 
 untouched the settled law relating to contracts in 
 respect of reversionary interests in all cases where 
 mala fides, or unfair dealing can be shewn. Miller 
 V. Cook, iO Law J. Rep. (n.s.) Ohanc. 11; Law 
 Rep. 10 Eq. 641. 
 
 Copyhold: grant for lives in reversion. 
 [See Copyhold, 2.] 
 
512 
 
 EEVEESION— SALE (A). 
 
 Of infant. [See Infant, 2, 7.1 
 Of married woman. [See Babon and 
 Feme, 1 7 ; Election, 2.] 
 
 EEVIEW OF JUSTICES' DECISIONS ACT, 
 1874. 
 
 Observation on the requisites of the af&davit 
 under the Act. The Qiieen v. The Justices of 
 Exeter, 42 Law J. Eep. (n.s.) M. 0. 35. 
 
 EEVIVOE AND SUPPLEMENT. 
 [See Pbacticb in EatriTT, 103-116.] 
 
 EIVER. 
 
 Where a wharf-owner drove piles extending a 
 distance of three feet into the bed of a navigable 
 river sixty feet wide, — Held, that this was an 
 obstruction which would be restrained at the suit 
 of a public body empowered by statute to remove 
 obstructions. Per the Master of the Eolls — In the 
 case of a navigable river riparian owners have no 
 right to erect any structure on the alveus. Be- 
 nefit to a man's trade will not be held a justifica- 
 tion on the ground of public advantage. The 
 Queen v. Eussell (6 B. & C. 566) disapproved of. 
 The Attorney- General v. Terry, Law Eep. 9 Chano. 
 423. 
 
 Obstruction of highway in navigable lake. 
 
 [See Trespass, 3.] 
 Liability of conservators for maintenance of 
 
 towing path. [See NEaiioENCE, 16.] 
 Bights of riparian proprietors in tidal 
 
 river. [See Thames Consebvanct 
 
 Act, 1.] 
 
 EOMAN DUTCH LAW. 
 [See CoiONiAi Law, 20, 21.] 
 
 SALE. 
 (A) Of Goods. 
 
 (a) Contract in writing: alterations after 
 
 (b) Construction of contract. 
 
 (1) Mercantile usage. 
 
 (2) Potatoes " grovnng on land of 
 
 (3) Cargo " expected to arrive." 
 
 (4) Tiine of delivery. 
 
 (c) Sale of specific goods: remedy in 
 
 equity by injunction. 
 
 (d) Sale by sample. 
 
 («) Sale by instalments. 
 {f) Besoission of contract. 
 (1) Breach of warranty. 
 
 (2) Fraud. 
 
 (3) In other cases. 
 
 (g) Transfer and vesting of property. 
 
 (h) Vendor's lien. 
 
 (i) Bight to follow money in hands of con- 
 
 (Jc) Sub-contract: recognition of rights of 
 sub-vendee. 
 (B) Of Land. 
 
 [Existing enactments as to sale of food and 
 drugs repealed. 38 & 39 Viot. c. 63.] 
 
 (A) Of Goods. 
 
 (a) Contract in writing : alterations after signature. 
 
 1. — E., as an agent to H., agreed to sell a ship 
 to S., and a written contract was signed by S. 
 The contract was forwarded to H., who made an 
 alteration therein, and returned it to E., who 
 thereupon produced the written contract, as altered 
 by H., to S., who assented, without resigning the 
 contract: — Held, that parol evidence was admis- 
 sible to shew thatS. assented, without re-signing, 
 to the alteration made by H. in the contract after 
 S. had affixed his signature. Stewart y. Eddowes 
 and Hudson v. Stewart, 43 Law J". Eep. (n.s.) 
 C.P. 204 ; Law Eep. 9 C.P. 311. 
 
 Memoraiidum in writing : variation of 
 contract : ratification not in writing, 
 [See Peauds, Statute of, 12.] 
 
 (S) Construction of contract. 
 (1) Mercantile usage. 
 
 2. — If a mercantile document is insensible, 
 when read according to the ordinary sense of the 
 words used therein, it is a question for the jury 
 whether the language thereof has not acquired a 
 definite meaning by mercantile usage. Ashworth 
 V. Bedford, 43 Law J. Eep. (n.s.) C. P. 67 ; Law 
 Eep. 9 C. P. 20, nom. Ashforth v. Bedford. 
 
 The plaintiff sold to the defendants certain 
 goods ; the invoice was dated the 1st of May, and 
 at the foot of it were written the words, " Terms 
 — Net cash, to be paid within six to eight weeks 
 from date hereof." The goods not having been 
 paid for, the plaintiff issued a writ to recover the 
 price thereof on the 1 8th of June, scarcely seven 
 weeks from the 1st of May. At the trial the 
 Judge left to the jury the question whether the 
 credit had expired on the 18th of June according 
 to mercantile usage. The jury having found that 
 the action was not brought too soon, — Held, per 
 Keating, J., and Brett, J. (Grove, J., doubting), 
 that the direction to the jury was proper, and 
 that the plaintiff was entitled to the verdict. 
 
 (2) Potatoes " growing on land of sdler" ■■ implied 
 condition. 
 
 3. — The defendant agreed to sell to the plain- 
 tiff, in March, 1872, a quantity of potatoes upon 
 the following terms, which were committed to 
 writing — " Two hundred tons of Eegent potatoes 
 grown on land belonging to Coupland (the seller) 
 
SALE (A). 
 
 513 
 
 iu Whaplode, at tlie rate of SI. 12s, 6d. a ton, to 
 be delivered in September or October, and paid 
 for as taken away." At tlie time of the contract 
 the defendant IiaJ t weuty-five acres actually sown 
 with potatoes, and forty-three acres ready for 
 sowing. The forty-three acres were afterwards 
 sown, and the whole togetlier were amply suffi- 
 cient under ordinary circumstances to produce 200 
 tons. In August a great part of the crop was 
 injured by disease, and the defendant could only 
 deliver about eighty tons: — Held, in accordance 
 with Taylor v. Caldwell (32 Law J. Eep. (n.s.) 
 Q. B. 164; 3 B. & S. 833, 4), that the contract 
 was subject to an implied condition that the de- 
 fendant's land should produce the stipulated 
 quantity of potatoes ; and, the crop having failed 
 without any suggestion of negligence on the part 
 of the defendant, he was not liable; Howell y. 
 Coupland, 43 Law J. Eep. (n.s.) Q. B. 201 ; Law 
 Eep. 9 Q. B. 462 : affirmed, on appeal, Law Eep. 
 1 Q. B. Div. 258. 
 
 (3) Cargo " expected to arrive!' 
 
 4. — The agents of the defendants at Chili 
 having purchased a quantity of nitrate of soda, 
 and chartered the vessel Precursor to convey it to 
 England, the defendants contracted to sell to the 
 plaintiff " 600 tons, more or less, being an entire 
 parcel of nitrate of soda, expected to arrive at 
 port of call per Precursor. . . . Should any cir- 
 cumstance or accident prevent the shipment of the 
 nitrate, or should the vessel be lost, the contract 
 to be void." At the date of the sale, the greater 
 part of the nitrate of soda intended for shipment 
 had been destroyed by an earthquake. The 
 charter-party was subsequently cancelled, and 
 notice of this fact was in due course forwarded 
 to the plaintiff. The agents of the defendants 
 afterwards purchased a like quantity of nitrate of 
 soda on account of the defendants, and obtained a 
 transfer of a second charter-party made between 
 the vendors and the owners of the Precursor for 
 the conveyance of the second parcel of nitrate of 
 soda to England. Upon the arrival of the cargo 
 in this country, the plaintiff laid claim to it under 
 his contract : — ^Held (affirming the decision of the 
 Queen's Bench, 39 Law J. Eep. (n.s.) Q. B. 210), 
 that the contract related only to the nitrate of 
 foda which was then expected to be carried by the 
 particular voyage, and that upon this voyage 
 being rendered impossible, the liability of the 
 defendants was terminated, and the plaintiff had 
 no claim to the cargo subsequently purchased. 
 Smith v. Myers (Exch. Ch.), 41 Law J. Eep. (n.s.) 
 a.B. 91 ; Law Eep. 7 Q. B. 139. 
 
 (4) Time of delivery. 
 
 5, — Contract for sale of goods " to be delivered 
 free of charge to-morrow, or as soon as they can 
 be got out of the hands of the guardian, but the 
 purchasers not bound to take them if not delivered 
 in one week, unless they like " : — Held, that the 
 vendors were bound to deliver, not upon the ac- 
 crual of the legal right to the possession, but upon 
 actual possession, and that the guardian having 
 ceased to fill that capacity, but having refused in 
 Digest, 1870—1875. 
 
 another capacity to deliver the goods, the vendors 
 were not liable. Maclaren v. Murphy, Conolly v. 
 Maclaren, Law Eep. 4 P. C. 263. 
 
 6. — Contract to deliver maize, " for shipment in 
 June and [or] July, 1869, sellers' option" : — Held, 
 affirming the Common Pleas, that the maize must 
 be on board so that the shipment might be com- 
 plete in June or July, and that the whole cargo 
 peed not actually be put on board in those months. 
 Alexander v. Vanderzee, Law Eep. 7 C. P. 530. 
 
 Damages for default in delivery. [See Da- 
 mages, 5-12.] 
 
 (c) Sale of specific goods : remedy in equity by 
 injunction. 
 
 7. — The defendant entered into an agreement 
 with the plaintiff, of which the material clause 
 was in the following words — " Sold E. F., Esq., 
 M.P., the whole of the get of the No. 3 coal out 
 of the Newbridge Colliery property for five years, 
 the quantity not to be less than at present deli- 
 vered to his Taff Vale works, unless the coal 
 should fail, at 6s. a ton, payment as usual." He 
 afterwards sold some of the coal to other persons, 
 and contracted to sell the colliery itself. On de- 
 murrer to a bill seeking to restrain him, — Held, 
 that the agreement was, in effect, for the sale of 
 a chattel, and that not one of specific value, but 
 a marketable commodity; that the plaintiff's re- 
 medy was at law for damages, and not in equity 
 for specific performance ; and that being so, the 
 Court would not extend its jurisdiction in grant- 
 ing an injunction to restrain a breach of a portion 
 of an agreement, when it could not enforce the 
 whole. Fothergill v. Rowland, 43 Law J. Eep. 
 (n.s.) Chanc. 252; Law Eep. 17 Eq. 132. 
 
 {d) Sale by sample. 
 [And see Scotch Law, 8.] 
 
 8. — The plaintiff, having some oats for sale, ap- 
 plied to the manager of the defendant, a trainer of 
 race horses, to purchase them. Some eouversa 
 tion took place, in the course of which a sample 
 of the oats was handed by the plaintiff to the 
 defendant, who kept it until the next day, and 
 then agreed to take the oats at a named price. 
 The plaintiff delivered the oats, but the defendant 
 refused to accept them, alleging that he had con- 
 tracted for old oats, whereas those which were 
 sent were new. Upon the trial of an action upon 
 the contract in the County Court, there was con- 
 tradictory evidence as to whether the contract 
 was for old oats or for new oats, and the follow- 
 ing questions were put to the jury ; First, whether 
 the word "old" had been used by the plaintiff or 
 the defendant in making the contract; second, 
 whether, if they thought that the word " old " had 
 not. been so used, they were of opinion that the 
 plaintiff believed the defendant to believe, or to 
 be under the impression, that he was contracting 
 for the purchase of old oats. The jury were also 
 told that if either of these questions were 
 aus wered in the affirmative, their verdict should 
 be for the defendant. The case having been so 
 left to them, the jury found a verdict generally 
 3U 
 
514 
 
 SALK (A). 
 
 for the defendant : — Held, by Cookburn, C. J., that 
 the Judge was wrong in leaving the second ques- 
 tion to the jury, the minds of the parties being ad 
 idem as to the speoifio parcel of oats. By Black- 
 burn, J., that it was doubtful whether the direc- 
 tion would bring to the minds of the jury the 
 distinction between agi-oeing to take the oats under 
 the belief that they were old, and agreeing to take 
 them under the belief that the plaintiff contracted 
 that they were old. And by Hannen, J., that the 
 second question was not incorrect in its terms, but 
 that it was likely to ^e misunderstood by the jury, 
 and apparently was so misunderstood by them. 
 And held, jier totani Curiam, that there ought to 
 be a new trial. Smith v. Hughes, 40 Law J. 
 Rep. (n.s.) Q. B. 221 ; Law Eep. 6 Q. B. 597. 
 
 9. — -The defendants engaged to supply shoes to 
 the plaintiffs, to be according to sample, and to be 
 inspected and paid for by the plaintiffs before 
 shipment, it being known that the shoes were 
 intended for the French army ; a large quantity 
 of shoes were inspected, approved and delivered, 
 and a portion then sent by the plaintiffs to Lille. 
 It was subsequently discovered by the plaintiffs 
 that some of the shoes contained paper in the 
 soles, which the French authorities would not 
 allow, and after various communications the de- 
 fendants engaged to take back shoes ^returned 
 because they contained paper, but not a larger 
 quantity if only a few were so defective. The 
 French authorities rejected all, and on cutting 
 open a large number most were found to contain 
 paper, which was also found in the sample ; the 
 shoes both delivered and undelivered were inferior 
 to sample, and the defect could not be discovered 
 by any reasonable inspection. The plaintiffs gave 
 notice that they rejected the shoes delivered and 
 would receive no more, and brought their action : 
 — Held, that the plaintiffs were entitled to reject 
 the shoes delivered, and throw them back on the 
 defendants' hands at Lille and in England 
 respectively, to refuse to receive more, and to 
 recover as damages the whole money paid, the 
 expense of sending to and keeping at Lille, and the 
 loss of profit on all shoes delivered or not. Per 
 Bovill, C.J., and Byles, J., dissentienie Brett, J., 
 the shoes could not have been thrown back on the 
 defendants' hands at Lille but for the second 
 engagement. Heilbiitt v. Hiclcson, 41 Law J. 
 Eep. (n.s.) C. p. 228 ; Law Rep. 7 0. P. 438 : 
 affbmed, on appeal, 42 Law J. Rep. (n.s.) C. P. 
 59 ; Law Rep. 8 C. P. 131. 
 
 10.— Where goods sold by sample are, when 
 delivered, found to be not equal to sample, the 
 purchaser has a right to reject them, and it is 
 sufficient if he gives the seller notice that he rejects 
 them, and that the goods are at the seller's risk, 
 and he is not bound to return them to the seller 
 or to offer to do so. Grimoldby v. Wells, 44 
 Law J. Rep. (n.s.) C. P. 203 ; Law Rep. 10 C, P. 
 391. 
 
 (e) Sale hy instalments. 
 
 11. — Under a contract for the sale of merchan- 
 dise a certain quantity of the goods were to be 
 delivered in each of eleven months, payment to be 
 
 by cash fourteen days after delivery : — Held, that 
 the trae meaning of the contract was that the 
 vendor might cease delivery in any month if the 
 purchaser neglected to pay for the previous month's 
 delivery. Ex parte Chalmers ; In re Edwards, 42 
 Law J. Eep. (n.s.) Bankr. 2. 
 
 Delivery went on under the contract for ten 
 months, and all the lots but the tenth were paid 
 for. On the 22nd of December, the last month 
 of the contract, a meeting was held of the pur- 
 chaser's creditors, and he was then insolvent. On 
 the 23rd, the vendors wrote that they refused to 
 deliver any more goods, giving no reasons. The 
 goods had greatly risen in value, and in January 
 the purchaser claimed the difference in price on 
 the December lot. In February he was adjudi- 
 cated bankrupt on a declaration of insolvency. On 
 a claim by the trustee for the difference on the 
 December lot on account of the refusal, — Held, 
 that the refusal was justified by the non-payment, 
 and that the case was strengthened by the fact 
 that the purchaser could not, at the ^me, make a 
 valid payment. Ibid. 
 
 This decision was affirmed on appeal with costs. 
 Ex parte Chalmers ; In re Edwards, 42 Law J. Rep. 
 (n.s.) Bankr. 37 ; Law Rep. 8 Chanc. 289. 
 
 12. — The plaintiffs agreed to take from the 
 defendants, " say about 6,000 to 8,000 tons of 
 coal .... put into our waggons at the oolUery ; 
 delivery to commence from the 1st of July next, 
 and to be taken in about equal monthly quantities 
 over the next twelve months," &c. The defend- 
 ants agreed to supply the coal, " to be delivered 
 into your waggons at our collieries, in equal 
 monthly quantities during period of twelve 
 months from the 1st of July next," &c. Up to the 
 1st of August the plaintiffs only supplied waggons 
 sufficient to take away 158 tons of coal, whereupon 
 the defendants gave them notice that they can- 
 celled the agreement : — Held, in an action by the 
 plaintiffs to recover damages in respect of the 
 refusal by the defendants to deliver anymore coal, 
 that the defendants were not justified in cancelling 
 the agreement in consequence of the plaintiffs' 
 failure to send waggons in the first month suffi- 
 ent to take away the quantity of coal agreed to bo 
 delivered in that month. Hoare v. Mennie (29 
 Law J. Rep. (n.s.) Exoh. 73 ; 5 Hurl. & N. 19) 
 questioned. Simpson v. Crippin, 42 Law J. Eep. 
 (n.s.) a. B. 28 ; Law Rep. 8 Q. B. 14. 
 
 13. — The defendants contracted to sell a quan- 
 tity of iron to the plaintiff, to be delivered by 
 instalments, and to be paid by cash against bills 
 of lading. The plaintiff having neglected to take up 
 the bill of lading for the second instalment of iron 
 sent under the contract, the defendants, after pre- 
 vious notice that they would do so, sold that por- 
 tion of iron. They sold it for more than the 
 contract price, as the market for iron was a rising 
 one, and they afterwards refused to deliver the 
 rest of the iron contracted for, on the ground that 
 the contract had been cancelled by the plaintiff 
 not taking up the bill of lading. The plaintiff 
 subsequently filed a petition for liquidation by 
 arrangement, which ended in an agreement for a 
 composition with his creditors, and he then brought 
 
SALE (A). 
 
 615 
 
 an action against the defendants for not deliver- 
 ing tlie remainder of the iron according to the 
 contract. On the trial the jury found that the 
 defendants, by reason of the plaintiff's conduct, 
 had reasonable ground for believing, and did be- 
 Heve, that the plaintiff -vrould be unable to pay,for 
 the future bills of lading to be presented under 
 the contract, that the plaintiff had come to a 
 determination to abandon the contract, and that 
 he had so conducted himself as to lead the de- 
 fendanttobelievethat hehad determinedto abandon 
 the contract : — II eld, that on these findings a ver- 
 dict ■was rightly entered for the defendants, as the 
 case was brought directly within the authority of 
 Withers v. Beynolds (2 B. & Ad. 882). Blomier 
 y. Bernstein, 43 Law J. Eep. (n.s.) C. P. 375; 
 Law Eep. 9 C. P. 588. 
 
 14. — In the beginning of February, 1872, the 
 plaintiffs agreed to buy and the defendants agreed 
 to sell 200 tons of iron, to be forwarded in quanti- 
 ties of twenty-five tons per month, the first deli- 
 very to be in April. At the time of making the 
 contract the plaintiffs were insolvent, and upon 
 the 12th of March they determined to suspend 
 payment. They forthwith informed the defen\i- 
 ants of their insolvency. Upon the 6th of April 
 there was a meeting of the plaintiffs' creditors ; 
 the contract with the defendants was not men- 
 tioned in their written statement of affairs. The 
 iron was not forwarded by the defendants in April 
 or the early part of May, nor did the plaintiffs 
 require it to be delivered, nor did they offer pay- 
 ment for it. The plaintiffs' creditors ultimately 
 accepted a composition of bs. in the pound. The 
 plaintiff took new partners; and upon the 13th 
 of May they called upon the defendants to supply 
 iron according to the contract of the preceding 
 February; the defendants forthwith repudiated 
 liability to fulfil the contract. The plaintiffs 
 having sued for breach of the contract, — Held, 
 that there was evidence upon which a jury might 
 find that the contract had been rescinded, and 
 could not be enforced upon the 13th of May. 
 Morgan v. Bain, 44 Law J. Eep. (n.s.) C. P. 47 ; 
 Law Eep. 10 C. P. 15. 
 
 15. — The defendants sold to the plaintiffs a 
 certain number of tons of iron, " delivery in 
 monthly quantities over 1871." During that 
 year a correspondence passed between them, which 
 was held to have the effect of postponing the deli- 
 very iu particular montlis of the full monthly 
 proportion that would otherwise have been duly 
 delivered by the defendants. In the last month 
 the plaintiffs gave notice requiring the whole of 
 the residue to be delivered at the end of the 
 year, so as to make up the total number of tons 
 sold. The defendants, deeming this demand un- 
 reasonable, refused further delivery :— Held, re- 
 versing the decision of the Court of Exchequer, 42 
 Law J. Rep. (n.s.) Exch. 185 ; Law Eep. 8 Exch. 
 305, that the postponement operated only to throw 
 the delivery which would have been made in 1871 
 over into months of the succeeding year, and that 
 the plaintiffs were not entitled to call for the whole 
 of the undelivered residue of the iron at once, but 
 nevertheless that the unreasonable demand did 
 
 not justify the defendants in treating the contract 
 as at an end, and in refusing to deliver such re- 
 sidue at all ; that, therefore, the defendants were 
 liable in damages for breach of contract. Tyers 
 V. 'Ihe Rosedale and FerryMll Iron Company 
 {Urn.) (Exch. Ch.), 44 Law J. Eep. (n.s.) Exch. 
 130 ; Law Eep. 10 Exch. 196. 
 
 16. — Neither a plaintiff nor a defendant can at 
 law avail himself of a parol agreement to vary or 
 enlarge the time for performing a contract previ- 
 ously entered into in writing, and required so to 
 be by the Statute of Frauds. Hickman v. Haynes, 
 44 Law J. Eep. (n.s.) C. P. 358 ; Law Eep. 10 
 C. P. 598. 
 
 The defendants agreed in writing to buy of the 
 plaintiff certain iron, of which twenty-five tons were 
 to be delivered in June. The defendants in that 
 month verbally requested the plaintiff to allow the 
 delivery of the twenty-five tons to stand over, to 
 which the plaintiff verbally assented. On the Ist 
 of August the plaintiff wrote to ask when the de- 
 fendants would take delivery, and after some 
 correspondence the defendants on the 9th aslied 
 for further time. The plaintiff waited a reasonable 
 time before the present action was commenced ; 
 — Held, that as the delivery was postponed for 
 the defendants' convenience, the plaintiff was enti- 
 tled to treat the contract as broken by the de- 
 fendants at the end of June, and to have the 
 cjamages assessed with reference to the value of 
 the iron at the expiration of a reasonable time 
 after the 9 th of August. Ibid. 
 
 Breach of contract to deliver goods by instal- 
 ments : measure of damages. [See 
 Damages, 5-12.] 
 
 (/) Bescission of contract. 
 
 (1) Breach of warranty. 
 
 17. — The purchaser of a mare at an auction was 
 induced to buy her by the description that she had 
 been hunted with certain hounds. The conditions 
 of .sale provided that horses not answering the 
 description must be returned before a specified 
 time, otherwise the purchaser must keep them 
 with all faults. The purchaser paid the price, and 
 was casually told that the description was untrue. 
 Nevertheless, he removed the mare to his own 
 stables, and while being so removed, she ran away 
 and injured herself severely, without any negli- 
 gende on the plaintiff's part. The description was, 
 in fact, untrue, and on that ground the purchaser 
 returned her to tlae seller within the specified time : 
 — Held, that since the purchaser hact in removing 
 her done no more than he was entitled to do under 
 the contract, and since the injuries were not owing 
 to any negligence on his part, he had not lost his 
 right to rescind the contract, and cotild recover 
 the price from the seller in an action for money 
 had and received. Head v. Tattersall, 41 Law J. 
 Eep. (n.s.) Exch. 4; Law Rep. 7 Exch. 7. 
 
 (2) Fraud. 
 
 18, — A. having ordered goods from the L. P, 
 8u2 
 
616 
 
 SALE (A). 
 
 Company in London, paid them 681. in cash, and 
 gave a bill for 135/., ttie balance of the price, 
 directing the goods to be sent by the defendants' 
 railway to C, his agent at Liverpool. The rail- 
 ■way company reported to the L. P. Company that 
 0. was not to be found at the address given, and 
 asked for further directions ; but before any reply 
 ■was received, C. claimed the goods at the station 
 in Liverpool, and the defendants thenceforward 
 held them as warehousemen for him. In the mean- 
 time the L. P. Company having discovered that A. 
 ■was a bankrupt, directed the defendants to return 
 the goods to London ; but this direction did not 
 reach the Liverpool station till after the transitiis 
 was at an end. The defendants being indemnified 
 by the L. P. Company, afterwards refused to de- 
 liver the goods to C, -whereupon he brought an 
 action against them. At the trial, the jury found 
 — First, that A. obtained the goods "with the inten- 
 tion of not paying for them ; secondly, that the 
 plaintiff had advanced 250/. (including the 68/.) to 
 A., bat not boncl fide ; and thirdly, that he knew 
 of A.'s fraudulent intention. A verdict was there- 
 upon entered for the defendants, leave being re- 
 served to move to enter a verdict for the plaintiff 
 if the Court should think the defendants not enti- 
 tled to the verdict, either upon the pleas as they 
 then stood, " or upon any possible amendment of 
 them": — Held(reversingthejudgmentbelow),that, 
 upon the facts proved, a plea stating, — " that 
 the goods hadbeensoldto A., and delivered by the 
 L. P. Company to the defendants, to be delivered 
 to the plaintiff vmder a contract induced by A.'s 
 fraud, to which the plaintiff was privy ; that the 
 L. P. Company, supposing the trausitus to be still 
 subsisting, had obtained from the defendants the 
 re-delivery of the goods, but that afterwards, and 
 after action brought, the L. P. Company having 
 discovered the fraud and the plaintiff's kno-wledgo 
 of it, elected to rescind this contract -with the 
 plaintiff, and that they were ready to restore the 
 68/. and the bill ; that this took place before any 
 act "was done by them affirming the contract or 
 otherwise determining their election ; that no in- 
 terest had vested in any innocent iihird person, 
 rendering it inequitable or unjust to rescind the 
 contract ; and that the plaintiff was inequitably 
 proceeding with the suit for the purpose of ob- 
 taining damages from the defendants and the P. 
 Company," — would have been proved, and would 
 have furnished a complete answer to the action on 
 equitable if not on legal grounds. Clough v. The 
 London and North-Western Eailway Company 
 (Exch. Ch.), 41 Law J. Eep. (n.s.) Exch. 17 ; Law 
 Eep. 7 Exch. 26. 
 
 19. — A trader, after being served with the peti- 
 tion on which he was afterwards adjudicated bank- 
 rupt, purchased goods at an auction, and removed 
 them without payment, without disclosing the 
 fact of the banla-uptcy proceedings : —Held, that 
 this omission did not of itself amount to a mis- 
 representation such as to avoid the contract and 
 entitle the vendor to a return of the goods. Ex 
 parte Whittaker ; In re Shacldeton, 44 Law J. 
 Eep. (n.s.) Baukr. 91 ; Law Eep. 10 Chanc, 
 446. 
 
 (3) In other oases. 
 [See supra Nos. 11-16.] 
 (^g) Transfer and vesting of property. 
 20. — The plaintiffs were sugar refiners in the 
 city of London, and were in the habit of making 
 sales by sample, each sale consisting of one or more 
 fillings or batches of boiled sugar. Upon a sale 
 being effected, a sale-note was delivered to the 
 purchaser, which contained the price of the filling 
 per cwt., and the following words — " Prompt one 
 month. Stored goods at sellers' risk for two 
 months." Each filling comprised a number of spe- 
 cified "titlers," or loaves, of sugar of a varying 
 weight, and it was the custom to pay for the sugar 
 on the Saturday (called " the prompt ") after the 
 expiration of one calendar month from the day of 
 sale, but the whole or portion of the stigar often 
 remained in the plaintiffs' warehouse after the time 
 for payment when it suited the convenience of the 
 customer to delay the delivery, the customer pay- 
 ing on the prompt an approximate sum to the 
 price, which was only finally ascertained and 
 settled when the sugar was weighed on delivery. 
 The defendant, a sugar-broker, purchased four fill- 
 ings or batches of sugar from the plaintiffs in the 
 manner above stated, and paid an approximate 
 sum to the value. Part of the sugar was removed 
 by the defendant ; but after the expiration of two 
 mouths from the sale a fire occurred on the plain- 
 tiffs' premises, destroying the remainder which had 
 never been weighed. The plaintiffs, -without any 
 agreement with the buyers, had effected floating 
 policies upon all stock in their warehouse, making 
 no distinction between goods and goods unsold ; but 
 the amount which they received from the insurance 
 office was not sufficient to cover the loss which they 
 actually sustained, exclusive of the defendant's 
 goods : — Held, first, that the loss by the destruc- 
 tion of the undelivered sugar must fall on the 
 defendant— by Cockburn, O.J., on the ground that 
 the property had passed to the defendant, by 
 Blackburn, J., Lush, J., and Quain, J., on the 
 ground that whether this were the case or not, the 
 sugar, after the lapse of two months, was, by the 
 terms of the contract of sale, at the risk of the 
 defendant. Secondly, that the defendant was not 
 entitled to the benefit (by way of set-off or other- 
 wise) of any part of the insurance money received 
 by the plaintiffs. Martineau v. Kitchiiig, 41 Law 
 J. Eep. (n.s.) Q.B. 227 ; Law Eep. 7 Q- B. 436. 
 
 21. — Where bythe bill of lading,goods are made 
 deliverable to the shipper, or his order, and not to 
 the consignee, the jus deponendi, or control over 
 the property in the goods shipped, remains "with 
 the shippers, although the invoice states that the 
 goods were shipped " on account of, and at the 
 risk of" the consignee ; such statement being not 
 conclusive, of itself, that the right to the posses- 
 sion of, as well as the property in the goods was 
 intended to be unconditionally passed to the con- 
 signee. Shepherd v. Harrison (H. L.), 40 Law J. 
 (n.s.) Q. B. 148 ; Law Eep. 5 E. & I. App. 116. 
 
 "Where the bill of lading, indorsed in blank, was 
 sent to the consignee, accompanied by a bill of ex- 
 change drawn against the cargo, for acceptance by 
 
SALE (A)— SALMON. 
 
 517 
 
 him, — Held, that it -was the duty of the consignee, 
 either to approbate or reprobate the transaction 
 in toto ; and that he could not accept the bill of 
 lading and the cargo, unless he also accepted the 
 bill of exchange for its value. Also, that it was 
 not necessary for the shipper to advise the con- 
 signee expressly that he was not to use the bill 
 of lading unless he accepted the hill of exchange. 
 Ibid. 
 
 22. — L., a merchant in France, contracted with 
 the plaintiffs, merchants in London, for the sale to 
 them of a certain quantity of potatoes to be shipped 
 free on board a vessel at Dunkirk for London, at a 
 certain price, payable cash against bill of lading. 
 The plaintiffs made a part payment to L. of SOI., 
 and sent their own sacks marked with their names 
 thereon, into which the potatoes were put by L., 
 who caused them to be shipped at Dunkirk under 
 a bill of lEuiing, which made them deliverable at 
 London to order of shipper : — Held, that the pro- 
 perty in the potatoes had passed to the plaintiffs 
 at the time of the shipment, notwithstanding the 
 provision in the contract of " cash against bill of 
 lading." Ogc/ v. Shuter, 44 Law J. Eep. (n.s.) 
 0. P. 161 ; Law Eep. 10 0. P. 169. 
 
 Held, also, that the defendant, who had sold the 
 potatoes, had lost his Uen for the balance of the 
 ppchase-money, and the plaintiffs had a sufficient 
 right to the possession to entitle them to maintain 
 trover. Ibid. 
 
 (k) Vendor's lien. 
 
 23. — Where by the contract for sale and pur- 
 chase of goods it is stipulated that payment 
 should be made by the buyers' acceptances of the 
 sellers' drafts, if before the time for the delivery 
 of the goods the purchaser becomes insolvent or 
 the acceptances are dishonoured, the vendor still 
 has a lien for unpaid purchase-money. Difference 
 in this respect between acceptances of the pur- 
 chaser tod those of a third person. Gunn v. 
 Bolckow, Vaiighan ^ Co., 44 Law J". Eep. (n.s.) 
 Chanc. 732 ; Law Eep. 10 Chanc. 491. 
 
 By a contract for the siipply of iron rails, it 
 was agreed that payment should be made by 
 buyers' acceptance of sellers' drafts at six months' 
 date, against inspector's certificate of approval 
 and wharfinger's certificate of each 500 tons being 
 stacked ready for shipment. Inspector's certifi- 
 cates and wharfinger's certificates were from time 
 . to time handed to the buyers in exchange for their 
 acceptances, and were pledged with T. as security 
 for advances made by him, it being an alleged 
 custom of the trade to treat such certificates as 
 delivery warrants. The buyers having become 
 insolvent before the first acceptance became due : 
 — Held, firsr, that the delivery of the acceptances 
 did not constitute a valid payment for the rails 
 accur.iiug to the contract; and secondly, that no 
 custom of the trade could give to the certificates 
 the effect of warrants, and T. therefore had no 
 lien on the rails. Ibid. 
 
 them at such prices and in such manner as he 
 thought fit. He sent regular monthly statements 
 of the goods sold, and every month paid the in- 
 voice price of the goods comprised in the previous 
 monthly statement. N. was partner in a firm of 
 N., J. & Co., and by an arrangement with his part- 
 ners, used the partnership as his bankers in refer- 
 ence to the above business which he carried on 
 for his separate benefit, and an account of the 
 moneys paid in and drawn out was regularly kept. 
 N., J. & Co. having executed a deed of arrange- 
 ment with their creditors, at a time when the 
 account of N. shewed a balance of 2,035^. Is. 2d. 
 in his favour, the account of N. with T. at that 
 time shewed a balance in favour of T. of 2,052Z. 
 1 Is. StZ. T. sought to prove against the partner- 
 ship for the amount of this balance, as being trust 
 moneys held by N. as his trustee : — Held, revers- 
 ing the decision of Bacon, C.J., that the proof 
 could not be admitted, as the nature of the business 
 carried on between T. and N. was that of vendor 
 and purchaser, and not principal and agent, and 
 therefore there was no trust. Ex parte White ; In, 
 re S'evill, Jotirdan ^ Co., 40 Law J. Eep. (n.s.) 
 Bankr. 73 ; Law Eep. 6 Chanc. 397. 
 
 {k) Sub-contract : recognition of rights of su/j- 
 vcndee. 
 
 25 . — The defendant being possessed of a quan- 
 tity of barley sold eighty qiiarters thereof to M., 
 who afterwards, on the 27th of June, sold sixty of 
 the eighty quarters to the plaintiff, who on the 
 same day paid the price and forwarded M.'s 
 delivery order for the sixty quarters to the de- 
 fendant, who assented to the same on the 29th. 
 The barley remained in bulk in the defendant's 
 possession until the 7th of July, on which day the 
 plaintiff sent a forwarding order to the defendant, 
 which the latter refused to comply with on the 
 ground that M. had in the mean time become 
 bankrupt, and that the barley purchased by him 
 was unpaid fur : — Held, that the defendant, by as- 
 senting to the delivery order for the sixty quarters 
 was estopped from denying the plaintiff's right 
 thereto, notwithstanding that the price of the 
 barley was paid to M. contemporaneously with the 
 forwarding of the delivery order to the defendant. 
 Knights v. Whiffen, 40 Law J. Eep. (n.s.) Q. B. 
 51 ; Law Eep. 5 Q,, B. 660. 
 
 (B) Of Land. 
 [See Vendor and Pobchasee.] 
 
 SALMON. 
 
 (A) Salmon Fisheey Acts. 
 
 (B) Eioht to Salmon Fishino. 
 
 (») Bight to follow money in hands of consignee. 
 
 24. — T. consigned goods to N. at an invoice 
 price. N, dealt with the goods as an owner, and sold 
 
 [Amendment of the law relating to Salmon 
 Fisheries in England and Wales. 33 & 34 Vict, 
 c. 33 and 36 & 37 Vict. c. 71.] 
 
518 
 
 SALMON (A)— SATISFIED TERMS ACT. 
 
 (A) Salmon Fishery Acts. 
 
 1.— By the Salmon Fishery Act (24 & 26 Vict. 
 c. 109), s. 11, no fixed engine of any description 
 shall be placed or used for catching salmon in any 
 inland or tidal river. By the same Act, sections 4 
 and 11, " fixed engines " are to include " all fixed 
 implements for catching, or facilitating the catch- 
 ing of fish," and "a net that is secured by anchors, 
 or otherwise temporarily fixed to the soil." By 
 the subsequent statute, 28 & 29 Vict. c. 121, s. 39, 
 the words " fixed engines " are to include " any 
 net or other implement for taking fish, fixed to the 
 soil, or made stationary in any other way." Upon 
 iippeal from a decision of the Salmon Fishery 
 Commissioners it appeared that certain nets, called 
 stop nets, are used in the following mnnner : The 
 fisherman first steadies his boat athwart the cur- 
 rent by pushing poles lashed to either end of the 
 boat into the bed of the river in a slanting direc- 
 tion, and when the boat is steadied, the fisherman 
 puts the net overboard. It is about 30 feet wide 
 at the mouth tapering to a point. The mouth is 
 distended by two light poles, called rames, which 
 are about 22 feet long, tied together at the upper 
 end with a rope, and tept extended by a cross 
 stick or stretcher. The net is lowered overboard 
 until the two poles rest at about 8 feet from the 
 upper end on the side of the boat. The fisherman 
 holds the upper end of the poles, and so keeps the 
 net steady in the water, and when he feels a fish, 
 he lowers the upper end with both hands, using 
 the sides of the boat as a fulcrum, and so raises 
 the mouth of the net out of the water, catching the 
 fish : — Held, that the nets were " fixed engines " 
 within the meaning of the Acts, as they were in 
 fact made stationary by a mechanical contrivance. 
 Gore V. The Special Commissioners for English, 
 Fisheries, 40 Law J. Eep. (n.s.) Q. B. 252 ; Law 
 Eep. 6 Q.B. 561. 
 
 2. — By section 11 of the Salmon Fishery Act, 
 1861, "No fixed engine of any description shall be 
 placed or used for catching salmon in any inland 
 or tidal waters," and a penalty is imposed by that 
 section. By section 39 of the Salmon Fishery 
 Act, 1865, the words "iixed engine shall include 
 any net or other implement for taking fish fixed 
 to the soil, or made stationary in any other way, 
 not being a fishing weir or fishing mill dam " : — 
 Held, that if a person uses a net which is not of 
 itself an instrument used peculiarly for catching 
 salmon, and which is not fixed for the purpose of 
 catching salmon, he is not liable to the penalty 
 imposed by the 11th section, although the net is 
 fixed to the soil in tidal waters, and within the 
 limits of a fishing district. Watts v. Lucas, 40 
 Law J. Eep. (n.s.) M. C. 73 ; Law Eep. 6 Q.B. 226. 
 
 (B) EioHT OF Fishing. 
 
 3. — A baronial title will be a habile foundation 
 for a claim to salmon fishing if requisite enjoy- 
 ment and user be proved. So will a title by 
 grant cum piscationHms. McDottall v. The Lord 
 Advocate, Law Eep. 2 Sc. App. 431. 
 
 The prescriptive forty years' enjoyment may be 
 by aet and coble, as well as stake net. Ibid. 
 
 [And isee Scotch Law, 32.] 
 
 SALVAGE. 
 See Shipping La-w, T.] 
 
 SANITARY ACTS. 
 
 [Amendment and extension of the Sanitary 
 Laws. 37 & 38 Vict. c. 89.] 
 
 Under a local Act Improvement Commissioners 
 were appointed, with power to make rates. It 
 enacted " that no person shall be rated in pursu- 
 ance of this Act on account of any arable, meadow 
 or pasture land exceeding two acres, .... or the 
 farm-houses and buildings used exclusively for 
 farming purposes." The commissioners became an 
 urban sanitary authority under the Sanitary Act, 
 1873. By section 43 of that Act, "Any limit 
 imposed on, or in respect of any rate by any local 
 Act of Parliament, shall not apply to any rate re- 
 quired to be levied for the purpose of defraying 
 any expenses incurred by a sanitary authority for 
 sanitary purposes : — Held, that the word " limit " 
 did not apply to the exemption in the local Act, 
 so as to authorise the commissioners to impose a 
 rate for expenses incurred for sanitary purposes, on 
 a person on account of land exceeding two acres. 
 The Improvement Commissioners of Walton v. 
 Walford, 44 Law J. Eep. (n.s.) Q. B. 74 ; Law Eep. 
 10 G.B. 180. 
 
 SATISFACTION. 
 
 Satisfaction of bequest h, 
 [See Advancement, 5-10.] 
 
 Of covenant for payment of annuity. 
 Annuity, 13.] 
 
 Of legacy. [See Legacy, 25-32.] 
 
 [See 
 
 SATISFIED TEEMS ACT. 
 
 A., being the owner of leaseholds for a term of 
 ninety-nine years, mortgaged the property to B. 
 for the term, less five days, and also to G. and R. 
 for the term, less three days. He also demised to 
 M. for the term, less ten days, in trust for G. and 
 E. He then acquired the fee subject to the mort- 
 gages. B.'s mortgage was paid off to his executors, 
 who assigned the term upon which it was secui'ed 
 to a trustee for G. & E. Then A. became bank- 
 nipt, and he and his assigns, in consideration of a 
 release by G. and R. of their mortgage debt by 
 a deed to which A.'s wife was named a party, but 
 which she refused to execute, granted the fee of 
 the premises to them. They sold the estate and 
 A. died. A.'s widow then filed her bill against the 
 purchaser to enforce her right to dower out of the 
 premises. The defendants demurred, but the de- 
 murrer was overruled by one of the Vice-Chan- 
 cellors, on the ground that upon the release by G. 
 and R. of the mortgage debt, the mortgage terms 
 became satisfied, and were extinguished by the 
 Satisfied Terms Act (8 & 9 Tict. c. 112), and there- 
 by the inchoate right of A.'s widow to dower was 
 let in. But on appeal this decision was reversed, 
 
SATISFIED TERMS ACT— SCOTCH LAW (E). 
 
 519 
 
 and it was held that the term was not satisfied 
 within the meaning of the Act. Anderson v. Pignet, 
 42 Law J. Rep. (n.s.) Chane. 310 ; Law Rep. 8 
 Chano. 180. 
 
 SCANDAL. 
 [See Plkadino in Equity, 1, 2.] 
 
 SCHEME OF ARRANGEMENT. 
 [See Railway, 34-36.] 
 
 SCHOOL. 
 
 [See PnnLic School.] 
 
 [Provision for the issue of 1,500,000/. out of the 
 Consolidated Fund for School Board Loans. 37 & 
 38 Vict. i:. 9.] 
 
 As to rateahility of industrial and ragged 
 schools. [See Rate, 21, 22.] 
 
 SCIRE FACIAS. 
 
 Writ of, against shareholder. 
 PANY,G 84.] 
 
 [See CoM- 
 
 SCOTCH LAW. 
 
 (A) Husband and Wife. 
 (a) Consensual marriage. 
 (6) Legitim. 
 
 (c) Divorce. 
 
 (B) Alehouse. 
 
 (C) Bill or Exchange. 
 
 (D) Sale by Sample. 
 
 (E) Statutoey Impeotement Commissionees. 
 
 (F) Aebitbation : Societt op Inspectobs op 
 
 POOE. 
 
 (G) Chuech Bells. 
 
 (H) Debtoe and Cbeditoe, 
 (I) Law of Real Peopeett. 
 
 (a) Conveyance: "dispone." 
 
 (A) Setting aside deed, 
 
 (c) Presmnption against change of destina- 
 tion : extrinsic evidence. 
 
 (i) Entails. 
 
 (e) Settlement : charge far younger children. 
 
 (/) Power of appointment. 
 
 (g) Minerals. 
 
 {h\ Lease of shop. 
 
 (i) Agruyulturallease, 
 
 \k) Tands. 
 
 {!) Fishery. 
 
 (m) Inventory duty. 
 (K) Peaotice and Jueisdiction. 
 
 (a) Costs. 
 
 (6) Contempt of Court. 
 
 (A) Husband and Wife. 
 (a) Consenmal marriage, 
 
 1. — Consideration of the circumstances neces- 
 sary to establish a Scotch consensual marriage. A 
 written declaration signed by both parties is con- 
 clusive. Forster v. Forster, Law Rep. 2 Sc. App. 
 244. 
 
 2. — Consideration of the evidence necessary to 
 establish a consensual marriage. Steuart v. 
 Soiertson, Law Rep. 2 Sc. App. 494. 
 
 3, — Presumption of marriage arising from co- 
 habitation and acknowledgment, held rebutted by 
 the circumstance of the subsequent marriage of 
 the parties after the birth of children. Shedden 
 V. Patrick, Law Rep. 1 Sc. App. 470. 
 
 (6) Legitim. 
 
 4. — The wife's legitim is subject to the debts of 
 her husband. Lcarmouth v. Miller, Law Rep 2 
 Sc. App. 438. 
 
 Tlie maxim that a man cannot deal with his 
 property so as to deprive his creditors of his in- 
 come therefrom applies in Scotch law. Ibid. 
 
 A provision in a voluntary post-nuptial contract 
 that income of legitim should be " alimentary and 
 in nowise attachable for debt," — Held, not to ex- 
 clude the husband's creditors. Ibid. 
 
 (c) Divorce. 
 
 5.- — Divorce for desertion involves a forfeiture 
 of all claims under a marriage settlement. So 
 also divorce for adultery. Whether an adulterous 
 husband is bound to restore tocher paid over to 
 him at the time of marriage, quaere ? Harvey v. 
 Farguhar, Law Sep. 2 Sc. App. 192. 
 
 (B) Alehouse. 
 
 6. — Where magisfcrates made an order for closing 
 all the public-houses in their burgh at ten (instead 
 of eleven, the usual hour in Scotland), — Held, that 
 as such order purported to extend to " a particular 
 locality," it was tiltra vires, under 25 & 26 Vict, 
 c. 35. Macbeth v. Ashley, Law Rep. 2 Sc. App. 362. 
 
 (C) Bill op Exchange. 
 
 7.— Where the holder of a dishonoured bill 
 released the acceptor, but reserved his claim 
 against other obligants, — Held, that the in- 
 dorsers were not discharged. Muir v. Crawford, 
 Law Eep. 2 Sc. App. 456. 
 
 (D) Sale by Sample. 
 
 8. — By Scotch law where goods are sold by 
 sample, the purchaser, even though he has ac- 
 cepted the goods, may return them if they are not 
 according to sample. But the purchaser, desiring 
 to rescind, ought to make a distinct offer to return 
 the goods. Couston v. Chapman, Law Rep. 2 Sc. 
 App. 250. 
 
 (E) Statutoey Improvement Commissionees. 
 9. — Where the above Commissioners had ac- 
 cepted an offer, they were held bound specifically 
 to perform it, though the contract proved to 
 
520 
 
 SCOTCH LAW (E), (I). 
 
 be one likely to be injurious to the public in- 
 terests. Smeaton v. The Magistrates of 8i. An- 
 drews, La-w Rep. 2 Sc. App. 107. 
 
 (F) Aebiteation: Society op Inspectoes of 
 
 POOE. 
 
 10. — The Society of Inspectors of Poor for 
 Scotland are a fluctuating body, but nevertheless 
 a reference to their arbitration is valid. The 
 Parish of Bathven \. The Parish of Elgin, Law 
 Eep. 2 Se. App. 535. 
 
 Case in which the House of Lords rectified the 
 decree below to suit the pleadings. Ibid. 
 
 (Gr) Church Bells. 
 
 11. — Where, on the re-erection of a parish 
 church in Scotland, the town subscribed to the 
 steeple upon the terms that the bells should be 
 employed for the parish as well as the town, — 
 Held, that the bells could not be rung for the 
 purpose of dissenting congregations. The Magis- 
 trate of Peebles v. The Minister and Kirk Session 
 of Peebles, Law Eep. 2 Sc. App. 460. 
 
 (H) Dbbtoe and Geeditoe. 
 
 12. — There is no discretion given to the Judge 
 by 19 & 20 Vict. c. 79 (Soot.), to abstain from en- 
 forcing penalties. A creditor was held subject to 
 the penalties (double the amount of the bribe) 
 who, in ignorance of the law, had accepted a bribe 
 to consent to a dividend, though he returned the 
 bribe with interest when informed of its illegality. 
 Carter v. McLaren ^ Co., Law Eep. 2 Sc. App. 120. 
 
 13. — The maxim that a man cannot deal with 
 his property, so as to deprive his^reditors of the 
 income, applies in Scotland. Learmouth v. Miller, 
 Law Eep. 2 Sc. App. 438. 
 
 (I) Law op Eeal Peopeety. 
 
 (a) Conveyance: "dispone." 
 
 14. — The use of the word " dispone " is essen- 
 tial for the conveyance of heritable property in 
 Scotland. An invalid instrument of conveyance 
 cannot revoke a previous valid one. Alexander v. 
 Kirkpatrick, 2 Sc. App. 397. 
 
 (i) Setting aside deed. 
 
 15. — A deed affecting heritage executed on a 
 death-bed may be set aside ex capite lecti. Newton 
 V. Newton, Law Eep. 2 Sc. App. 13. 
 
 But not so where the deed is made in execution 
 of a faculty or power. Ibid. 
 
 Provisions for a widow and younger child set 
 aside by the heir in possession under an entail. 
 Ibid. 
 
 (c) Presumption against change of destination : 
 extrinsic evidence. 
 
 16.— In Scotch law as to heritable property 
 there is a strong presumption against change of 
 destination once made. Construction of words of 
 general disposition. Semble — by Scotch law ex 
 trinsic evidence of intention is admissible in con- 
 struction of documents. Glendonwyn v. Gordon, 
 Law Eep. 2 Se. App. 217. 
 
 {d) Entails. 
 
 17. — Consideration of the rules of construction 
 applicable to Scotch entails. Case in which the 
 resolutive clause was held sufficiently to embrace 
 and cover the cardinal prohibitions. McDonald v. 
 McDonald, Law Eep. 2 Se. App. 446. 
 
 18. — In a Scotch deed of entail a power to 
 grant a certain number of years' rent as a provision 
 for younger children is an ordinary power, and is 
 introduced as an exception to the general re- 
 strictions. Meaning of "younger children." Catton 
 V. Mackenzie, Law Eep. 2 So. App. 202. 
 
 19. — Heir of entail relieved from provisions in 
 favour of the widow of the testator, maker of 
 entail. Mackintosh v. Mackintosh, Law Eep. 2 
 Sc. App. 310. 
 
 20. — In construction of Scotch strict entail the 
 whole issue, male and female, of each stirps must 
 be exhausted before going to subsequent limita- 
 tions. Forbes v. Trefusis, Law Eep. 2 Sc. App. 328. 
 
 21. — Under a strict entail, duly recorded, the 
 possessor's attainder for high treason affects only 
 himself and the heirs of his body, leaving substi- 
 tutes untouched ; but if the entail be not duly 
 recorded, such attainder vests the estate in the 
 Crown absolutely, the interests of substitutes 
 perishing, and this although the attainted pos- 
 sessor may have made up no title and is merely 
 in apparency. In re the Earl of Perth v. Lord 
 Elphinstone, Law Eep. 2 Sc. App. 139. 
 
 (e) Settlement : charge for yownger children. 
 
 22, — Where a husband by ante-miptial articles 
 and post-nuptial settlement conveyed his estate to 
 himself and the heir male of the marriage, and 
 bound himself, his heirs, and successors whom- 
 soever, to pay 16,0002. " to the younger child or 
 children of the marriage " : — Held, that the heir 
 alone, taking in that capacity (and not the heir 
 and the younger children proportionately), was 
 bound to pay the 16,000^., although the inherited 
 estate was only worth 28,000Z., and the free execu- 
 tory or personalty was only 1,500Z. Leslie r. 
 Macleod, Law Eep. 2 Sc. App. 44. 
 
 (/) Power of appointment. 
 
 23. — A father with a power of appointment 
 under his marriage settlement amongst his children 
 is precluded from entering into any negotiation 
 with his children in executing the power. A 
 power may be executed without being referred to ; 
 and may be exercised by several appointments 
 from time to time. Guninghame v. Anstruther, 
 Law Eep. 2 Sc. App. 223. 
 
 24. — Where a valid appointment is made ac- 
 companied by directions and conditions which are 
 beyond the power, these will not invalidate the 
 appointment but will be simply inoperative. Nor 
 will they bind the appointee, even though they 
 formed the motive for the appointment. McDonald 
 V. McDonald, Law Eep. 2 Sc. App. 482. 
 
 25. — Appointment by husband and wife under 
 a power in an ante-nuptial settlement of 25,000?. 
 " to be settled and belong to their eldest son, and 
 other members of their family in succession, being 
 
SCOTCH LAW (I)— SEDUCTION. 
 
 521 
 
 heirs in possession of their entailed estate": — 
 Held, that the eldest son and heir-in-tail in pos- 
 session took absolutely, and that the money was 
 not within the entail statute of 1685. McDonald 
 T. McDonald, Law Eep. 2 Sc. App. 482. 
 
 (g) Minerals. 
 
 26. — On a reservation of minerals in a feu 
 charter the minerals and surface become separate 
 tenements, and the proprietor of the former may 
 make a tunnel through them for the conveyance 
 of other minerals belonging to him; he is not 
 obliged to use the minerals merely for the purpose 
 of bringing them to the surface. Per Hatherley, 
 L.C., and Lords Westbury and Colonsay; Lord 
 Chelmsford dissenting. The Duke of Hamilton v. 
 Graham, Law Eep. 2 Sc. App. 166. 
 
 27. — ^eu of land reserving subjacent minerals 
 with a stipulation that the feuor should have no 
 claim against the superior or his tenants in respect 
 of any damage that might arise from the working 
 of the minerals: — Held; that the feuor was not 
 entitled to an interdict to prohibit mineral work- 
 ings from which damage had arisen. Buchanan 
 V. Andrew, Law Eep. 2 Sc. App. 286. 
 
 28. — ^In a. lease of minerals the lessee takes 
 the risk of the failure of the minerals as to quality 
 or value, or of their not being " workable to profit," 
 but he is not bound if the minerals do not in fact 
 exist. Gowan v. Christie, Law Eep. 2 Sc. App. 273. 
 
 (A) Lease of shop. 
 
 29. — In the lease of a retail shop there is not 
 necessarily inherent a prohibition against the use 
 of it for sales by auction. Keith v. Eeid, Law 
 Eep. 2 Sc. App. 39. 
 
 (J) Agricultural lease. 
 
 30. — ^An agricultural lease in Scotland, if silent 
 as to sports, confers no right of sporting on the 
 lessee. Copland v. Maxwell, Law Eep. 2 Se. App. 
 103. 
 
 {h) Teinds. 
 
 31. — ^A person may be both tacksman and titular 
 of the same teinds. Lee v. Johnstone, Law Eep. 
 1 Sc. App. 426. A valuation of teinds held bind- 
 ing, although the ministers were not cited, their 
 interest being identical with that of the titulars 
 who were parties. Forbes v. Smith, Law Eep. 2 
 Sc. App. 89. 
 
 (l) Fishery. 
 
 32. — Consideration of the nature of the rights, 
 inter se, of proprietors on opposite banks of a 
 river, of fishing in the stream. A base right to 
 salmon followed by forty years' possession is un- 
 impeachable. Zeilamd v. The Glover Incorpora- 
 tion, Law Eep. 2 Se. App. 70. 
 
 (m) InvcTitory duty. 
 
 33. — Inventory duty, under 5 & 6 Vict. e. 79, 
 s. 23, is not chargeable where the provisions in a 
 marriage settlement constitute a debt. A debt is 
 an obligation arising from cor j-act. The Lord 
 Advocate of Scotland v. Hagari, Law Eep. 2 Sc. 
 App. 217. 
 
 Digest, 1870—1875. 
 
 (K) Pbaotioe and Jubisdiotion. 
 
 (a) Costs. 
 
 34. — Eegret expressed at the costly litigation 
 in Scotch appeals. Fraser v. Crawford, Law Eep. 
 2 Sc. App. 42. 
 
 (6) Contempt of Court. 
 
 35. — In cases of defiant contempt a Judge may 
 commit the oifender to prison instantly. Where 
 an agent, notwithstanding the Judge's remon- 
 stranftes, persisted in carrying off a document in 
 manibus Curim, — Held, that a process caption 
 should issue, and that notice was unnecessary. 
 Watt V. Ligertwood, Law Eep. 2 Sc. App. 361. 
 
 [And see House oe Lobds,] 
 
 SCEIP CEETIFICATES. 
 
 Scrip certificates issued by the agent of a foreign 
 government, and entitling the bearer to a bond 
 of the government for the amount in respect of 
 which the certificates are issued, are negotiable 
 instruments, so that the true owner, in fraud of 
 whom they have been passed by delivery, has no 
 right of action against a bond fide holder for 
 V£due. Goodwin v. Eobarts, Law Eep. 10 Exch. 
 76 : affirmed by the Exchequer Chamber, 44 Law 
 J. Eep. (n.s.) Exch. 157 ; Law Eep. 10 Exch. 337. 
 
 Semble — where the agent of a foreign Govern- 
 ment enters into a contract, in which he is de- 
 scribed as such, the presumption is that he is not 
 personally liable. Ibid. 
 
 SEA FISHERIES. 
 
 [31 & 32 Vict. c. 45, amended. 38 & 39 Vict. 
 c. 16.] 
 
 SECUEITY FOE COSTS. 
 
 [See Costs at Law, 18-20; Costs m EaciTY, 
 51-53 ; DiTOECE, 84, 85.] 
 
 SEDUCTION. 
 
 The plaintiff's daughter lived as governess with 
 a Mrs. C. on the terms that she should be allowed 
 the ordinary holidays at Christmas and Mid- 
 summer. Those holidays she spent at her mother's 
 (plaintiff's) house, and in addition, with Mrs. C.'s 
 permission, on one occasion left her and spent four 
 days at her mother's house, and then returned to 
 Mrs. C. During those four days she was seduced 
 by the defendant. She afterwards, left Mrs. C. and 
 entered the service of anotheij, and during the 
 latter service the child, the result of the seduction, 
 was born. On all the occasions when she was at 
 her mother's house, she assisted her mother in the 
 household duties. The plaintiff having brought 
 3X 
 
522 
 
 SEDUCTION-SET-OFF (A). 
 
 an action for seduction, — Held, that she was 
 rightly non-suited because the relation of master 
 and servant did not exist between the plaintiff 
 and her daughter at the time of the seduction. 
 And per Kelly, C.B., Martin, B., and Bramwell, B., 
 because that relation did not exist when the 
 daughter's child was born, and no loss of service 
 consequent on the seduction resulted to the plain- 
 tiff. Hedges v. Tagg, 41 Law J. Eep. (n.s.) Exch. 
 169 ; Law Eep. 7 Exch. 283. 
 
 Interrogatories in action for. [See Piiio- 
 TicE AT Law, 13.] 
 
 SESSIONS. 
 [See JnsTiCE of the Peace, 5-11.] 
 
 SEPARATION DEED. 
 [See Babon and Feme, 32-34.] 
 
 SEaUESTRATION. 
 
 [And see Chuech and Cleegt, 32 ; Peaotice in 
 EaniTT, 121, 122.] 
 
 An executor had deposited at his bankers money, 
 being part of his testator's estate, and an order had 
 been made that the executor should pay the money 
 into Court, and sequestration had issued against 
 him : — Held, that an adverse order to pay the 
 money in could not he made against the bankers, 
 not being parties to the suit, but on their sub- 
 mission to the jurisdiction a directory order was 
 made. Manton v. Manton, 40 Law J. Eep. (n.s.) 
 Chanc. 93. 
 
 SEEVICE. 
 
 In Bankruptcy. [See Banke-dptot, N 
 
 26-29.] 
 Of winding-up petition. [See Company, 
 
 129.] 
 In divorce. [See Divoece, 55-57.] 
 Of petitions under Lands Clauses Act. [See 
 
 Lands Clauses Consolidation Act, 
 
 33, 45.] 
 Of process at law. [See Peactice at Law, 
 
 1-5.] 
 Of proceedings in Equity. [See Peactice 
 
 IN Equity, 125-129.] 
 
 SEEVICE OF SUMMONS. 
 Where the defendant, a fisherman, went to sea 
 on the 9th of March, and a summons for an assault 
 was taken out against him on that day, requiring 
 him to appear on the 12th of March, and was 
 served on the 10th by leaving it with his mother 
 at his usual place of abode, — Held, that proof of 
 such service was not proof that the summons 
 " was duly served upon him a reasonable time 
 before the time appointed for appearance " within 
 sections 1 and 2 of 11 & 12 A^ict. c. 43. The 
 Queen v. Smith, Law Eep. 10 Q.B. 604. 
 
 SET-OFF. 
 
 (A) At Law. 
 
 (a) By shareholder of company woimd up 
 
 under supervision. 
 (J) Flea of equitable set-off. 
 (c) Equitable defence to plea of set-off. 
 
 (B) In Equity. 
 
 (a) Misrepresentation. 
 
 (J) Demand in different rights. 
 
 (C) In Bankeuptoy. 
 
 (A) At Law. 
 
 (a) By shareholder of company wound wp under 
 supervision. 
 
 1. — A limited company — which was being 
 wound, up for insolvency under the Companies 
 Act, 1862, at first by a resolution to wind up 
 voluntarily, and afterwards by an order of the 
 Court of Chancery that the winding up should 
 continue subject to its supervision — sued a share- 
 holder for a debt contracted after the order was 
 made. The defendant pleaded as a set-off a debt 
 from the company due before the resolution was 
 passed: — Held, that the plea was bad: first, be- 
 cause the debts are not "mutiial" within the 
 meaning of the statutes of set-off, 2 Geo. 2. o. 22, 
 s. 13, and Geo. 4. c. 24, s. 4, 5 ; secondly, be- 
 cause (on the authority of the dicta in The 
 Brighton Arcade Company (Lim.) v. Bowling, 37 
 Law .1. Eep. (n.s.) C. P. 125 ; Law Eep. 3 C. P. 
 175), such a set-off is excluded by the Companies 
 Act, 1862; thirdly (per Bramwell, B.), because no 
 debt can be set off, unless it can be sued for in a 
 cross-action, and by the effect of the Companies 
 Act, 1862, after such an order has been made, no 
 action can be brought against the company without 
 the leave of the Court of Chancery, ^ankey 
 Brook Coal Company {Lim.) v. Marsh, 40 Law J. 
 Eep. (n.s.) Exch. 125; Law Eep. 6 Exch. 186. 
 
 (J) Flea of equitable set-off. 
 
 2. — Where a plaintiff is suing merely as trus- 
 tee, and the defendant has a claim against the 
 cestui que trust, which, but for the intervention of 
 the trust, would have been a legal set-off, such daim 
 can be set off in equity, and therefore, in an 
 action at law can be set off by an equitable plea. 
 Thornton v. Maynard, 44 Law J. Eep. (n.s.) C. P. 
 382 ; Law Eep. 10 C. P. 695. 
 
 The declaration contained nine counts on nine 
 bills of exchange, of which the plaintiffs were 
 indorsees, E. & Co. drawers, and the defendant 
 acceptor. Plea, upon equitable grounds as to 425?:, 
 parcel of the amount claimed, that the drawers 
 liquidated their affairs by arrangement, and the 
 plaintiffs received 425Z. as a dividend on the 
 amount of the bills due from the drawers to 
 the plaintiffs as indorsees, and that, as regards the 
 
SET-OFF (A)— SETTLED ESTATES ACTS (A). 
 
 623 
 
 425^., the plaintiffs sued only as trustees for the 
 drawers' estate. The plea then alleged a set-oflf 
 of a debt due to the defendant, the acceptor, 
 from the drawers of the bills :— Held, upon de- 
 murrer, a good plea. Ibid.' 
 
 [And see Pleading at Law, 5.] 
 
 (o) Equitable defence to plea of set-off. 
 
 3. — Declaration upon an order of the Court of 
 Queen's Bench in Ireland (in an action by the 
 now defendant against the plaintiff) by which 
 the plaintiff was dismissed and the defendant 
 ordered to pay costs, and which order, by the 
 Common Law Procedure Amendment Act (Ireland), 
 1863, had the effect of a judgment upon a nonsuit. 
 Plea, a set-off under other Irish judgments. Eepli- 
 cation on equitable grounds that the plaintiff re- 
 tained C, an attorney, to conduct his ease in the 
 Irish Courts, and that the money ordered to be 
 paid to the plaintiff, as in the declaration men- 
 tioned, was due to C. for costs in the action, and 
 therefore became due to the plaintiff as a trustee 
 for C, and that the action was brought in the 
 name of the plaintiff for the benefit of 0. : — Held, 
 on demurrer, that the replication was bad, as the 
 lien of the attorney did not constitute the relation 
 of trustee and cestui que trust between him and 
 his client, so as to prevent the defendant pleading 
 a, set-off, but was at most only ground for the 
 summary interference of the Court on an applica- 
 tion to set off cross-judgments. Mercery. Graves, 
 41 Law J. Eep. (n.s.) Q.B. 212; Law Hep. 7 
 Q. B. 499. 
 
 (B) In Eoottt. 
 (a) Misrepresentation. 
 
 4. — P., a solicitor, represented to K. and E. 
 that he had invested on mortgage the whole of a 
 sum of money belonging to K. and E. on a joint 
 account, which they had placed in his hands for 
 the purpose of being invested. Afterwards K. 
 borrowed on his separate account a sum of money 
 from P. P. dying insolvent, and it appearing 
 that he had not invested the whole of the sum of 
 money placed in his hands by K. and E., whereby 
 a portion of the sum was lost, — Held, that the 
 separate debt of K. to P. could not by reason of 
 the fraud of P. be set off against the debt of P. 
 to K. and E. Ex parte Stephens (11 Ves. 24) and 
 Vvlliamyv. Noble {i Mer. 693) explained. Mid- 
 dleton V. Pollock ; Ex parte Knight, 44 Law J. 
 Bep. (n.s.) Ohanc. 618; Law Eep. 20 Eq. 516. 
 
 (i) Demands in different rights. 
 
 6, — A. demand, in the character of trustee or 
 executor, cannot be set off against a debt due from 
 the trustee or executor personally, although the 
 executor give evidence to shew that he is, in fact, 
 personally beneficially entitled to the amount 
 which is due to him in the character of executor. 
 The only cases in which such a set-off of claims 
 arising in different rights can be allowed are 
 those where the person claiming the benefit of 
 it can shew some equitable ground (other than 
 the mere claim of set-off) for being protected 
 
 against the legal demand. Nature of equitable set- 
 off discussed. The dicta in Cochran v. Green (9 Com. 
 B. Eep. N.S. 448 ; 30 Law J. Eep. (n.s.) C. P. 97) 
 disapproved of. Middleton v. Pollock, 44 Law J. 
 Eep. (n.s.) Chanc. 684 ; Law Eep. 20 Eq. 29, 
 
 Set-off as between principal and agent. 
 
 [See Peinoipal and Agent, 9, 10.] 
 Advances by charterers : mortgage of freight. 
 
 [See Shipping Law, I 18.] 
 
 (C) In Bankhuptct. 
 [See Bankeuptoy, F ; 12.] 
 
 Set-off against bankers of money due on 
 executorship account against money 
 owing on private account, [See Bank- 
 EUPTCY , F 3.] 
 
 Set-off of debt barred by statute. [See 
 Limitations, Statute of, 31 ; Admi- 
 nisteation, 36.] 
 
 Set-off in administration suit of advances 
 by administrator. [See Advance- 
 ment, 3.] 
 
 Set-off in winding up of company, [See 
 Company, G 30; 39-42.] 
 
 SETTLED ESTATES ACTS. 
 
 (A) PowEE OF Leasing : Equitable Tenant 
 
 FOE Life. 
 
 (B) Peaotice undee Settled Estates Acts. 
 {a) Advertisement of petition. 
 
 (6) Time between advertisements and hea/r- 
 
 ing. 
 {c) Concurrence of cestuis que trusts. 
 
 (d) Persons of unsound mind. 
 
 (e) Married women. 
 (/) Sale of copyholds, 
 (g) Interim investment, 
 (h) Application of moneys, 
 
 (1) Permanent improvements. 
 
 (2) Vayment to tenant in, tail. 
 
 (3) Payment to trustees. 
 
 (A) Power of Leasino : Eouitable Tenant 
 FOE Life. 
 
 1. — The testator devised two-fifths of real 
 and personal estate to trustees, to receive the 
 rents and income and pay the same to his widow 
 for life. He then, subject to annuities and lega- 
 cies, gave his residuary real and personal estate 
 to the same trustees upon trust, after defraying 
 "ground and landlord's rent (if any), and all 
 taxes, charges, and expenses of insurance, re- 
 pairs, collections, and other necessary outlay," 
 to pay the " net annual rents, interest, and income 
 then left " to his widow for life, with remainder 
 over. The will contained no power, of leasing : 
 — Held, that his widow had no power to grant 
 leases under the 32nd section of the Leases and 
 Sales of Settled Estates Acts. Taylor v. Taylor ; 
 Ex parte Taylor, 44 Law J. Eep. (n.s.) Chanc. 727 : 
 Law Eep. 20 Eq. 297. 
 
 3x2 
 
624 
 
 SETTLED ESTATES ACTS (B). 
 
 The fact that the Court in its discretion naight 
 upon terms put an equitable tenant for life into 
 possession, or take the receipt of the rents from 
 the trustees and give them to him, does not make 
 him a "person entitled to the possession, or to the 
 receipt of the rents and profits," within the mean- 
 ing of the 32nd section. Ibid. 
 
 (B) Practice ■undee Settled Estates Acts. 
 
 (a) Advertisement of petition. 
 
 2. — In a petition presented under the Settled 
 Estates Act for the sale of certain devised estates, 
 the testator was correctly described as of Gotham, 
 in the county of " Nottingham," but in the adver- 
 tisements issued under section 20 of the Act, and 
 General Order xli. rules 14, 15, he was by mistake 
 described as of Gotham, in the county of "Mid- 
 dlesex : " — Held, that the error was not one likely 
 to mislead, and that therefore the irregularity 
 might be waived. In re Hemsley's Settled Estates, 
 43 Law J. Kep. (n.s.) Chanc. 72; Law Eep. 16 
 Eq. 315. 
 
 3, — Where a female petitioner under the above 
 Acts married after the publication of advertise- 
 ments but before the hearing of the petition, the 
 Court dispensed with fresh -advertisements and 
 with her examination. In re MarshaWs Settled 
 Estates, Law Eep. 15 Eq. 66. 
 
 4. — In the heading of advertisements issued 
 under General Order xli. rule 15, the title 
 "Leases and Sales of Settled Estates Act" is a 
 sufficient description of the Act. In re BicJcnell's 
 Settled Estates, Law Eep. 14 Eq. 467. 
 
 (/)) lime between advertisements and hearing. 
 
 5, — To save a petition under the Leases and 
 Sales of Settled Estates Acts from being thrown 
 over the long vacation, the Court will order it to 
 be heard before the expiration of the twenty-one 
 days which, according to the General Order, 
 should elapse from the time of the last adver- 
 tisement before the hearing. In re Taylor's Settled 
 Estates, 42 Law J. Eep. (n.s.) Chanc. 504 ; Law 
 Eep. 14 Eq. 557. 
 
 The Court can order the examination under the 
 Act of a married woman who conciu-s in the ap- 
 plication to take place at the hearing. Ibid. 
 
 6. — A petition allowed to be placed in the 
 paper for the last petition day before the long 
 vacation; although the twenty-one days from the 
 last advertisement would not then have expired. 
 In re Taylor's Settled Estates, Law Eep. 1 4 Eq. 
 657. In a similar case, however, the Master of 
 the EoUs refused to allow this. In re Townsend's 
 Settled Estates, Law Eep. 14 Eq. 433. 
 
 (c) Concurrence of cestuis gve trusts. 
 
 7. — Lands were devised to trustees in trust 
 for a tenant for life, and after her death upon 
 trust to sell, with power to give receipts, and to 
 hold the proceeds on trust for all the children of 
 the tenant for life who should be living at her death 
 and should attain twenty-one, and the issue then 
 living, who should attain twenty-one, of any child 
 who should have previously died, per stirpes, as 
 tenants in common. The tenant for life had six 
 
 children, one of whom, Mrs. W., was married 
 and had infant children. Upon a petition for a 
 sale under the Leases and Sales of Settled Estates 
 Act, the trustee, the tenant for life, and all her 
 children, were either represented or willing to 
 concur, but the infant children of Mrs. W. 
 were not represented : — Held, first, that, as a 
 class of persons entitled to a contingent interest 
 who could not at present be ascertained, the con- 
 currence of the infant children of Mrs. W. was 
 not requisite. Secondly, that the property being 
 devised to trustees upon trust for sale, with 
 power to give receipts, the concurrence of the 
 cestuis que trusts was unnecessary. In re Strutt's 
 Trusts, 43 Law J. Eep. (n.s.) Chanc. 69 ; Law 
 Eep. 1 6 Eq. 629 ; and In re PoUs's Estate, Law 
 Eep. 16 Eq. 631, n. 
 
 (d) Persons of unsound mind. 
 
 8. — The Court cannot, under the Leases and 
 Sales of Settled Estates Act (19 & 20 Vict. e. 
 120, ss. 17 and 36), appoint a guardian to con- 
 sent, on behalf of a lunatic not so found by in- 
 quisition, to a sale of his estates. In re Vernier's 
 Settled Estates (Law Eep. 6 Eq. 249) dissented 
 from. In re dough's Settled Estates, 42 Law J. 
 Eep. (n.s.) Chanc. 393 ; Law Eep. 15 Eq. 284. 
 
 9. — A notice, under section 2 of the Act 37 & 
 38 Vict. c. 33, of an application under the Leases 
 and Sales of Settled Estates Act, may be given to 
 a person of unsound mind, not so found by inqui- 
 sition. In re Crabtree's Settled Estates, 44 Law J. 
 Eep. (n.s.) Chanc. 261 ; Law Eep. 10 Chanc. 201. 
 
 (e) Married women. 
 
 10. — On a petition under the Settled Estates 
 Act to sanction a lease of property vested in 
 trustees without power of leasing, the lease 
 being clearly for the benefit of all parties, the 
 separate examination of a married woman in- 
 terested in the property and resident in Australia, 
 was dispensed with. In re Halliday's Trusts, 40 
 Law J. Eep. (n.s.) Chanc. 687; Law Eep. 12 
 Eq. 199. 
 
 11. — When a sale of settled estates is autho- 
 rised by the Court under the powers conferred 
 by the Leases and Sales of Settled Estates Act, 
 1856, the consent of an infant married woman, 
 tenant in tail, must be obtained by her examina- 
 tion apart from her husband, and cannot be given 
 by her guardian on her behalf. In re Broadwood's 
 Settled Estates, 41 Law J. Eep. (n.s.) Chanc. 349 ; 
 Law Eep. 7 Chanc. 323. 
 
 (/) Sale of copyholds. 
 
 12.— Upon a petition under the Settled Estates 
 Act for the sale of certain settled real estate, 
 partly freehold and partly copyhold, the Court 
 directed the copyholds to be enfranchised, the 
 whole to be sold as freehold, and the costs of en- 
 franchisement to be paid out of the proceeds of 
 sale. In re Adair's Settled Estates, 42 Law J. 
 Eep. (n.s.) Chanc. 841 ; Law Eep. 16 Eq. 124. 
 
 {g) Interim investment, 
 13. — Notwithstanding" thai the Leases and 
 
SETTLED ESTATES ACTS (B)— SEWEES (A). 
 
 526 
 
 Sales of Settled Estates Act directs purchase 
 money to be invested in Consols or Exchequer Bills, 
 the Court may make an order authorising an in- 
 vestment in any manner in which cash tinder its 
 control might be invested. In re Cook's Settled 
 Estates, 40 Law J, Eep. (n.s.) Chanc. 400 ; Law 
 Eep. 12 Eq. 12. 
 
 14. — The purchase-moneys of settled estates 
 paid into Court under the Settled Estates Act 
 are " cash under the control of the Court " within 
 the meaning of the 23 & 24 Vict. ss. 10 & 11, so 
 as to empower the Court to order them to be in- 
 vested in any manner in which cash under its 
 control may be invested, notwithstanding that 
 the Settled Estates Act has directed such moneys 
 to be invested in Exchequer Bills or Consols. In 
 re Thorold's Settled Estates, 41 Law J. Eep. (n.s.) 
 Chanc. 780 ; Law Eep. 14 Eq. 31. 
 
 15, — ^Purchase-moneys in Court arising from a 
 sale under the Settled Estates Act are " cash 
 under the control of the Court," within the 23 & 
 24 Vict. c. 38, ss. 10, 11, so as to empower the 
 Court to order them to be invested as such. 
 In, re Toddy's Settled Estates, 43 Law J. Eep. (n.s.) 
 Chanc. 191 ; Law Eep. 16 Eq. 532. 
 
 16. — Interim investments of purchase-money of 
 estates sold under the above Act must be made in 
 the manner prescribed by section 23. In re Cook's 
 Settled Estates (40 Law J. Eep. (n.s.) Chanc. 400) 
 not followed. In re Shaw's Settled Estates, 41 Law 
 J. Eep. (n.s.) Chanc. 166 ; Law Eep. 14 Eq. 9. 
 
 17. — Money in Court, proceeds of a sale under 
 the Leases and Sales of Settled Estates Act, is 
 not a fund under the control of the Court within 
 the meaning of section 10 of 23 & 24 Vict. c. 38, 
 but can only be applied or invested as directed by 
 sections 23 and 26 of the Leases and Sales of 
 Settled Estates Act. In re Boyd!s Settled Estates, 
 42 Law J. Eep. (n.s.) Chanc. 506. 
 
 {h) Application of money. 
 
 (1) Fermanent improvements. 
 
 18. — Under section 23 of the Leases and Sales 
 of Settled Estates Act the Court has power to 
 direct that money arising from a sale under the 
 Act be laid out in permanent improvements of 
 the remainder of the settled estate, such as the 
 erection of new farm buildings. In re Newman's 
 Settled Estates, 43 Law J. Eep. (n.s.) Chanc. 702 ; 
 Law Eep. 9 Chanc. 681. 
 
 (2) Payment to tenant in tail. 
 
 19. — Per Malins, V.O. — On payment out to 
 tenant in tail under the Leases and Sales of Set- 
 tled Estates, no disentailing deed is necessary. 
 In re WoocHs Settled Estates, Law Eep. 20 Eq. 372. 
 [And see Pkaciice w EotriTY, 93, 94.] 
 
 (3) Payment to trmtees. 
 20. — A will contained a trust for sale and divi- 
 sion of the proceed,?, but the trust not being imme- 
 diately exerciseable by the trustees, a sale was 
 ordered under the Settled Estates Act :— Held, that 
 the proceeds might be pajd to the trustees, instead 
 
 of being applied as directed by section 23. In re 
 Morgan's Settled Estates (Law Eep. 9 Eq. 687) 
 followed. In re Hemsley's Settled Estates, 43 
 Law J. Eep. (n.s.) Chanc. 72 ; Law Rep. 16 Eq. 
 316. 
 
 (A) 
 
 (B) 
 
 SEWEES. 
 Eatb. 
 
 (ffi) Exemption. 
 (6) Sewage Utilisation Act. 
 Obdbe of Sechetaky of State. 
 
 (A) Eate. 
 
 (a) Exemption. 
 
 1. — The appellants were rated to a sewers' 
 • rate under the Metropolis Local Management 
 Act, 1855 (18 & 19 Vict. c. 120), in respect of a 
 bridge and its approaches. It appeared that the 
 bridge crossed the Thames, and drained directly 
 into .the river, no part of it draining into any 
 sewer, and that the roads or approaches to the 
 bridge were drained by a sewer vested in the 
 district board of works, though this was not 
 necessary, as the drainage provided by the appel- 
 lants before the construction of the sewers was 
 sufficient : — Held, by the majority of the Court 
 (Blackburn, J., and Hannen, J.), that under the 
 Act 18 & 19 Vict. u. 120, s. 164, the bridge was 
 not property which, at the date of the latter Act, 
 was, according to the old law of sewers, entitled 
 to exemption from sewers' rate, for although the 
 bridge derived no direct or immediate benefit from 
 the sewer, yet it derived " the general benefit and 
 advantage of being accessible, and of its ap- 
 proaches and neighbouring public ways being 
 properly drained and cleansed," according to the 
 rule in Soady v. Wilson (3 Ad. & E. 248), and was 
 therefore liable to the rate. By Cockburn, C.J., 
 without differing from this view of the law, that 
 there was upon the facts no evidence of any such 
 benefit. The Hammersmith Bridge Company v. 
 The Over,ieers of Hammersmith, 40 Law J. JRep. 
 (n.s.) M. C. 79 ; Law Eep. 6 Q. B. 230. 
 
 (5) Sewage Utilisation Act. 
 
 2. — The appellants, a water company, held 
 land in the parish of L. as follows : — No. 1 . Land 
 occupied by a canal with banks, and used by 
 them for the purpose of conveying water to the 
 reservoirs or other apparatus of the company for 
 filtering the same. No. 2. Laud occupied by filter 
 beds, or reservoirs with pipes and apparatus 
 thereto fbced, and used solely for the purpose of 
 filtering water. The beds were covered with sand 
 or gravel, and were used practically for the pur- 
 pose of storing water. No. 3. Land adjoining to 
 the filter beds, and forming the banks to them. 
 No. 4. Land, part of the public roads, footpaths, 
 and other ways, occupied by the iron pipes, mains, 
 and serWce pipes of the appellants. By section 
 17 of the Sewage Utilisation Act, 1867, for the 
 purpose of defraying any expenses in carrying 
 
526 
 
 SEWERS (A)— SHlPPINa LAW, 
 
 the Act into effect, the occupier of any land co- 
 vered with water, or used only as a canal or tow- 
 ing path for the same, shall pay as a rate in 
 respect of such property one-fourth part only of 
 the rate in the pound payable in respect of houses 
 and other property : — Held, that as to the land 
 ahove described, and numbered 1 and 2, the ap- 
 pellants were within the protection afforded by 
 the above section, and were only liable to pay in 
 respect of such land one-fourth of the rate in 
 the pouad payable in respect of houses and other 
 property ; hut that in respect of the other land, 
 numbered 3 and 4, they were liable to be as- 
 sessed in the usual manner. The East London 
 Waterworks Company v. Leyton Sewer Authority, 
 40 Law J. Eep. (n.s.) M. G. 190; Law Eep. 6 
 Q.B. 669. 
 
 New street : apportionment of sewers rate. 
 [See Meteopolis, 16.] 
 
 (B) Obdeb or Sbceetaey of State. 
 
 3.— By the Sanitary Act, 1866 (29 & 30 Vict. 
 c. 90), s. 49, power is given to a Secretary of 
 State, upon complaint that a sewer authority 
 or local board of health has made default in pro- 
 viding its district with sufficient sewers, or in the 
 maintenance of existing sewers, to make an order, 
 limiting a time for the performance of its duty in 
 the matter of the complaint ; and if the duty is 
 not performed by the time limited in the order, 
 to appoint some person to perform it, and by 
 order direct that the expenses of performing the 
 same, &c., he paid by the authority in default : 
 — ;Held, that an order under this section, reciting 
 that a sewer authority " had made default in 
 providing a proper system of main drainage," 
 and ordering the authority to " do its duty, and 
 begin to set about the works for the purpose, 
 within one month from the date of the order, and 
 proceed therewith until completion," was good, and 
 that a second order, made after default in com- 
 plying with the first, appointing a person to 
 " perform the duty of the sewer authority in re- 
 spect to sewerage, as he should be directed by 
 the Secretary of State," was also good. The Queen 
 V. Cockerell, 40 Law J. Kep. (n.s.) M. C. 183 ; 
 Law Eep. 6 Q. B. 252.. 
 
 SEXTON. 
 [See Btteial, 6.] 
 
 SHERIFF. 
 Action against sheriff for false return. 
 
 1. — A return of reserve to a writ of capias ad 
 respondendum is not traversable, but if a sheriff 
 makes a false return, an action will lie against 
 the sheriff at the suit of a party injured there- 
 by, though such return was not made maliciously. 
 Brasyer v. Maclean, 44 Law J. Eep. (n.s.) P. C. 
 79 ; Law Eep. 6 P. C. 398. 
 
 2. — In an action against the defendant as 
 sheriff for a false return, it appeared that the 
 plaintiff had issued a fi, fa. against the goods of 
 one F., and that the defendant, upon being ruled 
 to return the writ, returned that he had seized 
 the goods and chattels of F., and kept them in 
 his possession until ordered to withdraw by the 
 plaintiff. At the trial the statement in the return 
 was not proved, but the defendant shewed that 
 the plaintiff had sustained no actual damage, as 
 the goods upon the premises of F. had been al- 
 ready assigned under a bill of sale, and could not 
 be taken under an execution : — Held, that the 
 defendant was entitled to the verdict, and was 
 not precluded from shewing that his return was 
 inaccurate. Mildmay v. Smith (2 Wms. Saund. 
 343) and Clerk v. Withers (2 Ld. Eaym. 1075) 
 explained. Stimson v. Farnham, 41 Law J. Eep. 
 (N.s.) a. B. 52 ; Law Eep. 7 Q,. B. 175. 
 
 Action for not levying. 
 
 3. — In an action against the sheriff for not levy- 
 ing and for making a false return of nulla bona, 
 it appeared that there were goods of the execu- 
 tion debtor to the value of 501. which were never 
 seized by the defendant, but that two writs of 
 fi. fa. for a greater amount had been lodged with 
 him before the plaintiff's writ was issued. The 
 jury found that these writs were fraudulent, 
 but it did not appear that the defendant had 
 notice of the fraud : — Held, notwithstanding, that 
 he was liable for the value of the goods, inas- 
 much as if he had executed the writs according 
 to their priority, the plaintiff might have con- 
 tested those prior to his own, and established his 
 right to the proceeds of the sale. Dennis v. 
 Whetham, 43 Law J. Eep. (n.s.) Q. B. 129 ; Law 
 Eep. 9 Q. B. 345. 
 
 Wrongful seizure of goods. 
 
 Seizure of goods after expiration of 
 tenancy : liability of sheriff to action. 
 [See Landlobd and Tenant, 14.] 
 
 SHAEES. 
 [See Company.] 
 
 SHIFTING CLAtJSE. 
 [See Tetjst, A 7.] 
 
 SHELLEY'S CASE. 
 [See Deed, 9 ; Will, Constedction, I 19, 20.] 
 
 SHIPPING LAW. 
 
 (A) Assignment of Ship. 
 
 (B) Bill of Ladino. 
 («) Construction. 
 
SHIPPING LAW (A), (B). 
 
 527 
 
 (1) Excepted perils. 
 
 (2) Carriage by steamship. 
 
 (3) " Value, ^c, unknowti." 
 
 (i) Delivery of goods : ctistom of port. 
 (i) Title to goods. 
 
 (1) Notice. 
 
 (2) S/iort delivery : consiniotive notice, 
 
 (3) Appropriation. 
 
 (C) Bottomry. 
 (a) Necessity. 
 
 (J) Future freight. 
 
 (e) Notice to owner : authority of master. 
 
 {d) Master's wages. 
 
 (D) Caego. 
 
 (E) Chaetee-pabtt, 
 
 (fl) Loading of cargo. 
 
 (1) What circumstances justify neglect 
 
 to load. 
 
 (2) Eight to damages. 
 
 (3) Refusal to load : condition prece- 
 
 dent. 
 
 (4) Delay in loading. 
 (6) Ece^ted perils. 
 
 (1) Dangers of seas. 
 
 (2) Restraint of princes : delay. 
 
 (c) Deviation. 
 
 (d) Warranty : words of expectancy. 
 
 (e) " Full and complete cargo." 
 
 (/) Difference between quantity signed for 
 
 and quantity shipped, 
 (g) Commission: "inwards and outwards." 
 (Ji) Illegal voyage. 
 
 (F) Collision and Damage. 
 
 (a) International law : Khedive of Egypt. 
 
 (b) Steam vessels. 
 
 (c) Tug and tow : governing power. 
 {d) Crossing vessels. 
 
 (e) Vessel overtaking another. 
 
 (/) Ironclad ship : with ram. 
 
 Ig) Foul berth. 
 
 (A) Moorage. 
 
 {i) Launch. 
 
 {k) Lights. 
 
 {I) Limitation of liability. 
 
 {m) Infringement of regulations under the 
 
 Merchant Shipping Act, 1873. 
 (») Inevitable accident. 
 (o) Contributory negligence. 
 (jp) Loss of life. 
 (q) Consequential loss, 
 {r) Ballast lighter: Thames Conservancy. 
 (s) Damage without collision. 
 \t) Arrest affreight. 
 
 (G) Dbliteey and Dischaegb of Cargo. 
 (H) Demtjeeage. 
 
 (a) Detention at port of lading. 
 lb) Delay in loading. 
 
 (c) Loading in usual manner. 
 
 (d) Fraction of a day. 
 (1) Freight. 
 
 (o) Payment in advance, 
 lb) Right to freight. 
 
 (1) Shipowner reserving freight of his 
 
 own goods. 
 
 (2) Mutual mistake. 
 
 (8) Performance unlawful by reason of 
 
 war. 
 (4) Dangerous cargo. 
 (c) iMmp freight. 
 Id) Dead freight. 
 (e) lAen for freight. 
 (J) Eights of mortgagee, 
 (g) Derelict : cargo sold by order of Court. 
 (A) Insurance. 
 (K) Foreign Ship. 
 (L) General Avbeage. 
 (M) Master. 
 
 (a) Authority. 
 
 (J) Duty of, to check damage caused to goods 
 
 by excepted perils. 
 (e) Wages. 
 (N) Measurement of Tonnage. 
 (0) Mortgage and Lien. 
 (a) lAen for freight. 
 (6) Priority: solicitor's lien, ^c. 
 (c) Ship " carried into any port." 
 Id) Mortgagee : possession. 
 (e) Eights of mortgagee to freight. 
 (P) Necessaries. 
 (Q) Offences. 
 (E) Pilotage. 
 
 (a) When compulsory. 
 (A) Liability of pilot. 
 (S) Policy of Insurance. 
 (T) Salvage. 
 
 (a) Salvage agreement. 
 (4) Towage. 
 
 (c) Who may be salvors. 
 Id) Eight to salvage reward, 
 («) Distribution of salvage rewa/rd. 
 If) lAfe salvage. 
 \g) Wreck : what is. 
 (A) Inability of salving ship for da/mage. 
 (U) Seaman's Service. 
 (V) Wages. 
 
 [Shipping dues. Amendment of 30 & 31 Vict. 
 c. 15 ; repeal of 32 & 33 Vict. c. 62. 33 & 34 
 Viet. c. 60.] 
 
 [The Merchant and Shipping Acts amended. 34 
 & 36 Vict. c. 110, and 35 & 36 Viet. c. 73.] 
 
 [Eules of Court of Admiralty as to proceedings 
 for damage by collision at sea, where both ships 
 in fault, to prevail, as from November 2, 1874, 
 over rules of Courts of law, 36 & 37 Vict. c. 66, 
 s. 25.] 
 
 (A) Assignment of Ship. 
 
 1. — Whether a ship not yet finished and there- 
 fore incapable of registration under the Merchant 
 Shipping Acts, be properly called a ship or not, it 
 is a thing capable of assignment by certificate in 
 the usual way. Ex parte Winter ; In re Softley, 
 44 Law J. Eep. (n.s.) Bankr. 107 ; Law Eep. 20 
 Eq. 746 nom. Ex parte Hodgkin. 
 
 (B) Blll of Lading. 
 
 (fl) Construction. 
 
 (1) Excepted perils. 
 
 [And see infra, E 6-11.] 
 
 1, — The plaintiffs shipped diamonds on board 
 
628 
 
 SHIPPING LA"W(B). 
 
 the defendants' vessel under bills of lading, con- 
 taining the exceptions "thieves, barratry of master 
 and mariners. . . . The shipowner is not to be 
 liable for any damage to any goods which is 
 capable of being covered by insurance." One box 
 of the diamonds was stolen during the voyage, but 
 there was no evidence to shew whether it was 
 stolen by one of the crew, or by a passenger, or by 
 some person from the shore after the vessel's 
 arrival in port : — Held, first, that the term 
 " thieves " in the exception applied to strangers, 
 and not to persons belonging to the vessel ; 
 secondly, that assuming theft by one of the crew 
 to be " barratry," the defendants must bring the 
 case within the exception by positive proof, which 
 they had failed to do ; thirdly, that the words 
 "damage to any goods" were confined to cases 
 where the goods receive damage from a peril 
 insured against, but not to cases where there has 
 been not damage to the goods but a total abstrac- 
 tion of them. Taylor v. the lAvsrpool and Great 
 Western Steam Company, 43 Law J. Eep. (n.s.) 
 a. B. 205 ; Law Eep. 9 Q. B. 546. 
 
 2, — The right of suing upon a contract under a 
 biU of lading follows the property in the goods 
 specified therein, that is, the legal title to the 
 goods as against the endorser. Where the bill of 
 lading excepted " dangers of the sea," — Held, 
 that damage to oilcake caused by the nature and 
 collocation of a cargo of animal, vegetable, and, to 
 some extent, putrescible matter, from sea-damage 
 done to a portion of the cargo and from want of 
 ventilation, was not within the exception. The 
 Freedom, Law Eep. 3 P. C. 594. 
 
 3. — Where an association of steamship owners 
 entered into an agreement to indemnify each 
 other for loss or damage which, " by reason of 
 improper navigation," might be caused to any 
 goods, &c., on board a steamship : — Held, that 
 damage to the cargo from water, caused by the 
 bilge-cock and sea^-cock being negligently left 
 open, was damage from " improper navigation." 
 Good V. the London Steamship Owner's Mutual 
 Protecting Association, Law Eep. 6 C. P. 563. 
 
 4. — "Accidents from machinery" (among the 
 accepted perils in a bill of lading), include salvage 
 services rendered necessary by the sudden break- 
 ing of the crank shaft of an engine. The Miranda, 
 41 Law J. Eep. (n.s.) Adm. 82; Law Eep. 3 Adm. 
 & Eoc. 561. 
 
 (2) Carriage hy steamship. 
 
 5. — Goods were shipped under a bill of lading 
 which commenced, " Shipped in the steamship 
 Hibernia .... with liberty to call at any ports, 
 in or out of the route, to receive and discharge 
 coals, &c,., and to tranship the goods by any other 
 steamer." The vessel had only an auxiliary 
 screw, and was propelled by steam during a small 
 part of the voyage only, which lasted for about 
 double the time which would have been taken by 
 an ordinary steamer. In an action for delay in 
 delivering the goods, the judge refused to direct 
 the jury that the contract in the bill of lading was 
 for a voyage by steam, but left to them the ques- 
 tion whether the voyage was performed in a 
 
 reasonable time, having regard to the fact that the 
 vessel had only an auxiliary screw : — Held, that 
 the jury had been misdirected, as it was an 
 implied term of the bill of lading that the voyage 
 should be wholly or principally by steam. Fraser 
 V. The Telegraph Construction and Maintenance 
 Company, 41 Law J. Eep. (n.s.) Q,. B. 249; Law 
 Eep. 7 Q. B. 566. 
 
 (3) " Value, ^c, imknown." 
 
 6. — Where, on a closed package being shipped 
 for carriage, a bill of lading containing an innocent 
 misdescription of its contents is presented to the 
 master of the ship, and he, without asking ques- 
 tions or examination, stamps thereon " weight, 
 value and contents unknown," there is a contract 
 to carry the package whatever its contents may be. 
 What is the measure of damages for loss of the 
 contents seems doubtful. Lebeau v. The General 
 Steam Navigation Company, 42 Law J. Eep. (n.s.) 
 C. P. 1; Law Eep. 8 C. P. 88. 
 
 7. — A charter-party, under which a ship was 
 chartered for a grain cargo from the Danube to 
 the United Kingdom for certain freight "per 
 imperial quarter delivered," contained a provision 
 that in the event of the cargo, or any part thereof, 
 being delivered in a damaged or heated condition, 
 the freight should be payable on the invoice quan- 
 tity taken on board, as per bill of lading, or half- 
 freight upon the damaged or heated portion, at 
 the captain's option. The bill of lading stated 
 that 1,021 kilos, were shipped on board; but the 
 master added at the end of the bill of lading, 
 before signing it, the words, " quantity and quality 
 unknown." The cargo having become heated on 
 the voyage, the master claimed to exercise his 
 option, and to be paid freight upon the invoice 
 quantity, as per bill of lading: — Held, that the 
 addition of the words "quantity and quality un- 
 known " to the bill of lading by the master did not 
 take away his right to be paid freight upon the 
 invoiced quantity in the bill of lading, and that 
 the object and effect of that memorandum was 
 merely to protect the captain against any mistake 
 that might occur in the invoice quantity in the 
 bill of lading, in case of alleged short delivery or 
 deterioration not caused by his default. Tully v. 
 Terry, 42 Law J. Eep. (n.s.) C. P. 240; Law Eep. 
 8 C.P. 679. 
 
 (4) Delivery of goods : custom of port. 
 
 8. — The plaintiffs shipped several bales on 
 board the defendant's steam vessel at Calcutta, 
 under a bill of lading, by which the goods were 
 to be delivered to the plaintiffs or their assigns at 
 the port of London, the bill of lading containing 
 the terms that the goods were " to be delivered in 
 the like good order and condition from the ship's 
 deck where the ship's responsibility shall cease." 
 The custom of the port of London was proved to 
 be for steamers coming from a foreign port to dis- 
 charge their cargo on a quay of one of the docks, 
 and for the Dock Company to afterwards put the 
 goods into the lighters of the consignees free of 
 charge, if the consignees send for them within a 
 certain limited time, but if they seud after that 
 
SHIPPING LAW (B). 
 
 520 
 
 time the consignees have to pay the dock cliarges. 
 The defendant's vessel duly arrived with the 
 plaiijtiffs' goods at the port of London, and ac- 
 cording to the custom landed the goods on one of 
 the quays of the Victoria Dock, and the dock com- 
 pany loaded the plaintiffs' lighter. It was proved 
 that although all the plaini iffs' bales were landed 
 on the quay one of f hem wiis lost and' was never 
 put into the plaintiffs' lighter : — Held, thati by the 
 terms of the bill of lading the defendant's liability 
 ceased when the goods left the ship's deck, and 
 that he was therefore not liable for the non-de- 
 livery of the missing bale. Petrocochino v. Bott, 43 
 Law J. Eep. (w.s.) C. P. 214 ; Law Rep. 9 C. P. 355. 
 
 As to law applicable in case of English bills 
 of lading signed hy master of foreign 
 ship. [See infra K.] 
 
 (J) Title to goods. 
 (1) Notice. 
 
 9. — H. & Co. at Manchester consigned goods 
 for sale to L. & Co. at Hong Kong upon the terms 
 that the proceeds should be remitted to H. & Co. 
 to meet the acceptances of L. & Co. L. & Co. 
 endorsed the bill of lading for consideration to 
 their bankers, and on the arrival of the goods 
 they were delivered to the bankers. The bill of 
 lading omitted the words " or order or assigns : " 
 — Held, that the omission of these words did not 
 operate as uotice of the agreement between H. & 
 Co. and L. & Co., and that the bankers had a 
 good legal and equitable title to the goods. Hen- 
 derson ^ Co., V. the Comptoir D'Escompte de Paris, 
 42 Law J. Eep. (n.s.) P. 0. 60 ; Law Eep. 5 P. C. 
 253. 
 
 10. — Brokers delivered goods on board a ship, 
 and took mate's receipts in the name of their 
 principals, who afterwards endorsed the receipts 
 to the brokers. The captain signed bills of lading 
 without notice of the endorsement : — Held, that 
 the holders of the bills of lading were entitled to 
 the goods, that the captain was justified in sign- 
 ing the bills of lading, and that the brokers had 
 no claim for indemnity from the owners. Hathesing 
 V. Laing, 43 Law J. Eep. (n.s.) Chanc. 233; Law 
 Eep. 17 Eq. 92. 
 
 Notice to the captain woiild not have affected 
 holders of the bills of lading for value without 
 notice. Ibid. 
 
 A local custom making mate's receipts nego- 
 tiable would not bind the goods elsewhere. Ibid. 
 
 11. — Where A., owing money to B., and being 
 under obligation to secure the debt by depositing 
 shipping documents, induced B. to forego the 
 obligation by depositing with him a bill of lading 
 of certain goods, which was accordingly endorsed 
 to him : — Held, that there was valuable considera- 
 tion given and that the legal interest passed by 
 the endorsement of the bill of lading : — Held, also, 
 that B. was not bound by a trust of which he had 
 no notice, under which the proceeds of the bill of 
 lading were to be specifically applied in payment 
 of the vendor of the goods to A. The Chartered 
 Bank of India, Australia, and China v. Henderson, 
 Law Eep. 5 P. C. 501. 
 
 DiQEST, 1870-1875. 
 
 (2) Short delivery : oonstriKtive notice. 
 
 12. — By the Mersey Dock Acts the cargo of 
 any ship from a foreign or colonial port using 
 certain ports must be received, weighed and loaded 
 off by one set of porters vmder the direction of a 
 master porter : — Held, that these Acts relate to 
 the possibility of injury in the receiving, weighing 
 and loading off the goods, and do not alter the 
 legal liability prior to their delivery to the master 
 porter. The Emilien Marie, 44 Law J. Eep. (n.s.) 
 Adm. 9. 
 
 An indorsee of a Mil of lading has the same 
 rights and liabilities as if the original contract 
 had been made with him. Ibid. 
 
 When a ship is sub-chartered the Court gener- 
 ally will not conclude that the mnster has signed 
 as agent for the sub-charterers, unless he signs in 
 terms as agent for them or gives notice of the sub- 
 charter. Ibid. 
 
 An allegation of fraud should, if relied upon, be 
 distinctly pleaded. Ibid. 
 
 A. & Co. endorsed bill of lading (C) of 40 
 kernels of palm oil to P. L. & Co., who endorsed 
 to the plaintiffs. A. & Co. also endorsed bill 
 of lading (A) of 60 kernels to C. L. C. & Co., 
 and bill of lading (B) of 40 kernels to S. E. S. 
 The whole shipment consisted of 103 kernels 
 only, out of which the claims under (A) and 
 (B) were satisfied. The plaintiffs sued the ship 
 for short delivery of cargo specified in (C); — 
 Held, that under the circumstances the plaintiffs 
 were not bound to enquire whether it had been 
 agreed that (A) and (B) should be satisfied before 
 (0), and that therefore the plaintiffs were entitled 
 to recover: — Held, also, that the other part- 
 owners were, in respect of their shares in the ship, 
 liable with the master, also a part-dwner. Ibid. 
 
 The doctrine of constructive notice reviewed. 
 Ibid. 
 
 (3) Appropriation. 
 
 13. — The plaintiffs were indorsees for value of 
 bills of lading indorsed to them for value by one 
 M. under the following circumstances : the defen- 
 dants had agreed to buy of M. all the ore of a 
 certain mine, the ore to be shipped at a Spanish 
 port by him, f. u. b. on vessels chartered by the 
 defendants or by him, and to be paid for by bills 
 of exchange against bills of lading on the execu- 
 tion of a charter, and on a certificate that there 
 was enough iron in dock to load the vessel char- 
 tered. On being so paid for, the ore was to be the 
 property of the defendants. Some cargoes of the 
 ore having been taken, and all of it paid for, the 
 Trowbridge, a vessel chartered by the defendants, 
 was loaded with ore by M., who had, however, no 
 intention to ship it for them, and previously in- 
 formed them thereof. He then presented to the 
 captain the bills of lading, which stated that the 
 shipment was by one S., and made the cargo de- 
 liverable to the order, of S. ; but no such person as 
 S. existed. The captain being bound by the char- 
 ter to sign bills of lading as presented, signed the 
 bills. M. endorsed the name of S. .and his own 
 name on the bills of lading, and then pledged them 
 to the plaintiffs : — Held, that the plaintiffs were 
 
 3y 
 
530 
 
 SHIPPING LAW (B), (E). 
 
 entitled to the ore represented by such hills. 
 Gabarrow v. Kr.efi; Kreeft v. Thompson, -44 Law 
 J. Eep. (n.s.) Exeh. 238 ; Law Eop. 10 Exch. 
 274. 
 
 Another vessel, the Macedonia, having been also 
 sent by the purchasers of the ore, under a charter- 
 party liy which the shipowner agreed to deliver 
 the cargo to the freighters or assignees, but wliich 
 did not authorise the captain to sign bills of 
 lading as presented, she was loaded by M., who 
 at the commencement of the loading intended that 
 it should be in fulfilment of his contract. He, 
 however, obtained bills of lading as in the former 
 case, and endorsed them to a third person, to whom 
 the cargo was delivered. In an action by the pur- 
 chasers of the ore against the shipowner for non- 
 delivery of the cargo to them, according to the 
 charter-party, — Held (by Bramwell, B., and 
 Cleasby, B. ; KeUy, C.B., dissentiente), that as the 
 cargo had been delivered according to the bills of 
 lading, the defendant was not liable. Ibid. 
 
 Per Kelly, C.B. — The ore had become the pro- 
 perty of the plaintiffs at the time of shipment, 
 and the captain was bound by the terms of the 
 charter-party to deliver it to them. Ibid. 
 
 (C) BOTTOMRV. 
 
 (a) Necessity. 
 
 1. — A master of a chartered ship having sold a 
 part of the cargo to pay expenses of demurrage, 
 the ship was in the course of a subsequent voyage 
 arrested in a foreign port at the suit of the char- 
 terer. The charterer's claim was, with the sanction 
 of the consul, compromised for a sum of money, 
 and a bond given to the charterer in payment of 
 the sum : — Held, that the bond was invalid. Tlie 
 Ida, 41 Law J. Rep. (n.s.) Adm. 542 ; Law Eep. 
 3 Adm. & Ecc. 542. 
 
 {b) Future freight. 
 
 2. — The ship S. being mortgaged to one G., 
 sailed on a voyage to Melbourne and back. On 
 her arrival at Melbourne she required necessary 
 repair, and the agents having refused to make 
 further advances upon credit, the master entered 
 into a bottomry bond, hypothecating the ship and 
 her freight to Melbourne and back, and drew bills 
 on G. for the amount secured by bottomry. The 
 respondents became the holders of the bond and 
 bills. Before the bills arrived in England G.'died, 
 and the respondents failing to obtain either ac- 
 ceptance or payment, took proceedings on the 
 bond : — Held, that the respondents having failed 
 in obtaining acceptance or payment of the bills, 
 were entitled to sue upon the bond, but that the 
 bond could not validly hypothecate freight which 
 had not been earned at the time the bond was 
 payable. Smith v. Tlie Bank of New South Wales; 
 The Staffordshire, 41 Law J. Eep. (n.s.) Adm. 49; 
 Law Eep. 4 P. C. 194. 
 
 (c) Notice to owner : authority of master. 
 
 3. — The 0. put into Port Louis in the Mauri- 
 tius, in distress and need of repairs. On the 30th 
 of June, H. & Co., agents of the ship, wrote to the 
 
 owners stating that they would advance the neces- 
 sary funds apon a bottomry bond as collateral 
 security. H. & Co. also on the 1st of July wrote 
 to Glasgow to the defendants, owners of cargo, 
 stating the condition of the vessel, but omitting 
 the information from which it might be inferred 
 that bottomry would be necessary. The first 
 notice the defendants received from H. & Co. of 
 their intention to take a bond was by letter of the 
 26th of August, which reached Gla'sgow on the 
 8th of September. The 0. left the Mauritius on 
 the 15th of October. As against the defendants, 
 the owners of the cargo, — Held, that the agents of 
 the ship being -also the lenders of the money, had 
 not given proper notice of the bond, and that 
 therefore it was invalid. The Onward, 42 Law J. 
 Eep. (n.s.) Adm. 61 ; Law Eep. 4 Adm. & Ecc. 38. 
 The foundation of the master's authority to 
 bottomry the cargo is the prospect of benefit 
 direct or indirect to the owner of it. Ibid. 
 
 (d) Blaster's wages. 
 
 4. — The principle established in the Edward 
 Oliver (36 Law J. Eep. (n.s.) Adm. 1 3 ; Law Rep. 
 1 Adm. & Ecc. 279), that, where the master of the 
 ship makes himself as well as the ship freight and 
 cargo liable on a bottomry bond, his priority on 
 ship and freight for wages is thereby lost only as 
 against the bondholder, and not as against the 
 owners of the cargo, applies to a case where 
 the owners of the cargo have bought \vp the 
 bond. In such a case, therefore, the master is 
 entitled to payment out of proceeds of ship and 
 freight, where the cargo is sufficient to pay the 
 balance of the bottomry bond. The Eugenie, Law 
 Rep. 4 Adm. & Ecc. 123. 
 
 Practice in bottomry suits. [See Ad 
 
 MIEALTY, 45.] 
 
 (D) Caego. 
 
 Damage to cargo by perils excepted by bill 
 
 (ff lading. [See supra B 1-4.] 
 Loading of cargo. [See infra E 1-5.] 
 
 (E) Chaetise-paety. 
 
 (rt) Loading of cargo. 
 
 (1) What circumstances justify neglect to load. 
 
 1. — To a declaration in an action by the ship- 
 owner against the charterers for not loading a 
 cargo of coals pursuant to charter-party, by the 
 terms of which the vessel was to proceed to a 
 certain dock, and there load in the usual and cus- 
 tomary manner at any one of the collieries the 
 defendants might name, the defendants pleaded 
 that they had not any notice of the ship having 
 proceeded to and arrived at the said dock, and of 
 her being ready to receive cargo, " wherefore the 
 defendants did not nor could load her:" — 
 Held, on demurrer, after verdict for the defen- 
 dants on the issues in fact, that . the plea meant 
 that, by reason of the want of notice, the defen- 
 dants were prevented loading the vessel, and that, 
 therefore, the plea was good. Stanton v. Austin, 
 41 Law J. Eep. (n.s.) C.P. 218 ; Law Eep. 7 C.P. 
 651. 
 
SHIPPING- LAW (E). 
 
 531 
 
 2. — Where the charterer of a specified ship was 
 entitled under the chaiter-party to ship wet 
 sugar, and provided a reasonable cargo of that 
 commodity, but the ship, in consequence of her 
 pumps not being able to meet the requirements of 
 such cargo, was not reasonably fit to carry it, and 
 the defect as to the pumps could only have been 
 remedied after such a lapse of time as would have 
 frustrated the object of the venture, — Held 
 (affirming the judgment of the Court of Common 
 Pleas, 41 Law J. Eep. (n.s.) C.P. 180; Law Eep. 
 7 C. P. 421), that the charterer was entitled to 
 refuse to ship the cargo, and to recover damages 
 for the unfitness of the ship. Eiohardson v. 
 Stanton; Stanton v. Bichardson (Exch. Ch.), 43 
 Law J. Hep. (if.s.) C. P. 230 ; Law Eep. 9 C. P. 
 390. 
 
 (2) Bight to damages. 
 
 3. — Where the defendant, the freighter of a 
 ship's cargo, refused to name a wharf for the de- 
 livery of the cargo by the plaintiff, a shipowner, 
 with intent to refuse the cargo, — Held, that the 
 plaintiff was entitled to recover as damages the 
 amount he -n'ould have received as freight if the 
 cargo had been duly delivered. Stewart v. 'Roger- 
 son, Law Eep. 6 C. P. 424. 
 
 4. — A charterer who has, through the ship- 
 owners' default in not being ready to load at the 
 time agreed upon, been compelled not only to pay 
 increased freight, but also to pay a higher price 
 for the article to be shipped, is — in the absence of 
 evidence that he will he al de to sell at a correspond- 
 ing increased price at the port of delivery, or of 
 other evidence that he will not be a loser — entitled 
 to recover as damages the additional price paid as 
 well as the difference in freight. Featherston v. 
 Wilkinm7i, 42 Law J. Eep. (n.s.) Exch. 78 ; Law 
 Eep. 8 Exch. 122. 
 
 (3) Eeftisal to load : condition precedent. 
 
 5. — A charter-party provided that the defen- 
 dant's ship should proceed to B. and continue to 
 load cargoes there for delivery at D. from May, 
 1871, till March, 1872, loading at B. with either 
 of , the charterers' factors there, X. or Y., till the 
 end of September at the captain's option, but after 
 Septembef with the charterers' factor, Y. In 
 September the master elected to load with X., but 
 the charterers refused to load the ship from X., 
 whereupon tlie defendant refused to go on any 
 longer under the charter-party : — Held, that the 
 charterers' refusal to load from X. justified the 
 defendant in treating the charter-party as at an 
 end. Bradford v. Williams, 41 Law J. Eep, (n.s.) 
 Exch. 164; Law Eep. 7 Exch. 259. 
 
 (4) Delay in loading, 
 [See infra H.] 
 
 (b) Excepted perils. 
 
 (1) Dangers of seas. 
 
 6. — By a charter-party dated the 28th of De- 
 cember, the plaintiffs' ship was to "forthwith" 
 proceed from England to B., an island in the West 
 
 Indies, and having there loaded a cargo of sugar 
 for the defenclants, to return to England. The 
 vessel was to be allowed to take an outward cargo 
 of coals to specified places, and the charter-party 
 contained a clause excusing the performance 
 thereof if it could not bo complied with owing to 
 perils of the seas. At the time of entering upon 
 the charter-party, the ship was undergoing re- 
 pairs, but she came out of dock upon the 6th of 
 January, and having taken on board a cargo of 
 coals for E., one of the specified places, she sailed 
 on the 8th of February. Delay on her voyage 
 outwards was occasioned by unfavourable winds, 
 and she was'injured by a collision with a steamer, 
 which rendered necessary further repairs. She 
 finally sailed for E. on the 9th of March, and 
 reached 'E. on the 26th of May : having there 
 discharged the cargo of coals, she started on the 
 1st of July, and reached B. on the 28th of July. 
 The season for exporting sugar from B. begins 
 with the mouth of April and ends with July in 
 every year, and the agents of the defendants de- 
 clined to provide a cargo of sugar for the plain- 
 tiffs' vessel on the ground that she had arrived at 
 B. too late, in the season. They offered to pro-s-ide 
 ii cargo of sugar if the plaintiffs' vessel would go 
 imder protest to V., an island ninety miles off. 
 The captain refused this offer, and remained at 
 B., insisting upon the performance of the charter- 
 party by the defendants' agent. The captain at 
 last agreed with other parties for a charter, and 
 left B. on the 14th of October. The plaintiffs 
 having sued for a breach of the charter-party in 
 refusing to load a cargo at B., the Judge at the 
 trial directed the jury that if the vessel sailed 
 without unreasonable delay, she proceeded "forth- 
 with " within the meaning of the qharter-party ; 
 that the clause excusing performance thereof, on 
 the ground of perils of the seas, applied to the 
 preliminary voyage to E., and that the captain 
 might reasonably think that if he shipped a cargo 
 elsewhere than at B,, he might put an end to the 
 original charter-party: — Held, a right direction. 
 Hudson V. Hill, 43 Law J. Eep. (n.s.) C. P. 273. 
 
 7. — A cargo of wheat was damaged by holes 
 feloniously bored in the ship's side by some of the 
 crew: — Held, that this was not within the ex- 
 cepted perils, " dangers of the seas," and that, 
 therefore, the ship was liable for the damage. 
 The Chasca, 44 Law J. Eep. (n.s.) Adm. 17 ; Law 
 Eep. 4 Adm. & Ecc. 446. 
 
 8. — The master signed bills of lading to deUver 
 at Hamburgh, " dangers of the seas only ex- 
 cepted : " — Held, that though the charter-party 
 contained other exceptions, the master was the 
 agent of the owner as well as the charterer, and 
 that, therefore, the terms of the bill of lading 
 were binding. The Patria, 41 Law J. Eep. (n.s.) 
 Adra. 23 ; Law Eep. 3 Adm. & Ecc. 436. 
 
 The ship arrived at Ealmouth on tl^e 23rd of 
 August, during the war between Prance and 
 Germany. Hamburgh was blockaded till the 
 18th of September. The consignees offered to 
 take their cargo at Falmouth, and pay full freight, 
 but were refused. The suit was commenced on 
 the 1st of November: — Held, that whether the 
 3 y2 
 
632 
 
 SHIPPING LAW (E). 
 
 contract should be construed according to the 
 general maritime law, or English, or German law, 
 the master was bound to have delivered the cargo 
 at Hamburg or at Falmouth. Ibid. 
 
 (2) Eestraint of princes ; delay. 
 
 9. — Where a German vessel was under orders 
 as per charter- party to proceed from Falmouth to 
 Leith (the act of God, the Queen's enemies, re- 
 straint of princes and rtders, &c., being excepted) 
 and there being war between France and Ger- 
 many, the vessel was liable to be captured by 
 French cruisers if caught out of neutral waters : — 
 Held, that the master was justified in delaying at 
 Falmouth for a wind which would give him a 
 good chance of escaping the French cruisers. The 
 ffeinrioh, Law Rep. 3 Adm. & Ecc. 424. 
 
 10. — In an action for breach of a charter-party, 
 by which it was agreed that the defendants' vessel 
 should proceed to a port of loading, and after 
 loading a cargo convey it to a foreign port, the 
 act of God, Queen's enemies, restraints of princes 
 and rulers, fire, and all and every other dangers 
 and accidents of the seas . . . during the voyage 
 excepted, it was pleaded that before breach there 
 was a war between the country of the port of 
 destination and another country, so that the per- 
 formance of the charter-party became illegal, and 
 the defendants refused to perform it : — Held, that 
 the plea was good, as the blockade was, within 
 the meaning of the exception, " restraints of 
 princes," and that the defendants were not bound 
 to have proceeded to the port of loading, or to 
 have waited in anticipation of the removal of the 
 blockade, in the absence of anything to lead to 
 the inference that it would be removed within a 
 reasonable time. Geipel v. Smith, 41 Law J. 
 Eep. (n.s.) a. B. 153 ; Law Eep. 7 G- B. 404. 
 
 11. — In an action by the consignees of a cargo 
 for damage to cargo by delay caused by an appre- 
 hension by the master of perils arising by reason 
 of war, — Held, that an apprehension of capture, 
 founded on circumstances calculated to affect the 
 mind of a master of ordinary courage, judgment 
 and experience, will justify delay. Anderson v. 
 the Owners of the " San Soman," 42 Law J. Eep. 
 (n.s.) Adm. 46 ; Law Eep. 5 P. C. 301. 
 
 [And see Marine Insceanoe, 22, 26, 27.] 
 
 (c) Deviation. 
 
 12. — A charter-party made between English 
 merchants at Valparaiso and the owners of a 
 Prussian ship, provided that the ship should pro- 
 ceed and deliver cargo at a port to be named by 
 the charterers in Great Britain or on the Continent 
 between Havre and Hamburgh. The charterer 
 named Dunldrk. On the arrival of the ship off 
 Dunkirk, the master was informed by a pilot that 
 war had commenced between Prussia and France. 
 The master thereupon took the ship into Dover, 
 and refused to deliver the cargo without payment 
 of full freight. War was not in fact declared 
 until three days afterwards ; — Held, in an action 
 for breach of the charter-party, first, that the 
 master was entitled to a reasonable time to make 
 
 enquiries as to the war, and that the time taken 
 was not unreasonable ; secondly, that as the port 
 named by the charterer was an unsafe port, and as 
 Dover was a port which might have been named 
 within the terms of the charter-party, the owners 
 were entitled to full freight. Dmncan v. Koster ; 
 The Teiitonia, 41 Law J". Eep. (n.s.) Adm. 57 ; 
 Law Eep. 4 P.O. 171. 
 
 {d) Warranty : words of expectancy. 
 
 13. — In a charter-party, dated the ,14th of 
 November, 1871, the defendants' ship was char- 
 tered to the plaintiff as follows: "It is this day 
 mutually agreed between Messrs. M. & S., of the 
 good British steamship Ceres, of the measurement, 
 &c., whereof, &c., is master, expected to be at 
 Alexandria about the 15th of December, and the 
 plaintiff," &c., &c. The declaration setting out 
 the charter-party alleged as a breach that the 
 ship was not then expected to be at Alexandria 
 about that day, but was then in such part of 
 the world and under such engagements that the 
 ship could not perform her said engagements 
 and arrive at Alexandria about the said day: — 
 Held, on demurrer, that the statement in the 
 charter-party was a warranty or condition that the 
 ship was then in such a place and under such 
 engagement as that she might reasonably be 
 expected to be at Alexandria about the day men- 
 tioned, and that the breach was well assigned. 
 GorkUng v. Massey, 42 Law J. Eep. (n.s.) 0. P. 
 163; Law Eep. 8 C.P. 395. 
 
 A plea to the above declaration set out the 
 position in which and certain engagements under 
 which the ship then was, and alleged notice 
 thereof to the plaintiff, and that the charter-party 
 was made subject to the condition that the said 
 vessel should with all convenient speed fulfil her 
 said engagements, and then sail and proceed to 
 Alexandria, and averred performance of the said 
 condition : — Held, that the plea was a good plea, 
 upon the authority of Young v. Austen (38 Law J. 
 Eep. (N..S.) C.P. 233; Law Eep. 4 C.P. 663). 
 Ibid. 
 
 (c) " Full and complete cargo." 
 
 14. — A charterer agreed to load at Archangel 
 a fall and complete cargo of oats or other lawful 
 merchandise, which the shipowners were to deliver 
 " on being paid freight at the rate of 4s. &d. per 
 320 lbs. for oats, and if any other cargo be shipped 
 in full and fair proportion thereto, according to 
 the London Baltic printed rates." The cargo 
 shipped consisted of flax and other light articles 
 (all mentioned in the London Baltic rates), i.e. of 
 as much as the ship could safely carry of such 
 light articles ; which rendered the shipment of 
 120 tons of ballast necessary: — Held (affirming 
 the judgment below, see 28 Law J. Eep. (n.s.) 
 Exch. 54 ; law Eep. 4 Exch. 73), that the char- 
 terer had a right, in the absence of any stipulation 
 to the contrary expressed or implied, to ship a 
 full and complete cargo of any one or more of the 
 articles constituting lawftil merchandise within 
 the meaning of the charter-party, and that when 
 he had supplied a full and complete cargo, it was 
 
SHIPPING LAW (E), (F). 
 
 533 
 
 the shipowner's duty to procure the ballast neces- 
 sary for that cargo ; that in this case no stipula- 
 tion to the contrary was expressed by the words 
 " in full and fair proportion" in the charter-party, 
 nor was any such stipulation implied by law ; so 
 that the shipowner, not being protected from the 
 extreme use by the charterer of his privilege, 
 could not recover from him more than the freight 
 payable according to the London Baltic rates on 
 the quantities of the several articles actually 
 shipped. The Southampton Steam Collier, ^c., 
 Company {Lim.) v. Clarke (Exch. Ch.), 40 Law J. 
 Eep. (n.s.) Exch. 8 ; Law Eep. 6 Exch. 53. 
 
 (/) Difference between quantity signed for and 
 qtiantity shipped. 
 
 15. — Declaration, that it was agreed between 
 the plaintiffs and the defendants that the plain- 
 tiffs" ship should take a cargo of coals from C. to 
 B., " the master of the ship to sign bills of lading 
 for weight of cargo put on board, as presented to 
 him by the defendants, without prejudice to the 
 tenor of the charty-party ; " that 573 tons of coal 
 were shipped ; that the defendants caused the 
 master to sign bills of lading for 606 tons, 
 whereby the plaintiffs were forced to pay the 
 consignees at B. Zll. for the value of the difference 
 between 605 tons and 673 tons, and 13Z. for du«s : 
 — Held, on demurrer, that the declaration was 
 bad. Brown v. The Powell Buffryn Steam Coal 
 Company (Lim.), 44 Law J. Eep. (n.s.) C. P. 289 ; 
 Law Eep. 10 C. P. 562. 
 
 {g) Commission: " inwards and outwards." 
 
 16. — By a charter-party made between the 
 plaintiffs and the defendant, master of an Italian 
 vessel, it was agreed that the ship should load a 
 cargo at Glasgow and proceed therewith to San 
 Francisco, where she should be consigned to the 
 charterers' agents " inwards and outwards, paying 
 the usual commissions," . . . and so end the 
 voyage. A final printed clause contained a stipu- 
 lation that the plaintiffs' Glasgow agents should 
 report the ship at the Custom House "on her 
 return to her port of discharge in the United 
 Kingdom." The vessel wa.i duly consigned to the 
 charterers' agents at San Francisco, who, on her 
 arrival there, transacted the "inwards" business, 
 and received the usual commission on the " in- 
 wards " freight. They tendered to the defendant 
 a homeward cargo which he declined, but he 
 offered to take a cargo to the ilexican coast, 
 whither he was going in order to fulfil another 
 charter. A cargo for that destination, however, 
 could not be obtained, and the ship sailed in 
 ballast to Mexico and carried thence a cargo to 
 Europe in pursuance of the other charter-party, 
 with which the plaintiffs had no concern. The 
 plaintiffs having brought an action for breach of 
 contract to recover, as damages, the outwards 
 commission which would have been earned if the 
 defendant had accepted a homeward cargo at San 
 Francisco, and brought it to Europe, as the plain- 
 tiffs contended he was hound to do, — Held, that 
 no iiuch obligation was created by the above- 
 mentioned clauses of the charter-party, which 
 
 merely amounted to a proviso that, if the ship 
 were engaged on a voyage " outwards," then the 
 agents should be further employed, and should be 
 paid commission on the " outwards " freight. 
 Gross V. Pagliano, 40 Law J. Eep. (n.s.) Exch. 18; 
 Law Eep. 6 Exch. 9. 
 
 {h) Illegal voyage. 
 
 17.— A charter-party was made in France, by 
 which it was stipulated that the ship should pro- 
 ceed to Trouville, a port in France, and should 
 there load a cargo of hay, and proceed therewith 
 direct to London ; all cargo to be brought and 
 taken from the ship alongside. The agent of the 
 defendant, the charterer, told the master that the 
 consignors would require the hay to be delivered 
 at a particular wharf in Deptford Creek, and that 
 he should proceed there on his arrival in London, 
 which he promised to do. On arriving in the 
 Thames, he was informed that by ;.n Order in 
 Council made under the Contagious Diseases 
 (Animals) Act, 1869, it was illegal to land in 
 Great Britain hay brought from France. The 
 Order in Council was in existence when the charter- 
 party was entered into, but neither of the parties 
 knew of it, nor did the shipowner contemplate any 
 violation of the law. The defendant after a time 
 exported the hay, and the shipowner brought an 
 action against him to recover damages in respect 
 of the detention of the ship : —Held, that under 
 these circumstances, the defendant could not setup 
 as a defence that the voyage was illegal. Watigh 
 V. Morris, 42 Law J. Eep. (n.s.) Q. B. 57 ; Law 
 Eep. 8 Q. B. 202. 
 
 As to law applicable in case of foreign 
 vessels. [See infra K.] 
 
 (F) Collision and Damage. 
 (a) International law : Khedive of Egypt. 
 
 1. — The C. belonging to the Khedive of Egypt, 
 and usually employed in carrying mails and 
 passengers, came to England 'with merchandise 
 and for repairs. Having completed her repairs, 
 and wliile on a trial trip down the Thames she 
 came into collision with the B. On arrest of the 
 C. by the owners of the B., — Held, first, that his 
 Highness the Khedive is not entitled to the privi- 
 leges of a sovereign prince. Secondly, that even 
 • the privileges of a sovereign prince would not 
 extend to immunity from arrest in a suit for 
 damage by collision. Thirdly, that if the privi- 
 leges did extend to such an immunity, they would 
 have been waived in this case by the employment 
 of the ship at the time as a trader. The Charkieh, 
 42 Law J. Eep. (n.s.) Adm. 17; Law Eep. 4 
 Adm. 59. 
 
 Proceedings in rem may in some cases be insti- 
 tuted without any violation of international law, 
 though the owner of the res be in the category of 
 persons privileged from personal suit. Iljid. 
 
 Semble — within the ebb and flow of the sea in 
 the case of salvage, the obligatio ex quasi contractu 
 attaches jure gentium, upon the ship to which the 
 seriice has been rendered, and in the case of 
 collision, the obligatio e,v quasi delicto attaches 
 
534 
 
 SHIPPING LAAV (F). 
 
 jure gentium upon the ship -which " is the wrong- ■ 
 doer whatever be her character, public or private, 
 Ibid. 
 
 In considering the international status of the 
 Khedive of Egypt, — Held, that the Court may- 
 enquire into the general history of the government 
 of Egypt, the firmans of the Porte and European 
 treaties concerning the relations between Egypt 
 and the Porte, and that the Court may also obtain 
 direct information from the Foreign Office. Ibid. 
 
 (A) Steam 
 
 2. — A steam tug with a vessel in tow is bound 
 under Art. 15 of the Sailing Rules (under 
 25 & 26 Vict. c. 63, s. 2d) to keep out of 
 the way of a sailing vessel. The fact that 
 the steam tug was towing a heavily laden ship in 
 the open sea against a strong head -wind, was held 
 not to justify a departure from the ordinary rule, 
 under Art. 19. The Warrior, Law Rep. 3 Adm. 
 & Ecc. 553. 
 
 3. — Where two steamships are meeting end on 
 "so as to involve risk of collision " (Art. 13), if 
 one of them at a proper distance ports her helm 
 sufficiently to carry her clear of the other, the 
 risk is determined, and such steamship is not 
 bound to slacken speed as directed in Art. 16. 
 The Jesmond and the Earl of Elgin, Law Rep. 4 
 P. 0. 1. 
 
 4.— A steamship meeting three barges was 
 ■compelled to starboard to avoid the first barge. 
 By starboarding, the steamship came into collision 
 with all three barges : — Held, that the first barge 
 was liable for the damage done to the other 
 barges. The Thames; The Sisters, 44 Law J. Rep. 
 (n.s.) Adm. 23. 
 
 5. — A steam-tug hove to in the fair way of a 
 channel is bound to be ready to get out of the -way 
 of other ships. The Jennie S. Barker ; The Spind- 
 rift, 44 Law J. Rep.' (n.s.) Adm. 20 ; Law Rep. 4 
 Adm. & Ecc. 456. 
 
 6. — A steamship, navigating in a fog at a 
 moderate speed, being warned that another steam- 
 ship is so near to her, that if both vessels stopped 
 they would be within hailing distance, is bound 
 not only to stop her engines, but to reverse them. 
 Morton v. Hutchinson; The Frankland and the 
 Kestrel, Law Rep. 4 P. C. 529. 
 
 1, — In a dense fog a steam vessel is bound to 
 anchor as soon as possible ; she ought not to pro- 
 ceed even at a moderate speed. The Otter, Law 
 Rep. 4 Adm. & Ecc. 203. 
 
 8. — A steam ferry-boat crossing a navigable 
 river in a dense fog, and where there are vessels 
 anchored near her track, will be liable for damage 
 by collision. The Lancashire, Law Rep. 4 Adm. 
 & Ecc. 198. 
 
 (c) Tug and tow : governing power. 
 
 0, — The master of a steamship, finding another 
 steamship belonging to the same owners disabled, 
 took her in tow T»ilhout remuneration. In the 
 course of the voyyge the tug collided a ship, no 
 blame being due to the tow : — Held, by tlio Privy 
 Council (varying the decision below, 43 Law J. 
 Eep. (n.s.) Adm. 26; Law Rep. 4 Adm. & 
 
 Ecc. 226), that as the tug was the govern- 
 ing power, the tow was not liable. The Union 
 Steamship Company, Owners of the American and 
 the Syria, v The Owners of the Arncan (P.C.), 43 
 Law J. Eep. (n.s.) Adm, '30 ; liaw Rep. 6 P. C. 
 127. 
 
 {d) Crossing vessels. 
 
 10.— Ships rounding a bend in the river Thames, 
 the one proceeding up and the other down stream, 
 — Held, not crossing vessels within rule 14. Mal- 
 colmson v. The General Steam Navigation Com- 
 pany ; The Banger and the Cologne, Law Eep. 4 
 P. C. 519. 
 
 11. — Collision between two steamships whilst 
 rounding a bend of a river. The respondents' 
 vessel, coming up stream and seeing the appel- 
 lants' vessel rounding the point put her helm hard 
 a-port, in order to cross the river ; the appellants' 
 vessel stopped, reversed her engines, and put her 
 helm hard a-starboard, the result being a colli- 
 sion : — Held, that without determining whether 
 the vessels were crossing vessels under the steer- 
 ing and sailing rules, art. 14, the appellants' ves- 
 sel was solely to blame, and the appeal was dis- 
 missed. The Es7c and the Mord, Law Rep. 2 P. C. 
 436. 
 
 (e) One vessel overtaking another. 
 
 12. — When a, prima facte c-Ase has been made that 
 the defendant's ship was overtaking the plaintiff's 
 ship, the burden, as in the case of a ship at anchor, 
 is cast upon the defendants to shew excuse for the 
 collision. When one ship is overtaldng another, 
 it would rarely be the duty of the ship that is 
 being overtaken to warn the other by whistling or 
 exhibiting an extra light. The Chanonry ; and 
 the Leverington, 42 Law J. Rep. (n.s.) Adm. 58. 
 
 The C. was steered W. by N., and going faster 
 than the L., which was steered W.N.W. The 
 night was not dark, and the C. was going at full 
 speed : — Held, that the C. was overtaking the L., 
 and that, under the circumstances, the L. was not 
 bound to whistle or shew a light over the stern or 
 otherwise. Ibid. 
 
 (/) Ironclad ship : with ram. 
 
 13. — The B., an armour-plated ship with a ram 
 projecting under water aboiit fourteen feet from 
 her stem, was lying hove to when the P., in trying 
 to speak her, came in contact with the ram -and 
 was sunk : — Held, that there was no obligation on 
 those on board the B. to give notice of the ram 
 or that she was a leewardly ship. The Bclkrophon, 
 44 Law J. Rep, (n.s.) Adm. 7. 
 
 {y) Foul berth. 
 
 14. — If one ship has given another a foul berth, 
 the owners of the ship giving the foul berth have 
 no right to demand that extraordinary precautions 
 should be taken on board the other ship to avoid 
 a collision. The J'iifor gave the Vivid a 
 fold berth, and the Vivid in swinging, came 
 into collision with and damaged tlie Victor. It 
 having been proved that tlie usual and ordinary 
 precautiLUS had been taken on board the Vivid, 
 
SHIPPING LAW (F). 
 
 635 
 
 — Held, that the Vloid was not responsible for 
 the collision. The Vioid, 42 Law J. Eep. (n,s.) 
 Adm. 57. 
 
 (A) Moorage. 
 
 15. — Collision in a harbour caused by the 
 breaking of a mooring buoj- to which a vessel was 
 moored, and' the use of whicli was sanctioned by 
 the authorities of the harbour : — Held, that the 
 collision was caused by inevitable accident. A 
 storm being imminent, the master of the vessel 
 kept the anchor ready to be let go : — Held, that 
 he was not guilty of contributory negligence be- 
 cause he did not actually drop the anchor. Do- 
 uard y. Lindsay ; The WiUiam Lindsay, Law Eep, 
 5 P; C. 338. 
 
 (i) Launch. 
 
 16. — Before a launch takes place, it is the duty 
 of those conducting it to give a sufficient notice 
 according to the usages of the place. Tlie 
 Glengarry, 43 Law J. Eep. (n.s.) Adm. 37. 
 
 If in the course of a launch a collision takes 
 place, the burden of proof is upon those engaged 
 in the launch to shew that sufficient notice had 
 been given of the intended launch. Ibid. 
 
 In a cause of damage by collision with a launch, 
 sufficient notice having been given of the intended 
 launch, the other ship held to blame for not hav- 
 ing kept out of the way. Ibid. 
 
 17. — Where a steamship, in coming alongside 
 a pier, struck, and did damage to a mooring dol- 
 phin, it was held, the contact being slight, that 
 the dolphin ought to have been strong enough to 
 resist the pressure, and the suit against the steam- 
 ship was dismissed with costs. The Albert Ed- 
 ward, 44 Law J. Eep. (n.s.) Adm. 49. 
 
 {k) Lights, 
 
 18. — In a cause of damage by collision, if the 
 side lights of a ship are defective or not properly 
 placed or screened, her owners will not be debarred 
 fi;om recovering unless the defect or fault contri- 
 buted to the collision. The Eugenie, the Magnet, 
 the Buke of Sutherland, the Maggie Trimble, the 
 Fanny M. Carvill, 44 Law J. Eep. (n.s.) Adm. 1 ; 
 Law Eep. 4 Adm & Eoc. 417. 
 
 Instructions as to lights issued by the Board of 
 Trade to their surveyors are not, except so far as 
 they are authorised by statute, binding upon the 
 owners of either British or foreign ships. Ibid. 
 
 19. — In a cause of damage by collision in the 
 river Thames a dumb barge held not bound to 
 have exhibited a light. The Owen Wallis, 43 Law 
 J. Eep. (n.s.) Adm. 36 ; Law Eep. 4 Adm. & Ecc. 
 175. 
 
 20. — Even by the general maritime law those 
 in charge of a vessel aground at night in the fair- 
 way of a navigable channel are bound to take 
 proper means to warn others of her position. The 
 Industry, 40 Law J. Eep. (n.s.) Adm. 26 ; Law 
 Eep. 3 Adm. & Ecc. 303. _ 
 
 21. — The G-. was from justifiable causes across 
 the river Thames unable to alter her position, and 
 with her lights not visible down the river, when the 
 lights of the J. F. were seen coming up the river. 
 Those on board the G. blew their whistle, hailed, 
 
 and shewed an ordinary lantern, such as is used for 
 lighting the deck and hatchways : — Held, that 
 those on board the G-. were to blame for not hav- 
 ing exhibited the very best light they had on 
 board. The John Fcnwiek, 41 Law J. Eep. (n.s.) 
 Adm. 38 ; Liiw Eep. 3 Adm. & Ecc. 500. 
 
 22.- -Where a sailing vessel under weigh, shew- 
 ing regulation lights, but not a light over her 
 stern, was run down by a steamer overtaking her, 
 -^Held, that the sailing vessel was not to blame. 
 The Earl Sptnoer, Law Eep. 4 Adm. & Ecc. 431. 
 
 {I) Limitation of liability. 
 
 23. — The ship E. came into collision with the 
 ship W. D. and then with the A. that was about 
 to take the W. D. in tow : — Held, that this was in 
 effect only one collision, and that the owners of 
 the E. were not liable beyond the aggregate amount 
 of 8^. per ton of her tonnage. The Rajah, 41 
 Law J. Eep. (n.s.) Adm. 97 ; Law Eep. 3 Adm. & 
 Ecc. 539. 
 
 24. — A railway company being common car- 
 riers and also shipowners were in the habit of 
 carrying passengers and goods from London to 
 Southampton by rail, and thence in their own ships 
 to Guernsey and Jersey. One of the ships carry- 
 ing passengers and goods, booked through from 
 London to Guernsey, came into collision, without 
 the actual fault or privity of the owners, with 
 another vessel and sank, whereby several passen- 
 gers lost their lives, the luggage and cargo were 
 totally lost and the other ship damaged. Several 
 actions having been commenced against the com- 
 pany for damages in respect of delay, loss of lug- 
 gage, loss of goods, damage to the ship run into 
 and (under Lord Campbell's Act, 9 & 10 Vict, 
 c. 93) loss of life, they filed their biU under the 
 Merchant Shipping Act, 1854, sec. 504, for the 
 purpose of determining the amount of their lia- 
 bility, and of distributing such amount rateably 
 amonfr the several claimants, and claiming to be 
 entitled to the benefit of the Merchant Shipping 
 Act Amendment Act, 1862, s. 54, limiting such 
 liability to 15Z. per ton of their ship's tonnage: 
 — Held, reversing the decision of the Master 
 of the EoUs, that they were entitled to in- 
 junctions restraining the several actions. The 
 London and South-Western Railway Company v. 
 James, 42 Law J. Eep. (n.s.) Claanc. 337 ; Law 
 Eep. 8 Chanc. 241. 
 
 (m) Infringment of regulations under the Merchant 
 Shipping Act, 1873. 
 
 25.— The Merchant Shipping Act, 1873, by 
 section 17, provides that " if in any case of colli- 
 sion it is proved to the Court before whom the 
 case is tried, that any of the regulations for pre- 
 venting colHsions contained in or made under the 
 Merchant Shipping Acts, 18o4to 1873, have been in- 
 fringed, the ship by which such regulation has been 
 infringed shall be deemed to be in fault, unless it 
 be shewn to the satisfaction of the Court that the 
 circumstances of the case made a departure from 
 the regulations necessary : — Held (by the Privy 
 Council, affirming the decision below, 44 Law 
 
536 
 
 SHIPPING LAAV (F). 
 
 J. Eep. (n.s.) Adm. 1), that although it is 
 not inciimlient on a plaintiff since the passing 
 of the above statute to prove that an 
 infringement of a regulation by a defend- 
 ant in fact contributed to a collision, yet that the 
 infringement charged must be one having some 
 connection with the collision. Owners of the 
 Fanny M. Carvill v. Owners of the Peru; The 
 Fanny M. Carvill, H Law J. Bep. (n.s.) Adm. 34. 
 
 (ra) Inevitable 
 
 26. — Inevitable accident is that which could 
 not possibly he prevented by the exercise of ordi- 
 nary care, caution and maritime skill. "Where the 
 defence of inevitable accident is raised, the onus 
 lies on the parties bringing the suit and seeking 
 to be indemnified, and does not attach to the ves- 
 sel proceeded against until a prim& facie ease of 
 negligence is shewn. Where such defence is suc- 
 cessful, no order will be made as to costs, unless 
 it be shewn that the suit was unreasonably 
 brought. Th£ Marpesia, Law Hep. 4 P. C. 212. 
 
 (o) Contributory negligence, 
 
 27. — Where a vessel was in tow during a thick 
 fog and those on board her, knowing there was 
 danger, did not order the tug to stop, and the ves- 
 sel ran aground, — Held, that they were guilty of 
 contributory negligence. Smith v. The St. Law- 
 rence Tow Boat Company, Law Eep. 5 P. C. 308. 
 
 28.— Collision between a steamship and a sail- 
 ing ship caused by the steamship, which saw the 
 sailing ship at a distance of two or three miles, 
 taking a course which would carry her across the 
 bows of the sailing ship. The circumstance that 
 the lights of the sailing ship were invisible was 
 held not to prove contributory negligence on her 
 part ; nor yet the circumstance that she had made 
 an erroneous manoeuvre too late to affect the col- 
 • lision. Heal v. Marchais ; The Bougainville and 
 the James C. Stevenson, Law Kep. 6 P. C. 316. 
 
 29. — Where, in a collision between a brig and 
 a bark, the main rigging of the bark was carried 
 away, and shortly afterwards her fore and main 
 masts went by the board, and the wind having in- 
 creased, the bark was about twenty-one hours 
 afterwards driven on shore, and some of the crew 
 drowned, — Held, that the loss of life was caused 
 by the collision. The George and Bichard, Law 
 Eep. 3 Adm. & Ecc. 466. 
 
 (p) Loss of life. 
 
 30.— The Merchant Shipping Act, 1854 (17 & 
 18 Vict. c. 104), by s. 2, defines the word "ship" 
 to include every description of vessel used in navi- 
 gation not propelled by oars ; by o. 242 gives 
 power to the Board of Trade to suspend the certi- 
 ficate of a master or mate, if on an investigation 
 under part 8 of the statute it is reported that the 
 loss or serious damage to any ship or loss of life 
 was caused by his wrongful act or default ; by 
 (part 8), s. 432, directs enquiries to be instituted 
 by persons appointed by the Board of Trade, when- 
 ever any ship causes loss to another ship on or 
 near the coast, or whenever, by reason of any 
 casualty happening to or on board of any ship on 
 
 or nep,r the coast, loss of life ensues ; and by 
 (part 8) o. 433, enacts that if it appear to such 
 person that a formal investigation is requisite, or 
 the Board direct, he may apply to two magistrates 
 to hear the case. The ."Merchant Shipping Amend- 
 ment Act, 1862 (25 & 26 Vict. c. 63), by s. 23, 
 transfers the power of cancelling or suspending 
 the certificate of the master or mate under 17 & 
 18 Vict. c. 104, s. 242, to the magistrates; and 
 enacts by s. 33, that in every case of collision be- 
 tween two ships, it shall be the duty of the person 
 in charge of each ship, so far as he can without 
 damage to his own ship and crew, to render to the 
 other ship, her master, crew, and passengers (if 
 any), such assistance as may be practicable and 
 ss may be necessary, in order to save them from 
 any danger caused by the collision, and if he fails 
 to do so, and has no excuse, the collision shall be 
 deemed caused by his wrongful act, neglect, or de- 
 fault, and such failure to do so shall, if proved upon 
 any investigation held under the 8th part of the 
 Act of 1 854, be deemed to be an act of misconduct 
 or a default, for which his certificate (if any) may 
 be cancelled or suspended. A collision took place 
 between a steamship and a fishing coble. The 
 coble sank, and three men on board were lost. The 
 coble was of ten tons burthen, twenty-four feet in 
 length, decked forward only, with two moveable 
 masts, and a sail for each. She was accustomed 
 to go twenty miles out to sea, and to remain out 
 for some hours at a time, and was usually under 
 sail, but was sometimes propelled by oars when 
 convenient. An inquest was held on the body of 
 one of the men who was lost, and a solicitor ap- 
 pointed by the Board of Trade took notes of the 
 evidence, and forwarded them to the Board, who 
 applied to two justices to hold an enquiry into the 
 collision. The justices held the enquiry, decided 
 that the coble was a seagoing ship, that there was 
 a collision between two ships, and that the master 
 and mate of the steamer did not duly render as- 
 sistance to save life, and ordered that the certifi- 
 cates of the master and mate of the steamer should 
 be suspended for three months : — Held, first, that 
 if the coble were a ship, one ship had caused loss 
 to another, and even if she were not, there was a 
 casualty to the steamship, and therefore there was 
 a case for investigation by tlie magistrates under 
 17 & 18 Vict. c. 104, s. 433; and, secondly, 
 that the word " ship " applied to all craft which 
 substantially went to sea and only used oars as an 
 auxiliary power, and that there had been a collision 
 between two ships within the meaning of 25 & 26 
 Vict. c. 63, s. 33, and that therefore the order was 
 good. Ex parte Ferguson and Hutchinson, 40 Law 
 J. Eep. (N.s.)Q.B. 105; Law Eep. 6 Q.B. 280. 
 
 {q) Consequential loss. 
 
 31. — In a cause of damage the defendant will 
 not be liable for any consequential damage, which 
 the plaintiff might have averted by the exercise of 
 ordinary skill and courage. And semble — the 
 burden of proving that the loss could not have been 
 averted by such skill and courage lies upon the 
 plaintiff. The Thuringia, 41 Law J. Eep. (n.s.) 
 Adm. 44, 
 
SHIPPING LAW (F), (H). 
 
 Oil appeal from a report of the registrar disal- 
 lowing a claim for total loss in a cause of damage 
 by collision, — Held, that the master of the plain- 
 tiff's vessel Tras not justified in abandoning her 
 after the collision. Eeport confirmed with costs. 
 Ibid. 
 
 {r) Ballast lighter : Thaines Comermney. 
 
 32. — The regulations for preventing collisions 
 at sea issued under 25 & 26 Vict. c. 63 and Order 
 in Council of 9th January, 1863, do not apply to a 
 ballast lighter -which, though at times navigated 
 under sail, never goes to sea, but is wholly em- 
 ployed within the jurisdiction of the Thames Con- 
 servancy. The C. S. Butler, Law Eep. 4 Adm. & 
 Ecc. 238. 
 
 Where such a vessel has been injured in a col- 
 lision her owners will not, in the absence of any 
 bye-law of the Thames Conservancy, be held dis- 
 entitled to recover damages in a collision cause 
 on the ground that she contributed to the collision 
 by being under weigh befcrre sunrise without hav- 
 ing any lights exhibited. Ibid. 
 
 (s) Damage without collision. 
 
 33. — If through the negligence or misconduct 
 of those on board a vessel another vessel receives 
 or does damage, the owners of the wrong-doing 
 vessel would be liable in the Court of Admiralty 
 for the damage, even thoTigh there was no collision 
 between the two vessels. The Industn/, 40 Law 
 J. Eep. (n.s.) Adm. 26 ; Law Eep. 3 Adm. & Ecc. 
 303. 
 
 (t) Arrest of freight. 
 
 34. — A vessel under charter-party as to both 
 her outward and homeward cargo, whilst on the 
 outward voyage came into collision with another 
 vessel : — Held, that the freight for the homeward 
 voyage was liable to arrest for the damage. The 
 OrpheMS, 40 Law J. Eep. (n.s.) Adm. 24 ; Law 
 Eep. 3 Adm. & Ecc. 308. 
 
 Jurisdiction of Court of Admiralty in cases 
 of damage and collision, [See Admie- 
 AITT, 14-18.] 
 
 Practice and procedure. [See Admiealty, 
 21, 23, 29, 34-38.] 
 
 (Gr) DeLIVBEY Airo DiSCHAKGE OP Caego. 
 
 1. — The Merchant Shipping Act Amendment 
 Act, 1862, s. 67, provides that where the owner of 
 goods imported " fails to land and take delivery 
 thereof," the shipowner may land and unship the 
 said goods and warehouse them : — Held, that the 
 word "fails" need not imply a wilful default in 
 the cargo owner, and that the shipowner may land 
 goods whenever the delivery to the owner within 
 the proper time has been prevented by circum- 
 stances, whether the latter is to blame or not. 
 Miedbrodt v. Fitzsimon; The Energie (P.O.) 44 
 Law J. Eep. (n.s.) Adm. 25 ; Law Eep. 6 P. 0. 
 307. 
 
 Section 68 provides that, "if the shipowner 
 
 gives to the warehouse owner notice in writing 
 
 that the goods are to remain subject to a lien for 
 
 freight or other charges payable to the shipowner 
 
 PiGEST, 1870-1875. 
 
 to an amount to be mentioned in such notice, the 
 goods so landed shall, in the hands of the ware- 
 house owner, continue liable to the same lien, if 
 any, for such charges as they were subject to be- 
 fore the landing thereof :" — Held, that a master 
 who wilfully inserts in a notice a sum in excess of 
 that for which he has a lien, is guilty of a wrong- 
 ful detention of goods, and is liable in an action 
 for a breach of duty. Ibid. 
 
 2. — Case in which a shipowner was not held 
 bound to deliver the amount of goods specified in 
 the bin of lading signed by the master, but only 
 the smaller amqunt actually put on board. M'Lean 
 and Hope v. Fleming, Law Eep. Sc. App. 128. 
 
 Custom of port of delivery. [See supra 
 
 B8.] 
 Short delivery of cargo. [See supra B 12.] 
 
 (H) Demueeaqe. 
 (a) Detention at port of lading. 
 
 1, — By a charter-party it was agreed that the 
 ship should go to a certain port and there load 
 from the charterer a cargo " in the customary 
 manner," and proceed therewith to another port 
 and deliver the same. ..." The cargo to be 
 discharged in ten working days, commencing from 
 the day after the ship has got into her proper dis- 
 charging berth. Demurrage at 11. per 100 tons 
 register per day. . . . The ship to have an 
 absolute lieu on cargo for freight and demiirrage, 
 the charterer's liability to any clauses in the 
 charter ceasing when he has delivered the cargo 
 alongside ship : " — Held, that the demurrage and 
 the lien and exemption clauses did not apply to 
 damages by undue detention of the vessel at the 
 port of la(fing. Lockhart v. Falh, 44 Law J. Eep. 
 (n.s.) Exch. 105; Law Eep. 10 Exch. 132. 
 
 2. — By a charter-party, it was agreed between 
 the plaintiff (a shipowner) and a merchant thett 
 the plaintiff's ship should proceed to Suliua, 
 - . . and there load as customary from the 
 factors of the . . . freighter a full and com- 
 plete cargo of staves, &e., " which the . . . 
 merchant bound himself to ship, . . . and 
 . . . therewith proceed to London, and deliver 
 the same on being paid freight at specified rates. 
 . . . The freight to be paid in cash on . . . 
 right delivery of cargo. . . . Fifty running 
 days ... to be allowed for loading . . . and 
 ten days on demurrage, over and above the 
 laying days ... at H. per day. . . . The owners 
 to have an absolute lien on the cargo for 
 all freight, dead freight, demurrage, and average ; 
 and the charterer's responsibilities to cease on 
 shipment of the cargo, provided it be of sufficient 
 value to cover the freight and charges on arrival 
 at port of discharge. ..." The ship pro- 
 ceeded to Sulina and, after a delay of eighteen 
 days beyond the ten demurrage days, loaded a 
 short cargo. A printed biU of lading was then 
 signed by the captain for 283,682 staves, to be 
 delivered " at the port of discharge, as per charter- 
 party unto order, or . . assigns, he or they 
 paying freight and all other conditions (these words 
 being inserted in writing^ or lemurrage (if any 
 3Z 
 
S38 
 
 SHIPPING- LAW (H). 
 
 should be incurred) fur the said goods as per 
 charter-party." Upon the arrival of the ship in 
 London the plaintiff claimed from the defendants, 
 who had become consignees of the bill of lading, a 
 lien on the goods mentioned in the bill of lading 
 for cargo short shipped (claimed as dead freight) 
 for demurrage proper, in respect of the ship being 
 detained ten days at the port of loading, and for 
 damages in the nature of demurrage for a deten- 
 tion beyond the demurrage days. The defendants 
 had no notice, until the arrival of the ship in Lon- 
 don, of this claim, but they had received a copy of 
 the charter-party with the bill of lading : — Held, 
 first, by the Exchequer Chamber, unanimously 
 affirming the decision of the Queen's Bench, that 
 the plaintiff had no lien for damages in the nature 
 of demxujrage ; secondly, by the majority of the 
 Exchequer Chamber, Kelly, G.B., Bramwell, B., 
 Channell, B., and Cleasby, B., affirming the de- 
 cision of the Queen's Bench, that the plaintiffs 
 had a lien for demurrage proper, as such a lien 
 was given by the charter-party, and this lien was 
 incorporated in the bill of lading — Willes, J., and 
 Brett, J., dissenting on the ground that, even if 
 such a lien were given by the charter-party, the 
 bill of lading did not incorporate such a liability 
 incurred at the port of loading ; thirdly, by the 
 majority of the Court. Kelly, C.B., Willes, 
 J., Channell, B., and Brett, J., af&rming the 
 decision of the Queen's Bench, that the plain- 
 tiff had no lien for " dead freight," as the 
 claim was not " dead freight " within the 
 meaning of the charter-party and bill of lading, 
 and further (by Willes, J., and Brett, J.) that the 
 bill of lading did not incorporate such a claim in- 
 curred at the port of lading — Bramwell, B., and 
 Cleasby, B., dissenting on the ground that such 
 claim was dead freight within the charter-party, 
 and was transferred by the bill of lading. Gray 
 V. Carr (Exch. Ch.), 40 Law J. Eep. (n.s.) Q. B. 
 287 ; Law Eep. 6 Q. B. 522. 
 
 (4) Delay in loading. 
 
 3. — Declaration on a charter-party, by which it 
 was agreed that the defendant should load the 
 plaintiff's ship in regular turn, and that the ship 
 when loaded should proceed to her port of desti- 
 nation, and there deliver the cargo to the freighter 
 or his assigns, on being paid freight, and that the 
 charter-party being concluded by the defendant on 
 behalf of another party resident abroad, "all lia- 
 bility by the defendant should cease as soon as he 
 had shipped the cargo." Breach, that the ship 
 was not loaded in regular tiirn. Plea, that the 
 defendant, before action, shipped the agreed cargo 
 under the charter-party, whereby his liability 
 ceased : — Held, on demurrer, that the plea was 
 bad, as upon the true construction of the charter- 
 party the defendant, although not liable for any- 
 thing that occurred after he had shipped the cargo, 
 remained liable for any delay or default before it 
 was so shipped. Christoffersen v. Hansen, 41 
 Law J. Eep. (n.s.) Q. B. 217 ; Law Eep. 7 Q. B. 
 609. 
 
 4. — By- a charter-party it was agreed as fol- 
 lows ; " cargo to be loaded in thirteen clear work- 
 
 ing days from the day written notice is given that 
 all ballast or inward cargo is discharged. Cargo 
 to be discharged, weather permitting, at not less 
 than 35 tons per working day, time to commence 
 on ship's being ready to deliver. Ten days on de- 
 murrage for all like days above the said days, to 
 be paid at the rate of fourpence per register ton 
 per day. Charterer's liability to cease when the 
 ship is loaded, the captain or owner having a lien 
 on cargo for freight and demurrage." The char- 
 terer, having occupied five days beyond the thir- 
 teen days allowed for loading, was, after a full 
 cargo had been loaded, sued by the shipowner for 
 demurrage : — Held, affirming the judgment of the 
 Court of Queen's Bench, that the charterer was 
 protected from liability under the last clause of 
 the charter-party. Kish v. Cory (Exch. Ch.), 44 
 Law J. Eep. (n.s.) Q. B. 205 ; Law Eep. 10 Q. B. 
 553. 
 
 5. — It was agreed by charter-party that a ship 
 should load a full cargo at Liverpool in fifteen 
 working days and when loaded proceed to Genoa, 
 there " to be discharged, weather permitting, at 
 the rate of not less than thirty-five tons per work- 
 ing day from the time of her being ready to unload. 
 And ten days on demurrage over and above . her 
 said laying days at 8Z. per day. Charterer's lia- 
 bility to cease when the ship is loaded, the captain 
 having a lien upon the cargo for freight and de- 
 murrage." The charterer having occupied more 
 than twenty-five days in loading, the shipowner, 
 after a full cargo had been loaded, sued the char- 
 terer for the demurrage in respect of some of the 
 ten days : — Held, that the charterer was protected 
 by the last clause of the charter-party. Francesco 
 V. Massey, 42 Law J. Eep. (n s.) Exch. 75 ; Law 
 Eep. 8 Exch. 101. 
 
 (c) Loading in i 
 
 6. — By a charter-party it was agreed that the 
 vessel should " proceed direct to any Liverpool or 
 Birkenhead dock as ordered by charterers, and 
 there load in the usual and customary manner a 
 full and complete cargo of coals ; " that the vessel 
 should be "loaded at the rate of 100 tons per 
 working day," and that loading should not com- 
 mence before the 1st of July. On the 3rd of July 
 the vessel was ready to go to the Wellington 
 Dock, which was the Liverpool Dock ordered by 
 the charterers, but she was not admitted into such 
 dock until the 11th of July, because the coal agent 
 employed by the charterers to supply the cargo 
 had then three vessels in that dock and two others 
 booked to come in, and the dock regulations did 
 not allow a coal supplier to have more than three 
 vessels in dock at the same time. Coal agents 
 were usually employed to supply cargoes, and it 
 did not appear that the charterers had made an 
 unreasonable selection of the coal agent they so 
 employed. The vessel entered the dock on the 
 11th of July, but her turn to go to the spout to 
 receive the coals did not arrive sooner than the 
 23rd of July, and her loading was not begun until 
 after that day. It was the usual practice to load 
 coal at the spout, but it was also not unusual to 
 load from lighters : — Held, that the lay-days 
 
SHIPPING LAAV (H), (I). 
 
 509 
 
 did not begin until the vessel had entered the 
 dock to which she had been so ordered by the 
 charterers, but that they begun from that time, 
 and were not postponed until the vessel's turn had 
 arrived to go to the spout. Tapscott v. Balfour, 
 42 Law J. Rep. (n.s.) C. P. 16 ; Law Eep. 8 0. P. 
 46. 
 
 7. — By a charter-party, the master of the plain- 
 tiff's ship engaged to receive on board a full cargo 
 of coal and deliver, &e., " to be loaded with the 
 
 usual despatch of the port, or if longer 
 
 detained to be paid 40s. per day demurrage." The 
 defendants engaged to load her " on the above 
 terms." By a memorandum at the foot of the 
 charter-party she was to load in the B. or W. 
 Docks, by a regulation of which coal agents were 
 not to have more than three vessels loading and 
 to load at the same time. The plaintiff's ship 
 would have been loaded without delay had it not 
 been for the fact, unknown to the plaintiff, that 
 the defendants acted as their pwn coal agents, 
 and that they had three ships loading in the docks, 
 and ten other charters in their books which had 
 priority over the plaintiff's ship. By reason of 
 the incapacity under "which the defendants had so 
 placed themselves, the loading could not be com- 
 menced until thirty days after the ship was ready : 
 — Held, in an action for demurrage, that the de- 
 fendants had contracted that they would load with 
 the usual despatch, and that it was no answer that 
 they "were imable to do so, or that the plaintiff 
 knew it. Ashcroft v. The Crow Orchard Colliery 
 Company, 43 Law J, Eep. (n.s.) Q,. B. 194 ; Law 
 Eep. 9 a. B. 540. 
 
 {d) Fraction of a day. 
 
 8. — Where, by a charter-party, a specified sum 
 is to be paid for each day over and above the 
 lying days, that sum is payable in respect of a 
 fraction of a day during which the ship is detained, 
 Tlie Commercial Steamship Company v. Boidton, 
 44 Law J. Eep. (n.s.) Q. B. 219 ; Law Eep. 10 
 a B. 346. 
 
 (I) Fkeight. 
 (a) Payment in advance. 
 
 1. — By a charter-party, under which the plain- 
 tiff's vessel was chartered to carry a cargo of coal 
 from Greenock to Bombay, freight was to be paid 
 on the right delivery of the cargo at a certain 
 rate per ton on the quantity delivered, and such 
 freight was to be half in cash on signing bills of 
 lading, and the remainder on the right delivery of 
 the cargo. The vessel left Greenock "with her 
 chartered cargo, and was "wrecked on the voyage. 
 Half her cargo was totally lost, but half was saved 
 and delivered at Bombay ; but as the freight in 
 respect of such half was less than the freight which 
 had been paid in advance on signing the bills of 
 lading, the plaintiff received no freight on the 
 delivery of such half, but totally lost the same : — 
 Held (per Cockbum, C.J., Mellor, J., and Amph- 
 lett, B.), reversing the decision of tlje Court of 
 Common Pleas (42 Law J. Eep. (n.s.) C. P. 334), 
 Cleasby, B., and Pollock, B., dissentientibus, that 
 the freight which the plaintiff so lost was not 
 
 recoverable as a total loss under an insurance of 
 freight to be earned by the plaintiff's vessel on 
 the said voyage, which he effected after the charter- 
 party. Allison V. The Bristol Marine Insurance 
 Company, 43 Law J. Eep. (n.s.) C.P. 311 ; Law 
 Eep. 9 C.P. 559. 
 
 2. — A ship was chartered for a homeward voy- 
 age from Calcutta, with an option to the charterers 
 to send her on an intermediate voyage, " freight to 
 be paid as follows : 1,200L to be advanced to the 
 master, and to be deducted, together with Ij per 
 cent, commission on the amount advanced and cost 
 of insurance, from freight on settlement thereof, 
 and the remainder on right delivery at port of dis- 
 charge." The master was also "to sign bills of 
 lading at any current rate of freight required, 
 ■without prejudice to the charter-party, hut not 
 imder the chartered rates, unless the difference be 
 paid in cash." The charterers elected to send the 
 vessel on an intermediate voyage, and paid the 
 1,200Z., and required the master to sign bills of 
 lading below the chartered rates. The difference, 
 amounting to 737^., was demanded from them by 
 the master, but they refused to pay it, claiming to 
 set off against it the advances made on account of 
 the vessel. The vessel was lost on her way to the 
 intermediate port : — Held (affirming the judgment 
 of the Court of Exchequer, 40 Law J. Eep. (n.s.) 
 Exch. 40 ; Law Eep. 6 C. P. 20), that a pay- 
 ment in advance on account of freight cannot 
 be recovered, even though the voyage fail; and 
 that according to the terms of the charter-party 
 the payment of the difference was to be a payment 
 in the nature of freight, so that if the defendants 
 had paid the difference in advance, they would not 
 have been entitled to recover it ; and that there- 
 fore the shipowner was entitled to recover the 
 amount from them, notwithstanding the failure of 
 the voyage. Byrne v. Schiller (Exch. Ch.), 40 
 Law J. Eep. (n.s.) Exch, 177 ; Law Eep. 6 Exch. 
 319. 
 
 (6) Eight to freight. 
 (1) Shipowner reserving freight of his own goods. 
 
 3. — H., a shipowner, obtained from T. B. & 
 Co., merchants and brokers, a letter of credit for 
 his account in favour of H. B. & Co., for a quantity 
 of rice to be shipped from India or China to 
 England in H.'s own vessels. T. B. & Co., in 
 their letter of credit to H. B. & Co., stipulated 
 that the drafts to be forwarded for their acceptance 
 should be covered by shipping documents. It 
 was assumed that H B. & Co. were agents for H. 
 They purchased the rice and shipped it in the 
 Java, one of H.'s vessels, and drew on T. B. & Co. 
 for the amount, accompanying their drafts with 
 bills of lading of the rice. These bills of lading 
 described the rice as shipped by H. B. & Co. to 
 T. B. & Co. or their assigns, " freight for the said 
 rice, il. 5s. per ton," and they bore an endorse- 
 ment by the captain, " Eeceived from H. B. & Co. 
 250?., being the amount of ship's disbursements 
 at Akyab, the amount to be deducted from the 
 freight on this bill of lading." T. B. & Co., on 
 receipt of this, accepted the drafts, which they 
 paid at maturity. In the meantime H, had given 
 3 z2 
 
640 
 
 SHIPPINO LAW (1). 
 
 C. P. & Co, a charge on tlie freight then being 
 earned by the Java, as security for money ad- 
 vanced. The Java arrived in port, and C. P. & 
 Co. put a stop on the cargo for the freight, and 
 gave T. B. & Co. notice of their claim : —Held, 
 that whatever might have been the original im- 
 pression of T. B, & Co., as to the rice being freight 
 free, the contract was that they would make the 
 advance on shipping documents ; that having 
 accepted the bills of lading as such shipping 
 documents, they were bound by the terms of those 
 bills, and that C. P. & Co. were entitled to claim 
 and receive the freight from them, less the amount 
 of ship's disbursements paid to the captain, there 
 being no rule in law to prevent a shipowner from 
 reserving freight in bills of lading of his own 
 goods when carried in his own vessels or from 
 dealing.with the freight when so reserved, or from 
 consigning the goods subject to such freight. We- 
 ffiielin V. Cellier (H.L.), 42 Law J. ilep. (n.s.) Chanc. 
 758 ; Law Eep. 6 E. & I. App. 286. 
 
 (2) Mutual mistake. 
 
 4. — The plaintiff, as master of a ship lying in 
 London, entered into a charter-party with L., a 
 shipbroker, to carry a quantity of iron at a ton- 
 nage freight. By the charter-party, freight was 
 to be paid in London on signing bills of lading, 
 the owner to have an absolute lien for freight. 
 On' the same day L. re-chartered the ship to the 
 defendants to carry the same quantity of iron at 
 an increased freight, with similar provisions as to 
 payment of and lien for freight, and with this 
 clause — " The brokerage of five per cent, is due on 
 the execution of this charter to L., by whom the 
 vessel is to be entered and cleared at the port of 
 loading." L had, however, no authority to act as 
 broker for the plaintiff, or to receive the freight. 
 Neither the plaintiff nor the defendants knew of 
 the charter-party entered into by the other. The 
 iron was shipped by the defendants, and the 
 master signed and the defendants received bills 
 of lading, by which the iron (stated to be shipped 
 by the defendants) was to be delivered to con- 
 signees or assigns, "paying freight for the said 
 goods as per charter-party." The plaintiff did 
 not claim the freight on signing the bills of 
 lading, and delivered the cargo without insisting 
 upon his lien. L. in the meantime obtained the 
 freight due from the defendants, and, having 
 stopped payment, the freight due under his 
 charter was not paid to the plaintiff: — Held, that 
 the plaintiff was not entitled to recover freight 
 from the defendants as shippers of the iron, inas- 
 much as both parties made a mistake as to the 
 charter-party referred to in the bills of lading, 
 and were consequently never ad idem. No con- 
 tract could therefore be implied on the part of the 
 defendants to pay freight to the plaintiff. Schmidt 
 V. Tiden, 43 Law J. Eep. (n.s.) Q. B. 199 ; Law 
 Eep. 9 Q. B. 446, nom. Smidt v. Tiden. 
 
 (3) Performance unlawful by reason of war. 
 
 5. — The master of the T. having figreed to carry 
 cargo to the port of Dunkirk, arrivd off that port 
 on the 16th of July, whenwarwas imminent between 
 
 France and Prussia. Being from other causes 
 unable to enter the port till the 17th, he brought 
 the ship to the Downs, where she remained till the 
 19th, when war was formally declared: — Held, 
 that the interval between the 17th and 19th was 
 only a reasonable time which the master was en- 
 titled to take to make enquiries as to the danger, 
 and that after that time had elapsed, the contract 
 could not, by reason of the war, have been exe- 
 cuted. Also, that the master was not bound to 
 deliver the cargo at Dover without receiving some 
 payment for carrying the cargo thus far. The 
 Teutonia, 41 Law J. Eep. (n.s.) Adm. 4; Law 
 Eep. 3 Adm. & Ecc. 394. 
 
 (4) Dangerous cargo. 
 Q . — A cargo of petroleum was shipped in London 
 for Havre, to be delivered to the order of the ship- 
 pers, or their assigns. The bill of lading provided, 
 "The goods to be taken out within twenty-four 
 hours after arrival, or pay lOl. 10s. a day demur- 
 rage." On her arrival at Havre the ship was not 
 allowed to remain in harbour, on account of her 
 dangerous cargo, and the master took her to Hon- 
 fleur and Trouville, but being unable to remain in 
 those ports for the same reason, he returned to 
 Havre, and was allowed to remain in the outer 
 harbour, where the goods might have been dis- 
 charged. No bill of lading was presented, nor was 
 any request made to deliver the goods. After 
 waiting four days, the master carried the goods 
 back to London : — Held, first, that the freight to 
 Havre had been earned ; secondly, that the master 
 had authority under the circumstances to carry the 
 goods back to London; and that the shipowners 
 were entitled to homeward freight and to expenses 
 at Havre, but not to demurrage or expenses in- 
 curred in attempting to enter the ports of Honfleur 
 and Trouville, The Cargo ex Argos, 42 Law J. 
 Eep. (n.s.) Adm. 49 ; Law Eep. 4 Adm. & Ecc. 
 13 ; 5 P.O. 135. 
 
 (c) Lump freight. 
 
 7. — By charter-party, the ship was to be loaded 
 with a full cargo, and to have a deck cargo, and 
 being so loaded was to proceed to London, and 
 " deliver the same on being paid freight as follows : 
 a lump sum of 316?. . . . the freight to be paid 
 in cash, half on arrival, and remainder on unload- 
 ing and right delivery of the cargo." The ship 
 arrived in London with the whole of the cargo, 
 with which the charterer had loaded her, with the 
 exception of the deck load, which had been lost 
 during the voyage by one of the excepted perils in 
 the charter-party, and without any default on the 
 part of the master or crew ; — Held, that the ship- 
 owner was entitled to the whole of the lump 
 freight without deducting the proportion of freight 
 payable in respect of the deck load which had 
 been lost. Eobimon v. Knights, 42 Law J. Eep. 
 (n.s.) C.P. 211 ; Law Eep. 8 C. P. 465, and The 
 Merchant Shipping Company v. Armitage, Law 
 Eep. 8 C. P. 469 11. 
 
 8. — By a charter-party between the defendants 
 and the master of the plaintiffs' ship it was agreed 
 that " the ;:hip should load at Colombo, or proceed 
 
SHIPPING LAW (1). 
 
 641 
 
 to Cochin, and if ordered to Cochin, there load 
 from the charterers .... a, full and complete 
 lading of legal merchandise, &o., and therewith 
 proceed to London into the East or West India 
 Docks, and discharge there as customary, the act 
 of God, restraints of princes, &c., excepted. A 
 lump freight of 6,0001. to be paid after entire dis- 
 charge and right delivery of the cargo in cash two 
 months after the date of the ship's report inwards 
 at the Custom House, or under discount at live 
 per cent. The master to sign bills of lading at 
 any rate of freight required without prejudice to 
 this charter-party, but, should the aggregate 
 freight by bills of lading amount to less than the 
 lump sum of 5,0OOZ. already stipidated for, the 
 difference to be deducted from the amount to be 
 drawn for disbursements, and the balance, if any, 
 to be paid in cash at the rate of exchange for 
 sight bills existing at the time of the ship's 
 clearing in Colombo. The owners of the ship to 
 have an absolute lien on the cargo for the amount 
 of freight stipulated for, except as to the captain's 
 draft for disbursements and commission as before 
 mentioned, in case of default. The charterers to 
 furnish cash for the disbursements of the ship at 
 port of loading at current rate of exchange, not 
 exceeding 7501. free of interest, but subject to a 
 commission of 2J per cent., and cost of insurance, 
 for the due appropriation of which the charterers 
 are not to be held responsible, and for which, and 
 agency commission, the master shall give his draft 
 on the owners payable in London at sixty days' 
 sight, and in the event of the bill not being ac- 
 cepted or paid at maturity, the amount to be 
 deducted from freight at settlement thereof," &c. 
 The ship proceeded to Cochin, was there put up by 
 the defendants as a general ship, and loaded with 
 a full cargo under bills of lading. The total 
 amount of the bill of lading freight was estimated 
 by the charterers at 4,995/. 10s. 6d., and was pay- 
 able in London on delivery of the goods there. 
 The ship sailed with her cargo for London, and 
 while at sea a fire brolte out, and part of the cargo 
 was so injured by fire and water that it became 
 necessary to sell it. The remainder of the cargo 
 was brought to London, and reported inwards at 
 the Custom House. The bill of lading freight re- 
 ceived by the plaintiffs amounted to 3,482Z. 7s. 1 Od., 
 and the defendants advanced to the master at 
 Cochin 3642. 14s. Id. for disbursements of the 
 ship, making together 3,847Z. Is. 11 1^. : — Held, 
 first, affinhing the cases of The Norway (3 Moo. 
 P. C. N.s. 245), and Bohinson v. Knights (42 Law 
 J. Bep. (n.s.) C. p. 211 ; Law Eep. 8 C. P. 466), 
 that, the plaintiffs were entitled to the Ijalance of 
 the lump sum of 6,000/. after giving credit for the 
 3,847/. Is. lid. received by them, as the 6,C00/. 
 was to be payable on the delivery, not of the 
 entire cargo which had been put on board, but of 
 that which had not been lost by the 'excepted 
 perils ; secondly, tlmt the plaintiffs were not en- 
 titled to interest on the balance in question, as it 
 could not be regarded as. a sum payable on a day 
 certain. The Merchant Shipping Company v. Ar- 
 mitage (Exch. Oh,), 43 Law J. Eep. (n.s.) Q. B. 
 24; Law Eep. 9 Q. B. 99. 
 
 9. — Declaration, for lump freight payable under 
 a bill of lading in respect of a cargo of pit- wood 
 carried from L'Orient , to Cardiff. Plea, first 
 (except as to 217 tons, portion of the cargo), 
 setting out a bill of lading made by the plaintiff, 
 master of the ship, at the port of I'Orient, whereby 
 he acknowledged to have received of the shipper a 
 specified weight of wood, to be carried and de- 
 livered to the bearer or his order on payment for 
 freight of the sum of 172/. Is. Averment, that the 
 plaintiff did not carry and deliver the goods in the 
 bill of lading, but a portion of the same only, to 
 wit, 217 tons. Second plea, payment into Court 
 in respect of those tons. Eeplication — third, that 
 the plaintiff carried tlie whole delivered to him, 
 and that the goods described in the bill of lading 
 as weighing more tlian 217 tons, in fact weighed 
 217 tons and no more, and that the weight men- 
 tioned in the bill of lading was a mere misdescrip- 
 tion, 'without fraud or default on the part of the 
 plaintiff; fourth, that the bill of lading was made 
 in Prance, and that according to the law of Prance 
 the whole of the freight was payable, notwith- 
 standing that the said part only of the goods was 
 carried and delivered ; fifth (repeating the third, 
 and adding), that the bill of lading was made in 
 Prance, and that according to the law of France 
 the whole of the freight was payable. On de- 
 murrer to the first plea and to the replications, — 
 Held, that even if the plea, which was ambiguous, 
 were treated as good, tlie replications, being good 
 also, sufficiently answered it. BlanchU v. Powells 
 Llantivit Colliery Company, 43 Law J. Eep. (n.s.) 
 Exch. 60 ; Law Eep. 9 Exch. 75. 
 
 id) Dead freight. 
 
 10. — Dead freight is an uncertain sum re- 
 coverable by the shipowner from the freighter 
 for deficiency of cargo. The shipowner's lien for 
 dead freight attaches only by express stipulation. 
 M'Lean and Hope v. Fleming, Law Eep. 2 Sc. App. 
 128. 
 
 Lien for dead freight. [See sujra H 2.] 
 
 (c) Lien for freight. 
 
 11. — A firm of brokers, having chartered a ship, 
 advertised her as about to sail, and invited ship- 
 pers to send their goods l)y her. Under the 
 cliarter-party, the captain was to have an absolute 
 lien on the cargo for freight, dead freight, and de- 
 murrnge. The plaintiffs, wljo had no notice of 
 the charter-party, dealing with the charterers only, 
 sent some tea on board, to be carried at a rate of 
 freight agreed upon between themselves and the 
 charterers. Afterwards the charterers proved 
 unable to fill the ship, and so to carry out their 
 contract with the owner, and the ship accordingly 
 did not sail. No bills of lading for the tea had 
 been signed, and the captain refused to sign tliem 
 unless they were expressly made subject to the 
 charter-party. The owner claimed a lien on the 
 tea, for the expenses incurred by him througli his 
 dealings with the charterers: — Held, that he had 
 no such lien, the plaintiffs having had no notice 
 of the charter-party, and there being nothing to 
 
642 
 
 SHIPPING LAW (I). 
 
 put them on their enquiry ; and tlie tea was 
 ordered to be given up to them, the intended 
 carriage thereof having failed, Feek v. Larsen, 
 40 Law J. Pep. (n.s.) Chanc. 763; Law Pep. 12 
 Eq. 378. 
 
 12. — The defendants shipped goods, on board a 
 vessel, chartered by the plaintiifs on a voyage to a 
 foreign port, under a bill of lading, which stated 
 that the goods were to be landed at the expense 
 and risk of the consignee. On the arrival at the 
 port of destination there was no consignee ready 
 to receive the goods, and the vessel was thereby 
 detained there for a considerable time. An action 
 for unliquidated damages for such detention was 
 brought against the plaintiffs by the owners of the 
 vessel, and the plaintiffs defended the action, after 
 giving notice thereof to the defendants, who re- 
 fused to have anything to do with it. The plain- 
 tiffs afterwards sought to recover from the de- 
 fendants not only the sum awarded in that action 
 for such detention, but also the costs incurred in 
 defending it. At the trial the Judge left it to the 
 jury to say whether it was reasonable in the 
 present plaintiffs to have defended that action, 
 and whether they defended it in a reasonable way. 
 The Judge also told the jury that the captain 
 would lose his lien for freight by landing the 
 goods, as it did not appear that there was any 
 warehouse at such foreign port similar to those 
 under the English warehousing statutes. The 
 jury having found for the plaintiffs for the amount 
 claimed, — Held, that the question was rightly left 
 to the jury as to the liability of the defendants to 
 the costs of the action brought against the plain- 
 tiffs. Also, that the direction of the Judge that 
 the captain could not land the goods without 
 losing his lien for freight was wrong, as being too 
 general in its terms, since he might land them 
 and yet preserve his lien for fi-eight if he kept 
 them entirely within his own exchisive control. 
 Mors U Blanch v. Wilson, 42 Law J. Rep. (n.s.) 
 0. P. 70 ; Law Pep. 8 C. P. 227. 
 
 Quaere — whether the captain would not lose 
 such lien if the goods when landed were placed in 
 the hands of an independent person, who would 
 have a lien on his own behalf, even thoxigh he should 
 undertake to the captain not to deliver the goods 
 to the consignee without being paid the claim for 
 freight. Ibid. 
 
 13. — The addition by the master to the bill of 
 lading of the words "quantity and quality un- 
 known" were held not to take away his right, 
 under the charter-party, to be paid freight upon 
 the invoiced quantity in the bill of lading. Tully 
 V. Terry, 42 Law J. Eep. (n.s.) C. P. 240 ; Law 
 Pep. 8 C. P. 670. 
 
 14.— It was provided by a charter-party that 
 250Z., part of the freight, should be advanced in 
 cash on signing bills of lading and clearing at the 
 Custom House, and that for the security and pay- 
 ment of all freight, dead freight, demurrage, and 
 other charges, the master or owners should have 
 an absolute lien and charge on the cargo. The 
 ship was loaded and cleared at the Custom House, 
 but the 260?. was not paid, and consequently the 
 captain did not sign bills of lading, and the ship 
 
 never started on her voyage. The charterer 
 having become insolvent , his trustee in liquidation 
 gave notice to the owner that he disclaimed all 
 interest under the charter-party. The owner 
 claimed a lieu on the cargo for the 250Z. as 
 freight, but it was held, affbming the decision 
 of the Chief Judge in Bankruptcy, that the ship 
 never having earned or commenced to earn freight, 
 no lien arose. Ex parte Nyholm ; In re Child,, 43 
 Law J. Eep. (n.s.) Bankr. 21. 
 
 15, — When money for the carriage of goods by 
 sea is payable at the port of destination, " ship 
 lost or not lost," and the ship is wrecked upon the 
 voyage, the shipowner has no lien upon the goods, 
 although the money to be paid for the carriage 
 thereof is described as "freight" in the bills of 
 lading. Nelson v. The Association for the Pro- 
 tection of Commercial Interests as respects Wrecked 
 and Damaged Property, 43 Law J. Pep. (n.s.) C. P. 
 218. 
 
 Goods were shipped on board the plaintiffs' 
 vessel to be carried to L. under bills of lading, 
 whereby the "freight" was to be paid at L. "ship 
 lost or not lost." Upon the voyage the plaintiffs' 
 vessel was totally wrecked, and they thereupon 
 abandoned the adventure and took no steps to 
 save either ship or cargo. The defendants, under 
 the instructions of the underwriters, saved a portion 
 of the goods mentioned in the bills of lading, and 
 forwarded them to L. A dispute having arisen as 
 to whether the plaintiffs were entitled to a lien for 
 the "freight" mentioned in the bill of lading, a 
 memorandum was drawn up between the plaintiffs 
 and the defendants stating that the plaintiffs having 
 claimed a lien "for the original freight" upon the 
 goods saved " without allowance for the forward- 
 ing freight and expenses," the defendants, " the 
 owners of such cargo," had agreed to deposit the 
 amount of the plaintiffs' claim to abide the event 
 of an action. A special case having been stated 
 for the opinion of tlie Court, — Held, that upon 
 the agreement the only question to be argued was 
 whether the plaintiffs could lawfully claim a lien, 
 that they were entitled to no lien, and that judg- 
 ment must be given for the defendants. Ibid. 
 
 Quaere — whether under the circumstances which 
 had happened the plaintiffs were entitled to re- 
 cover the amount of the " freight " from the parties 
 to the bill of lading. Ibid. 
 
 (/) Eights of mortgagee. 
 
 [And see supra I 4.] 
 
 16. — The owner of a British ship assigned by 
 deed all freight then or thereafter to be earned 
 by her to A. as secm-ity for an advance. This 
 assignment not being within the Merchant Ship- 
 ping Acts, was not registered. The owner subse- 
 quently mortgaged the ship to B. without notice 
 of A.'s rights. The mortgage to B. was duly 
 registered. Freight subsequently became pay- 
 able oh the arrival of the ship at Marseilles by 
 certain consignees there. Before the ship arrived 
 at Marseilles B. took possession of her, and also 
 gave notice of his rights to the consignees :— Held, 
 that he was entitled to receive the freight. Wil- 
 
SHIPPING LAW (I), (K). 
 
 043 
 
 son V. WUson, 41 Lav J. Eep. (n.s.) Chanc. 423; 
 La-w Eep. 14 Eq. 32, 
 
 Semble — B. -would equally liave been entitled to 
 the freight, although he had not taken possession 
 of the ship, so long as he gave notice of his rights 
 to the consignees before they paid the money. 
 Ibid. 
 
 Observations on the position of the registered 
 mortgagee of a ship. Lindsay v. Gibbs (28 Law 
 J. Eep. (n.s.) Chanc. 692) commented on. Ibid. 
 
 17. — A mortgagee of a ship, upon taking pos- 
 session, becomes legally entitled to all freight 
 Tvhieh becomes due after taking such possession, 
 in priority to mortgagees of the freight. Having 
 such legal title, he is entitled, as against a mesne 
 incumbrance of which he has notice, to tack a sub- 
 sequent incumbrance ou the freight. As between 
 him and other mortgagees of the freight, any 
 notice of this mesne incumbrance given to the 
 charterers by the other mortgagees is immaterial. 
 The Liverpool Marine Credit Company v. Wilson, 
 41 La-w J. Eep. (n.s.) Chanc. 798 ; La-w Eep. 7 
 Chanc. 507. 
 
 18. — Charterers of a ship made advances to 
 the owner -which -were applied in ship's disburse- 
 ments. The ship -was in mortgage ; before the 
 freight became due under the charter-party, the 
 mortgagee took possession : — Held, that the char- 
 terers had no right to deduct the advances from 
 the freight payable to the mortgagee. Tanner v. 
 s, 42 Law J. Eep. (n.s.) Chanc. 125. 
 
 {g) Derelict: cargo sold by order of Court. 
 
 19. — A ship damaged by collision -was aban- 
 doned by her crew, and afterwards saved and 
 brought into a port in this country. The ship- 
 o-wner offered to take the cargo to Bremen, its 
 destined port, but the Court ordered a sale here : 
 — Held, that neither party was prejudiced by the 
 sale, and that the contract bet-ween the shipo-wner 
 and o-wner of cargo -was put an end to by the 
 abandonment, and that the shipo-wner was not 
 entitled to any freight. The Kathleen, 43 Law J. 
 Eep. (n.s.) Adm. 39 ; Law Eep. 4 Adm. & Ecc. 
 269. 
 
 {h) Insurance. 
 
 [See also I 1 supra.] 
 
 20. — Charter-party with following obligation 
 on charterers, " sufficient cash for ship ; ordinary 
 disbursements to be advanced the master against 
 freight, subject to interest, insurance, and 2^ per 
 cent, commission, and the master to indorse the 
 amount so advanced upon his hills of lading " : — 
 Held, that the charterer had the right to insure 
 at the expense of the shipo-wner, and that having 
 neglected to do so he had no claim for repayment 
 on the occasion of the total loss of the ship. Wat- 
 son, ^ Co. V. Bhankland, Law Eep. 2 Sc. App. 304. 
 
 Meaning of term "freight." [See Maetob 
 
 Insueance, 20, 21.] 
 Insv/rance on chartered freight: loss of 
 
 freight where no total loss of ship. 
 
 [See Maeinb Ins-peance, 12.] 
 
 (K) PoBEiGN Ship. 
 
 1. — A German master of a German ship 
 chartered by German charterers signed bills of 
 lading which were in the English language, and 
 stipulated for payment of freight in English 
 money by English consignees of goods to be 
 carried to a German port: — Held, that the con- 
 tract must be construed by reference to the fol- 
 lowing rales — 
 
 1 . That the rights and obligations of the par- 
 ties are to be determined by the law which they 
 have declared themselves to intend. 
 
 2. That where there is no express declaration 
 of intention, the presumption as to the law con- 
 templated must be gathered from the circum- 
 stances of the case. 
 
 3. That where the contract is plain in its lan- 
 guage, that language must receive the ordinary 
 and natural construction, and does not admit the 
 introduction of a law dehors the contract. ' 
 
 4. That the contract must be executed accord- 
 ing to its terms, or abandoned, with due compen- 
 sation to the party injured, unless supervening 
 unforeseen circumstances have rendered the execu- 
 tion legally impossible. 
 
 5. That the happening of such circumstances 
 may justify a reasonable delay in the execution of 
 the contract though not an abandonment of it. 
 The Patria, 41 Law J. Eep. (n.s.) Adm. 23. 
 
 The master signed bills of lading to deliver at 
 Hamburg, " dangers of the seas excepted " : — 
 Held, that though the charter-party contained 
 other exceptions, the master was the agent of the 
 owner, as well as the charterer, and that, therefore, 
 the terms of the bill of lading were binding. Ibid. 
 
 The ship arrived at Falmouth on the 23rd of 
 August, during the war between France and Ger- 
 many. Hamburg was blockaded till the 18th of 
 September. The consignees offered to take their 
 cargo at Falmouth and pay full freight, but were 
 refused. The suit was commenced on the 1st of 
 November : — Held, that whether the contract 
 should be construed according to the general 
 maritime law, or English, or German law, the 
 master was bound to have delivered the cargo 
 at Hamburg or Falmouth. Ibid. 
 
 2. — The master of a German ship while at Con- 
 stantinople, by a charter-party, partly in English 
 and partly in German, and entered into with 
 Germans, chartered his ship to take a cargo from 
 Taganrog to England, Havre, or Hamburgh: — 
 Held, that the- contract must be construed ac- 
 cording to Gennan law. The Express, 41 Law J. 
 Eep. (n.s.) Adm. 79 ; Law Eep. 3 Adm. & Ecc. 597. 
 
 Detention of the vessel at Gibraltar from the 
 18th of August, 1870, to the 2ud of February, 
 1871, during the war between France and Ger- 
 many, held under the circumstances to be justifi- 
 able. Ibid. 
 
 By German law, if a vessel is liable to risk of 
 capture, either party may -withdraw from the 
 contract of affreightment, but the master is not 
 obliged to part -with the cargo or to tranship, 
 unless distance freight, as. well as all other claims 
 of the shipowner and the contributions due from 
 the cargo for general average, &c., have been paid 
 
54'i 
 
 SHIPPING LAW (K), (M). 
 
 or seoureci : — Held, that a demand upon the master 
 to tranship at his own rislc and expense, was not 
 such a compliance with tlie German law as obliged 
 him to tranship. Ibid. 
 
 3. — A German ship while in a German port, 
 was chartered by a charter-party in the English 
 language by English charterers, and the ports of 
 call for orders and of final delivery of cargo were 
 English. On a question of delay in delivery of 
 cargo, — Held, that the contract must be governed 
 by English law. The San Roman, 41 Law J. 
 Rep. (n.s.) Adm. 72 ; Law Eep. 3 Adm. & Ecc. 583. 
 
 The excepted perils mentioned in the charter- 
 party were more numerous than those in the bill 
 of lading : — Held, that, under the circumstances, 
 both instruments together contained the contract. 
 Ibid. 
 
 The S. E., a German ship with an English cargo, 
 being in need of repairs, put into V. in the month 
 of August, and then ascertained the existence of 
 the war between France and Germany. The re- 
 pairs were completed on the 21st of September, 
 but the master, under the advice of his consul, did 
 not set sail till the 23rd of December : — Held, that 
 under the circumstances, the risk of capture was 
 such that the delay was justifiable. Ibid. 
 
 According to both English and German law, an 
 apprehension of capture, founded upon circum- 
 stances calculated to affect the mind of a master 
 of ordinary courage, judgment, and experience, 
 would just&y delay. Ibid. 
 
 (L) Geneeai Avehagb. 
 
 A sailing ship sailed from Melbourne, bound for 
 London, properly fitted and manned, and seaworthy 
 for the voyage, with coal enough for an ordinary 
 voyage. She had on board, as is usual for such 
 ships on that voyage, a donl^ey engine equivalent, 
 for the purposes of pumping and working the ship, 
 to ten men. Without the engine ten more men 
 would have been required. On the voyage severe 
 weather caused the ship to spring a leak, which 
 could only be kept down by constantly working 
 the engine at the pumps. When the engine had 
 thus consumed all the coal except one and a half 
 ton, the captain, acting prudently for the pre- 
 servation of the ship, cut up and used with the 
 coal some spare spars and wood, part of the ship's 
 stores, not intended to be used as fuel. There 
 was no sudden emergency which rendered the 
 cutting up of the spars and wood necessary, and 
 the ship was exposed to no serious risk from the 
 water she made while there was suifioient fuel on 
 board to work the engine, but it would have been 
 impossible to have kept the ship afloat with the 
 crew alone without working the engine. The 
 captain afterwards bought coal from another ves- 
 sel, and also in a port into which he ran for that 
 purpose, just enough coal to enable the vessel to 
 reach London in safety. Without the aid of the 
 engine the vessel could not have continued her 
 voyage. The shipowner having sued a shipper of 
 cargo for a general average contribution in respect 
 of the cost of the spare spars and wood, and also 
 of the bought coal, — Held, first, that the cost of 
 the bought coal could not be charged to general 
 
 average. Secondly (per Kelly, C.B., and Bram- 
 well, B., dissentieniiiits Martin, B., and Cleasby, 
 B.), that the cost of the spars and wood could be 
 charged to general average. Harrison v. . The 
 Bank of Australasia, 41 Law J. Eep. (n.s.) Exch. 
 36 ; Law Kep. 7 Exch. 39. 
 
 [See Marine Insurance, 40-43.] 
 
 (M) Master. 
 (a) Authority. 
 
 1. — The master of a ship has no power to 
 pledge the owner's credit for requisite supplies to 
 her in a foreign port at which a solvent agent for 
 her has been appointed ; and a ship-chandler who, 
 in ignorance of there being an agent at the port, 
 furnishes goods or advances money for the ship's 
 use upon an order given by the master without 
 the owner's authority, cannot recover the price of 
 the goods or the amount of the loan from the 
 owner, it at the time of supplying the goods or 
 advancing the money he had the means of know- 
 ing that an agent able and willing to furnish what 
 was requisite for the ship had been appointed by 
 the owner to act at the foreign port. Chinn v. 
 Roberts, 43 Law J. Rep. (n.s.) 0. P. 233 ; Law 
 Eep. 9 0. P. 331. 
 
 Quaere — whether a merchant, who being in " in- 
 vincible ignorance" of the appointment of an 
 agent, furnishes requisite supplies to a ship upon 
 an order given by the master without the owner's 
 sanction, can recover the price thereof from the 
 owner. Semble — that he cannot. Ibid. 
 
 2. — In order to justify a master in selling the 
 goods of an absent owner, he- must establish — ■ 
 first, a necessity for the sale, and secondly, an in- 
 ability to communicate with the owner, so as to 
 obtain an answer before the sale. There is a ne- 
 cessity for the sale if it is the best and most pru- 
 dent thing to do in the interest of the owner. The 
 Australian Steam Navigation Company v. Morse, 
 Law Eep. 4 P. 0. 222. 
 
 3. — The master of a stranded or damaged vessel 
 may sell her, so as to affect the insurers only in a 
 case of stringent necessity. The necessity must 
 be such as would leave no alternative to a skilful 
 and prudent man acting for the best interests of 
 all. The Cobequid Marine Insurance Company v. 
 Barteaux, Law Eep. 6 P. C. 319. 
 
 4. — When a ship is sub-chartered the Court 
 generally will not conclude that the master has 
 signed as agent for the sub-charterers, unless he 
 signs in terms as agent for them, or gives notice 
 of the sub-charter. The Emilien Marie, 44 Law 
 J. Eep. (n.s.) Adm. 9. 
 
 As to authority of master to give bottomry 
 bond, and his liabilities and rights as 
 affected thereby. [See supra (0) Bot- 
 tomry.] 
 
 (i) Duty of, to check damages caused to goods 
 by excepted perils. 
 
 5. — There is a duty upon the master of a ship, 
 as representing the owners, to take active mea- 
 sures to check and arrest the injurious conse- 
 quences of damage done to the cargo by perils 
 
SHIPPING LAW (M), (P). 
 
 546 
 
 excepted in the bill of lading. Notara v. Henderson 
 (Exch. Ch.), 41 Law J. Eep. (N.a.) Q.B. 158; 
 Law Eep. 7 Q. B. 225. 
 
 In an action by a shipper against a shipowner it 
 appeared that beans were shipped under a bill of 
 lading, containing the usual exception of perils of 
 the sea (including collision). The vessel sus- 
 tained danaage by collision, and put into a port 
 for repairs. The beans having become wetted by 
 salt water the shippers, through their agent, offered . 
 to receive the cargo, and pay pro rata freight. 
 The master refused to deliver the cargo, except 
 upon receipt of the whole freight, and proceeded 
 with his vessel to the port of discharge. Upon 
 its arrival it was found that the damage to 
 the beans by the collision had been materially 
 enhanced by their detention on board after they 
 had been saturated with salt water. The in- 
 creased damage would have been avoided if the 
 beans had been unshipped, dried and re-shipped 
 at the port of refuge, the cost of which might 
 have been charged to the cargo as particular 
 average : — ^Held, affirming the judgment of the 
 Court of Queen's Bench (39 Law J. Eep. (n.s.) 
 Q. B. 167; Law Eep. 5 Q,. B. 346), that assmning 
 that the precautions above mentioned would not 
 have unreasonably delayed the voyage, the defen- 
 dant was liable for the additional damage to the 
 plaintiff. Ibid. 
 
 (c) Wages. 
 
 [See supra (C) Bottomet.] 
 
 (N) Measurement oe Tonnage. 
 
 Where there was a covering or awning over the 
 main deck of a ship, open at the sides, and unfit 
 for the carriage of cargo, passengers or crew: — 
 Held (affirming a decision of the Court of Session 
 of Scotland), that tonnage was not chargeable in 
 respect of such covering or awning as if it were a 
 third deck. The Lord Ad/vocate v. The Clyde 
 Steam Navigation Compaity, Law Eep. 2 So. App. 
 409. 
 
 (0) MOBTGAQE AND LlEN. 
 
 (o) lAen for freight. 
 
 [See supra I 11-15.] 
 
 (i) Priority : solicitor's lien, ^c, 
 
 1, — The freight and proceeds of sale of a ship 
 were insufficient to pay the following claims : — 
 first, solicitor's costs of successfully defending the 
 ship in the first action — for breach of contract ; 
 second, necessaries supplied before and after the 
 first suit ; third, money advanced to pay harbour 
 dues, &c.; fourth, wages of master, also part- 
 owner: — Held, that the solicitor's lien had 
 priority to the necessaries supplied after, but not 
 to those furnished before, the institution of the first 
 suit, and to the claim for wages, but not to the 
 claim for moneys advanced for harbour dues, &c. 
 The Heinrich, 41 Law J. Eep. (n.s.) Adm. 68 ; 
 Law Eep. 3 Adm. & Ecc. 505. 
 
 (c) Ship " carried into any port." 
 
 2.— The Admiralty Court Act, 1861, by section 
 6 provides " that the High Court of Admiralty 
 DiaBST, 1870—1875. 
 
 shall have jurisdiction over any claim by any 
 owner, &c., of any goods carried into any port in 
 England or Wales, in any ship, for damage done 
 to the goods, &c., by the negligence, &c., on the 
 part of the owner, &c." — Held, that this Act does 
 not confer a maritime lien. Sapiieto v. Wyllie. 
 " The Pieve-Superieure " (P. 0.), 43 Law J. Eep. 
 (n.s.) Adm. 20 ; Law Eep. 6 P. 0. 482. 
 
 A ship under charter to proceed to certain 
 ports in England, for orders to discharge at a 
 port in England or on the Continent, entered 
 Palmouth with her cargo for orders, and was or- 
 dered to discharge at Bremen, where she did dis- 
 charge her cargo. She then sailed for Cardiff, 
 where she was arrested by process of the Ad- 
 miralty Court: — Held (affirming the decision 
 below, 43 Law .T. Eep. (n.s.) Adm. 1 ; Law Eep. 
 4 Adm.& Ecc. 170), that, inasmuch as the cargo 
 was deliverable at a port in England, and as the 
 ship with her cargo- had entered such a port for 
 orders, the cargo had been " carried into a port" 
 in England vrithin the meaning of the above sec- 
 tion. Ibid. 
 
 (d) Mortgagee; possession. 
 
 3. — Gr., sole owner, mortgaged a ship to B., and 
 died intestate and insolvent. B., under the power . 
 of sale, sold to W., but by mistake endorsed upon 
 the original mortgage a discharge, which was re - 
 corded at the Custom House. Subsequently, the 
 registrar refused to register W.'s bill of sale, as 
 the property in the ship appeared by the papers 
 to be in G-.'s representatives. The Court, without 
 requiring administration to G., ordered possession 
 of the ship to be given to W. The Rose, 42 Law J. 
 Eep. (n.s.) Adm. IT; Law Eep. 4 Adm. & Ecc. 6. 
 
 (e) Bights of mortgagee to freight. 
 [See supra I 16-18.] 
 
 (P) Neoessaeibs. 
 
 1. — A transferee of a mortgage of a ship, 
 though the transfer has not been registered, may 
 intervene in a suit against the ship for neces- 
 saries. The Two Ellem, 40 Law J. Eep. (n.s.) 
 Adm. 11 ; Law Eep. 3 Adm. & Ecc. 345. 
 
 A person who has supplied ifl this country ne- 
 cessaries to a British colonial ship, has not a 
 maritime lien against the ship. Ibid. 
 
 The plaintiffs, without the knowledge or sanc- 
 tion of the mortgagee, supplied necessaries to a 
 vessel which was then mortgaged : — Held, that 
 the mortgage must take precedence of the claim 
 for necessaries. Ibid. 
 
 2. — There is no distinction between necessaries 
 for the ship and necessaries for the voyage. 
 " Whatever is fit and proper for the service upon 
 which a ship is engaged, whatever the owner as a 
 prudent man would, if present, have ordered as fit 
 and proper for such service, comes within the 
 meaning of the term necessaries." Moneys paid 
 for insurance of freight and charges for brokerage 
 are necessaries. The Riga, 41 Law J. Eep. (n.s.) 
 Adm. 39 ; Law Eep. 3 Adm. & Ecc. 516. 
 
 3. — The Admiralty Court Act, 1861, by section 
 5, does not create a maritime lien for necessaries 
 4 A 
 
546 
 
 SHIPPING LAW (P), (T). 
 
 at the time the necessaries are supplied, and a 
 ship does not become chargeable with a debt for 
 necessaries until a suit is actually instituted. All 
 valid charges on the ship to which any person 
 other than the owner is liable are entitled to take 
 precedence of such debt. Johnson v. BlacJc; 
 The Two Ellens (P.O.) 41 Law J. Eep. (n.s.) Adm. 
 83; Law Eep. 4 P. C. 161. 
 
 As to order in priority of lien for neces- 
 saries. [See supra 1.] 
 
 (Q) Offences. 
 [See FoBEiQN Enlistment Act.] 
 
 (E) Pilotage. 
 (a) When comjmlsory. 
 
 1. — The Mersey Dock Acts Consolidation Act, 
 1 858 (21 & 22 Vict. e. 92), by section 139, pro- 
 vides that, "In case the master of any vessel 
 being outward bouud, &c., shall proceed to sea, 
 and shall refuse to take on board or to employ a 
 pilot, he shall pay to the pilot who shall first offer 
 himself to pilot the same the full pilotage rate 
 that would have been payable for such vessel if 
 such pilot had actually piloted the same into or 
 out, as the case may be, of the said port of Liver- 
 pool." The ship C., being outward bound, left 
 the docks at night in charge of a pilot, and pro- 
 ceeded into the river Mersey, where she was 
 anchored for the night, in order that she might 
 proceed on her voyage on the following morning. 
 During the night she collided another ship 
 through the fault of her pilot : — Held (affirm- 
 ing the judgment below, 43 Law J. Eep. (n.s.) 
 Adm. 6 ; Law Eep. 4 Adm. & Ecc. 161), that the 
 ship C. was ' ' proceeding to sea " within the meaning 
 of the above section, and that her owners were 
 exempt from liability by reason of the provisions 
 of 17 & 18 Vict. c. 104, s. 388. Wooi v. Smith; 
 The City of Camuridge (P.O.), 43 Law J. Eep. 
 (n.s.) Adm. 72; Law Eep. 5 P. C. 451. 
 
 2. — "When a statute inflicts a penalty for not 
 doing an act, the penalty implies that there is a 
 legal compulsion to do the act, and this principle 
 is not affected by the fact that the penalty has a 
 particular destination. Redpath v. Allen; The 
 Hibernian (P.O.), 42 Law J. Eep. (n.s.) Adm. 8 ; 
 Law Eep. 4 P.O. 511. 
 
 The 27 & 28 Vict. e. 13 (Canadian Statute), by 
 section 14 provides that " no owner or master of 
 any ship shall be answerable to any person what- 
 ever, for any loss or damage occasioned by the 
 fault or incapacity of any qualified pilot, acting 
 in charge of such ship, within any place where 
 the employment of such pilot is compulsory by 
 law." The 27 & 28 Vict. a. 58 (Canadian Sta- 
 tute), by section 10, provides that " the master or 
 person in charge of each vessel over 125 tons, 
 leaving the port of Montreal for a port out of this 
 Province, shall take on board a branch pilot, for 
 and above the harbour of Quebec, to conduct such 
 vessel, under a penalty equal in amount to the 
 pilotage of such vessel : " — Held, first, that these 
 statutes are of binding authority in every case to 
 which they are applicable, as well in the Vice- 
 
 Admiralty Court of Canada, as in the High Court 
 of Admiralty, and on appeal ; secondly, that the 
 two statutes are to be read and construed toge- 
 ther, as being in pari materid, and that the owner 
 of a ship navigating Canadian waters, under the 
 direction of a pilot, in compliance with the pro- 
 visions of the above statutes, is exonerated from 
 liability for damage caused in consequence of the 
 orders of the pilot. Ibid. 
 
 3.— By the Merchant Shipping Act, 1854 (17 
 & 18 Vict. e. 104), s. 370,_Trinity House Out-port 
 Districts comprise any pilotage district, for the 
 appointment of pilots within which no particular 
 provision is made by any Act of Parliament or 
 Charter. By 6 Geo. 4. c. 126, s. 6, the Corpora- 
 tion of Trinity House are required to a'ppoint, as 
 sub-commissioners to examine pilots, " proper and 
 competent persons at such ports or places' in 
 England as they may think requisite," and the 
 section describes the number to be appointed and 
 their dxities. The Ipswich Dock Act, 1862 (15 
 Vict. c. cxvi.), s. 3, repeals a former Act by which 
 special provisions were made for the appointment 
 of examiners, and by section 91 enacts that it 
 shall be lawful for the Corporation of Trinity 
 House to appoint " proper and competent persons 
 resident within the port of Ipswich" to act as 
 commissioners. In all other respects the powers 
 given by the local Act with regard to appoint- 
 ment of pilots are identical with those given by 
 •the general Act ; — Held, that the provisions of 
 the local Act were not '■ particular provisions " 
 within section 370 of the Merchant Shipping Act, 
 1854, and the port of Ipswich was therefore a 
 Trinity House Out-port District. Hadgraft v. 
 Hewith, 44 Law J. Eep. (n.s.) M. C. 140 ; Law 
 Eep. 10 a. B. 350. 
 
 (b) Liability of pilot. 
 
 4. — As between a shipowner and a pilot whom 
 he is compelled to employ, there is no implied 
 contract that the pilot shall take upon himself 
 the risk of injury from negligence of the ship- 
 owner's servant. The ordinary rule exempting 
 a master from liability to his servant for injury 
 from his fellow servant employed with him for a 
 common object does not apply in such a case. 
 Smith V. Steele, 44 Law J. Eep. (n.s.) Q. B. 60 ; 
 Law Eep. 10 Q. B. 125. 
 
 (S) Policy of Insurance. 
 [See MAEnfE Insukance.] 
 
 (T) Salvage. 
 (a) Salvage agreement. 
 
 1. — An agreement by the officers of a ship be- 
 longing to the Bombay Government to render 
 salvage upon being paid half the nett value of the 
 property saved by them is, under the circum- 
 stances, not so inequitable as to require the 
 Court to modify or set it aside. The Cargo ex 
 Woosung, 44 Law J. Eep. (n.s.) Adm. 45. 
 
 2. — Tlie master of the L. agreed for 400Z. to 
 tow the W. into Lisbon, about twenty-five miles. 
 The weather, which was bad at the time of the 
 
SHIPPING LAW (T). 
 
 54ir 
 
 agreement, subsequently became ■worse, and much 
 difficulty was experienced in performing the sal- 
 vage. In a suit for salvage, the owners of the 
 W. tendered the sum of iOOl. the amount agreed 
 upon for salvage, and 123?. lis. 8a!. for quarantine 
 expenses and consequent detention of the L. : — 
 Held, that the agreement was equitable at the 
 time when it was made, and was therefore valid 
 notwithstanding the subsequent circumstances. 
 The Waverley, 40 Law J. Eep. (n.s.) Adm. 42 ; 
 Law Eep. 3 Adm. & Ecc. 369. 
 
 Held, also, that the agreement was not affected 
 by the tender of the amount of the extra expenses. 
 Tender pronounced for, with costs from the time 
 of making the tender. Ibid. 
 
 (6) Towage. 
 
 3. — To convert towage into salvage there must 
 supervene an element of serious danger, not in 
 contemplation when the contract for towage was 
 made. And whether towage has become salvage 
 depends upon whether circumstances have arisen 
 which would justify the tug in abandoning the 
 contract to tow. The J. C. Potter, 40 Law J. 
 Eep. (n.s.) Adm. 9; Law Eep. 3 Adm. & Ecc. 
 292. 
 
 A steam-tug took a ship in tow, under an agree- 
 ment to tow her to Liverpool for 45Z. The weather 
 was then moderate, but afterwards increased to a 
 heavy gale. The steam-tug never let go the ship's 
 hawser, and, after much danger to both ship and 
 steam-tug, brought the ship to Liverpool : — Held, 
 that a service had been performed ieyond the scope 
 of the agreement to tow, and that the tug and 
 her crew were entitled to salvage. Ibid. 
 
 (c) WJio may be salvors. 
 
 4. — Although seamen cannot recover salvage 
 remuneration for services which by their contract 
 they are bound to perform,. yet when salvage ser- 
 vices are performed by one ship to another, and 
 both ships belong to the same owner, the crew of 
 the ship which has performed the salvage service 
 is eutitied to salvage remuneration, provided such 
 service is rendered as a moral duty, and not bj 
 reason of any contract with their owner. 2 he 
 Owners of the Steatnship Sappho -v. Benton, 40 law 
 J. Eep. (N.s.) Adm. 47 ; Law Eep. 3 P. C. 690. 
 
 5. — Under ordinary circumstances the crew of 
 a salved vessel cannot claim as salvors against 
 their own ship, but they may be so placed by the 
 acts of their master that their contract with the 
 ship is at an end. They would then, if they per- 
 formed salvage services, be entitled to salvage 
 reward. The Lejonet, 41 Law J. Eep. (n.s.) Adm. 
 95 ; Law Eep. 3 Adm. & Ecc. 5S6. 
 
 The bark L. was so damaged by collision that 
 her master, and zill the crew but the mate, got on 
 board tho ship that did the damage. The mate 
 remained alone, and the bark was saved by his 
 cervices and those of the steamship C. and her 
 ci 3W : — Held, that the mate would be entitled to 
 salvage. Ibid. 
 
 6, — The exceptions to the general rule that a 
 pilot cannot claim as a salvor, ought to be few 
 and well defined. The services of a pilot cannot 
 
 easily be converted into those of a salvor. The 
 same rule of law applies to a licensed waterman 
 when acting as a pilot. The Molus, 42 Law J. 
 Eep. (n.s.) Adm. 14 ; Law Eep. 4 Adm. & Ecc. 29. 
 
 {d) Eight to salvage reward. 
 
 7. — Two suits afterwards consolidated were 
 brought, one by the owner and the other by the 
 charterer of the salving ship, for salvage to a ship 
 also chartered to the same charterer : — Held, that 
 as under the terms of the charter-party the 
 charterer of the salving ship was for the time 
 being the owner, he, and not the owner, was en- 
 titled to institute the suit. Also, that the right 
 to salvage was not affected by the fact, that both 
 the salving ship and the ship to which the services 
 were rendered were chartered to the same person. 
 The Scout, 41 Law J. Eep. (n.s.) Adm. 42 ; Law 
 Eep. 3 Adm. & Ecc. 512. 
 
 8. — The owners of a ship cannot recover sal- 
 vage reward for services rendered necessary by 
 the misconduct of those on board of her. The 
 Glengaber, 41 Law J. Eep. (n.s.) Adm. 84 ; Law 
 Eep. 3 Adm. & Ecc. 534. 
 
 The owners of a ship are not disentitled to sal- 
 vage merely because they are also owners of the 
 ship that caused the mischief. Ibid. 
 
 9, — The owner, master and crew of a vessel, 
 which sent two of its men on board a brig which 
 was in distress for want of hands, — Held, entitled 
 to share in salvage reward, the vessel having been 
 exposed to danger through want of the two men , 
 and the rest of the crew having had to do extra 
 work. The Charles, Law Eep. 3 Adm. & Ecc. 
 636. 
 
 10. — The ship E. rendered salvage services to 
 the ship M. and her cargo. Both ships belonged 
 to the same owner : — Held, that the owners of the 
 E. were nevertheless entitled to salvage reward 
 from the owners of cargo. The Miranda, 41 Law 
 J. Eep. (n.s.) Adm. 82 ; Law Eep. 3 Adm. & Ecc. 
 561. 
 
 (e) Distribution of salvage reward. 
 
 11. — A transport ship hiredby Government, and 
 performing, by the orders of the officer of a Queen's, 
 ship, salvage services not within the terms of the 
 charter-party, is entitled to a share of the amount 
 awarded as salvage. The Nile, 44 Law J. Eep, 
 (n.s.) Adm. 38 ; Law Eep. 4 Adm. & Ecc. 449. 
 
 An officer of a Queen's ship, by whose orders 
 some of his crew and a transport ship effected 
 salvage, is entitled to a share of the award. 
 Ibid. 
 
 (/) Life salvage. 
 
 12. — A ship having been damaged by collision, 
 ten of her crew, without orders from the master, 
 got into one of the ship's boats, and left the ship, 
 and were afterwards saved by a fishing smack and 
 crew : — Held, that the owners of the smack and 
 her crew were entitled to claim for life salvage. 
 The Cairo, 43 Law J. Eep. (n.s.) A&m. 33 ; Law 
 Eep. 4 Adm. & Ecc. 184. 
 
 13.— The wearing apparel and other personal 
 articles of passengers are privi leged from arrest 
 in a salvage suit. Where lives were saved by a 
 4 a2 
 
548 
 
 SHIPPING LAW (T)-SOLICITOE. 
 
 foreign vessel "witliovit British waters, and the per- 
 sons were thence transferred at their request to 
 another vessel by which they were conveyed 
 within British waters and to a British port : — 
 Held, that this was not a salvage of life by a foreign 
 ship or boat, " where the services had been rendered 
 wholly or in part in British waters " within the 
 meaning of section 9 of the Admiralty Court Act, 
 1861. The Willem III., Law Eep. 3 Adm. & Ecc. 
 487. 
 
 14. — A ship was wrecked in the Eed Sea, off 
 an island which was uninhabited . and without 
 water. The C. took the passengers and crew on 
 board, and brought them to England : — Held, 
 that the service was not life-salvage. The Cargo 
 ex Woosung, 44 Law J. Eep. (n.s.) Adm. 45. 
 
 {g) Wreck : what is. 
 
 15. — Salvors found a barge with no one on 
 board in Blackwall Reach, and moored her at 
 Northumberland Wharf: — Held, that she was 
 not wreck within the terms of the 450th sec 
 tion of the Merchant Shipping Act, 1854. The 
 Zeta, 44 Law J. Rep. (n.s.) Adm. 22 ; Law Eep. 
 4 Adm. & Ecc. 460. 
 
 (h) Liability/ of salving ship for damage. 
 
 16. — In rendering salvage services the salvor's 
 ship came into collision with the other ship. The 
 salvors subsequently completed the salvage: — 
 Held, that the collision was caused by the gross 
 negligence of the salvors, and that the salvors' 
 ship was therefore liable for the damage ; but 
 that the salvors were nevertheless entitled to sal- 
 vage. TAe C. S. Butler; The Baltic, 43 Law J. 
 (n.s.) Adm. 17; Law Eep. 4 Adm. & Ecc. 
 
 SHORE. 
 [See EoBESHOBB.] 
 
 Eep. 
 178. 
 
 Jurisdiction of Court of Admiralty. [See 
 
 Admikj^ltt, 19, 20.] 
 Practice and procedure. [See Admiralty, 
 
 22, 39-44.] 
 
 (U) Seaman's Sebvice. 
 
 Naval service: Foreign Enlistment Act. 
 [See FoKEiGN Enlistment Act.] 
 
 (V) Waoes. 
 
 1, — Against an insufficient fund the master 
 also part-owner, claimed for his wages and dis- 
 bursements, and material men for necessaries : — 
 Held, that the claim of the material men was 
 entitled to priority. The Jenny Lind, 41 Law J. 
 Eep. (n.s.) Adm. 63 ; Law Eep. 3 Adm. & Ecc. 
 529. 
 
 2. — The arrest of a ship in a cause of wages, 
 after the company to which the ship belonged 
 was ordered to be wound up, — Held, a seques- 
 tration within the meaning of the 163rd section of 
 the Companies Act, 1862, and consequently void. 
 In re the Australian Direct Steam Navigation Com- 
 pany ; Ex parte Baker, 44 Law J. Eep. (n.s.) 
 Ohanc. 676 ; Law Eep. 20 Eq. 625. 
 
 SIMONY. 
 [See Chuboh and Clbeoy, 6.] 
 
 SLANDEE. 
 
 1. — It is not actionable to say of a stonemason 
 that he is the ringleader of the nine hours' sys- 
 tem, and that he has ruined a town by bringing 
 about the nine hours' system, and he has stopped 
 several good jobs from being carried out by being 
 the ringleader of the nine hours' system.; nor is 
 it material that the person alluded to has suffered 
 special damage, if such damage is not intended 
 as a consequence when the words are uttered. 
 Miller v. David, 43 Law J. Rep. (n.s.) C. P. 84 ; 
 Law Rep. 9 C. P. 118. 
 
 2. — Declaration, by husband and wife, for mali- 
 ciously speaking and publishing of the female 
 plaintiff the words following: "I can prove that 
 J. D.'s wife (the female plaintiff) had connection 
 with a man named L. two years ago, but I would 
 rather have the tongue cut out of my mouth 
 than separate man and wife." Special damage, 
 that the female plaintiff was thereby injured in her 
 character and reputation, and became alienated 
 from, and deprived of, the cohabitation of her 
 husband, and lost, and was deprived of, the com- 
 panionship, and ceased to receive the hospitality, 
 of divers friends, and especially of her husband, 
 and that D., T. and M. had, by reason of the 
 premises, withdrawn from the companionship ofi 
 and ceased to be hospitable to, or be friendly 
 with, the female plaintiff: — Held, on demurrer, 
 first, that the loss of the hospitality of friends 
 was a sufficient special damage to make the 
 slander actionable ; secondly, that the wife was 
 properly joined in the action. Davies v. Solomon, 
 41 Law J. Eep. (n.s.) Q. B. 10 ; Law Eep. 7 Q. B. 
 112. 
 
 Pleading in action for malicious prosecution 
 and slander. [See Malicious Pbose- 
 OUTION, 1.] 
 
 SLAUGHTER HOUSES. 
 [See Towns Police Act, 3.] 
 
 SMOKE. 
 (See Nuisance, 3-5.] 
 
 in suit Jor wages, 
 
 EALTY, 24.] 
 
 [See Admi- 
 
 SOLICITOE. 
 [See Attorney.] 
 
SPECIAL CASE -SPECIFIC PERFORMANCE (A). 
 
 549 
 
 SPECIAL CASE. 
 [See Pbaotice in Equity, 132-136.] 
 
 SPECIAL CONSTABLE. 
 
 Under 1 & 2 Will. i. c. il, justices of the 
 peace may appoint special constables, if it is 
 made to appear to them upon oath of any cre- 
 dible ■witness that a tumidt or riot may be rea- 
 sonably apprehended, and if they are of opinion 
 that the ordinary officers appointed for preserv- 
 ing the peace are not sufficient. Under 1 & 2 
 Vict. c. 80, justices are empowered, upon being 
 satisfied upon the oatlis of the three credible 
 witnesses, that the appointment of such special 
 constables was occasioned by the behaviour, and 
 reasonable apprehension of the behaviour, of 
 persons employed upon railway works, to make 
 an order for the payment of such special con- 
 stables upon the treasurer or other officer having 
 the control of the fands of any company carry- 
 ing on such works : — Held, that before such last- 
 mentioned order is made an opportunity must 
 be affi)rded to the persons upon whom it is pro- 
 posed to be made to be heard against it. IJk 
 Queen v. The Cheshire Lines Committee, 42 Law J. 
 Eep. (N.S.) M. C. 100 ; Law Rep. 8 ft. B. 344. 
 
 (e) Public-house : license in name of dead 
 
 man. 
 (/) Agreement to execute mortgage, 
 (g) Agreement varied hy parol stipulation, 
 {h) Agreement for lease : part performance. 
 (i) Agreement for compromise, 
 (k) Death of arbitrator, 
 (l) Agreement to transfer shares, 
 (m) Foreign contract, 
 (n) Bights of sub-contractor under one of 
 
 two concurrent contracts. 
 (o) In general. 
 
 (B) GrEOUNDS FOE REFUSING SPECIFIC PeE- 
 FOEMANOE. 
 
 (a) Misrepresentation and concealment. 
 
 (i) Misdespription. 
 
 (c) Doubtftd title. 
 
 Id) Voluntary settlement by vendor. 
 
 (c) No title as to moiety. 
 
 (C) Right to Specific Peefoemance with 
 
 Ajbatement. 
 
 (D) Peactice. 
 
 (a) Beference as to title. 
 
 (J) Sale of fixtures : mandatory order. 
 
 (c) Declaration as to voluntary settlement. 
 
 (d) Absconding defendant. 
 
 (1) Bescission of contract after decree. 
 
 (2) Vesting order. 
 
 (e) Costs. 
 
 SPECIFIC APPROPRIATION. 
 
 As between principal, surety and creditor : 
 appropriation of payment by creditor : 
 presumption of payment by principal 
 debtor. [See Peinoipai, and Sueett, 
 15-19.] 
 
 Of bills, ^c, in hands of bankers to answer 
 acceptances. [See Bankbe, 12, 13.] 
 
 Of remittances to cover bills. [See Bili;. of 
 Exchange, 23-27.] 
 
 [And see Estoppei., 11.] 
 
 SPECIAL DAMAGE. 
 
 [See Damages, 23 ; Nuisance, 2 ; Slandee, 2 ; 
 Teovee, 8.] 
 
 SPECIFIC PERFORMANCE. 
 
 (A) What Ageeements wiix and will not 
 be enfobced. 
 («) Uncertainty. 
 
 (1) Beservation of "necessary land for 
 
 making a railway." 
 
 (2) Agreement to build railway sta- 
 
 tion, 
 (b) Agreement to make railway siding. 
 (e) Agreement to alter ship : whole contract 
 
 not enforceable, 
 [d) Money demand : incomplete contract. 
 
 (A) What Ageeements will and will not be 
 bnfoeced. 
 
 (a) Uncertainty. 
 
 (1) Beservation of " necessary land for making a 
 railway." 
 
 1. — By a contract T. Watts agreed to sell an 
 estate to a purchaser with the following reser- 
 vation — T. Watts "reserves the necessary land for 
 making a railway through the estate to Prince 
 Town : " — Held, on suit for specific performance 
 by the purchaser, that the contract was too un- 
 certain for the Court to make a decree for spe- 
 cific performance of it. The vendor might have 
 raised the defence by demurrer, which he had 
 not done. But held, that, notwithstanding, he 
 was entitled to full costs, and the bill was dis- 
 missed with costs. Pearce v. Watts, 44 Law J. 
 Rep. (n.s.) Chanc. 492 ; Law Eep. 20 Eq. 492. 
 
 (2) Agreement to build railway station. 
 
 2. — A contract entered into by a railway com- 
 pany with a landowner to build a railway sta- 
 tion at a particular spot, nothing being said as 
 to the user of the station, or the degree of con- 
 venience and accommodation to be afforded by it, 
 is too vague and indefinite to be enforced by de- 
 cree for specific performance ; but the Court will 
 give damages for the breach of such coitract, and 
 in assessing those damages will give the landowner 
 the benefit of all such presumptions as, according 
 to the rules of law, are made against wrongdoers. 
 Wilson V. The Northampton and Banbury Junction 
 Bailway Company, 43 Law J. Rep. (n.s.) Chanc. 
 503 ; Law Eep. 9 Chanc. 279. 
 
560 
 
 SPECIFIC PERFOEMANCE (A). 
 
 (6) Agreement to make railway siding. 
 
 3. — A railway company having contracted to 
 make a siding for the plaintiff on the plaintiff's 
 land, specific performance of the agreement was 
 decreed. Greeiie v. The West Cheshire Baihiiay 
 Company, 41 Law J. Eep. (n.s.) Chanc. 17 ; Law 
 Eep. 13 Eq. 44". 
 
 (c) Agreement to alter ship : whole contract not 
 enforceable. 
 
 4. — A firm of ship-builders having agreed to 
 make certain alterations in the plaintiff's ship, or 
 in case of their default to allow the plaintiff to 
 enter upon their dockyard with workmen and use 
 it and the machinery in making the alterations, 
 took the ship into the dockyard, cut it in two, and 
 then became bankrupt. The defendant (their 
 trustee in bankrupitcy) being about to sell the dock- 
 yard, a bill was filed praying for an injunction to 
 restrain him from dealing therewith so as to in- 
 terfere with the plaintiff's right to enter and make 
 the alterations : — Held, on demurrer, that as the 
 Court could not enforce the performance of the 
 whole agreement, it would not interfere. Also 
 that the Court of Chancery had concurrent juris- 
 diction. The Merchants' Trading Company \.- Ban- 
 ner, 40 Law J. Eep. (n.s.) Chanc. 615 ; Law Rep. 
 12 Eq. 18. 
 
 {d) Money demand: incomplete contract, 
 
 5. — The Court will not entertain a bill for spe- 
 cific performance of a contract to pay a sum of 
 money, either on the ground of part performance, 
 or on the ground that for want of formality the 
 contract is not enforceable at law, nor in such a 
 case can the Court give damages in Ueu of specific 
 performance under the 21 & 22 Vict. c. 27. 
 Cramipton v. The Varna Eailway Company, 41 
 Law J. Rep. (n.s.) Chanc. 817 ; Law Rep. 7 
 Chanc. 562. 
 
 By the constitution of the V. Railway Company 
 all contracts above the value of 500^. were re- - 
 quired to be under seal. By an agreement not 
 under seal made between the duly authorised 
 agent of the company and the contractor for the 
 line, it was agreed that if the contractor would 
 erect and leave upon the company's land substan- 
 tial cottages, the company would pay him a rent 
 of 600Z. or a liunp sum of 5,000^. at their option. 
 The contractor having performed his part of the 
 agreement, filed his bill against the company for 
 payment of the money or for damages in lieu of 
 specific performance, alleging that for want of a 
 seal the contract was not enforceable at law. De- 
 miirrer allowed, afiirming the decision of the 
 Master of the Rolls. Ibid. 
 
 (e) Public-koiise : license in name of dead man. 
 
 6. — G-. R., the owner and licensee of an inn, 
 died on the 13th of July, 1870, having devised the 
 inn to the plaintiffs on trust for sale. His license 
 expired on the 10th of October in the same year. 
 On the 26th of August, 1870, at the annual gene- 
 ral licensing meeting, the plaintiffs procured a 
 new license in the testator's name. On the 12th 
 
 of October they contracted to sell the inn to the 
 defendant. On the 16th of November the meet- 
 ing took place to effect the change, but the de- 
 fendant then objected that the plaintiffe could not 
 transfer the license to him, and refused to com- 
 plete: — Held (reversing the decision of the Master 
 of the Rolls, 40 Law J. Rep. (n.s.) Chanc. 492), 
 that the license taken out in the name of a dead 
 man was invalid, and, therefore, that the plaintiffs 
 being unable on the 16th of November to transfer 
 a valid license under which the bu-siness could be 
 lawfully carried on, could not ^enforce the contract 
 against the purchaser. Say v. Luhke (37 Law J. 
 Rep. (n.s.) Chanc. 330 ; Law Eep. 5 Eq. 336) ap- 
 proved of. Cowles V. Gale, 41 Law J. Rep. (n.s.) 
 Chanc. 14 ; Law Rep. 7 Chanc. 12. 
 
 (/) Agreement to execute mortgage. 
 
 7. — The Court will decree specific performance 
 of an agreement to execute a mortgage with im- 
 mediate power of sale. Herman v. Hodges, 43 Law 
 J. Rep. (N.s.) Chanc. 192; Law Rep. 16 Eq. 18. 
 
 8. — If money has been actually advanced to a 
 mortgagor on the faith of his agreement to exe- 
 cute a mortgage, the Court will compel him spe- 
 cifically to perform his contract. Ashton v. Cor- 
 rigan, 41 Law J. Eep. (n.s.) Chanc. 96 ; Law Eep. 
 13 Eql 76. 
 
 {g) Agreement varied by parol stipulation. 
 
 9. — Cr. T. agreed in writing to take an under- 
 lease of two houses, subject to existing tenancies, 
 the covenants to be similar to those in the original 
 lease. G. T. died before the underlease was exe- 
 cuted, but there was some evidence to shew that 
 he had seen and approved of the draft of the un- 
 derlease which contained a covenant, not in the 
 original lease, against carrying on the business of 
 a grocer in either of the houses. The tenant of 
 one of the houses had an agreement for a lease to 
 contain the restrictive covenant. On bill filed 
 against G. T.'s administrator for specific perform- 
 ance of the agreement, and a declaration that G. 
 T. had accepted the underlease in the form of the 
 draft, — Held, that the administrator could not 
 be compelled to accept an underlease containing 
 the restrictive covenant. Snelling v. Thonuis, 43 
 Law J. Eep. (n.s.) Chanc. 606 ; Law Rep. 17 Eq. 
 303. 
 
 (A) Agreementfor lease : part performance.- 
 
 10. — "W. being in possession of premises under 
 an old lease agreed to take a new lease of the pre- 
 mises at the same rent, and to pay a premium of 
 600i,, and if the premium was not paid on the day 
 fixed for completion, to pay interest on the amount 
 at five per cent. "W. retained possession of the 
 premises and continued to pay the rent, and a 
 draft lease was di'awn and sent to him for ap- 
 proval bxit never returned, and nothing more was 
 done in the matter. The lessor died fifteen years 
 after, and her surviving executor tiled his bill of 
 specific performance and payment of the pre- 
 miums and interest : — Held, that the plaintiff 
 was entitled to a decree for specific performance. 
 
SPECIFIC PERFORMANCE (A), (B). 
 
 551 
 
 and to payment of the premium with interest from 
 the date of the agreement, and to the costs of the 
 suit. Shejaheard v. Walker, 44 Law J. Rep. (n.s.) 
 Cbanc. 648 ; Law Rep. 20 Eq. 659. 
 
 (i) Agreeifient for compromise. 
 
 11. — Upon an interlocutory application by the 
 defendant in a suit for redemption of a mort- 
 gage, an order was made by one of the Vioe-Chau- 
 eellors that the plaintiff should specifically perform 
 an agreement for the compromise of the suit upon 
 terms which could not have been enforced in the 
 suit, or in default that the bill should be dismissed. 
 But on appeal it was held, that the Court had no 
 jurisdiction to make the order. Fryer v. Gribble, 
 44 Law J. Rep. (n.s.) Clianc. 676 ; Law Rep. 10 
 Chanc. 535. 
 
 (k) Death of arbitrator. 
 
 12 . — A contract for sale of land to a railway com- 
 pany provided that certain specified roads should 
 be provided by the company. This original contract 
 was varied by an agreement, which provided that 
 an estimate of the cost of making one of the roads 
 should be made by A., agent of one party, and 
 submitted to B., agent of the other, for approval 
 and in case of difference the amount settled by C, 
 and that the company should pay the price to the 
 landowner. B. died before A. submitted any esti; 
 mate. Specific performance of the original con- 
 tract was decreed at the suit of the landowner. 
 Firth V. The Midland Railway Company, 44 Law 
 J. Rep. (n.s.) Chanc. 313; Law Rep. 20^, 
 100. 
 
 (Q Agreement to transfer shares. 
 
 13. — The Court has no jurisdiction under the 
 35th section of the Companies Act of 1862, to 
 grant specific performance of an agreement to 
 transfer shares or to enforce against the company 
 an equitable claim to be registered as a share- 
 holder, but where an applicant has a legal title, 
 the Court will compel the company to enter his 
 name on the register, although his title is dis- 
 puted by the person registered as holder. In such 
 case the Court has no jurisdiction to make such 
 person disputing the title pay the costs of the 
 summons rendered necessary by his opposition. 
 In re The Tahiti Cotton and Coffee Plantation Com- 
 pany (JAm.) ; Ex pa/rte Sargent, 43 Law J. Rep. 
 (n.s.) Chanc. 425 ; Law Rep. 17 Eq. 273. 
 
 The pledgee of shares with transfers executed 
 by the pledgor with the date and name or trans- 
 ferree in blank has, and also his transferree has, 
 implied power to fill up the blanks. Such trans- 
 fers, although executed as deeds by the original 
 pledgor, will not operate a,s deeds, and if the re- 
 gulations of the company require a deed will only 
 confer an equitable interest and operate as con 
 tracts to transfer, but where- the articles of asso- 
 ciation did not require a deed and the blanks had 
 been filled up by the transferree of ihe pledgor, — 
 Held, that they operated as valid transfers and 
 conferred on him a right to be registered as a 
 shareholder, which the Court would enforce on 
 summons under the 35th section. Ibid. 
 
 (m) Foreign contract. 
 
 14. — The Court will specifically enforce against 
 a foreigner a contract of sale made abroad, if 
 the subject-matter of the contract is within its 
 jurisdiction. And, therefore, where a contract was 
 made abroad for the sale of a foreign vessel to 
 be delivered in this country, the Court granted 
 an interim injunction to restrain the removal of 
 the ship from an English port, allowing substi- 
 tuted service of the notice of motion on the cap- 
 tain. Hart V. Herwig, 42 Law J. Rep. (n.s.) 
 Chanc. 457; Law Rep. 8 Chanc. 860. 
 
 (») Sights of sub-contractor under one of two con- 
 current contracts. 
 
 15.— P., in 1867, agreed to sell to M. a plot 
 of land, the purchase to be completed in five- 
 years or earlier at M.'s option. P. had previ- 
 ously agreed to sell an adjoining plot to M. 
 The plaintiff was employed by M. to build on 
 the first plot, and M. became indebted to him 
 on that account. M. then agreed to sell the 
 first plot to the plaintiff. P. then told the 
 plaintiff that both contracts must be completed 
 together, and no offer having been made by the 
 plaintiff to complete both contracts P. and M. 
 sold and conveyed both plots to H. : — Held, that 
 the plaintiff had no equity to have his sub-con- 
 tract performed. Crabtree v. Foole, 40 Law J. 
 Rep. (n.s.) Chanc. 468 ; Law Rep. 12 Eq. 13. 
 
 (o) In general. 
 
 Of contract to take the whole of premises re- 
 quired under the Lands Clauses Conso- 
 lidation Act. [See Lands Clattses 
 Consolidation Act, 7.] 
 
 Contract shewn by letters. [See Ebauds, 
 Statute of, 9.] 
 
 Contract for sale of goods : special article. 
 [See Sale, 7.] 
 
 Marriage articles ; non-performance by one 
 party. [See Makkiage Settlement, 
 
 *■] 
 Contract for sale of land : whether vendor's 
 name appears by sufficient description. 
 [See Frauds, Statute of, 6-8.] 
 
 (B) GrEOTJNDS FOE ReFCSING SPECIFIC PbE- 
 FORMANOE. 
 
 (b) Misrepresentation and concealment. 
 
 16. — Misrepresentation whereby one has been 
 induced to enter into an agreement, may afford a 
 good defence to a suit for specific performance of 
 the agreement, although it be not such a clear 
 and direct misrepresentation as would afford a 
 good ground for a suit to set the agreement aside 
 or for an action for damages upon it. Lamare r. 
 Dixon (H. L ), 43 Law J. Rep, (n.s.) Chanc. 203; 
 Law Rep. 6 E. & I. App. 414. 
 
 If the plaintiff in a suit for specific performance 
 has delayed for a length of time to enforce the 
 agreement, acquiescence in a breach of the agree- 
 ment, or in a misrepresentation on the faith of 
 
552 
 
 SPECIFIC PERFORMANCE (B). 
 
 which the defendant entered into the agreement, 
 will not be imputed to the defendant by reason 
 of a similar delay on his part in repudiating it, 
 though accompanied by possession. Ibid. 
 
 D., a builder, agreed in writing, to construct 
 certain cellars, and to execute a lease of thera 
 to L., a wine merchant, who agreed to accept 
 the lease and to pay D. lOOZ. on completion. The 
 agreement provided that the walls and floor should 
 be of concrete, but it made no further mention of 
 or provision for dryness in the cellars, but D. 
 knew that L. wanted the cellars only for the pur- 
 pose of his business as a wine merchant, and L. 
 swore that he told D. that it would be necessary 
 that the cellars should be dry, and that D. assured 
 him that the concrete provided for in the agree- 
 ment would keep the cellars dry. L. also swore 
 that he was induced by this representation to exe- 
 cute the agreement and to enter into possession. 
 D. however denied this. L. entered into posses- 
 sion before the - cellars were finished. Finding 
 that they were too wet for his business, he remon- 
 strated with D. Biit D. refused to do anything 
 more than he had done towards making the cellars 
 dry. L. then threatened to do the necessary 
 works himself and to charge D. with the cost. He 
 did not do this, but after having continued in 
 possession two years, paying his rent under pro- 
 test, he abandoned the cellars altogether. L. never 
 ■paid the 100?. mentioned in the agreement, nor did 
 he execute the lease, and D. , though he sent him 
 a draft lease for approval, never demanded the 
 return of the draft or the payment of the 1001. 
 D. having filed his bill against L. for specific per- 
 formance, — Held, that D. was affected with know- 
 ledge not only as to the purpose for which the 
 cellars were required, but also that for this pur- 
 pose it was necessary that they should be dry ; 
 that there was evidence that it was on the faith 
 of D.'s representations as to the effect of the con- 
 crete, that L. signed the agreement and entered 
 into possession ; that as the cellars were wet L, 
 was entitled- at j;he first to repudiate the contract, 
 and that this right to repudiate was not affected 
 by the lapse of two years during which L. had 
 refrained from exercising it, because D. had also 
 during the same time delayed in enforcing the 
 contract; nor by the occupation of the premises 
 by L. during that period, he paying rent under 
 protest, for such payments were to be considered 
 as for use and occupation rather than as rent ; nor 
 by L.'s threat to do the necessary yorks himself. 
 Forconsideringthe loss and inconvenience L. would 
 have suffered if D. had persisted in neglecting his 
 part of the agreement L. was justified in making 
 the threat with a view to compelling D. to do what 
 he ought to have done. Ibid. 
 
 As there had been delay on both sides, the plain- 
 tiff's bill was dismissed without costs. Ibid. 
 
 17. — The Court refused to enforce a contract 
 for the purchase of lands at the suit of the pur- 
 chasers who had concealed the fact that they 
 had, without authority, taken a quantity of coal 
 from under the lands. Phillips v. Homfray. 
 ~ ' till V. Phillips, Law Rep. 6 Chanc. 770. 
 
 [And see Vendor and Purchaser, 2.] 
 
 (A) Misdescription. 
 
 18. — Specific performance of a contract for sale 
 refu.sed where the plan was calculated to mislead 
 and did mislead the purchaser as to the bounda- 
 ries of the property. The difference between the 
 apparent and true boundaries of a property ought 
 to be clearly shewn by the sale plan and particu- 
 lars. Decision of Malins, V.C., reversed. Denny 
 v. Hmioock, Law Rep. 6 Chanc. 1. 
 
 [And see Vendor and Pubchasee, 1.] 
 
 (c) Doubtful title. 
 
 19. — The trustees of a settlement of real estate 
 having power to sell the fee at the request of the 
 tenant for life can, by an exercise of the power 
 upon his request, after he has alienated his par- 
 ticular estate, and with the consent of his alienee, 
 make a good title in fee to a purchaser. Alex- ^ 
 ander v. MUls, 40 Law J. Rep. (n.s.) Chanc. 73 ; 
 Law Rep. 6 Chanc. 124. 
 
 Sugde7i on Powers, 8th edit. p. 70, commented 
 on and disapproved. Ibid. 
 
 "When a question of title involves a question of 
 general law applicable to all similar cases, the 
 Court of Appeal is bound to say one way or 
 another what the law is, and cannot escape from 
 that duty by saying that the decision of the Court 
 below in taking one view makes the other view, if 
 held by the Court of Appeal, so doubtful that 
 the latter will not force such a title on a pur- 
 chaser. Ibid. 
 
 20. — A devise of real estate to trustees for 
 an unmarried woman for life for her separate use, 
 and after her death to convey to her husband, 
 with a gift over in the event of her dying " un- 
 married," vests the remainder in fee in the first 
 person she may marry, and a title accruing 
 under such a devise will be forced on an unwilling 
 purchaser — reversing the decision of Wickens, 
 V.C., 40 Law .T. Rep. (n.s.) Chanc. 84 ; Law Rep. 
 12 Eq. 105. BadfordY. Willis, il Law J. Rep. 
 (n.s.) Chanc. 19 ; Law Eep. 7 Chanc. 7. 
 
 21. — It is the duty of the Court to decide 
 doubtful questions of title, and when so decided 
 they can no longer be considered as doubtful, so as 
 to entitle purchasers to resist specific performancer 
 Bell V. Holtby, 42 Law J. Rep. (n.s.) Chanc. 266 ; 
 Law Rep. 16 Eq. 178. 
 
 {d) Voluntary settlement hy vendor. 
 
 22. — Where, in a specific performance suit, the 
 defendant, the purchaser, who had been let into 
 possession and paid part of the purchase-money, 
 and had paid off a mortgage, and so got the legal 
 estate and title deeds, set up a voluntary settle- 
 ment as an objection to the title, but stated' his 
 willingness to' complete on having a good title : 
 — Held, that notwithstanding the settlement, the 
 plaintiff was entitled to a decree. Smith v. 
 Garland (2 Mer. 123) distinguished. Peter y. 
 Nichols, Law Rep. 11 Eq. 391. 
 
 'ion on title : right to rescind. [See 
 Vendor and Puechasee, 3.] 
 
SPECIFIC PEBFOEMANCE (B), (D). 
 
 /io3 
 
 (a) No title astomoiety. 
 
 23. — Where vendors having agreed to sell the 
 entirety of property could make a title to one 
 moiety only, it -was held that the purchaser was 
 entitled to have such moiety conveyed to him on 
 payment of one moiety of the purchase-money. 
 Bailey v. Piper, 43 Law J. Eep. (n.s.) Chano. 704 ; 
 LawEep. 18 Eq. 683. 
 
 (C) Eight to Specific Performance with 
 Abatement. 
 
 24. — Where vendors of colliery works had 
 largely overstated the income, — Held, that in es- 
 timating the abatement of purchase-money in a 
 specific performance suit by the purchasers, the 
 latter were entitled to a, deduction bearing the 
 same proportion to the whole purchase-money as 
 the excess to the income stated. The purchasers 
 having failed as to part of their case, which was 
 one of misrepresentation, on the original hearing, 
 but the abatement being considerable, — ^Held, 
 that the vendor could not, on further considera- 
 tion, be relieved from any part of the costs. Powell 
 V. Elliot, Law Eep. 10 Chanc. 424. 
 
 (D) Practice. 
 (n) Reference as to title. 
 
 25. — When in a suit between vendor and pur- 
 chaser a decree has been made for specific per- 
 formance of a contract, subject to the usual 
 reference as to whether a good, title can be made, 
 the words "good title" mean not an absolutely 
 good title, but a good title having regard to the 
 terms of the contract, although the latter words 
 are not inserted in the decree. Upperton v. Ni- 
 cholaon, 40 Law J. Eep. (N.s.) Chanc. 401; Law 
 Eep. 6 Chanc. 436. 
 
 If a vendor, the plaintiflf in such a suit, wishes 
 to prevent the defendant raising objections in 
 chambers on the reference for title on the ground 
 that they have been waived before the suit, he 
 must guard himself by insisting at the hearing on 
 a special decree based on such waiver. Ibid. 
 
 In a contract for sale the vendor stipulated to 
 deliver the abstract within twenty-eight days, 
 and all objections were, to be taken within a simi- 
 lar period ; no abstract was delivered until long 
 after the twenty-eight days had expired, and then 
 only an imperfect one ; after much negotiation, 
 the purchaser declined to complete, and the vendor 
 having filed a bill for specific performance ob- 
 tained a decree subject to the usual enquiry as to 
 whether a good title could be made. The defend- 
 ant for the first time in chambers took an objection 
 to the title which appeared on the face of the im- 
 perfect abstract : — Held (reversing the decision 
 below), that as the vendor had not himself com- 
 plied with the conditions of sale with regard to 
 the delivery of the abstract, the purchaser was 
 not estopped by the lapse of time from taking the 
 objection, and that as the objection was a valid 
 one, the biU must be dismissed, but under the 
 circumstances without costs. Ibid. 
 
 2 6. — In suits for specific performance where the 
 Pigest, 1870-1875. 
 
 contract is not disputed, it is in almost every case 
 the duty of the vendor to obtain an immediate re- 
 ference for title so as to save unnecessary costs. 
 Phillipson v. Gibbon, 40 Law J. Eep. (n.s.) Chanc. 
 406 ; Law Eep. 6 Chanc. 428. 
 
 A vendor, the plaintiff in such a suit, refused to 
 take an order for reference for title by consent, 
 but brought the suit to a hearing when he obtained 
 the ordinary decree only, subject to the usual 
 enquiry as to title. The defendant took certain 
 specific objections to the title by his answer, which 
 were overruled by the Court ; while the matter 
 was in chambers, another and important defect, 
 which did not appear on the abstract, was disco- 
 vered by the defendant on inspection of the pro- 
 perty. This defect was only cured by the 
 plaintiff shortly before the cause came on for fur- 
 ther consideration: — Held, that although the 
 plaintiff was entitled to a decree, no costs should, 
 under the circumstances, be given to either party, 
 except that the plaintiff should pay the costs of 
 the original hearing occasioned by his refusal to 
 take the reference for title by consent. Ibid. 
 
 Principles on which costs are given in suits for 
 specific performance stated. Ibid. 
 
 (6) Sale affixtures : mandatory order. 
 
 27.-r-The defendant agreed to sell to the plain- 
 tiff the lease and goodwill of a public-house, with 
 a proviso that the defendant should sell the fix- 
 tures and furniture at a fair valuation to be made 
 by a person named in the contract. The defend- 
 ant afterwards refusing to perform the contract, 
 and preventing the valuer from proceeding, he was 
 ordered, on motion, to permit the valuer and his 
 clerks at all reasonable times, and on proper no- 
 tice, to enter on the premises for the purposes of 
 the valuation. Smith v. Peters, 44 Law J. Eep. 
 (n.s.) Chanc. 613; Law Eep. 20 Eq. 511. 
 
 (e) Declaration as to voluntary settlement. 
 
 28. — In a suit for specific performance against 
 a vendor and those claiming under a voluntary 
 settlement made by him previous to the contract 
 for sale, the Court refused to declare that the 
 settlement was void under statute 27 Eliz. c. 4. 
 Dahing v. Whimper (26 Beav. 568) not followed 
 on this point. Fletcher v. Ketteman, 40_Law J. 
 Eep. (n.s.) Chanc. 624. 
 
 (d) Absconding defendant. 
 (1) Sescission of contract after decree. 
 
 29. — The plaintiff in a specific performance 
 suit may obtain a rescission of the contract on the 
 defendant's default to obey the decree. Watson 
 V. Cox, 42 Law J. Eep. (n.s.) Chanc. 279 ; Law 
 Eep. 15Eq. 219. 
 
 k decree was made for specific performance of 
 an agreement to take a lease of a house, and an 
 order on further consideration for payment of a 
 sum of money by the defendant, and thereupon for 
 the execution of the lease. The defendant having 
 made default and absconded, an order was made 
 on the plaintiff's motion for rescission of the con- 
 4B 
 
55 f 
 
 SPECIFIC PERFORMANCE (D)— STAMPS. 
 
 tract, and the stay of all proeoedings in the suit, 
 except as to the plaintiff's costs and damages. 
 Ibid. 
 
 (2) Vesting order. ■ 
 
 30. — Where the defendants to a bill for specific 
 performance cannot be found, the plaintiff, after 
 entering an appearance and filing replication, may, 
 by advertisement in the " London Gazette," give 
 him notice of a subpoena to hear judgment, and if 
 he fail to appear, the Court at the hearing will, 
 on proof of the case made by the bill, make a 
 decree and an order vesting the estate in the 
 plaintiff. Mii,r^Tiy v. Viiwent, 40 Law J. Rep. 
 (n.s.) Chanc. 378. 
 
 (c) Costs. 
 [See Costs in Equity, 28, and supra No. 25.] 
 
 SPECIFICATION. 
 [See Patent.] 
 
 SPORTING. 
 
 [See Game.] 
 
 STAMPS. 
 
 (a) Conveyance on, mortgage. 
 
 (b) Conveyance by local board. 
 
 (c) Transfer of shares, 
 {d) Order to pay money. 
 
 («) Drafts by members of benefit building 
 
 society. 
 (/) Voting paper at municipal election. 
 
 [No duty in addition to the ad valorem duty to be 
 charged upon leases granted in consideration not 
 only of a rent reserved but also of improvements 
 effected or to be effected or of any covenant en- 
 tered into by the tenant. 33 & 34 Vict. u. 44.] 
 
 [The Acts regulating stamps generally amended. 
 The Stamp Act, 1870. 33 & 34 Vict. cc. 97, 98, 
 99.] 
 
 [Sections 113, 114 of the Stamp Act, 1870, 
 repealed, and new stamp duties imposed on 
 foreign securities, mortgages of stock, and proxy 
 papers. 34 & 35 Vict. c. 4.] 
 
 [No stamp duty to be payable on admission of 
 English barrister to be a Scotch advocate, or vice 
 versa; and lOl. only on admission of Irish bar- 
 rister to be a Scotch advocate, or vice versd. 37 
 & 38 Vict. i:. 19.] 
 
 Stamp duty under Table A of Bankruptcy 
 Eules, 1870. [See Bankkuptcy, QL 8, 
 9.] 
 
 (a) Conveyance or mortgage. 
 1. — By a deed made between the Limmer 
 
 Asphalte Company of the first part, the directors 
 of the company of the second part, and H. (therein 
 styled the "licensee") of the third part, the 
 company — in consideration of 7,600^., of which 
 I,500Z. was paid down on the execution of the 
 deed, and the balance 6,000/!. was to be paid by 
 six equal monthly instalments —granted to the 
 licensee, his executors, &e., the sole and exclusive 
 right, license, and authority to carry on with the 
 asphalte to be supplied by the company (but not 
 with any other) the business of asphalte paving 
 and dealing in asphalte within the counties of 
 Lancaster and Chester and not elsewhere, for the 
 then remaining unexpired periods for which cer- 
 tain concessions then held by the company had 
 respectively been granted. The licensee covenanted 
 to pay the instalments when due, with interest ; 
 and the deed contained a proviso that if he should 
 assign over the benefit of the license, the whole of 
 the instalments then remaining unpaid should 
 immediately become payable : — Held, that this 
 deed was not chargeable with stamp duty as a 
 " conveyance or transfer of property," within the 
 meaning of the " Stamp Act, 1870 ; " but that it 
 was properly chargeable with a stamp duty of 
 ten shillings, and also with an ad valorem duty of 
 2s. 6d. per cent, on the 6,0001. remaining unpaid, 
 as a " mortgage or covenant, being the only or 
 principal or primary security for the payment of 
 money " within the meaning of the schedule 
 to the Act. The Limmer Asphalte Company v. 
 The Commissioners of Inland Revenue, 41 Law J. 
 Rep. (n.s.) Exeh. 106 ; Law Rep. 7 Exeh. 21 1. 
 
 (5) Conveyance by local board. 
 
 2. — The City of Bath Act, 1851, constituting 
 the mayor, &c., the local board of health for the 
 city of Bath, incorporates portions of the Public 
 Health Act, 1848, but expressly excepts section 
 151, which exempts from stamp duty, deeds, &c., 
 executed by local boards for the purposes of that 
 Act. The 85th section of the Bath Act declares 
 that the Act shall be subject to the provisions of 
 any subsequent Act for amending the Public 
 Health Act, 1848. The Local Government Act, 
 1858, is to be construed with and form part of 
 the Public Health Act, 1848, and to take effect 
 where the Act of 1848 was already in force wholly 
 or partially ; and local boards formed under the 
 later Act are to have all the rights and lialjilities 
 of boards under the Act of 1848. A subsequent 
 Act of 1861 provides that the Act of 1868 shall 
 extend to local boards constituted under local Acts 
 as well as under the general Act of 1858, with 
 this qualification, that provisions of the general 
 Act opposed to or restrictive of the provisions of 
 any local Act, shall be of no force in the district 
 for which the local Act was passed: — Held, that 
 a deed by which (in pursuance of the powers in 
 the Act of 1858) land was conveyed to the mayor, 
 &c., of Bath, " acting as the local board, and 
 requiring the land thereby conveyed for a street 
 improvement within their district," was exempt 
 from stamp duty by virtue of the 151st section 
 of the Public Health Act, 1848, notwithstanding 
 the express exception of that section from ■ the 
 
STAMPS— STATUTE (A). 
 
 655 
 
 Bath Local Act of 1851 . The Mayor, ^c, of Bath 
 V. The Commissioners of Inlatid Sc venue, 40 Law 
 J. Kep. (n.s.) Exoh. 181. 
 
 (c) Tranxfcr of shares. 
 
 3. — A deed executed by four persons entitled to 
 personal estate under a will, purporting to operate 
 as a transfer and release to each of the four (by 
 two of them who were the executors, in pursuance 
 of an agreement for partition) of shares in various 
 railway companies forming part of testator's estate, 
 is chargeable with only four stamp duties of 30s. 
 each, notwithstanding that the effect of the deed 
 may be to vest in each of the four persons stock 
 in eight or nine different companies. Freeman v. 
 The Commissioners of Inland Revenue, 40 Law J. 
 Eep. (n.s.) Exch. 85; Law Eep. 6 Exch. 101. 
 
 Per Martin, B. — Such a deed is not a deed of 
 transfer, and is properly chargeable with one 35s. 
 stamp duty only. Ibid. 
 
 (d) Order to pay money. 
 
 4. — A document given by A. to S., which was 
 an order for the payment of money at a fature 
 date out of moneys payable at a future time to A. 
 by third persons was not stamped : — Held, that 
 the document ought to have been stamped as a 
 bill of exchange, and that not having been stamped 
 at the time, it could not be received in evidence. 
 Diplock V. Hammond{2'i LawJ. Bep. (N.s.)Chanc. 
 650) distinguished. Ex parte Shetland; In re 
 Adams, 43 Law J. Eep. (n.s.) Bankr. 3 ; Law 
 Eep. 17 Eq. 109. 
 
 (e) Drafts by members of benefit building society. 
 
 5. — The rules of a benefit buUding society 
 enabled members after 28 days' notice to withdraw 
 their shares, in the order of the notices, as the 
 society had money in hand enough to pay. The 
 withdrawal was effected by draft payable to 
 bearer furnished by the society, and signed by the 
 member. Members holding uncompleted shares 
 might in the same way withdraw any part of their 
 money. Such drafts were usually paid a few 
 days after the notice of withdrawal. Drafts pay- 
 able by bearer were also sent by the society for 
 signature to those members entitled to interest on 
 their shares. The society did not purchase land 
 but merely advanced money on mortgage : — Held, 
 that these drafts were liable to stamp duty as 
 cheques or orders for the payment of money, and 
 were not within the exemption in 10 Geo. 4. c. 
 66, s. 37, which is to be regarded as limited to 
 drafts or orders drawn by an officer of the society 
 for its purposes, or by a member of the society 
 payable to himself only. The Attorney-General 
 V. Gilpin, 40 Law J. Eep. (n.s.) Exch. 134; Law 
 Eep. 6 Exch. 193. 
 
 (/) Voting paper at municipal election. 
 6.— By the Stamp Act, 1870 (33 & 34 Vict. c. 
 97), Schedule, Letter or Power of Attorney, a duty 
 of a penny is charged upon every letter or power 
 "of attorney, or commission, factory mandate, or 
 other instrument in the natxire thereof. (1) For 
 
 the sole purpose of appointing or authorising any 
 one person to vote as a proxy at any one meeting 
 at which votes may be given by proxy. By the 
 schedule voting paper, a like duty is charged upon 
 " any instrument for the purpose of voting by any 
 person entitled to vote at any meeting " : — Held, 
 that a voting paper used at the election of an 
 alderman, under the Municipal Corporation Acts 
 (7 "Will. 4. & 1 Vict, c 78, ss. 13, 14) does not 
 require a stamp. The Queen v. Strachan, 41 
 Law J. Eep. (n.s.) Q. B. 210 ; Law Eep. 7 Q B. 
 463. 
 
 On bills of exchange. [See Bill of Ex- 
 change, 3.] 
 On Judge's notes. [See Practice at Law, 
 
 31.] 
 On policy of marine inswrance. [See Ma- 
 rine Insueanoe, 3.] 
 
 STATUTE. 
 
 (A) Construction of Particxilah Statutes. 
 
 (a) Private Act vesting lands in trustees of 
 
 settlement. 
 (5) Construction as to period of accounting, 
 (c) Statute inflicting penalty for not doing 
 
 an act.] 
 
 (B) Effect of general on special Legis- 
 
 lation. 
 
 (C) Incorporation of Statutes. 
 
 (A) Construction of Particular Statutes. 
 (a) Private Act vesting lands in trustees of 
 
 1, — A private Act of Parliament vesting lands 
 in trustees on .trust to sell, proceeding on the 
 supposition that the lands are comprised in a set- 
 tlement, does not bring the lands within that set- 
 tlement if they were not in it previously. Howard 
 V. The Earl of Shrewsbury, 43 Law J. Eep. (n.s.) 
 Chanc. 495; Law Eep. 17 Eq. 378. 
 
 (J) Construction as to period of accounting. 
 
 2. — The S. Dock Company were liable, under 
 an Act of Parliament, to pay the S. Harbour and 
 Pier Board deficiencies of their income made up 
 to a certain day in each year : — Held, that the 
 Board were bound to claim such deficiencies every 
 year. The Southampton DocJe Company v. The 
 Southampton Harbour and Pier Board, 41 Law J. 
 Eep. (n.s.) Ghanc. 832 ; Law Eep. 14 Eq. 596. 
 
 'The Board had power to reduce or alter their 
 tolls : — Held, that as against the company they 
 had no power to remit tolls on particular classes 
 of goods. Ibid. 
 
 The Board had power to compound for tolls : — 
 Held, that, as against the company, they could not 
 let the whole annual tolls. Ibid. 
 
 (c) Statute inflicting penalty for not doing an act. 
 
 3.— When a statute inflicts a penalty for not 
 
 doing an act, the penalty implies that there is alegal 
 
 iD2 
 
656 
 
 STATUTE (A), (C). 
 
 compulsion to do thp act, and this principle is not 
 affected by the fact that the penalty has a parti- 
 cular destination. Sedpath v. Allen ; The Hiber- 
 nian, 42 Law J. Rep. (n.s.) Adm. 8 ; Law Eep. 4 
 P. C. 511. 
 
 The 27 & 28 Vict. c. 13 (Canadian Statute) by 
 section 14 provides that " no owner or master of 
 any ship shall be answerable to any person what- 
 ever, for any loss or damage occasioned by the 
 fault or incapacity of any qualified pilot, acting 
 in charge of such ship, within any place where the 
 employment of such pilot is compulsory by law." 
 The 27 & 28 Vict. e. 58 (Canadian Statute), by 
 section 10, provides that "the master or person 
 in charge of each vessel, over 125 tons, leaving 
 the port of Montreal for a port out of this Pro- 
 vince, shall take on board a branch pilot, for and 
 above the harbour of Quebec, to conduct such 
 vessel, under a penalty equal in amount to the 
 pilotage of such vessel " : — Held, 1st, that these 
 statutes are of binding authority in every case to 
 which they are applicable, as well in the Vice- 
 Admiralty Court of Canada, as in the High Court 
 of Admiralty, and on appeal. 2ndly, That the 
 two statutes are to be read and construed together, 
 as being iiipari materid, and that the owner of a 
 ship, navigating Canadian waters, under the direc- 
 tion of a pilot, in compliance with the provisions 
 of the above statutes, is exonerated from liability 
 for damage caused in consequence of the orders 
 of the pilot. Ibid. 
 
 Validity nf Act of colonial legislature in- 
 
 of wrmigful acts. 
 Law, 1.] 
 
 [See Colonial 
 
 (B) Effect op geneeal on special Leois- 
 
 LATION. 
 
 4.^ By 4 & 5 Anne, c. xxxii., the rectory of 
 T. was united and annexed to the deanery of L., 
 and the dean was to be instituted without pre- 
 sentation ; by 3 & 4 Vict. c. 113, s. 60, all the 
 estate and interest of any holder of any deanery 
 in any lands, tithes, and other hereditaments or 
 endowments whatsoever annexed or belonging to, 
 or usually held or enjoyed with such deanery (ex- 
 cept any right of patronage), or whereof the rents 
 and profits had been usually taken and enjoyed 
 by the holder of buch deanery, as such holder, 
 separately and in addition to his share of the cor- 
 porate revenues of the chapter, were vested in the 
 Ecclesiastical Commissioners; and by 13 & 14 
 Vict. c. 94, s. 19, no spiritual person appointed to 
 a deanery of a cathedral may accept to take and 
 hold therewith any benefice, unless in the cathe- 
 dral city, and not exceeding 600Z. a year in value. 
 The rectory of T. was not situated in the cathe- 
 dral city of L., and the defendant was appointed 
 Dean of L. after these statutes came into force : 
 — Held, that looking to the intention and word- 
 ing of the whole statute, 3 & 4 Vict. c. 113, e. ,50, 
 did not apply to the rectory of T., as the eifect 
 would be to pass to the Commissioners the whole 
 rectory, involving the patronage, cure of souls, 
 and temporalities, and a clear intention was 
 shewn, on looking to the whole statute, not to pass 
 
 to them patronage or anything involving the cure 
 of souls, or interfere when such matters were in- 
 volved, without express mention and proper pro- 
 visions respecting them ; that 13 & 14 Vict. c. 94, 
 o. 19, also did not apply, as the dean had no option 
 as to accepting the rectory ; and that therefore 4 
 &5 Anne, c. xxxii., was not affected, and the de- 
 fendant was entitled to the rectory. The Queen 
 v. Champneys, 40 Law J. Rep. (n.s.) C. P. 95 ; 
 Law Eep. 6 C. P. 384. 
 
 (C) Inoobpoiiation of Statutes. 
 
 5. — Where an Act of Parliament, with compul- 
 sory powers, incorporates the whole of the Lands 
 Clauses Act, a right to compensation is, without 
 any other enactment, conferred upon the persons 
 interested in lands injuriously affected by the ex- 
 ercise of such powers. The Queen v. The Vestry 
 St. Luke's, Chelsea (Exch. Ch.), 41 Law J. Eep. 
 (n.s.) Q. B. 81 ; Law Rep. 7 Q. B. 148 : affirming 
 the decision of the Court of Queen's Bench, 40 Law 
 J. Eep. (n.s.) a. B. 305 ; Law Eep. 6 Q. B. 572. 
 
 By the Chelsea Improvement Act, 8 & 9 Vict, 
 c. cxliii., the Lands Clauses Act, 1845, is incor- 
 porated in these words : " So much of the Lands 
 Clauses Consolidation Act, 1845, as is applicable 
 to, and is not modified by this Act, or as is not 
 inconsistent with the provisions thereof, shall 
 apply to the improvements by this Act authorised 
 to be made, and shall be read as forming part of 
 this Act." By sections 124 and 127, compensation 
 is expressly given where projections, made before 
 the passing of the Act, are ordered to be removed, 
 and where a house taken down to be rebuilt is 
 ordered to be set back to the line of street. By 
 section 104, power is given to alter the level of 
 streets, but there is no provision as to compensa- 
 tion : — Held, notwithstanding the absence of any 
 such provision, that the lessee of a house injuriously 
 affected by the raising of the level of the street, 
 under the powers of section 104, was entitled to 
 compensation. Ibid. 
 
 6. — By section 1 of the Gasworks Clauses Act, 
 1371, that Act and the Gasworks Clauses Act, 
 1847, are to be read together. By section 3 it is 
 to apply to every gas undertaking authorised by 
 any Act thereafter passed ; and by section 36, 
 whenever the undertakers neglect or refuse to give 
 a supply of gas to any owner or occupier of pre 
 mises within the limits of the special Act entitled 
 to the same under such pressure as is prescribed, 
 they shall be liable to a penalty. The special Act 
 qf the appellant company was prior in time to the 
 Gasworks Clauses Act, 1871, but the Metropolis 
 Gas Act, 1860, which incorporated the Gasworks 
 Clauses Act, 1847, applied, among others, to the 
 appellant company. On a conviction of the appel- 
 lants, under section 36, for cutting off the supply 
 of gas from the respondent,— Held, first, that 
 section 36 did not merely apply to variations from 
 the prescribed pressure, but included cutting off 
 the supply of gas altogether ; and, secondly, that 
 the Act of 1871 being incorporated with that of 
 1847, and so with that of 1860, applied to the 
 appellant company, and was not restricted to com- 
 panies incorporated after 187'. '2'he Commercial 
 
STATUTE (C)— STOCK EXCHANGE. 
 
 567 
 
 Gas Company v. Scott, 44 Law J. Rep. (n.s.) M. C. 
 171 ; Law Eep. 10 Q. B. 400. 
 
 7. — Effect of the Gas Light and Coke Com- 
 pany's Act, 1868, and the City of London Gas Act, 
 1868, on the provisions of the Metropolis Gas Act, 
 1860, as to the purity and illuminating power of 
 the gas without as weU as within the City of 
 London. The Gas TAght and Coke Company v. 
 The Vestry of St. George, Hanover Square, 41 Law 
 J. Rep. (n.s.) Q. B. 360 
 
 STATUTE OF FRAUDS. 
 [See Frauds.] 
 
 STATUTE OF DISTRIBUTIONS. 
 
 [See DlSTKIBTJTIONS.] 
 
 STATUTORY DUTY. 
 [See Negligence, 33, 34.] 
 
 STAY OF PROCEEDINGS. 
 
 [See Bankeuptcy, N 30-32 ; Company, I 60-63 ; 
 Divorce, 61 ; Practice at Law, 40-42 ; 
 Practice in Equity, 138-141.] 
 
 STOCK EXCHANGE. 
 
 (a) Liability of principal of defaulting 
 
 broker. 
 (A) Eight of broker to close account. 
 (c) Contract between vendor and ultimate 
 
 (a) Liability of principal of defaulting broker. 
 
 1. — The plaintiffs, brokers on the Stock Ex- 
 change, who had at the request of the defendant 
 contracted for the purchase of shares for him, 
 were on the 13th of July, the " carrying over day" 
 for the 15th, instructed by him to carry over or 
 continue the contract from the 15tli till the 29th 
 of July, the next account day. On the 16th they 
 paid for him (as was necessary in order to have 
 the contract carried over) the difference on the 
 shares at the price on the 13th, amounting to 
 1,688Z. On the 18th of July the plaintiffs, by 
 reason of many persons for whom they had entered 
 into contracts failing to meet their engagements, 
 became defaulters on the Stock Exchange, where- 
 upon, in accordance with the rules of the Exchange, 
 all their bargains were closed and made up by the 
 official assignees at the prices of that day. The 
 price of the shares purchased for the defendant 
 having fallen, the amount due in respect thereof 
 
 (including the 1,688?. differences) was 6,013/., 
 which the plaintiffs then became liable to' pay to 
 the official assignees, and now sought to recover 
 from the defendant :— Held, that the plaintiffs' 
 insolvency having been brought about by want of 
 means to meet their other primary obligations, and 
 not by reason of their having entered into any con- 
 tract on behalf of the defendant, no promise could 
 be implied on the part of the defendant, as their 
 principal, to indemnify them against the conse- 
 quences of the enforcement of the Stock Exchange 
 rules with regard to defaulters, and that, therefore, 
 the plaintiffs could only recover from the defendant 
 the sum of 1,688?., the amount of the differences 
 they had actually paid for him — reversing the 
 judgment below, 10 Law J. Rep. (n.s.) Exch. 137 ; 
 Law Rep. 6 Exch. 258. Duncan v. Hill, and same 
 V. Beeson, 42 Law J. Rep. (n.s.) Exch. 179 ; Law 
 Rep. 8 Exch. 242. 
 
 (6) Eight of broker to close account. 
 
 2. — A speculator on the Stock Exchange having 
 failed to pay the balance of his brokers' account 
 against him when requested, and having died, and 
 a bank, of which he was senior partner, having in 
 consequence stopped payment, the brokers sold out 
 stock which he had directed to be carried over, at 
 a loss, but the stock had fallen still lower before 
 the next account day. On a claim by them for 
 the balance of their next account, which was re- 
 sisted on the ground that they had broken their 
 contract, and could not speculate as to what would 
 have happened had they kept it: — Held, that their 
 conduct at the most gave rise to a right of set-off 
 for any damage resulting from it, and that, none 
 being shewn, their claim was good. Lacey v. Hill ; 
 and Laney v. Hill ; Scriingeour's Claim, 42 Law J. 
 Rep. (n.s.) Chanc. 667 ; Law Rep. 8 Chanc. 921. 
 
 Evidence was given of a custom of the Stock 
 Exchange that where a principal who had bought 
 for the account became bankrupt or died, leaving 
 no person ready to take up his account, his broker 
 might cover himself by selling out the shares or 
 stock : — Held, by Mellish, L. J., that the custom 
 was reasonable, and that the claim was sustainable 
 on that ground also. Ibid. 
 
 3. — In equity the liability of a principal to 
 indemnify his agent is not confined to actual losses, 
 but extends to all the liabilities of the agent. 
 Lacey y. Hill; Crowley's Claim, 43 Law J. Rep. 
 (n.s.) Chanc. 551 ; Law Rep. 18 Eq. 182. 
 
 C, broker for H., entered into contracts for pur- 
 chase of stock for the next settling day, the 15th 
 of July, 1870. The contracts were in the usual 
 form, subject to the "rules and usages of the 
 Stock Exchange," and the broker's notes from time 
 to time sent to H., also had these words. When 
 that day arrived C, by request of H., and relying 
 on a promise of H. to settle on that day the 
 amount then due to C. for brokerage and losses, 
 " continued " the contracts till next settling day. 
 H. did not settle his account on the 15th. On the 
 16th, the Norwich Bank, in which he was partner, 
 stopped payment, and H. became in fact insolvent. 
 C. was thei-eupon declared defaulter on the Ex- 
 change. According to the rules, all his tr.insac- 
 
f)68 
 
 STOCK EXCHANGE - STOP OEDER. 
 
 tions were immediately closed. No loss accrued 
 to the principal by the closing of the transactions 
 before the next settling day. Subsequently C. 
 was re-admitted to the Stock Exchange, on pay- 
 ment of a composition, but not the full amount of 
 his debts. After such re-admiseion, members of 
 the Stock Exchange were in effect forbidden by 
 the rules of the Exchange to sue him for the 
 balance of previous losses without the leave of the 
 committee, which was rarely, if ever, granted, but 
 no legal release was given to him. In a creditor's 
 suit instituted for administering the estate of H., 
 C. claimed for the whole amount shewn to be due 
 to him for brokerage and losses, by an account 
 made up on the footing of all transactions being 
 closed on the day of the insolvency of H. the 
 amount of claim being calculated on the full 
 amount of the liabilities of C. in respect of the 
 contracts for stock, and not on the amount that he 
 had actually paid on those contracts : — Held, first, 
 that on the insolvency of H., the transactions 
 might be closed according to the rules of the Stock 
 Exchange, without afifecting the right of C. to an 
 indemnity from H. Secondly, that C. not having 
 had a legal release from claims under the contracts, 
 but being still liable in law for the full amount, 
 was entitled to claim against the estate of H. for 
 the full amount of losses on the contract, includ- 
 ing not only what he had actually paid, but also the 
 amount for which he was legally liable. Ibid. 
 
 (c) Contract between vendor and ultimate vendee. 
 
 4. — The plaintiff, through his brokers, who were 
 members of the Stock Exchange, sold to the de- 
 fendant, a jobber, likewise a member of the Stock 
 Exchange, ten shares in Overend, Gurney & Co., 
 for the account. The sale was subject to the rules 
 of the Stock Exchange. On the name day the de- 
 fendant passed a ticket to the plaintiff's brokers 
 issued by Messrs. Foster & Co., brokers, members 
 of the Stock Exchange, and giving the name of 
 Goss as the person to whom the shares were to 
 be transferred. No objection was made to the 
 name, and the plaintiff executed a transfer of the 
 shares to Goss. Calls were subsequently made on 
 the shares, which the plaintiffwas obliged to pay, 
 and which he was unable to recover from Goss, 
 who turned out to be a person of no means. It 
 was then discovered by the plaintiff, that Messrs. 
 I'oster & Co. had purchased, by the instructions 
 of one S., a number of shares in Overend, Gurney 
 & Co., Limited, for the account, but by an arrange- 
 ment between S. and Goss the latter had consented 
 to allow his name to be given in as the person to 
 whom the shares were to be transferred, in con- 
 sideration of a sum of money. Neither Foster & 
 Co. nor the defendant were aware of the nature of 
 this arrangement, or that Goss was not a substan- 
 tial person. Under these circumstances, the plain- 
 tiff sought to recover the calls he had paid from 
 the defendant. Held, affirming the decision of the 
 Court of Exchequer, dissentiente Lush, J., that 
 the defendant was not liable. Maxsted v. Paine, 
 40 Law J. Bep. (n.s.) Exch. 57; Law Eep. 6 
 Exch. 132. 
 
 Per Cockburn, C.J., Keating, J., Mellor, J., 
 Montague Smith, J., and Brett, J. — That Goss was 
 an ultimate purchaser within the meaning of that 
 terra as applied to the usage of the Stock Ex- 
 change, and that the defendant had performed his 
 contract by passing the name of such an ultimate 
 purchaser, to whom no objection had been taken, 
 and to whom the shares had been transferred. Ibid. 
 
 5.— On the 13th of April, 1866, the defendant, 
 through his brokers C. & Co., purchased 100 
 shares in a company, registered under the Com- 
 panies Act, 1862, of a jobber, for the account or 
 settling day, the 26th of April. Before the day 
 arrived, he requested his brokers to carryover the 
 contract to the next account day, the 15th of May. 
 On the lith of May, the brokers passed a ticket 
 with the defendant's name as purchaser of the 
 shares. This ticket was split or divided, accord- 
 ing to the practice of the Stock Exchange, and a 
 part or split for fifteen shares was handed to the 
 brokers of the plaintiff, who was the ultimate 
 seller of that number of shares. The plaintiff 
 thereupon, on the 15th of May, executed a deed of 
 transfer to the defendant in the proper form, and 
 delivered the transfer and the share certificates to 
 the defendant's brokers, who accepted them on be- 
 half of the defendant, paid the plaintiff's brokers 
 the price of the shares, and forwarded the transfer 
 and certificates to the defendant. The defendant 
 refused to accept the shares, and the company 
 having stopped payment the plaintiff was made a 
 contributory and compelled to pay calls : — Held, 
 that the transactions above stated weie evidence 
 of a contract by which the defendant, as purchaser 
 of the fifteen shares, was bound to indemnify the 
 plaintiff against the calls made in respect of them. 
 Bowring v. Shepherd (Exch. Ch.), 40 Law J. Eep. 
 (n.s.)Q. B. 129; Law Rep. 6'Q. B. 309. 
 
 6. — When the owner of shares in a joint-stock 
 company sells them through a broker upon the 
 Stock Exchange to a jobber, the contract of the 
 jobber is to take a transfer of the shares himself 
 or to pass on the name day the name of a person 
 or persons competent and willing to contract as 
 transferee or transferees in his stead. Nicfcalls v. 
 Merry, Law Eep. 7 E. & I. App. 530. 
 
 The ten days' rule is to give tinie for the vendor 
 to enquire into the solvency of the person so 
 named, but is no bar to a claim of indemnity 
 against the jobber upon its subsequently appear- 
 ing that the party named was incompetent or 
 unwilling to contract. Ibid. 
 
 Sennie Y. Morris (Law Eep. 13 Eq. 203) over- 
 ruled. Ibid. 
 
 The decision of the Court of Appeal in Chancery 
 ■ (41 Law J. Eep. (n.s.) Chauo. 767 ; Law Eep. 7 
 Chanc. 733, sub nom. Merry v. JS'ickalh) affirmed. 
 Ibid. 
 
 STOP OEDEE. 
 [See Costs in Esuity, 13.] 
 
STOPPAGE IN TRANSITU--TELEGRAPII ACTS. 
 
 659 
 
 STOPPAGE IN TRANSITU. 
 [See Sale, 18.] 
 
 SUPPLEMENTAL BILL. 
 [See Pbaoticb in Equity, 115, 116.] 
 
 SUBROGATION. 
 [See Insukancb, 10.] 
 
 SUPPORT. 
 [See Mines, 3-7.] 
 
 SUCCESSION DUTY. 
 [See LEBA.CY and Succession Duty.] 
 
 SUITORS' DEPOSITS. 
 
 The chief clerk of the Court of King's Bench 
 was the custodian of moneys deposited by the 
 suitors to await the result of actions, and invested 
 a portion of them in Exchequer BiUs. When 
 the late Lord EUenborough succeeded to the of5ce 
 in 1811, he found a sum of 5,000^. so invested. 
 He received for his own benefit the interest there- 
 upon until the report of the committee of the 
 House of Commons on sinecure offices in 1834, in 
 deference to which he received no further divi- 
 dends, but caused them to be carried by his bankers' 
 to a separate account. After his death a suit was 
 instituted to administer his estate, and upon a, 
 summons taken out thereon, it was held, that the 
 funds thus accumulated formed no part of his 
 estate, but must be treated as public moneys, and 
 that the Crown, in right of the public, was entitled 
 to receive them. Colchester v. Law, 43 Law J. 
 Rep. (n.s.) Chanc. 80 ; Law Rep. 16 Eq. 253. 
 
 SUNDAY. 
 
 [Prosecutions for non-observance of the Sunday 
 to be only by chief officer of police or with con- 
 sent of two Justices of the Peace. 34 & 35 Vict. 
 c. 87.] 
 
 [Power to Crown to remit penalties under the 
 above Act for preventing profanation of the Lord's 
 Day. 38 & 39 Vict. c. 80.] 
 
 Trading : sale of intoxicating liquor: bond 
 fide traveller. [See Alehouse, 20-22.] 
 Profanation of LorHs Day. [See Loek's 
 ■ Day.] 
 
 SUNDAY AND RAGGED SCHOOLS. 
 
 Exemption from poor rate. [See Rate, 21, 
 22.] 
 
 SUPREME COURT OF JUDICATURE. 
 
 [The Judicature Act, 1873, amended and re- 
 pealed in part. Rules and regulations as to proce- 
 dure in actions, &c. Additional Rules as to costs 
 have been issued by Order in Council 12th August, 
 1875, and further Rules dated December 1st, 1 875. 
 38 & 39 Vict. u. 77.] 
 
 SURGEON. 
 [See Medical Act.] 
 
 TACKING. 
 [See Mortgage, 8.] 
 
 TAXATION OF COSTS. 
 [See Costs.] 
 
 TEINDS. 
 [See Scotch Law, 31 ; Tithe, 4.J 
 
 TELEGRAM. 
 
 C, a banker at Lyons, posted a letter contain- 
 ing bills of exchange to D. in London, but before 
 the departure of the mail he received a telegram 
 from D., telling him to remit nothing. C. accord- 
 ingly sent to the Post Office to reclaim his letter, 
 which, by the regulation of the French Post Office, 
 he was entitled to do, on complying with certain 
 formalities. By mistake the formalities were not 
 observed and the letter was forwarded to its 
 destination. In the meantime D. had filed a peti- 
 tion for liquidation : — Held, that the property in 
 the bills did not pas.s to the trustee. Ex parte 
 Cote; in re Deveze, 43 Law J. Rep. (n.s.) Bankr. 
 19 ; Law Rep. 9 Chanc. 27. 
 
 SUPERFLUOUS LANDS. 
 [See Lands Clauses Act, 47-49 ; Pre-emption.] 
 
 TELEGRAPH ACTS. 
 
 By 31 & 32 Vict. c. 110, s. 7, any railway com- 
 pany possessed of a telegraph open to the use 
 of the public on the Ist of January, 1868, for 
 
560 
 
 TELEGRAPH ACTS— TENANT FOR LIFE AND REMAINDERMAN (A). 
 
 transmitting messages for monej', or possessing 
 any beneficial interest in such telegrapli, might 
 require the Postmaster-General to purchase the 
 right of such railway company to transmit such 
 messages or other beneficial interest. By 32 & 33 
 Vict. c. 73, s. 10, any telegraph company with 
 which the Postmaster-General may not come to 
 an agreement with respect to the amount of com- 
 pensation to be paid to them for their under- 
 taking, may have such amount settled by arbitra- 
 tion in manner provided by the Lands Clauses 
 Consolidation Act, 1845. By an agreement with 
 a telegraph company, under which the telegraph 
 company erected and placed their telegraphic appa- 
 ratus on the Cowes and Newport Railway Com- 
 pany's line, the railway company took the exclusive 
 tise of one wire during the continuance of the 
 agreement, but were prohibited from using the 
 wire for public use or for profit, or for any other 
 purpose than the transmission of the railway com- 
 pany's own messages. The agreement was to be 
 in force for twenty-one years, and at the end of 
 that time the telegraph company were to remove 
 their telegraphic apparatus : — Held, that the rail- 
 way company had no interest in the telegraph 
 such as to entitle them to require the Postmaster- 
 General to purchase it under the Telegraph Acts, 
 1868 and 1869. The Cowes and Newport Eailway 
 Company v. The Board of Trade, 43 Law J. Rep. 
 (n.s.)Q.B. 242. 
 
 TENANT FOR LIFE AND REMAINDER. 
 MAN. 
 
 (A) Right of Tekakt foe Life to Custody 
 OF Deeds. 
 
 (B) Adjustment of eelative Rights as be- 
 tween OoEPUs AND Income. 
 
 (a) Payment of debts, legacies, $c. 
 {b) Legacy where estate insufficient. 
 
 (c) Calls on railway shares. 
 
 (d) Bonus on shares or stock. 
 
 (e) Costs incurred under Lands Clauses 
 
 Act. 
 (/) Compromise of breach of trust by 
 
 testator, 
 (g) Farming stock, 
 (h) Profits of partnership. 
 ( i ) Income of investments unconverted, 
 (k) Eenewable leaseholds, 
 (l) Direction to accumulate rents till debts 
 
 (A) RiSHT OF Tenant foe Life to Custody 
 OF Deeds. 
 
 1, — Although, as a general rule, a legal tenant 
 for life is entitled to the custody of title deeds as 
 against trustees with a mere power of sale ; yet 
 where a suit affecting the estates is being prose- 
 cuted, the custody of the deeds must depend on 
 the question of convenience for the purposes of the 
 suit. In such a case the Court of Appeal will not 
 interfere with the discretion of the Vice-Chau- 
 cellor. Stanford v. Roberts, Law Rep. 6 Chanc. 
 307. 
 
 (B) Adjustment of Relative Rights as 
 
 BETWEEN COEPUS AND InCOME. 
 
 (a) Payment of debts, legacies, S[c. 
 2. — In administering an estate a proportionate 
 amount of capital, and the income actually made 
 in the first year, are to be applied in payment of 
 debts, legacies, funeral and testamentary ex- 
 penses, and costs and profits made in a business 
 are to be treated as income. Lambert v. Lambert, 
 43 Law J. Rep. (n.s.) Chanc. 106; Law Rep. 16 
 Eq. 320. 
 
 (J) Legacy where estate insufficient. 
 
 3. — Where a legacy was bequeathed, with in- 
 terest from the testator's death at four per cent., 
 on trusts for one for life, and trusts over, and the 
 estate was insufficient to pay in full, — Held, that 
 sums from time to time received by the trustees, 
 and applicable to the legacy, were divisible rate- 
 ably between capital and income, so that il. per 
 cent, on each sum invested by the trustees to 
 answer the legacy should he attributed to income. 
 In re Tinkler's Estate, 45 Law J. Rep. (n.s.) Chanc. 
 135 ; Law Rep. 20 Eq. 466. 
 
 (c) Calls on railway shares. 
 
 4. — Settlement of railway shares on trust for a 
 married lady for life, for her separate use with 
 remainders over. ^ Calls having been made, the 
 tenant for life, at the request of the trustees, 
 made advances out of her separate estate for the 
 payment of them. On bill filed by her legal per- 
 sonal representative, —Held, that the sums so 
 advanced were in the nature of salvage moneys, 
 and that she had a lien on the shares for 
 their repayment, with interest at four per cent. 
 Todd V. Moorhouse, Law Rep. 19 Eq. 69. 
 
 {d) Bonus on shares or stock. 
 
 5. — Testator bequeathed a sum of East and 
 West India Dock Stock to life tenants and others 
 in succession. Some time after his death bonuses 
 were declared upon the stock. On the 8th of 
 February, 1 865, by an order made in a suit for 
 the administration of the estate, the bonuses were 
 invested in Bank 31. per Cent. Annuities, and the 
 dividends thereon directed to he paid to the 
 tenants for life. On the 12th of January, 1871, 
 that investment order was discharged : — Held, 
 that the bonuses were income, and not capital of 
 the estate, and belonged to the life tenants. Daie 
 V. Hayes, 40 Law J. Rep. (n.s.) Chanc. 244. 
 
 6. — Testator died on the 20th of December, 
 1870, having by his will bequeathed the residue 
 of his personal estate to trustees to invest, as 
 therein mentioned, and then to permit and em- 
 power his wife to receive " the dividends, interest, 
 and income of his trust money, stocks, funds, 
 shares and securities " for her life ; and on her 
 death to permit his brother to receive the residue 
 (after the pajnnent thereout of certain legacies) 
 of the same " dividends, interest and income," 
 for his life, with remainder to one of his brother's 
 children and another legatee, as therein men- 
 tioned. At his death the testator had twenty-five 
 
TENANT POU. LIFE AND EEMAINDEEMAN (B). 
 
 561 
 
 shares in the Sun Life Assurance Society <ancl 
 fifty-two in the Sun Pire Insurance Office. The 
 trustees of the will paid his widow the dividends 
 on those shares till 1873, when they withheld the 
 January and July dividends on the respective 
 shares, oi) the ground that it was doubtful whe- 
 ther the dividends were corpus, or income, of the 
 estate. The question depended on the construc- 
 tion of the company's deed of settlement, and on 
 the mode in which the company had declared the 
 dividends, which were called "extraordinary" 
 and "special." The resolutions under which the 
 dividends were declared were not produced to the 
 Court ; but it was stated that they were identical in 
 terms with the dividend warrants ; and the warrants 
 spoke of the money pay able thereu nder as " dividend 
 paid out of profits." The trustees paid the money 
 into Court, and the testator's widow presented a 
 petition, praying payment of it out to her : — Held, 
 on the construction of the company's deed of settle- 
 ment, and the resolutions declaring the dividends, 
 that the dividends were income and not corpus of 
 the estate, and belonged to the petitioner. Costs 
 were allowed out of the fund. In re Hopkins's 
 Trusts, 43 Law J. Sep. (n.s.) Chanc. 722 ; Law 
 Eep. 18 Eq. 696. 
 
 (e) Costs incurred under Lands Clauses Act. 
 
 7. — A tenant for life of a settled estate is not 
 entitled to throw upon the estate his costs of op- 
 posing in Parliament a bill brought in by a pubfic 
 company for taking part of the estate. But he is 
 entitled to charge the estate with the costs, 
 charges and expenses properly incurred by him in 
 or about an arbitration entered into between him, 
 under the provisions of the Lands Clauses Act, 
 regarding the value of the land, on the ground 
 that, under the Act, he is made the fiduciary 
 agent for such purposes on behalf of the estate. 
 In re Berkeley's Will, 44 Law J. Eep. (n.s.) Chanc. 
 3; Law Eep. 10 Chanc. 57. 
 
 (/) Compromise ofbreacJi of trust by testator. 
 
 8. — A. claim against a testator's estate for a 
 breach of trust having been compromised by pay- 
 ment of a gross sum, — Held, that, as between 
 tenant for life and remainderman, the sum paid 
 was to be treated as composed of a debt due on 
 the day when the claim originated, of interest at 
 five per cent., from that day to the testator's 
 death, and of interest at four per cent, on such 
 debt, and interest from thence to the time of pay- 
 ment ; the debt and interest up to the testator's 
 death to be chargeable to corpus, and the subse- 
 quent interest to income. Maclaren v. Stainton, 
 Law Eep. 11 Eq. 382. 
 
 (g) Farming stock. 
 
 9. — Under a gift of farming stock to one for 
 life, with remainder over, the first taker does not 
 become absolutely -entitled to such of the articles 
 comprised in the gift as are of a consumable 
 nature, but if he enjoy it in specie he must keep 
 up the amount of it, and if it has to be sold he 
 will only be entitled to the income produced by 
 Digest, 1870-1875. 
 
 the proceeds. Coohayne v. Harrison, 41 Law J. 
 Eep. (n.s.) Chauc. 509 ; Law Eep. 13 Eq. 432. 
 
 {h) Profits of partnership, 
 
 10. — In apportioning the profits of a testator's 
 partnership business between corpus and income, 
 such profits will be considered as earned at the 
 expiration of the particular periods down to which 
 the partnership profits and losses are from time 
 to time ascertained, and the profits earned during 
 a period which expired before the testator's de- 
 cease will not be considered as income merely 
 because, owing to delay, they were not actually 
 ascertained until after his decease. Clive v. Clive 
 (Kay, 600) followed. Browne y. Collins, Law Eep. 
 12 Eq. 68G. 
 
 11. — Where executors carried on the partner- 
 ship business of their testator, in which the widow 
 took a life interest under the will, and by the deed 
 of partnership the majority in value of the part- 
 ners had power to divide the profits, or to add 
 them to the capital, or carry them to the separate 
 acooimts of the partners, and large accumulations 
 were carried to a profit and loss account, and the 
 greater part thereof used for business piu-poses, — 
 Held, that the remaindermen were entitled to the 
 sums standing to the profit and loss account as 
 against the widow. Stralcer v. Wilson, 40 Law J. 
 Eep. (n.s.) Chanc. 630 ; Law Eep. 6 Chanc. 603. 
 
 (i) Income of investments unconverted. 
 
 12. — Where a testator empowered his trustees 
 to continue invested any of his government 
 stocks, — Held, that this only extended to stocks 
 of a permanent character, and that the estate of 
 the deceased tenant for life under the will was 
 liable to recoup the amount which would have 
 been produced by the sale of long annuities which 
 had expired in her lifetime, and of which she had 
 received the proceeds. Ticlcner v. Old, Law Eep. 
 18 Eq. 422. 
 
 13. — Grift of residue to a testator's sister, con- 
 firmed in a codicil, but with a desire " that the same 
 should be invested in any way my executors think 
 proper," in trust for her sole benefit during her 
 lifetime, and at her death for her children : — Held, 
 that she was not entitled to the income of lease- 
 holds and other parts of the testator's estate, con- 
 sisting of investments not usually authorised by the 
 Court, which had remained for some time uncon- 
 verted, but only to interest on their value at four 
 per cent. OreeJi v. Britten, 42 Law J. Eep. (n.s.) 
 Chanc. 187. 
 
 14, — H., by his will, gave his property to 
 trustees upon trust, to convert, or in their discre- 
 tion to retain present investments. The estate 
 was administered by the Court, and acting on the 
 chief clerk's certificate, some of the investments 
 were retained, and in particular several shares in 
 the West Middlesex Water Works, which were 
 shewn to have paid a high dividend, and also to 
 have increased in value since the death of the tes- 
 tator. On a question as to the apportionment of 
 the dividends on these shares between a tenant 
 for life and remaindermen, — Held, that the tenant 
 4C 
 
562 
 
 TENANT FOE LIFE AND EEMAINDEEMAN (B). 
 
 for life was only entitled to interest at four per 
 cent, per annum on the value of the shares at the 
 death of the testator. Furley v. Hyder, 42 Law J. 
 Eep. (n.s.) Chano. 626. 
 
 15. — ^A testator devised a brickfield on trust 
 for sale when the trustees should think it desirable. 
 They deferred the sale in the exercise of their 
 discretion:— Held, that the tenant for life was en- 
 titled to the royalties as income. Miller v. Miller, 
 41 Law J. Eep. (n-.s.) Chanc. 291 ; Law Eep. 13 
 Eq. 263. 
 
 16. — A testator, possessed of leasehold col- 
 lieries, gave his real, leasehold and personal estates 
 to trustees, upon trust for tenants for life, and in 
 remainder, and empowered his trustees, if they 
 should deem it beneficial, to carry on his colliery 
 business, and to renew the leases. They did so, 
 and expended part of the profits in renewing and 
 acquiring leases of collieries and buying plant, 
 and the rest of the profits wore paid to the 
 tenants for life. The will contained no express 
 direction to convert, but contained leasing powers. 
 The Ooxirt declared the collieries and plant to be- 
 long to the estate, and held the tenants for life 
 entitled to the actual income arising therefrom. 
 Thurshy v. Thursby, 44 Law J. Eep. (n.s.) Chanc. 
 289 ; Law Eep. 19 Eq. 395. 
 
 17. — A testator gave his real and personal es- 
 tate to trustees on trust, to sell and convert so much 
 thereof, as in their sole discretion they might 
 think necessary to discharge his mortgage and 
 other debts, and funeral and testamentary ex- 
 penses. Subject to this charge, the trusts were 
 in favour of tenants for life, with remainders 
 over : — Held, that the tenants for life were en- 
 titled to enjoy in specie leaseholds which the 
 trustees had not actually converted. Tn re the 
 London and North-Wesiern Eailway Company 
 (SeweU's Estate), 40 Law J. Eep. (n.s.) Chanc. 
 135; Law Eep. 11 Eq. 80. 
 
 {k) Senewalle leaseholds. 
 
 T.8. — Where renewable leaseholds were held 
 in trust, and the trustees were directed to re- 
 serve a, fund for fines on renewals out of the 
 rental, and the leaseholds were taken by a rail- 
 way company j'and shortly afterwards the practice 
 of renewal was discontinued, the value of the 
 leaseholds having been assessed at an amount 
 which, invested m three per cents., gave a redaced 
 income to the tenant for life, — Held, that the 
 tenant for life was not entitled to be recouped 
 the deficiency of income out of corpus. In r3 
 WooSs Estate, 40 Law J. Eep. (n.s.) Chanc. 59 ; 
 Law Eep. 10 Eq. 572. 
 
 19. — P. D. being entitled to an ecclesiastical 
 lease which it was customary to renew every seven 
 years, bequeathed it to trustees for his daughter 
 for life, remainder to her children, subject to a 
 provision for raising out of the income a fund for 
 renewing the lease, and to a power of sale. The 
 reversion having become vested in the Eccle- 
 siastical Commissioners they refused to renew, 
 but offered to sell part of the reversion in fee to 
 the trustees upon having a surrender of the lease 
 in the remainder and a sum down. The proposal 
 
 was opposed by the tenant for life, on the ground 
 that it would considerably reduce her income ; — ■ 
 Hold, that under sections 20, 35, 37 and 39 of the 
 Act 23 & 24 Vict. c. 124, and having regard to 
 the provisions of the vrill, the Court had power to 
 direct the trustees under the will to carry the 
 arrangement into effect if, upon due consideration 
 of the rights of all persons interested, it should 
 appear just to do so. And an inquiry was di- 
 rected whether the arrangement was proper, or 
 calculated to give the remaindermen the enjoy- 
 ment, as nearly as possible, of the corpus of the 
 property bequeathed by the will, or what modifi- 
 cation of it, if any -more proper, could be ar- 
 ranged. Hollier v. Burne, 42 Law J. Eep. (n.s.) 
 Chanc. 789; Law Eep. 16 Eq. 163. 
 
 20. — ■'W. T. was beneficially entitled for his 
 life to renewable leaseholds for three lives, held 
 on trust to renew, and subject to certain charges. 
 All the cestuis que vie having died, and W. T.'s 
 right to renew being disputed by the reversioner, 
 the trustee of the leaseholds, with the consent of 
 the persons entitled to the charges, in order to 
 facilitate the obtaining of a renewal, transferred 
 the legal estate to W. T. by a deed, which recited 
 (though contrary to the fact) that the charges 
 had been paid by W. T. Thereupon "W. T. ob- 
 tained a renewal (without prejudice to the ques- 
 tion in dispute), and subsequently, to avoid liti- 
 gation, purchased the reversion in fee. He sub- 
 sequently paid off the charges, and mortgaged the 
 premises in fee. By his will, reciting that the 
 charges were subsisting, he devised his interest 
 in the premises to T. T., subject to the charges: — 
 Held, affirming the decision of Bacon, V.C. (41 
 Law J. Eep. (n.s.) Chanc. 673 ; Law Eep. 14 Eq. 
 295), that T. T. took the fee subject to the 
 charges. Trumper v. Trumper, 42 Law J. Eep. 
 (n.s.) Chanc. 641 ; Law Eep. 8 Chanc. 870. 
 
 (V) Directum to accumulate rents till debts paid. 
 
 21. — Testator died in 1844, having by his 
 will directed his trustees, out of the rents and 
 profits of his real estates, to pay all his debts, 
 including a sum of 8,000Z. charged on part of his 
 realty. Testator also directed that " no person 
 to whom any estate for life or in tail was given 
 by the will should be entitled to the rents and 
 profits of the estate, or any part of them, until 
 they were totally disencumbered and clear of 
 debt." The trustees were to invest the moneys to 
 come to their hands under the trusts of the will 
 until applied by them in any payment under it. 
 All the debts had been paid except the 8,000/., 
 and there was stock enough in Court to meet that. 
 The payment of the debts had been effected by 
 a sale of part of the realty, under the orders of 
 the Court, and a receiver had been appointed. In 
 1874 a summons was taken out by the tenant for 
 life to discharge the receiver, and to be let into 
 possession of the estates : — Held, that the receiver 
 must be discharged, and the tenant for life ad- 
 mitted to the estates. Tewart v. Lawson, 43 Law 
 J. Eep. (n.s.) Chanc. 673; Law Eep. 18 Eq. 490. 
 
 Annuity : whether payable out of corpus or 
 income. [See Anndity, 8.] 
 
TENANTS IN COMMON— THEATRE. 
 
 663 
 
 TENANTS IN COMMON. 
 
 (A) What Woims ckeate Tenancy in Com 
 
 MON. 
 
 (B) Rights of Tenants in Common. 
 
 (A) What Woeds ckeate Tenancy in Common. 
 
 1. — A gift to A. and B. (in terms creating a 
 joint tenancy), folloTved by a proviso for survivor- 
 ship to B. if A. died -without children, — Held, to 
 create a tenancy in common. Byvea v. Eyves, 40 
 Law J. Rep. (n.s.) Chanc. 262; Law Rep. U Eq. 
 639. 
 
 2.— Held, that a direction that a class should 
 take "between them" created a tenancy in common. 
 The Attorney-General v. Fletcher, 41 Law J. Rep. 
 (n.s.) Chanc. 167; Law Rep. 13 Eq. 128. 
 
 [And see Will, Construction, I 1-7.] 
 
 (B) Eights op Tenants in Common. 
 
 3. — One tenant in common cannot maintain 
 trespass or trover against his co-tenant for cutting 
 and carrying away the grass off their land unless 
 there has been an ouster, or unless it is shewn 
 that the grass has been destroyed. Jacobs v. 
 Seward (H.L.), 41 Law J. Rep. (n.s.) C.P. 221 ; 
 Law Rep. 5 E. & I-. App. 464. 
 
 The plaintiff and the defendant being tenants in 
 common of certain land, the defendant entered 
 upon the laud, cut the grass, put a lock upon the 
 gate, and carried away the grass. There was no 
 evidence that the defendant kept the gate locked, 
 but there was evidence that ho opened the gate 
 for the plaintiff's son to take away the hay of a 
 former year: — Held, that these facts did not 
 amount to an ouster of the plaintiff by the de- 
 fendant, so as to enable the plaintiff to maintain 
 an action of trespass against the defendant, nor 
 to a destruction of the common property so as to 
 entitle him to maintain an action of trover. Held, 
 also, that the Court below was right in refusing to 
 allow an amendment of the declaration by eon- 
 verting the action into an action for an account 
 under 4 Anne, c. 16, s. 27. Ibid. 
 
 4. — A., B., and C. were tenants in common in 
 fee of a piece of land containing coal. B. and C. 
 with the knowledge, but without the consent of 
 A., entered into an agreement with J. to lease to 
 him their two undivided thirds of the mine for 
 three years, and gave him authority to work the 
 coal. J. entered under the agreement and worked 
 the coal for three years, from 1865 to 1868, leaving 
 unworked one-third of the coal, and reserving one- 
 third of the royalties for A. In 1872 A. filed a 
 bill against his co-tenants and J., praying for an 
 enquiry as to the value of the coal gotten by J., 
 and that in making such enquiry no allowance 
 might be made for cost of severance or of bringing 
 to the surface, and that the defendants might be 
 ordered to pay to him one-third of the amount 
 found due : — Held, that B. and C. were entitled to 
 work the coal by themselves or their agent, pro- 
 vided they took no more than their proper share. 
 Job V. Potion, 44 Law J. Rep. (n s.) Chanc. 262 ; 
 Law Rep. 20 Eq. 84. 
 
 Also, that as A. had not given his consent to 
 the agreement, he was entitled to an account of 
 the value of the coal gotten, but that as J. had 
 worked the mine in the assertion of a right, and 
 had not done anything either tortious or negligent, 
 all just allowances must be made in taking the 
 account for cost of severance and bringing to the 
 surface. Ibid. 
 
 A. having elected to take the account against J. 
 alone, the bill was dismissed against B. and C. 
 with costs. Ibid. 
 
 THAMES CONSERVANCY ACT. 
 
 A riparian proprietor on the banks of a public 
 navigable river, where the tide flows and reflows, 
 has no greater rights over the river or the fore- 
 shore than the public at large. Lyon v. The 
 Fishmonger^ Com'pany, 44 Law J. Rep. (n.s.) 
 Chanc. 747; Law Rep. 10 Chanc. 679. 
 
 The right of a wharfowner on the banks of the 
 Thames, between the limits subject to the juris- 
 diction of the conservators of the river, to have 
 free access for his barges to and from the doors 
 of his wharf, opening and abutting on the river, 
 for the purpose of loading and unloading the 
 barges, and his right of ingress and egress from 
 his wharf to his barge, and vice versd, is not a 
 private right within the 179th section of the 
 Thames Conservancy Act, 1857, which is interfered 
 with by the exercise of the powers conferred on 
 the conservators by the 53rd section of the Act. 
 Decision of Malins, V.C. (44 Law J, Rep. (n.s.) 
 Chanc. 408) reversed. Ibid. 
 
 THEATRE. 
 
 By section 3 of 1 Geo. 4. c. Ix, (one of the Acts 
 under which Drury Lane Theatre was built), each 
 of the new renters there referred to is, for a 
 certain term of years (not yet expired), to be 
 entitled "to the free liberty and privilege of 
 admission into the usual audience part of the said 
 
 theatre before the curtain " (except in 
 
 certain fourteen private boxes), " on every day 
 and night on which any theatrical or other per- 
 formance shall be publicly exhibited between the 
 time at which the doors of the said theatre shall 
 be open for admittance of the public and the ter- 
 mination of such performance, in as full and 
 effectual manner" as the same was then enjoyed 
 by the said new renters, provided that such persons 
 should be subject to such regulations as the sub- 
 committee of the company of proprietors of the 
 theatre should from time to time deem necessary 
 or make for the government and management of 
 the said theatre, so that such regulations do not 
 affect or abridge the rights of the said new renters 
 as then enjoyed. Since that Act part of what was 
 then the pit of the said theatre has been railed off 
 from the rest 'of the pit and converted into stalls, 
 each of which is numbered, and the whole of 
 which are approached by a separate entrance, A 
 4c2 
 
564 
 
 THEATRE— TITHES. 
 
 seat in the stalls is let at a higher price than a 
 seat in either the pit or the dress-circle, and is 
 retained the whole evening for the person to whom 
 it is let : — Held, that such stalls are part of "the 
 usual audience part of the theatre" -within the 
 meaning of the said Act, and that any such renter 
 has a right of free admission to a seat in such 
 stalls -which is unoccupied and not pre-engaged 
 ■when he arrives there, and that he does not lose 
 such right because he has used his privilege of 
 free admission by going in the first instance into 
 the dress-circle, and consequently that he has a 
 right to change from the dress-circle to the stalls 
 -without being required to pay 2s., the difference 
 in price between a seat in the dress-circle and in 
 the stalls, and which is paid by any of the public 
 on so changing from the dress-circle to the stalls. 
 Dauney v. Chatterton, 44 Law J. Eep. (n.s.) C. P. 
 53. 
 
 Per Lord Coleridge, C.J., and Brett, J., that 
 the right of such renter being limited to the time 
 between the opening of the doors of the theatre 
 to the admittance of the public and the termi- 
 nation of the performance, and being also subject 
 to the said regulations for the management of the 
 theatre, such renter cannot go into any seat which 
 has been pre-engaged, although it may not be 
 occupied when he arrives ; nor can he go into any 
 private box (although it is not one of the fourteen 
 boxes from which he is excluded expressly by the 
 Act), because by the said regulations a seat cannot 
 be taken in a private box, but the whole box must 
 be taken. Ibid. 
 
 THELLUSSON ACT. 
 
 A testator bequeathed several annuities payable 
 out of the income of his residuary personal estate, 
 and to abate rateably if the securities provided 
 for them proved insufficient, directing the surplus 
 income to be accumulated till the death of the 
 sur'vi-^'ing annuitants. He bequeathed his resi- 
 duary personalty to be paid and divided into five 
 public charities according to the amounts sot 
 after their names in the will. The sum of 100?, 
 only was set after the name of each charity. 
 There was a very large amount of personal estate 
 after providing for the annuities ; and the tes- 
 tator left no aext-of-kin : — Held, that the charities 
 were entitled to the whole of the residuary pure 
 personalty ; but that, being charities, they could 
 not now call for the payment of the surplus to 
 them, and the accumulations must go on till 
 further order. Harbin v. Masterman, 40 Law J. 
 Bep. (n.s.) Chanc. 760; Law Eep. 12 Eq. 559, 
 
 THIEVES. 
 
 Permitting thieves to assemble. 
 
 BITUAI. CEIMIN.iLS AoT.] 
 
 [See Ha- 
 
 TITHES, 
 [The Tithe Commutation Acts amended with 
 respect to market gardens. 36 & 37 Vict, c. 42.] 
 
 Modus : conversion into tillage. 
 
 1. — Land was held subject to a modus in lieu 
 of tithe until it should be converted into tillage, 
 when a yearly rent at so much per acre was to 
 become payable : — Held, that the building a house 
 upon such laud and converting a part of it into an 
 orchard was not a conversion into tillage or a 
 breach of the modus, and that the same modus 
 continued in force. Dudman v. Vigar (H. L.), 42 
 Law J. Rep. (n.s.) C. P. 207 ; Law Eep. 6 E. & I. 
 App. 212. 
 
 A small portion of the land was converted into 
 a garden for the use and convenience of the house : 
 — Semble, such conversion was not a conversion 
 into tillage. Ibid. 
 
 An award made under an Inclosure Act set out 
 the " tithe money payment to be hereafter payable 
 out of lands subject to moduses in the event of 
 and during the time when the lands or any part 
 thereof should be converted into tillage." A 
 schedule to the award shewed the actual measure- 
 ment of the land in question to be la. Ir. Zp. ; the 
 payment to be made on conversion 12s. &^d. ; and 
 the payment per acre 10s. The owner having 
 converted a small portion into garden, and having 
 paid in respect of that portion after the rate of 
 10s. per acre, — Held, that if such payment was of 
 right payable in respect of the small portion so 
 converted, it did not foUow that payment must be 
 made in the same way in respect of the rent of 
 the land which was not converted. Ibid. 
 
 Decision of the Court of Exchequer Chamber (41 
 Law J. Eep. (n.s.) C. P. 64 ; Law Eep. 7 C. P. 72, 
 sub nom. Vigar v. Dudman), affirming the Court of 
 Common Pleas (40 Law J. Eep. (n.s.) C. P, 229 ; 
 Law Eep. 6 C. P. 470), affirmed. Ibid, 
 
 Extraordinary charge on land cultivated as hop 
 grounds. 
 
 2. — The power of the Tithe Commissioners 
 under 6 & 7 Will. 4. c. 71, s. 42, and 23 & 24 
 Vict. e. 93, s. 42, to impose an extraordinary 
 charge on lands in a parish newly cultivated as 
 hop grounds or market gardens, is not limited to 
 lands in a parish in which a district had been 
 assigned at the time of the commutation within 
 which such extraordinary charge should be pay- 
 able, but such charge may be made although no 
 district had ever been so assigned, Su^sell v. 
 The Tithe Commissioners for England and Wales, 
 40 Law J. Eep. (n.s.) C. P, 265 ; Law Eep. 6 C. P. 
 696. 
 
 Assessment of tithe rent-charge owner to church- 
 rate. 
 
 3. — The owner of tithe rent-charge in a parish 
 where money has been borrowed under the pro- 
 visions of 5 Geo. 4. c. 36, is liable to be assessed 
 to the rate made for repayment of the money. 
 Smallbones v. Edney, 40 Law .J. Eep. (n.s.) Ecc. 8. 
 
TITHES— TEADE MARK. 
 
 565 
 
 Scotch Law. 
 
 4. — A plea of bond fide perceptio et comumpHo 
 is a good defence to a claim foi- arrears of teinds. 
 The Lord Advocate v. Vrysdale, Law Eep. 2 So. 
 App. 368. 
 
 [And see Scotch J^^', 31.] 
 
 TOLL. 
 
 Bridge toll. 
 
 1. — By 6 Geo. i. o. 29 (Lower Canada), the 
 appellant was empowered to build a bridge over a 
 river, and to take tolls from persons using the 
 same, and it was provided that any person other 
 than the appellant conveying a person across the 
 said river within certain limits should be liable to 
 a penalty. By the 16 Vict. c. 107 (Lower Canada), 
 the respondents were authorised to construct a 
 railway and to make a bridge over the same 
 river, within the limits prescribed in the former 
 Act. The respondents constructed a, bridge and 
 carried their railway over it. In an action by the 
 appellant, claiming the demolition of the bridge, 
 an injunction and damages, — Held, that the re- 
 spondents could not be treated as wrong doers, 
 and that no such action could be brought. Se- 
 condly, that even if the appellant was entitled to 
 compensation, the making compensation was not a 
 condition precedent to the exercise of the powers 
 granted by statute to the respondents. Jones v. 
 The Stanstead, Skefford, and ChambUy Eailway 
 Company, 41 Law J. Eep. (isr.s.) P. C. 19; Law 
 Eep. 4 P. 0. 98. 
 
 Liability of railway company. 
 
 2. — The simple fact of a corporation being 
 entitled to an ancient drift toll on waggons 
 passing to, through or from a borough does not 
 support a claim (even if such a claim can be legal) 
 to take toll on railway waggons passing over a 
 railway made through the borough — affirming the 
 judgment below, 41 Law J. Eep. (n.s.) C. P. 267 ; 
 Law Eep. 7 C. P. 555. The Brecon Markets Coirv- 
 pany v. The Neath and Brecon Bailway Company 
 (Exch. Ch.), 42 Law J. Eep. (n.s.) C. P. 63 ; Law 
 Eep. 8 C.P. 157. 
 
 Market tolls: cattle brought into market- 
 place, but not occupying any part of 
 the soil. [See Maeket, 3.] 
 
 Port dues. [See Poet.] 
 
 public highway — a "street" or "road" within the 
 meaning of the 3rd section of the Town Polioo 
 Clauses Act, 1847, so as to render persons who by 
 agreement with the company keep carriages stand- 
 ing there, liable to a penalty for allowing car- 
 riages to ply for hire without a license. Curtis v. 
 Embrey, 42 Law J. Eep. (n.s.) M. 0. 39 ; Law Eep. 
 7 Exch. 369. 
 
 2.— By s. 33 of 10 & 11 Vict. o. 89 (the Town 
 Police Clauses Act, 1847), the commissioners may 
 send five engines for the purpose of extinguishing 
 fires in the neighbourhood, and " the owner of 
 the lands and buildings where such fire shall have 
 happened shall, in such case, defray the actual 
 expense," &c. The respondent was the owner of 
 a haystack which stood upon land in his occupa- 
 tion. Expenses were incurred in sending an 
 engine and working the same in the endeavour to 
 extinguish a fire in the haystack, — Held, that the 
 respondent was the owner within the meaning of 
 the 33rd section, and was bound to defray the 
 expenses. Lewis v. Arnold, 44 Law J. Eep. 
 (n.s.) M. C. 68 ; Law Eep. 10 Q. B. 245. 
 
 3.— Certain clauses of the Towns Improvement 
 Act, 1847, incorporated in the Public Health Act, 
 1848, provide that no slaughter-house shall be 
 erected without the license of the Local Board of 
 Health. Under the Local Government Act, 1858 
 (which is to be read as one v/ith the Public 
 Health Act, 1848), the corporation constituted 
 the Local Board of Health for B. A local Act, 
 passed subsequently, provided that a company 
 formed thereby for the purpose of managing the 
 property of the corporation of B., might, with the 
 consent of the corporation, erect slaughter-houses 
 in the borough of B. The company erected 
 slaughter-houses under the local Act with the 
 consent of the corporation, testified by writing 
 duly signed, but the corporation afterwards, when 
 acting as the Local Board imder the Act of 1858, 
 refused to license the buildings as slaughter- 
 hoxises : — Held (reversing the decision of - the 
 Court of Exchequer), that the consent given by 
 the corporation under the local Act included the 
 license required by the Towns Improvement Act. 
 Antony v. The Brecon Markets Company, 41 Law 
 J. Eep. (n.s.) Exch. 201 ; Law Eep. 7 Exch. 
 399. 
 
 TEADE FIXTUEES. 
 [See F:xTTjBES.] 
 
 TOTAL LOSS. 
 [See Makine Insdeance, 30-35.] 
 
 TOWNS POLICE ACT. 
 
 1. — A piece of ground, the property of a railway 
 company, is not — though used as an approach to 
 a station, and though not fenced off from the 
 
 TEADE MAEK. 
 
 (A) What mat constitute a Teade Maek. 
 {a) User of name of a place. 
 
 lb) Adjective denoting quality. 
 
 (c) Arbitrary name given to new article, 
 
 (d) Trade mark in gross. 
 
 (B) Infeinoement. 
 
 (fl) User of single word not publici juris. 
 (6) User of name with variation. 
 (c) Claim to be original inventor. 
 
566 
 
 TRADE MARK (A), (B). 
 
 {d) User of name of former firm. 
 (c) Evidence of deception of public. 
 (/) Effect of misrepresentation by plantiff. 
 (C) Peactice in Suits fob Infeingement. 
 (a) Costs. 
 
 (1) Deception of public. 
 
 (2) Defendant innocent of fraud. 
 (i) Discovery and production. 
 
 [Register of trade marks establiehed. 
 Viet. c. 9.] 
 
 38&39 
 
 (A) What may constitute a Tbade Mark. 
 («) User of name of a place. 
 
 1. — Where a name, Tvliether of a place or 
 person, has, by user by a particular maker of a 
 particular article of manufacture, acquired a 
 secondary sigaification in connection Tvith that 
 manufacture, and has obtained currency and 
 value in the market as the trade denomination of 
 that particular maker's goods, it becomes in 
 connection with that manufacture the property of 
 that maker as his trade mark or as part of his 
 trade mark. The user of that name by another 
 maker in connection with that manufacture will 
 be prohibited, even though he may not copy the 
 whole of the first maker's trade mark, whatever 
 means such other maker may devise for the pur- 
 pose of availing himself of the name ; provided 
 the Court is satisfied that those means are 
 adopted in order to obtain a colourable right to 
 use the name, and that the object and the pro- 
 bable result of such user would be to deceive 
 unwary purchasers of such other maker's goods 
 into the belief that they were buying the goods of 
 the party to whom the right to use the name 
 belongs. Wotherspoon v. Currie (H. L.), 42 
 Law J. Rep. (n.s.) Chane. 130; Law Rep. 5 
 E. & L App. 508. 
 
 W., having acquired in connection with starch 
 a property in the name of a small place. Glen- 
 field, where he at one time made his starch, re- 
 moved his works elsewhere, but continued to call 
 his starch Glenfield Starch. C. went to Glenfield 
 and also made starch there which he called Royal 
 Palace Starch, but he printed on his labels con- 
 spicuously the word Glenfield as the name of the 
 place where his starch was made. It was proved 
 that this starch was pushed in the trade as 
 Glenfield Starch. It was proved also that as 
 regards the first purchasers, the retail dealers, 
 there was no deception ; that they well knew that 
 in buying C.'s starch they were not buying that 
 made by W. ; and that W.'s was the original 
 Glenfield Starch : — Held, that this was a fraudu- 
 lent use of the word " Glenfield," and an infringe- 
 ment of W.'s trade mark. Ibid. 
 
 2. — An injunction will be granted on an inter- 
 locutory motion to restrain the use or imitation of 
 the name of a place, used as a trade mark, if the 
 plaintiff proves primd, facie, that such name in 
 the market has coma to mean the plaintiff's 
 article. Eadde-v.Norman, illa-w 3. Rep. (n.s.) 
 Chanc. 525 ; Law Rep. 14 Eq. 348.. 
 
 (J) Adjective denoting quality. 
 
 3, — An English adjective merely descriptive of 
 the quality of an article, such as " nourishing 
 stout," is not by itself entitled to protection as a 
 trade mark. Baggett v. Findlater, 43 Law J. 
 Rep. (n.s.) Chano. 64; Law Rep. 17 Eq. 29. 
 
 (c) Arbitrary name given to new article. 
 4.— The plaintiff, a woollen manufacturer, intro- 
 duced into the market cloths of particular tex- 
 tures, made by him, under arbitrary names, as 
 " Sefton," " Turin," &e. The defendants copied the 
 patterns, which were not registered, and sold the 
 cloths under the same name. The defendants also 
 used a ticket in sending their cloth to the whole- 
 sale dealers, closely resembling that of the plain- 
 tiff; but they explained that they purchased the 
 ticket, which was of a simple description, and did 
 not bear the manufacturers' name, from the stock 
 of a stationer, without any intention to copy 
 the plaintiff's. They claimed to be entitled to 
 describe the cloths by the names given to them 
 by the plaintiff: — Held, that the plaiutiffwas solely 
 entitled to the names as trade marks ; and that the 
 use of the tickets, even if innocent, was unjusti- 
 fiable. Hirst V. Denham, 41 Law J. Rep. (n.s.) 
 Chano. 752; Law Rep. 14 Eq. 542. 
 
 (d) Trade marTc in gross. 
 
 5. — The inventor of a sauce gave it the name 
 of the Licensed Victuallers' Relish, and designed 
 a trade mark for labels on the bottks containing 
 it, and employed his son to sell it. He permitted 
 his son to describe himself in his circulars and 
 invoices as the sole proprietor of the sauce. The 
 son became bankrupt and his trustee sold his 
 interest in the sauce and its trade mark to the 
 plaintiffs, who now sought to restrain the inventor 
 from infringing the trade mark. It appeared that 
 the plaintiffs did not know the defendant's recipe, 
 but made a sauce which their witnesses deposed to 
 be imdistinguishable from the defendant's : — Held, 
 that a trade mark could not exist in gross, and 
 that as the plaintiffs did not know the recipe for 
 the original article, they could not have a right to 
 affix the trade mark to a sham article for the 
 purpose of imposing on the public. Cotton v. 
 Gillard, 44 Law J. Rep. (n.s.) Chanc. 90. 
 
 (B) Inpbingement. 
 (fl) User of single word not publici juris. 
 
 Q, — The user by a dealer or manufacturer in 
 connection with an article of manufacture of a 
 single word, being a material part of a particular 
 title to which as a trade mark another manufac- 
 turer has a right in connection with the same 
 article, maybe an infringement of the trademark. 
 Ford V. Foster, 41 Law J. Rep. (n.s.) Chanc. 682 ; 
 Law Rep. 7 Chanc. 611. 
 
 The test whether a fancy name adopted by a 
 manufacturer as a trade mark for certain goods 
 has become publici juris is the question whether 
 the use of it by other persons in connection with 
 the same goods is calculated to deceive the public, 
 
TEADE MARK (B), (0). 
 
 667 
 
 so as to induce them to believe that in purchasing 
 the goods so named they are purchasing goods of 
 tlie original manufacturer. Consequently a trade- 
 mark may have become publici juris among a 
 certain class, as bet-vveen the -wholesale and retail 
 dealers who will not be deceived by it, and yet 
 may not have become ptMici juris, as between the 
 retail dealers and their ordinary customers. Ibid. 
 The misrepresentation, such for example, as 
 falsely calling himself a " Patentee," which will 
 disentitle a plaintiff to relief in equity in respect 
 of an infringement of his trade mark, must be 
 such SI misrepresentation as would prevent him 
 from recovering nominal damages in an action at 
 law brought to establish his right to the trade 
 mark. And since a misrepresentation, not form- 
 ing a part of the trade mark itself, although used 
 in connection with the trade mark, and with the 
 article to which the trade mark applies, would be 
 no answer to the plaintiff 'a action to establish his 
 title at law, neither will such a misrepresentation 
 disentitle the plaintiff to relief in equity. Ibid. 
 
 The plaintiff Ford, a shirt manufacturer, gave 
 the name "Eureka" to a particular shape of 
 shirt invented by him, and stamped all such 
 shirts with the words " Ford's Eureka Shirts," 
 and with a statement that such words were his 
 trade mark. He advertised the shirts, falsely 
 calling himself the "patentee" of them, and he 
 falsely described himself on his bill-heads, &c., 
 as patentee of the shirts. Shirts of the particular 
 shape came to be commonly known in the trade 
 as "Eureka" shirts. The defendants, wholesale 
 shirt manufacturers, made shirts of the same 
 shape, and stamped them in the same part of the 
 shirts as " Eureka Shirts : " — Held, that the 
 plaintiff was entitled to an injunction to restrain 
 the defendants from using the word "Eureka," as 
 applied to shirts not of the plaintiffs manufacture, 
 except that the defendants were to be at liberty 
 to advertise their shirts as "Eureka" in their 
 trade lists. Ibid. 
 
 Having regard to the plaintiff's misrepresenta- 
 tions, the account against the defendants was con- 
 fined to the time from the filing of the bill. Ibid. 
 
 (5) User of name with variation. 
 7. — The plaintiff was publisher and proprietor of 
 a book called "The Birthday Scriptm-e Text-Book." 
 Defendants published a book of the same nature 
 called "The Children's Birthday Text-Book : "— 
 Held, that the plaintiff was entitled toan injunction 
 to restrain defendants from publishing their book 
 by that name or by any other name containing the 
 words "Birthday Text-Book" as a portion 
 thereof. Mack v. Fetter, 41 Law J. Eep. (n.s.) 
 Chanc. 781 ; Law Eep. li Eq. 431. 
 
 (c) Claim to be original inventor. 
 
 8. — " Beading sauce " was first invented and 
 introduced to the public by one J. C, but subse- 
 quently many manufacturers by unrestrained 
 usage acquired the right to call their articles the 
 " Beading Sauce " : — Held, that the description 
 "the original Beading Sauce" applied only to 
 that made by J. C. and those claiming under him. 
 
 and that they had a right to restrain other parties 
 from using that designation without shewing that 
 any purchaser was actually deceived. Cocks v. 
 Chandler, 40 Law J. Eep. (n.s.) Ohano. 57S ; Law 
 Bep. 11 Eq. 446. 
 
 9. — After the deatli of Lieutenant Bobert 
 James, the inventor of a blister ointment, known 
 as Lieutenant James's blister, the recipe for 
 making which was a valuable trade secret, but not 
 patented, while his successors in title were carry- 
 ing on the business of selling it, his nephew, E. J. 
 James, who had discovered the recipe under cir- 
 cumstances which did not make it a breach of 
 duty to avail himself of his discovery, made and 
 sold the ointment under the name of the original 
 inventor, signed with the signature E. James, 
 and advertised his ointment as the onlygenuine : — ■ 
 Held, on bill filed against him by the successors 
 of the original inventor, that he was entitled to 
 make and sell the article as Lieutenant James's 
 blister, but not to do anything which was calcu- 
 lated to make the public think that he was the 
 original inventor or the successor of the inventor, 
 or to represent that his was the only genuine 
 preparation. James v. James, 41 Law J. Eep. 
 (n.s.) Chanc. 353 ; Law Eep. 13 Eq. 421. 
 
 ((Z) User of name of former firm. 
 
 10. — A manager or former partner in a firm, 
 who sets up in business on his own account, will 
 not be permitted to advertise the fact of his 
 previous connection with the old firm in such a 
 way as might induce the public to believe that 
 he is carrying on the business of the old firm. 
 Hookham\. Pottage, Law Eep. 8 Chanc. 91. 
 
 (e) Evidence of deception of public. 
 
 11. — An injunction to prevent the infringement 
 of a trade mark will not be granted unless there 
 is evidence that the public has been actually 
 deceived, or the Court is satisfied from inspec- 
 tion that there is an intention or probability of 
 deception. Evidence of opinion of experts on the 
 latter point is not sufficient. Cope v. Euans, 
 Law Eep. 18 Eq. 138, and see supra No. 8. 
 
 (/) Effect of misrepresentation bi/ plaintiff. 
 [See supra No. 6.] 
 
 (C.) Practice in Suits fob Infeingement. 
 
 (a) Costs, 
 
 (1) Deception of public. 
 
 12. — A suit was instituted to restrain an alleged 
 improper use by the defendants of the plaintiffs' 
 trade name. Both the plaintiffs and the defendants 
 were engaged in the manufacture of a compound 
 intended for sale to brewers, and to be used by 
 them in the making of beer in the place of hops. 
 Upon the merits the Court decided that th e plaintiffs 
 had failed to make out anycase forrelief. Butinas- 
 much asthedefendantsaswellastheplaintiffs were 
 engaged in the manufacture and sale of an article 
 which was intended to enable brewers to deceive 
 
563 
 
 TRADE MARK (C)— TRESPASS. 
 
 the piiLlic, — Held, that the bill must be dis- 
 missed Tvithoiit costs. EstcouH v. The EstcoaH 
 Hop Essence Company {Limited), 44 Law .T. Eep. 
 (n.s.) Chanc. 223; Law Rep. 10 Chano. 276. 
 
 (2) Defendant innocent of fraud. 
 
 13. Bill bythe plaintiff, a merchant, to restrain 
 the defendant, an agent, who received goods from 
 the Continent, and forwarded them to parties in 
 England for a commission, from forwarding goods 
 bearing a forged imitation of the plaintiff's trade 
 mark. On a first application, the defendant, who 
 was innocent of the fraud, readily gare the names of 
 the persons by whom the goods were sent, and 
 offered to erase the forged marks : — Held, affirm- 
 ing the decision of the Master of the Rolls, that 
 costs ought not to be given against the defendant. 
 Upmanii v. Elkan, 41 Law J. Rep. (n.s.) Chanc. 
 246 ; Law Rep. 7 Chanc. 130. 
 
 (t) Discovery and prodiwtion. 
 
 Discovery and productionof documents in sitit 
 to restrain infringement of trade mark. 
 [See Peodtjction, 20.] 
 
 TRADES UNIONS. 
 
 [32 & 33 Vict. c. 61 repealed. Enactments as 
 to the status, registration, and rules of Trades 
 Unions. 34 & 35 Vict. c. 31.] 
 
 By the Trades Union Act, 1871, 34 & 35 Vict. 
 c. 31, s. 6, any seven or more members of a 
 trade union may, by subscribing their names to 
 the rules of the union, &c., register the trade 
 union under the Act, and by section 8, all pro- 
 perty belonging to any trade union so registered 
 shall be vested in its trustees. By section 13, 
 subsection 2, the registrar, upon being satisfied 
 that the trade union has complied with the 
 regulations respecting registry in force under the 
 Act, shall register such trade union ; and by sub- 
 section 3, no trade union shall be registered under 
 a name identical with that by which any other 
 existing trade union has been registered. By 
 subsection 6 power is given to a Secretary of 
 State to make regulations respecting registry 
 under the Act, and the Home Secretary, acting by 
 virtue of this power, made a regulation providing 
 that upon an application for the registration of a 
 trade union which was already in operation, the 
 registrar if he had reason to believe that the 
 applicants had not been duly authorised by such 
 trade union to make the same, might, for the 
 purpose of ascertaining the fact, require from the 
 applicants such evidence as might seem to him neces- 
 sary. An applicatiouwas made to the registrar, dated 
 the 23rd of December, requiring him to regis- 
 ter the Amalgamated Society of Carpenters and 
 Joiners, signed by certain persons who stated that 
 they were authorised to make it by a resolution 
 passed by the executive council of the society. 
 A second application was made, dated the 30th 
 of December, by different persons, to register a 
 
 society under the same title, the applicants 
 stating that they were authorised to make it by a 
 vote of the whole of the members of the society. 
 The registrar required evidence from both sets of 
 applicants in support of their applications ; and 
 being satisfied from the evidence that differences 
 had arisen which had led to the division of the 
 society into two sections, which were represented 
 by the respective applicants, he refused to regis- 
 ter the society upon either application : — Held, 
 that, apart from any question as to the validity of 
 the regulations made by the Home Secretary, the 
 registrar had properly refused the applications, as 
 he was not bound upsn an application for regis- 
 tration to enquire into differences which existed 
 within the society, and to alter the position of 
 one party by granting registration upon the appli- 
 cationof the other. The Queenr. The Registrar of 
 Friendly Societies, 41 Law J. Rep. (;^.s.) Q. B. 
 366; Law Rep. 7 Q. B. 741. 
 
 Semble, per Lush, J. — That the regulation 
 made by the Home Secretary was valid. Ibid, 
 
 TRAMWAYS. 
 
 The General Tramways Act, 1870, provides that 
 no tramways authorised by provisional order shall 
 be laid within a certain distance from the foot- 
 path, if one-third of the occupiers of houses ad- 
 joining object. A local Act gave a tramways com- 
 pany power to make tramways in accordance with 
 certain plans and sections therein mentioned. 
 The Act scheduled an agreement by the occu- 
 piers providing that the general Acts should apply 
 as fully as if the private Act were a provisional 
 order : — Held, that as the objection by the occu- 
 piers must be prior to the obtaining of the 
 provisional order, they had waived it and were 
 not entitled to object to a tramway being laid 
 within the prescribed distance, if in accordance 
 with the plans and sections. The Edinburgh 
 Street Tramways Company v. Black, Law Rep, 2 
 Sc. App. 336. 
 
 Bateability of tramways. [See,E.ATE, 20.] 
 
 TREASURY. 
 
 Coats of criminal prosecution : jurisdiction 
 to issue mandamus against Lords of 
 Treasury. [See Mandamus, 2.] i 
 
 TRESPASS. 
 
 (A) Right of Actiok. 
 
 (a) Lessee and sub-lessee. 
 (6) Tenant of mortgagor and mortgagee, 
 (c) Tenants in common, 
 {d) Obstruction of highway in navii 
 lake. 
 
TEESPASS (A), (B). 
 
 669 
 
 (e) Alteration of drain 
 
 present enjoyed," 
 (,/) Escape of water. 
 (B) Eight to Injtjijotiok. 
 
 granted "as at 
 
 (A) Eight op Action. 
 
 («) Lessee and sub-lessee. 
 
 1, — The lessee of a theatre held it under a 
 lease in ■which he covenanted not to convert it 
 to any other use than for acting or performing of 
 operas or theatrical entertainment^. He demised 
 certain boxes and stalls to a sub-lessee, reserving 
 power of access for the purpose of repairing ; the 
 sub-lessee covenanted only to use the same for 
 the purpose of viewing and hearing the operas 
 and other entertainments. The underleases con- 
 tained covenants for quiet enjoyment. The lessee 
 demised the theatre for a term of three months 
 for the purpose of holding religious meetings. 
 To enable these meetings to be held, the stalls were 
 covered with a flooring, the divisions between the 
 boxes removed, and other temporary structural 
 alterations made : — Held, that a trespass had 
 been committed by the lessee and persons claim- 
 ing under him in thus entering upon the sub- 
 lessee's boxes and stalls without his license, and 
 the conversion of the tlieatre for other than 
 theatrical purposes was a derogation from the 
 grant and a breach of the covenant /or quiet 
 enjoyment. Leader v. Moody, 4-1 Law J. Eep. 
 (n.s.) Chauc. 711 ; Law Eep. 20 Eq. 146. 
 
 [And see Theatre.] 
 
 (J) Tenant of Tnortgagor and mortgagee. 
 
 2. — The tenant of a mortgagor, whose tenancy 
 was created after the mortgage, and has never 
 been recognised by the mortgagee, cannot main- 
 tain trespass against the mortgagee for entering 
 and distraining en the land under the powers of 
 the mortgage. Gibhs v. CruikshanJc, 42 Law J. 
 Eep. (n.s.) 0. P. 273 ; Law Eep. 8 C. P. 454. 
 
 (c) Tenants in common. 
 By one tenant in common against his co- 
 tenant. [See Tenants in Common, 3.] 
 
 (d) Obstruction of highway in navigable lake. 
 
 3. — A. being the owner of land adjoining a 
 navigable lake, the bed of which was the soil and 
 freehold of the plaintiff, granted to the defend- 
 ants a right of way, and made a pier, part of 
 which was upon his own land, and part upon the 
 bed of the lake. He then leased the pier and 
 the land belonging to it to the defendants, a 
 steamboat company, who used the pier for the 
 purpose of landing and embarking passengers. If 
 the pier had not been built on the bed of the 
 lake, they might have brought their steamboats 
 sufficiently near to be able to land their passen- 
 gers by means of a temporary stage reaching 
 from their boats to the land so leased to them, 
 and upon which part of the pier was built. The 
 Digest, 1870-1876. 
 
 public had a right to navigate the lake, and ths 
 plaintiff had not removed the pier, although it 
 had been erected without his consent and against 
 his will : — Held, that he could not maintain an 
 action against the defendants for using the pier 
 as above stated, inasmuch as while he allowed it 
 to remain, it was an obstruction to their right to 
 navigate the lake, and to land and embark their 
 passengers at that place. Marshall v. The Ulles- 
 water Steam Navigation Company,. 41 Law J. Eep. 
 (N.s.) Q.B. 41 ; Law Eep. 7 Q. B. 166. 
 
 (c) Alteration of drain granted " as at present 
 enjoyed," 
 
 4. — A conveyance of land was made, subject to 
 the reservation to the grantor and his assigns 
 and the owners and occupiers for the time being 
 of land of the grantor, of joint ownership and 
 right to use a drain "as at present enjoyed by 
 him or them, but no further or otherwise," and 
 also subject to a right of entry for the purpose 
 of repairing the drain. These rights became 
 vested in the defendants. A local board of 
 health having altered the level of a sewer into 
 which the drain emptied, the drain became useless 
 imless deepened. The defendants therefore en- 
 tered on the land, and relaid the drain two feet 
 deeper than before ; — Held, that the limitation 
 was intended to affect the use to which the drain 
 might be put, and not to limit the power to keep 
 it in an efficient state, and that whether the deed 
 created a tenancy in common or only an ease- 
 ment, the defendants had not exceeded the powers 
 reserved by it. Finlinson v. Forter, 44 Law J. 
 Eep. (n.s.) Q.B. 56; Law Eep. 10 Q, B. 188. 
 
 (/ ) Escape of water. 
 [See Negugence.] 
 
 (B) Eight to Injunction. 
 
 5. — Where the plaintiflTs title is not disputed, 
 the Court will grant an injunction to restrain acts 
 of trespass without requiring him first to bring 
 an action at law. Goodson v. Richardson, 43 Law 
 J. Eep. (n.s.) Chanc. 790 ; Law Eep. 9 Chane. 
 222. 
 
 If the plaintiff is guilty of no acquiescence or 
 delay, he will be entitled to a mandatory injunc- 
 tion, though the works complained of may have 
 been completed before the filing of the bill. Ibid. 
 
 6. — ^Where an agent employed by the tenants 
 of houses adjoining an ornamental garden, who 
 had rights of management of the garden, under 
 colour of a contract with such occupiers, entered 
 into the garden and committed continuing acts of 
 trespass, — Held, that there was sufficient privity 
 between him and the owners of the fee to sustain 
 a bill by the latter for an injunction. Allen v. 
 Martin, Law Eep. 20 Eq. 462. 
 
 7. — An estate was intersected by a canal and 
 an accommodation bridge built by the canal com- 
 pany, over which a, private road was carried. 
 Coal pits were afterwards opened in the lands, 
 and the colliery owners made a tramway over the 
 bridge. The canal company having brought an 
 4D 
 
670 
 
 TRESPASS (B)-TEOVER (B). 
 
 action of trespass and applied for a writ of in- 
 junction, the coal owners submitted to judgment 
 for 11. damages, and gave an undertaking not to 
 repeat the trespass. A few months afterwards 
 they again laid down the tramway, without break- 
 ing the soil of the bridge :— Held, that the under- 
 taking gave the Court jurisdiction to grant an 
 injunction. The Neath Canal Convpa/iiy v. The 
 Ynisarwed Besolven Colliery Company, Law Eep. 
 lOChanc. 450. 
 
 Liability of surveyor of highways for trespass 
 
 by order of board. [See Highway, 19.] 
 
 Trespass by animals. [See Neoligence, 5.] 
 
 TRIAL AT BAR. 
 [See JuEisDicTioN at Law, 3.] 
 
 TROVER. 
 
 (A) When Action maintainable, 
 
 (1) Purchaser of goods subject to ven- 
 
 dor's lien. 
 
 (2) Action on estoppel in pais. 
 
 (3) Sale of Iwrse in market overt. 
 
 (4) Waiver of tort by plaintiff. 
 
 (5) Tenant in common. 
 
 (B) What amounts to Conversion. 
 
 (C) Special Damage by Loss of Bargain. 
 
 (D) Evidence on Tkial tending to phove 
 
 Eelony. 
 
 (A) When Action maintainable. 
 
 (1) Purchaser of goods subject to vendor's lien. 
 
 1. — A purchaser of goods, of which the vendor 
 retains possession with a lien for unpaid pur- 
 chase-money, cannot maintain trover against a 
 mere wrongdoer. Quaere — whether he can, if 
 after the conversion he pays or tenders the pur- 
 chase-money to the vendor. Lord v. Price, iZ 
 Law J. Rep. (n.s.) Exch. 49 ; Law Rep. 9 Exch. 64. 
 
 (2) Action on estoppel in pais. 
 
 2. — An action of trover cannot be maintained 
 upon an estoppel in pais, where the defendant 
 has never had the goods alleged to be converted. 
 Carr v. The London and North- Western Railway 
 Company, 44 Law J. Rep. (n.s.) C. P. 109; Law 
 Eep. IOC P. 307. 
 
 (3) Sale of horse in market overt. 
 
 3. — The defendant's mare, which he had turned 
 ont in a public park, was found out of the park, 
 and was sold at public auction by the " pinner." 
 After an intermediate sale she was sold in market 
 overt to the plaintiff, and was subsequently taken 
 possession of by the defendant. There was no 
 proof that the formalities which the statute 31 
 Eliz. i;. 12 requires upon the sale of horses at 
 fairs and markets had been observed : — Held, 
 that in the absence of such proof, the Court 
 
 would not infer that such formalities had been 
 observed, and that the plaintiff could not main- 
 tain an action for the mare against the defendant 
 the true owner. Moran v. Pitt, 42 Law J. Rep 
 (n.s.) Q.B. 47. ' 
 
 (4) Waiver of tort by plaintiff. 
 
 4. — The defendant sold the goods of D. under 
 a bill of sale. D. became bankrupt, and the 
 plaintiff, his trustee, petitioned the Court of 
 Bankruptcy to set aside the sale as fraudulent or 
 void, and order payment of the proceeds (the 
 amount of which he knew) to him. The Court so 
 ordered, and the money was paid. The plaintiff 
 afterwards being dissatisfied with the amount 
 realised, and desiring to obtain the difference be- 
 tween the value of the goods and proceeds of 
 the sale, brought trover against the defendant : — - 
 Held, that he could not do so, as by his acts he 
 had waived the tort. Smith v. Baker, 42 Law J. 
 Rep. (n.s.) C.P. 156 ; Law Rep. 8 0. P. 380. 
 
 (5) Tenant in common. 
 
 By one tenant in common against , his co- 
 tenant. [See Tenants in Common, 3.] 
 
 (B) What amounts to Conversion. 
 
 5. — Any person who, however innocently, ob- 
 tains the possession of the goods of a person who 
 has been fraudulently deprived of them, and dis- 
 poses of them, whether for his own benefit or that 
 of any other person, is guilty of a conversion, un- 
 less the possession was obtained by him as 
 finder or as bailee, or by purchase in market 
 overt or from an agent, so as to be protected by 
 the Factors Acts. HoUins v. Fowler (H. L.), 44 
 Law J. Rep. (n.s.) Q. B. 169 ; Law Rep. 7 E. & I. 
 App. 757 : affirming the judgment of the Court of 
 Exchequer Chamber (41 Law J. Rep. (n.s.) Q. B. 
 277; Law Rep. 7 Q. B. 616, siib nom. Fowler v. 
 Hollins). 
 
 Broker A. had fraudulently obtained posses- 
 sion of thirteeen bales of cotton, pretending that 
 he was buying for S., a fictitious principal, the 
 price to be paid within ten days. Before the ten 
 days expired he sold the cotton to broker B. 
 for cash, payable that day. Broker B. promised 
 to send in the name of his principal in the course 
 of the day. In the morning, when he purchased 
 the cotton, B. had no positive orders from any 
 principal to buy cotton, but he had in his mind a 
 customer, M., whom he thought the cotton would 
 suit, and who had by letter told B. that he would 
 call on him that day with a view to buying cotton. 
 B. had numerous customers whose trade and re- 
 quirements he knew, and frequently, without defi- 
 nite instructions, he used to buy cotton which he 
 believed would suit one or other of them, feeling 
 satisfied such a one would take it, but trusting 
 also, if the particular customer for whom he in- 
 tended the cotton would not take it, that he would 
 be able to place it with some other of his cus- 
 .tomers. In fact, M. called on B. in the course of the 
 day and bought the cotton, paying the price agreed 
 between brokers A. and B., together with B.'s cus- 
 
TROVER (B)— TRUST AND TRUSTEE. 
 
 671 
 
 tomary charges. Thereupon B. sent to A. the name 
 of M. as that of his principal, and before the day 
 was out B. paid A. the agreed price, and the 
 cotton was removed by B.'s men and carts, and 
 was then taken by train to M.'s mills at Stock- 
 port, where it was spun into yarn. Broker A. 
 kept the price of the cotton, and soon after be- 
 came banlCTupt. The original and rightful owner 
 then for the first time discovered A.'s fraud, and 
 learning that the cotton had been removed from 
 A.'s warehouse by B.'s men and carts, he brought 
 trover against B. The jury found that the cotton 
 was 'bought by B. as agent in the course of his 
 business as broker, and that he dealt with it as 
 agent and not as principal. The verdict was on 
 the finding entered for the defendant, leave being 
 reserved for the plaintiff to move to have the 
 verdict entered the other Way. A rule was ob- 
 tained and made absolute to enter the verdict for 
 the plaintiff, but no new trial was asked for, nor 
 was the verdict set aside, either as against the 
 weight of evidence or for misdirection: — Held, 
 that B. was liable because he had in the first in- 
 stance bought the cotton on his own account, and 
 the finding of the jury might be explained that 
 he bought as agent in the course of his business 
 as broker, as he was in the habit of conducting 
 that business. Ibid. 
 
 Whether an action would have lain against B. 
 if he had, in the first instance, bought for and 
 given in the name of an actual principal, that is 
 to say, whether brokers when they purchase as 
 agents are bound at their peril to enquire into 
 the title of selling brokers with whom they deal 
 — Qusere ? 
 
 Also, if brokers are not liable for purchases 
 made by them as agents for principals, and when 
 acting as brokers, whether if they further obtain 
 delivery of and remove the goods so piu-chased 
 on behalf of their clients, th^y are liable should 
 the selling broker turn out to have had no title — 
 Quaere ? 
 
 6. — The grantee under a bill of sale of furni- 
 ture, being in possession in the house of the 
 grantor and intending to remove the goods from 
 the premises, was told by the landlord (who was 
 there for the purpose of distraining) that he 
 would not allow them to be removed till his 
 arrears of rent were satisfied, and that he was 
 prepared to resist the removal by force. The 
 grantee thereupon made no further attempt to 
 remove the goods : — Held, by Kelly, C.B., Bram- 
 well, B., and Pollock, B. (dissentiente Martin, B.), 
 that such assertion of the intention not to allow 
 the removal of the goods did not, under the cir- 
 cumstances, amount to a conversion by the land- 
 lord. England v. Cowley, 42 Law J. Rep. (n.s.) 
 Exch. 80 ; Law Eep. 8 Exch. 126. 
 
 7. — Where one by an unauthorised act deprives 
 another of his goods, though without any inten- 
 tion to appropriate them to his own use, it is a 
 conversion of the goods. Hiort v. Bott, 43 Law 
 J. Rep. (n.s.) Exch. 81 ; Law Eep. 9 Exch. 86. 
 
 The defendant having, through an error of the 
 consignor of goods, received what purported to 
 be an invoice of goods sold by the consignor to 
 
 the defendant through a named broker, and an 
 order which required a railway company to de- 
 liver the goods to the order of the consignor or 
 consignee, indorsed the order to the broker, who 
 thereby obtained from the company, and made 
 away with, the goods :— Held, that, though the 
 defendant indorsed the order with the intention 
 of correcting what he believed to be an error and 
 of returning the goods to the consignor, yet since 
 tlie circumstances did not require him to indorse 
 the order or interfere with the goods in any way, 
 he was liable in trover to the consignor. Ibid. 
 
 (C) Specul Damage by Loss op Baegain. 
 
 8. — The plaintiff, a wine merchant, having ob- 
 tained from a wine broker samples of wine then 
 lying at a wharf of the defendants', who were 
 wharfingers, and which the broker had agreed to 
 sell to the plaintiff at lis. per dozen, sold the 
 wine to H., the captain of a ship about to sail, at 
 24s. per dozen, to be delivered on board next day. 
 The plaintiff obtained the, delivery warrants from 
 the broker, and claimed the wine from the defend- 
 ants, who refused to deliver it. No other wine of 
 the same brand and quality was to be had in the 
 market, and the plaintiff was unable to carry out 
 the contract with H., who sailed without the 
 wine : — Held, that, although the defendants had 
 no notice of the bargain with H., yet the plaintiff 
 was entitled to recover in an action of trover the 
 actual value of the wine to him, which at the 
 time of the conversion was 24«. per dozen, he 
 having honS, fide sold to H. at that price. France 
 V. Craudet, 40 Law J. Rep. (n.s.) Q. B. 121 ; Law 
 Rep. 6 Q.B. 199. 
 
 (D) Evidence on Teiai, tending to pbove 
 Pblony. 
 
 9, — At the trial of an action of trover to re- 
 cover damages for the conversion of a chattel, 
 evidence was given on both sides. The evidence 
 tended to shew the defendant had stolen the 
 chattel. The plea was, not guilty. The issue 
 raised having been left to the jury, a verdict was 
 found for the plaintiff. A rule nisi having been 
 granted, calling upon the plaintiff to shew cause 
 why there should not be a new trial on the 
 ground that the Judge ought to have nonsuited 
 or directed a verdict for the defendant, the Court 
 discharged the rule, holding that the Judge_ had 
 acted properly in leaving the ease to the jury, 
 and that the defendant could not complain of his 
 having done so. Wells v. Abraham, 41 Law J. 
 Rep. (n.s.) Q. B. 306 ; Law Rep. 7 Q. B. 654. 
 
 TRUST AND TRUSTEE. 
 
 (A) TarsT. 
 
 («) Creation of trust. 
 
 (1) Words of present gift, 
 
 (2) Transfer to trustees. 
 
 (3) Incomplete voluntary gift. 
 
 (4) Secret trust. 
 
 4n2 
 
672 
 
 TRUST AND TRUSTEE (A). 
 
 (6) Exeoaiory trusts : shifting clauses, 
 (c) Implied trusts. 
 
 (1) Charge of debts. 
 
 (2) Precatory trust. 
 (A) SesuUing trusts. 
 
 (1) Equitable interest undisposed of . 
 
 (2) Purchase or investment in name of 
 
 wife or child. 
 (e) Constructive trusts. 
 (E) Tbtjstee. 
 
 {a) What estate passes to trustee. 
 (i.) Payment to trustees. 
 
 (c) Investments by trustees. 
 
 (1) " Meal or personal " security. 
 
 (2) Debenture stocks. 
 
 (3) On inortgage of hotel. 
 
 (i) Discretion as to time of conversion. 
 
 (5) Where no power given. 
 
 (6) Control of discretion by Court. 
 
 (d) Renewable leaseholds : charges. 
 
 (e) Contingent remainders. 
 If) Trustees to raise portions, 
 (g) Trust for sale. 
 
 (h) Trust to invest in land, 
 (i) Powers of trustees. 
 
 (1) Usual. 
 
 (2) Power to compromise, 
 {k) Allowances. 
 
 {I) Liabilities of trustees. 
 
 (1) Breach of trust. 
 
 (2) Negligence. 
 
 (3) Premature payment to executor. 
 
 (4) Besponsibility for solicitor. 
 
 (5) Eelease by married woman cestui 
 
 ^ue trust. 
 (m) Annuity to trustee. 
 (m) Eight to indemnity from, cestui que 
 
 trust. 
 (o) New trustees. 
 
 (1) Appointment of. 
 
 (2) What e7iquiries they shoidd make. 
 (C) Cestui QlVE Tbtjst. 
 
 (a) Dealings between trustee and cestui que 
 trust. 
 
 (1) Sales and purchases. 
 
 (2) Set-off. 
 
 (6) Breach of trust. 
 
 (1) Misapplication of trust funds. 
 
 (2) Sale with depreciatory condition. 
 
 (3) Liability of share of defaulting 
 
 trustee. 
 
 (4) Liability of separate estate of 
 
 feme covert. 
 
 (5) Liability as constructive trustee. 
 
 (6) Acquiescence and confirmation. 
 (c) Conversion, 
 
 (D) Tetjstee Relief Act. 
 (ffl) Payment in. 
 
 (1) When Justifiable. 
 
 (2) Effect of, on powers of trustee. 
 
 (b) Service out of jurisdiction. 
 
 (c) Payment out. 
 
 (1) French lunacy. 
 
 (2) MistaJce in settlement, 
 d) Costs. 
 
 (1) Improper payment in, 
 
 (2) XJnfovmded dawns. 
 
 (3) Whether payable out of corpus or 
 
 income. 
 (E) Trustee Act. 
 
 (a) Application whether in Chancery or 
 
 (6) Service on new trustee. 
 
 (c) Appointment of new trustees. 
 
 ( 1 ) Appointment of feme sole. 
 
 (2) Appointment im place of bankrupt 
 
 trustee. 
 
 (3) Sesidence abroad. 
 
 (4) Constructive trustee. 
 
 (5) Discharge of one trustee. 
 
 (6) Trustees predeceasing testator. 
 
 (7) Infant devisee. 
 
 (8) Vesting order. 
 (i) Copyholds. 
 (ii) - - -- 
 
 [On the death of a bare trustee of any heredita- 
 ment of -which such trustee was seised in fee 
 simple, such hereditament shall vest like a chattel 
 real in the legal personal representative from time 
 to time of such trustee. Where any freehold or 
 copyhold hereditament shall be vested in a mar- 
 ried woman as a bare trustee she may convey or 
 surrender the same as if she were a feme sole. 
 37 & 38 Vict. c. 78, ss. 5, 6.] 
 
 (A) TitusT. 
 
 (a) Creation of trust. 
 
 (1) Words of present gift. 
 
 1, — A person entitled to a leashold mill, with 
 plant, machinery andstock-in-trade, indorsed on the 
 lease a memorandum : " This deed and all thereto 
 belonging I give to A. from this time forth, with 
 all the stock-in trade ; " and he signed the memo- 
 randum and handed the deed to A.'s mother. After 
 his death A. claimed the mill and appurtenances, 
 on the ground that the memorandum amounted to 
 a valid declaration of trust : — Held, that A.'s 
 claim was bad, on the ground that words import- 
 ing a present intention to give cannot be held to 
 amount to an intention to retain as trustee. 
 EichardsY.Delbridge, 43 Law J. Eep. (n.s.) Chano. 
 459; Law Rep. Is'Eq. 11. 
 
 Milroy v. Lord (31 Law J. Eep. (n.s.) Chanc. 
 798) followed and approved of ; Morgany. MalUson 
 (39 Law J. Eep. (n.s.) Chanc. 680 ; Law Rep. 10 
 Eq. iT 6), smSiBichardsony. Richardson (36 Law J. 
 Rep. (n.s.) Chanc. 653 ; Law Rep. 3 Eq. 686), 
 disapproved of. Ibid. 
 
 (2) Transfer to trustees. 
 
 2. — On transfer of a fund to three persons, 
 without a formal declaration of trust, the trans- 
 feror in a letter to his solicitor named the three 
 persons as trustees " for his niece Mrs. C. and her 
 children." The three persons were also trustees 
 of a will, by which property was bequeathed to 
 the same niece for life, with remainder to her 
 children, and the issue of deceased, children; — 
 
TEUST AND TRUSTEE (A). , 
 
 573 
 
 Held, that the fund was subject to the trusts of the 
 letter and not of tlie will, and went to Mrs, C. 
 for life, with remainder to her children as joint 
 tenants. In re Bellasis' Trusts, Law Eep. 12 Eq. 
 218. 
 
 3, — ^W. H, transferred certain shares into the 
 names of trustees, and by a deed, which, on the 
 face of it, was voluntary, declared trusts of the 
 shares for the immediate and absolute benefit of 
 the sister of his deceased wife, with whom he 
 shortly afterwards went through the form of 
 marriage. Upon bill filed teil years after the death 
 of W. H., by his legal. personal representative 
 against the lady, a husband whom she subse- 
 quently married, and the surviving trustee, praying 
 for a re-transfer of the shares, — Held, that the 
 transfer having been complete, a Court of Equity 
 would not have interfered on behalf of the settlor 
 who was a particeps criminis, and that his personal 
 representative stood in no better position. Ayeftst 
 V. Jenkins, 42 Law J. Eep. (n.s.) Chano. 690 ; Law 
 Eep. 16 Eq. 275. 
 
 (3) Incomplete voluntary gift. 
 
 4. — ^A. declared his intention to give his daughter 
 a share in a partnership. An attempted transfer 
 to the daughter was ineffectual for want of form- 
 ality, but the daughter received dividends down to 
 the death of A. : — Held, that the daughter was 
 not entitled to the share. Heartley v. Nicholson, 
 44 Law J. Eep. (n.s.) Chanc. 277 ; Law Eep. 19 
 Eq. 233. 
 
 5. — In order to give validity to a declaration of 
 trust, it is necessary that the donor should have 
 parted with his interest in the property. Where 
 the donor delivered a box to the donee not to be 
 opened till the donor's death (the donor retaining 
 the key), which box contained what purported to 
 be a written memorandum of gift of real estates 
 and chattels to the donee, the memorandum not 
 being under seal, — Held, not a valid declaration 
 of trust. Morgan v. Malleson (39 Law 
 J. Eep. (n.s.) Chanc. 680; Law Eep. 10 
 Eq. 475), and Richardson v. Eichardson (36 
 Law J. Eep. (n.s.) Chanc. 653), considered. 
 Warriner v. Rogers, 42 Law J. Eep. (n.s.) Chanc. 
 581 ; Law Eep. 16 Eq. 340. 
 
 (4) Secret trust. 
 6. — Where a testator informed a married woman 
 that he had conferred great benefits on her and 
 her husband by his will, and begged her to make 
 a provision of 300 Z. per annum for N., which she, 
 with her husband's assent, promised to do, — Held, 
 ■that property in which she had a life interest 
 under the will and of which her husband was in 
 possession yjtre mariti, was fixed with a secret trust 
 in favour of N. Norris v. Frazer, Law Eep. 15 
 Eq. 318. 
 
 Constitution of trust : army agents : equit- 
 able assignment. [See Moetgage, 17, 
 18.] 
 
 (i) Executory (rusts : shifting clauses. 
 7, — A patent conferring a barony contained a 
 
 clause that, if any person taking under the patent 
 should succeed to a certain earldom, then, and so 
 often as the same should happen, the succession 
 to the dignity should devolve upon the son of the 
 grantee, or the Jieir who would be next entitled 
 to succeed to the dignity if the person succeeding 
 to the earldom was dead withovit issue male. In 
 pursuance of executory trusts in the grantee's 
 will, an estate was settled to follow the dignity 
 with a clause following the above clause in the 
 patent. The earldom having devolved on the 
 second son of the grantee (who succeeded her in 
 the dignity), — Held, that whether the clause in the 
 patent was valid or not, the clause in the settle- 
 ment took effect, and took effect so as to shift the 
 estate immediately. Cope v. Earl de la Warr, 
 42 Law J. Eep. (n.s.) Chanc. 870 ; Law Eep. 8 ' 
 Chanc. 982. 
 
 Whether the clause in the patent was valid, 
 quaere. Ibid. 
 
 8. — The testatrix devised freehold estates to 
 trustees upon trust for her sister E. for life, with 
 remainder in strict settlement to her sons exclud- 
 ing the second and with powers of jointuring and 
 charging portions. By letters patent, subsequent 
 to the will, the barony of B. was created and 
 limited to E. for life, with remainder to her second 
 son E. and the heirs male of his body, and in de- 
 fault of such issue to the third and younger sons 
 of E. and the heirs male of their bodies respec- 
 tively and successively. The patent contained a 
 shifting clause, by which if any person taking 
 thereunder should succeed to the earldom of D., 
 and there should then or thereafter be a younger 
 son or heir male of a younger son of E., then the 
 succession to the barony was to devolve upon the 
 son of E. or the heir who would be next entitled 
 to succeed thereto if the person succeeding to the 
 earldom of D. was dead without issue. By a sub- 
 sequent codicil, the testatrix devised her said 
 estates to trustees on trust, to settle the same in 
 a course of entail corresponding as nearly as might 
 be with the ^imitations of the barony, and the 
 provisoes affecting the same contained in the 
 patent, and with all such powers, provisoes, de- 
 clarations, and agreements as the trustees should 
 think proper or their counsel advise. The House 
 of Lords after E.'s death declared that the devised 
 estates ought to be limited in strict settlement to 
 the second son for life with remainder to his first 
 and other sons in tail male, with remainder to the 
 third and other younger sons of E. and the heirs 
 male of their bodies respectively and successively 
 in tail male, and that the settlement should con- 
 tain a shifting clause similar to that in the letters 
 patent : — Held, that clauses postponing the vest- 
 ing of portions until the death of the person 
 creating them and providing for the cesser of 
 jointures and portions charged on the estates upon 
 the person charging them succeeding to the earl- 
 dom of D. ought not to be inserted in the settle- 
 ment. Holmesdale v. West, 40 Law J. Eep. (n.s.) 
 Chano, 795 ; Law Eep, 12 Eq. 280. 
 
 Cy-prh: estate tail: will in execution of 
 power. [See Powee, lO.J 
 
674 
 
 TRUST AND TEUSTEE (A). 
 
 (c) Implied trusts. 
 
 (1) Charge of debts. 
 
 9. — Under a will which contains a charge of 
 debts a devisee, who is also one of the executors, 
 may make a good title to a purchaser or a mort- 
 gagee, and such purchaser or mortgagee is not 
 bound to look to the application of the money. 
 Corser v. Cartwright (H.L.), Law Eep. 7 E & I. 
 App. 731. 
 
 The fact that the mortgagee's solicitor was also 
 solicitor for the devisee,- — Held, not sufficient to fix 
 the mortgagee with constructive notice of an in- 
 tended misapplication of the money, such solici- 
 tor distinctly denying any knowledge or suspicion 
 thereof. Ibid. 
 
 Decision of the Lords Justices (Law Eep. 8 
 Chanc. 971) affirmed. Ibid. 
 
 10. — The doctrine of ForbesY. Peacock (12 Sim. 
 528 ; 1 Ph. 717 ; 13 Law J. Eep. (n.s.) Chano. 46 ; 
 ISibid. 37J.) amounts only to this, that where prior 
 to the statutes 22 & 23 Vict. c. 85 and 23 & 24 
 Vict. c. 145, there is a trust to sell real estate, and 
 pay debts and legacies out of the proceeds, there 
 is also an implied power in the trustees to give 
 receipts for the purchase-money. There is nothing 
 in that case authorising trustees, by reason merely 
 of such a charge, to sell a settled estate. Carlyon, 
 V. Truscott, 44 Law J. Eep. (n.s.) Chanc. 186 ; Law 
 Eep. 20 Eq. 348. 
 
 (2) Precatory trust. 
 
 11, — Under a bequest of " all my property and 
 effects, whatsoever and wheresoever, unto my dear 
 wife, S. L. E. (trusting that she will do justice to 
 any children we may have) for her own absolute 
 use and benefit" — S. L. E. was held entitled to 
 the property absolutely. Ellis v. Ellis, 44 Law J. 
 Eep (n.s.) Chanc. 225. 
 
 12. — A testator bequeathed a sum of stock to 
 the trustees of a charity to pay for painting and 
 repairing a gravestone for a certain day -yearly, 
 and to pay the balance for the purpose of the 
 charity: — Held, there was a valid bequest subject 
 to a precatory trust. Hunter v. Bullock, 41 Law 
 J. Eep. (n.s.) Chanc. 637 ; Law Eep. 14 Eq. 45. 
 
 {d) Bestilting trusts. 
 (1) Equitable interest undisposed of. 
 
 13. — A. being in prison on charge of felony 
 assigned real estate, which was in the hands of 
 trustees, to his brother E. A. was acquitted on 
 the ground of insanity. E. accumulated the in- 
 come, except a small portion which he spent for the 
 benefit of A. After E.'s death it was held that he 
 was a trustee for A. Mannings. Gill, 41 Law J. 
 Eep. (n.s.) Chanc. 736 ; Law Eep. 13 Eq. 485. 
 
 14. — A testator devised and bequeathed his 
 " estate and effects" to trustees, their heirs, exe- 
 cutors, and administrators upon trust, to sell his 
 trade and the good will thereof, and get in and 
 convert all such of his " personal estate " as should 
 not consist of money, and should stand possessed 
 of the money arising from such sale, and "the 
 residue of his estate and effects " upon trust to 
 
 invest, and other trusts : — Held, that the real estate 
 passed to the trustees, but that the beneficial 
 interest resulted to the heirs of the testator. 
 Longley v. Longley, 41 Law J. Eep. (n.s.) Chanc. 
 168; Law Eep. 13 Eq. 133. 
 
 15. — Where a settlor directed his bankers, who 
 under a power of attorney from the trustees of his 
 marriage settlement (under which he took the first 
 life interest) received and paid to him the divi- 
 dends on the settled funds, to invest an additional 
 sum of 2,000?. consols in the names of the trustees, 
 and receive the dividends as before, and this was 
 accordingly done, without the knowledge of the 
 trustees ; — Held, that the 2,000Z. became subject 
 to the trusts of the settlement as an augmentation 
 of the trust funds, and that there was no resulting 
 trust for the settlor. In re Curtei^ Trusts, 41 
 Law J. Eep. (n.s.) Chano. 631 ; Law Eep. 14 Eq. 
 217. 
 
 CoTivposition deed: resulting trust of surplits. 
 [See Bankeuptot, M 15.] 
 
 (2) Purchase or investment in name of wife or 
 child. 
 
 16. — Where a husband, being in bad health, 
 changed his banking account from his own name 
 into the joint names of himself and his wife, 
 directing the manager to honour the cheques of 
 either, and saying that the balance would belong 
 to the survivor, and thereafter all cheques were 
 drawn by the wife : — Held, that there was no evi- 
 dence to rebut the presumption of a resulting 
 trust for the husband. Marshall^. Cruiwell, 44 Law 
 J. Eep. (n.s.) Chanc. 504 ; Law Eep. 20 Eq.. 328. 
 
 17. — Where property has been purchased by 
 one person in the name of himself and another, 
 and the circumstances connected with the purchase 
 are such as to render it antecedently probable that 
 a gift was intended, the presumption of a resulting 
 trust may be rebutted by the evidence of the party 
 interested in supporting the gift alone. Fowkes v. 
 Pascoe, 44 Law J. Eep. (n.s.) Chanc. 367 ; Law 
 Eep. 10 Chanc. 343. 
 
 The presumption that a legacy or a gift of 
 residue is adeemed or satisfied by a subsequent 
 advancement made by the testator to the legatee, 
 arises only in the case of children or persons to- 
 wards whom the testator stands in loco parentis. 
 Therefore, if a testator has placed himself in loco 
 parentis to one member only of a family, there - 
 can be no presumption as against that one that 
 a provision made for him in common with the 
 others by the testator's will is satisfied or adeemed 
 by a subsequent advancement to him by the testa- 
 tor in his lifetime. Observations on Fyin v. 
 Lockyer (5 M. & C. 29). Ibid. 
 
 18. — W. (a widow) transferred stock (previously 
 standing in her name and that of her deceased 
 husband) into the names of herself, her daughter, 
 and her daughter's husband. W. received the 
 dividends on the stock during her life. The 
 daughter predeceased W., who died, leaving her 
 daughter's husband surviving : — Held, that he was 
 entitled to the stock absolutely. Batstone v. 
 Salter, 44 Law J. Eep. (n.s.) Chanc. 760; Law 
 Eep. 10 Chanc. 143. 
 
TRUST AND TRUSTEE (A), (B). 
 
 675 
 
 (e) Cousintctive trusts. 
 
 19.— A. deposited the title deeds of an estate 
 with his bankers, and signed a memorandum 
 charging the estate with payment of a sum due 
 from him to the bankers. He afterwards married, 
 and in consideration of such marriage he settled 
 the estate by articles and shortly after marriage 
 executed a settlement conveying the legal estate 
 to a trustee. During the negotiations he told the 
 lady's solicitor that he was entitled to the estate 
 free from incumbrances, and that the deeds were 
 at his bank for safe custody: — Held, that the 
 solicitor ought to have enquired of the bankers 
 whether they had a charge upon the deeds, and 
 that, as he omitted to do so, all persons claiming 
 under the settlement were fixed with constructive 
 notice of the charge. Maxjield v. Burton, 43 Law 
 J. Eep. (n.s.) Chanc. 46; Law Rep. 17 Eq. 15. 
 
 Sj/ participation in fraudulent conduct of 
 trustee. [See irrfra C 9.] 
 
 Constructive trustee within the Trustee Acts. 
 [See infra E 7.] 
 
 Constructive notice to mortgagee by employ- 
 ment of solicitor. [See No. 9 supra.] 
 
 (B) Tbdstee. 
 
 (n) What estate passes to trustees. 
 
 1. — Devise to trustees and their heirs upon 
 trust to stand seised during the life of W., and 
 until the testator's debts and legacies were paid, 
 upon trust to set and let the property and apply 
 rents and profits, and the value of timber, in dis- 
 charge of debts and legacies, and thenceforth to 
 pay rents to W. for life ; and after W.'s death and- 
 payment of the debts and legacies the testator 
 devised the estate to the heirs of the body of W., 
 remainder to his own right heirs. After the debts, 
 &c., were paid, the trustees conveyed the legal estate 
 to W. for life, who suffered a common recovery to 
 himself in fee : — Held, first, that the trustees took 
 a legal fee, and that W. being equitable tenant in 
 tail under the rule in Shelley's case acquired 
 by the recovery a good equitable fee ; secondly, 
 that if the trustees had oiiy taken a life estate 
 their conveyance of it to W,, which enabled him 
 to suffer a recovery and bar the contingent re- 
 mainders at law and in equity was not a breach of 
 trust. A general devise to trustees and their heirs 
 primd facie gives a fee, and it lies on those who 
 allege the contrary to shew what less estate they 
 take. The trusts to set and let and sell timber 
 were held grounds for holding that they took a 
 fee. Collier v. Walters, 43 Law J. Rep. (n.s.) 
 Chanc. 216; Law Rep. 17 Eq. 252. « 
 
 Appointment of trust fund to trustees for 
 'objects of power : original trustees held 
 entitled to retain funds. [See Power, 
 12.] 
 (i) Payment to trustees. 
 
 2. — Solicitors instructed by trustees of a will to 
 receive money, who paid over the money to one 
 trustee without the receipt or authority of the 
 other :— Held, liable for conseqxient loss. Lee v. 
 , Law Rep. 15 Eq. 204. 
 
 3. — In the absence abroad of one of several 
 trustees the Court may order a sum of money under 
 its control to be paid to the other trustees, with- 
 out requiring the absent trustee to join in giving 
 the receipt by power of attorney. Clark v. Fen- 
 wick, 42 Law J. Rep. (n.s.) Chanc. 320. 
 
 [And see Pba.ctice in EQurrr, 98, 99.] 
 
 (c) Investments by trustees. 
 
 (1) ^' BeaZ or personal" security. 
 
 4. — Where trustees of a marriage settlement 
 were empowered to invest with the consent of the 
 husband and wife on such security " real or per- 
 sonal" as they should think fit, — Held, that a 
 loan of 2,500Z. due on the husband's note of hand, 
 which had been lent him by the wife before the 
 marriage, and which, though a separation had 
 taken place, she still desired should remain in his 
 hands, might be continued until further order on 
 the husband executing a bond for the amount. 
 Pickard v. Anderson, Law Rep. 13 Eq. 608. 
 
 (2) Debenture stocks. 
 
 [Trustees, having power to invest in railway 
 bonds or mortgages, empowered to invest in 
 debenture stocks. 34 & 35 Vict. c. 27.] 
 
 (3) 0» mx>rtgage of hotel. 
 
 5. — Trustees having power to invest upon real 
 security invested 1 ,400i., part of the trust fund, 
 upon the security of a freehold house at Broad- 
 stairs, used as an hotel. The evidence of value, 
 upon which they made the investment, was a re- 
 port made by a London surveyor, who, according 
 to his report, went to Broadstairs, and examined 
 the property, and made some inquiries ; he valued 
 the security at 2,700?., including in this sum 800/. 
 as the value of the beer andspiritlicense. No other 
 enquiries appeared to have been made. In fact, 
 the house had only recently been opened as an 
 hotel, and did not prove successful. The security 
 turned out to be deficient : — Held, reversing the 
 decision of one of the Vice-Chancellors (41 Law J. 
 Rep. (n.s.) Chanc. 520), that the security was not 
 a proper security for the investment of trust funds, 
 and that the trustees must be charged with the 
 amount advanced. Budge v. Qummow, 42 Law J. 
 Eep. (n.s.) Chanc. 22 ; Law Eep. 7 Chanc. 719. 
 
 (4) Discretion as to time of conversion. 
 
 6. — A testator, by will dated in August 1862, 
 bequeathed his shares in a public company and 
 the rest of his estate to his trustees upon trust, to 
 convert, "immediately after his decease, or so 
 soon thereafter as they might see fit to do so." 
 Part of the estate consisted of thirty-six shares in 
 the Birmingham Bank, an unlimited company. At 
 the testator's death the shares were at a premium, 
 and considered a good and safe investment. Soon 
 after the testator's death the bank issued new shares, 
 offering them to the original shareholders at par. 
 Nine were offered to the trustees in respect of the 
 testator's shares, and being at a premium were 
 purchased by them, though the trust for invest- 
 
676 
 
 TEUST AND TEUSTEE (B). 
 
 merit did not authorise investment in shares. The 
 old and now shares were held together by the 
 trustees until July 1866, when the Lank broke: — 
 Held, that the trustees should not have purchased 
 the new shares, and should have sold the old 
 shares in reasonable time after the testator's 
 death ; that reasonable time, in such case, if no 
 cause is shewn for delay, is a year after testator's 
 death; and that the trustees must replace not 
 only the amount of the calls made upon all the 
 forty-six shares and the purchase-money of the 
 shares purchased, but also the loss to the testator's 
 estate in respect of the shares having become 
 valueless. ScuUhorpe v. Tipper, 41 Law J. Eep. 
 (n.s.) Chanc. 266 ; Law Eep. 13 Eq. 232. 
 
 7. — AVhere a testator empowered his trustees to 
 continue invested any of his government stocks, — 
 Held, that this extended only to stoclcs of a per- 
 manent character. TicJcnery. Old, Law Eep. 18 
 Eq. 422. 
 
 (5) Where no power given. 
 
 8. — When specific property is bequeathed upon 
 trust without any power being given to the trus- 
 tees to alter the mode of investment, such trustees 
 may, nevertheless, sell the property and invest 
 the proceeds on any of the statutory investments, 
 and vary such investment from time to time, pro- 
 vided that they never buy any redeemable security 
 at a premium. Waite v. Littlewood, 41 Law J. 
 Eep. (n.s.) Chanc. 636. 
 
 (6) Control of discretion by Court, 
 
 . — When a decree for administration has been 
 made all discretionary powers of management • 
 vested in the trustees are suspended, and whatever 
 discretionary power of investment is given to the 
 trustees, the Court will only authorise investments 
 in securities in which funds under the control of 
 the Court may bo invested. Bethel v. Abraham, 
 43 Law J. Eep. (n.s.) Chanc. 180; Law Eep. 17 
 Eq. 24. 
 
 Semble — In order to give trustees power to in- 
 vest in securities not authorised by the Court, a 
 clear and express discretionary power must be 
 given to them. Ibid. 
 
 10. — After a decree in a suit for administration 
 of trust funds the Court will not without reason 
 control a discretionary power given to the trustees 
 by the instrument creating the trust. Brophy v. 
 Bellamy, 43 Law J. Eep. (n.s.) Chanc. 183; Law 
 Eep. 8 Chanc. 798. 
 
 {d) Senewable leaseholds : charges. 
 
 11. — A. ^'as beneficially entitled to renewable 
 leaseholds for three lives held on trust to renew, 
 and subject to certain charges. All the cestuis 
 gtie vie died. It being disputed whether the right 
 to renew was lost, the reversioners granted a lease 
 to A. for three new lives, without prejudice to the 
 disputed question. A. subsequently bought the 
 reversion:— Held, that the fee became subject to 
 the charges. TrumperY. 7)-«m^fr, 41 Law J. Eep. 
 (n.s.) Chanc. 673 ; Law Eep. 14 Eq. 295. 
 
 (c) Contingent remainders. 
 [See supra B 1.] 
 
 (/) Trustees to raise portions, 
 12. — Power to raise a sum of money by mort- 
 gage includes power to raise also by mortgage the 
 costs of effecting the security. Armstrong v. 
 ArTnstr&ag,' iZ Law J. Eep. (n.s.) Chanc. 719; 
 Law Eep. 18 Eq. 541. 
 
 Trustees of a marriage settlement made in 1802 
 were empowered to raise and levy the sum of 
 6,000Z. for portions on the security of a term of 
 300 years in certain freeholds. Part of the 
 6,000^. was raised. In 1872 it became necessary 
 to raise the residue, which then amounted to the 
 sum of 3,290Z. 8s. id. By an order then made 
 in this suit which was instituted for the execu- 
 tion of the trusts of certain indentures of settle- , 
 ment, certain trustees were authorised to advance 
 this amount out of their trust funds upon the 
 security of the term. Considerable costs had to 
 be incurred in efTecting the security, and it was 
 now asked that the lastly named trustees might 
 be at liberty to advance a further sum out of 
 their trust funds upon the same security to cover 
 the costs so incurred: — Held, that the term of 
 300 years might properly be taken as a security, 
 not only for the whole amount of 6,000Z., but also 
 for the costs. Ibid. 
 
 Portions: satisfaction by advancement in 
 lifetime of tenant for life : gift by will. 
 [See Advancement, 9.] 
 
 (g) Triostfor sale. 
 
 13. — A sale to a tenant for life, whose consent 
 is requisite to the exercise of the power of sale by 
 the trustees, cannot be impeached on the ground 
 of the purposes for which he buys, his motives 
 being immaterial to the trustees, provided they 
 obtain a fair price. Dicconson v. Talbot, Law 
 Eep. 6 Chanc. 32. 
 
 14. — The doctrine of Forbes v. 'Peacock (12 
 Sim. 528; s. c. 13 Law J. Eep. (n.s.) Chanc. 46; 
 o. c. 15 ibid'. 371) amounts only to this, that where 
 prior to the statutes 22 & 23 Viet. c. 85 and 23 & 
 24 Vict. c. 145 there is a trust to sell real estate, 
 and pay debts and legacies out of the proceeds, 
 there is also an implied power in the trustees to 
 give receipts for the purchase-money. There is 
 nothing in that case auchorising trustees, by reason 
 merely of such a charge, to sell a settled estate. 
 Carlyon v. Truscott, 44 Law J. Eep. (n.s.) Chanc. 
 186 ; LawBep. 20 Eq. 348. 
 
 Sale of land and minerals separately. [See 
 
 CONFIBMATION OF SaLES AcT.] 
 
 {h) Trust to invest in land. 
 
 15. — "Where the trustees of a will were directed 
 to lay out the testator's residuary personalty in 
 the purchase of land to go along with his settled 
 estates, which comprised the advowsonof a certain 
 benefice, — Held, that the trustees might lay out 
 such personalty in rebuilding the parsonage house 
 of the benefice, which was in a ruinous state, and 
 which the testator had himself intended to rebuild. 
 In re Lord Hotham's Trusts, Law Eep. 12 Eq. 76. 
 
 16.— When personalty is directed to be invested 
 
TEUST AND TEUSTEE (B). 
 
 5,77- 
 
 in land to be convoyed to the same uses a 
 certain existing settled esbites, tlie Court of 
 Chancery cannot authorise the oiitlay of any of 
 the personalty in doing repairs on the existing 
 settled estiites. In re Lord Hothanis Trusts, 
 (La-w Eep. 12 Eq. 76) not followed. BrumJciU v. 
 Gaird, iZ Law J. Eep. (n.s.) Ohanc. 163; Law 
 Eep. 16 Eq. 493. 
 
 (i) Powers of trustees. 
 
 (1) Usiial. 
 
 17. — !^ower to raise a sum by mortgage includes 
 a power to raise the costs of the security. Arm- 
 strong T. Armstrong, 43 Law J. Eep. (n.s.) Chanc. 
 719; Law Eep. 18 Eq. 641. 
 
 Power of advancement. [See Advancement, 
 11, 12; PowEE, 29, 30.] 
 
 (2) Power to compromise. 
 
 18. — The Court will, on a petition under 22 & 
 23 Vict. t. 35, s. 30, sanction the compromise by 
 trustees of a claim, dependiog on foreign law, and 
 the accounts of disbursements on an estate in a 
 foreign country, which accounts the trustees have 
 no means of verifying. In re MackMosh's Settle- 
 ment, 42 Law J. Eep. (n.s.) Chanc. 208. 
 
 {k) Allowances. 
 [See supra No. 16.] 
 
 {I) Liabilities of trtistees. 
 
 (1) Breach of trust. '■• 
 
 [See infra C 4-11.] 
 
 (2) Negligence. 
 
 19. — A trustee, who had no actual knowledge 
 of his right to real property, suffered an adverse 
 title to be acquired by lapse of time. A bill to 
 make him accountable was dismissed. But the 
 chirograph of 'a fine relating to the title having 
 come to the trustee's hands, without the deed 
 leading the uses, such dismissal was without costs. 
 Youde V. Cloud, 44 Law J. Eep. (n.s.) Chane. 93 ; 
 Law Eep. 18 Eq. 634. 
 
 20. — A bill in 1872 for an account against trus- 
 tees of an estate which had been administered in 
 1847, who had kept no vouchers or accounts, dis- 
 missed on the ground of delay, but without costs 
 in consequence of the negligence of the trustees in 
 not keeping vouchers or accounts. Payne v. Evens, 
 Law Eep. 18 Eq. 356. 
 
 (3) Premature payment to executor. 
 
 21. — A fund was vested in trustees on trust for 
 A. for life, remainder for B. for life, remainder for 
 such persons as A. should by will appoint. A. ap- 
 pointed that certain legacies should be paid out 
 of the fund after B.'s death, and named B. her 
 executor. B. proved the will, and the trustees 
 then handed over the whole fund to B., who spent 
 it, and died insolvent. On bill by the legatees 
 against the original trustees, — Held, that they 
 were discharged by the payment to A.'s executor. 
 DiQBST, 1870-1875. 
 
 Kayes v. Oatley, 41 Law J. Eep. (n.s.) Chanc. 510 ; 
 Law Eep. 14 Eq. I. , 
 
 (4) Sesponsibility for solicitor,. 
 
 22. — A trustee is liable for the loss of a trust 
 fund occasioned by his solicitor's neglecting pro- 
 per precautions on the investment of the fund on 
 mortgage : whether the loss falls on the trustee if 
 occasioned by a fraud practised on him, qumre. 
 Hopgood V. Parkin, Law Eep. 1 1 Eq. 74, 
 
 23. — If trustees lending money on mortgage 
 have the same solicitor as the mortgagor, they 
 must take the utmost precaution ; if they trust 
 implicitly in the solicitor, however high his repu- 
 tation, they will be held responsible for any loss 
 which his fraud may occcasion. The indemnity 
 clause usually inserted in settlements will not pro- 
 tect them. Sutton v. Wilders, 41 Law J. Eep. 
 (n.s.) Chanc. 30 ; Law Eep. 12 Eq. 373. 
 
 (5) Belease hy married woman cestui que trust. 
 
 24. — There is no presumption of law that the 
 payment of a sum of money to a child (even by a 
 father) before the date of his will, is to go against 
 a legacy, bequeathed by the will to that child, 
 Taylor v. Cartwright, 41 Law J. Eep. (n.s.) Chanc. 
 629 ; Law Eep. 14 Eq. 167. 
 
 M. M., by her will, dated March 30, 1848, 
 bequeathed her residuary personalty to her two 
 sons, E. and T., upon trust for them, and her son 
 J., and her married daughter A. T. equally. A. T.'s 
 share was left to her for life, for her separate use, 
 with a restraint on anticipation, and on her death 
 to her children. M. M. died on March 31, 1848. 
 In 1850 a family arrangement was entered into by 
 two deeds, one a declaration of trust, the other a 
 release, for the division of the testatrix's property 
 among her children. The release was executed 
 by A. T., but not by her husband, and it contained 
 a recital that " the testatrix during her lifetime 
 advanced to A., the wife of E. D. T., with his 
 privity and consent, the sum of 400Z., in part of, 
 and to be deducted out of, any money which the 
 testatrix might leave by will to A. T. or her 
 issue." The division of the property was made on 
 the assumption that that recital was true ; and it 
 was said that T. M. had had his share, less a like 
 sum of 4002. The trustees of the will had both 
 since died and their legal personal representa,tives 
 were defendants. A. T. died in 1870, leaving her 
 husband and six children. The children filed a, 
 bill against the defendants to compel them to make 
 A. T.'s share of the testatrix's property good, by 
 the addition to it of the 400Z., deducted in 1850 : — 
 Held, that the recital was not binding on A. T. in 
 her lifetime, and therefore not effectual as against 
 the plaintiffs ; that tliere was no such presumption in 
 law as that above stated ; that A. T.'s husband 
 was not hovmd by the recital ; and that the defen- 
 dants must pay the iWl. or other the proper sum 
 to the plaintiffs, with interest at il. per cent, from 
 their mother's death. Ibid. 
 
 Attachment against defaulting trustee under 
 Debtors Act. [See Debtoks Act, 
 4-7.] 
 
 i E 
 
578 
 
 TRUST AST) TRUSTEE (B). 
 
 (m) Annuity to trustee. 
 
 25. — An annuity was given ty will to A. B., 
 one of the trustees of the testatrix, " so long as 
 he should continue to execute the office of trustee 
 under her will :" — Held, that the annuity ceased 
 when the estate was handed over to a cestui que 
 trust absolutely entitled. Hull v. Christian, 43 
 Law J. Eep. (n.s.) Chanc. 861 : Law Hep. 17 Eq. 
 546. 
 
 («) Eight to indefnnity from cestui gue trust. 
 26. — It is a general rule of equity that when a 
 person accepts a trust at the request of another, 
 and that other is a cestui que trust, the cestui 
 gue trust is liable personally to indemnify the 
 trustee against all losses accruing in the due 
 execution of the trust. Jervis v. Wolferstan, 43 
 Law J. Rep. (n.s.) Chanc. 809 ; Law Eep. 18 Eq. 
 18. 
 
 Where the loss in respect of which such indem- 
 nity is sought occurs after the death of the cestui 
 que trust the trustee is in the position of a, 
 creditor of the cestui que trust, and entitled to 
 recover as a creditor from legatees to whom his 
 estate has been paid. Ibid. 
 
 Distribution of the estate by an executor with 
 notice of a contingent liability does not preclude 
 him from recovering the estate from the legatees 
 incase the contingent liability afterwards ripens 
 into actual loss. Ibid. 
 
 An executor who compels a legatee to refund 
 can only require repayment of the capital and not 
 of any intermediate-income. Ibid. 
 
 J. and P. at the request of a settlor, accepted 
 transfers of shares in an unlimited company upon 
 trust for a tenant for life and remainderman. J. 
 and P. were executors of the will of the settlor, 
 and distributed the residue of his estate. Subse- 
 quently in the lifetime of the tenant for life large 
 calls were made on the shares, and the remain- 
 derman under the settlement disclaimed : — Held, 
 that J. and P. as trustees were entitled to be in- 
 demnified against the liability out of the settlor's 
 residuary estate, and to recover the capital which 
 they had distributed among the residuary legatees. 
 Ibid. 
 
 The same testator had covenanted to leave by 
 will or otherwise provide for his daughter B. 
 one-third of the residuary estate ; he bequeathed 
 one-third to her, which was settled on her marriage 
 and paid to the trustees of her marriage settle- 
 ment : — Held, that the testator had satisfied his 
 covenant ; that the daughter B. took her share, 
 not as a creditor, but as a residuary legatee, and 
 that her trustees must refund the amount with 
 the other residuary legatees. Ibid. 
 
 (o) New trustees. 
 
 (a) / '^■pointment of. 
 
 As to appointment of new trustees hy the 
 Court of Chancery. [See infra D 4- 
 
 12.] 
 
 ^ 27.— A testator left real estate on trust for his 
 wife for life, and, after her death, for his son 
 for life, with further trusts, and made his wife 
 
 and son executors, and appointed strangers 
 trustees, giving the trustees a power of sale and 
 power to appoint new trustees, the latter exer- 
 cisable with the consent of the tenant for life for 
 the time being. Shortly after his death the last 
 remaining trustee appointed the wife and son to 
 be trustees, and he and the wife died. The son 
 then contracted to sell the estate under the power : 
 — Held, that he could validly exercise the power 
 of sale, for, though the Court will not appoint a 
 tenant for life to he trustee, such an appointment 
 out of Court is valid ; and there was nothing in 
 the will specially disqualifying the son from bo- 
 coming trustee. Forster-v. Abraham, 43 Law J. 
 Eep. (n.s.) Chanc. 199 ; Law Eep. 17 Eq. 351." 
 
 28. — A power, in case any trustee or trustees 
 sliould die, or become unwilling or unable to act, 
 for the trustees for the time being, whether con- 
 tinuing or declining, to appoint new trustees, is 
 well exercised by two trustees out of three, the 
 third being of unsound mind. In re East, 42 
 Law J. Eep. (n.s.) Chanc. 480; Law Eep. 8 
 Chanc. 735. 
 
 (J) What enquiries they should mahe. 
 
 29. — By a^marriage settlement, executed in 
 1834, cerliain trust funds were vested in three 
 trustees, for the wife for her life, without power 
 of anticipation, and (in the event, which hap- 
 pened) as she should by deed or will appoint. In 
 1843 the husband joined with his wife in appoint- 
 ing part of the trust funds to secure a debt due 
 from him to A. D., and notice of that appointment 
 was given to the two then surviving trustees of 
 the settlement. In 1848 the then surviving 
 trustee of it was released from the trusts, and 
 three new trustees appointed. The two sur- 
 vivors of those trustees, and afterwards the sole 
 survivor of them, joined with the wife in various 
 dealings with the trust funds. In 1867 the wife- 
 appointed a portion of the funds to the sole sur- 
 viving trustee of the settlement by way of indem- 
 nity to him, and the estate of the other trustee 
 who had dealt with the funds at her request. 
 There were other subsequent dealings with the 
 funds. Bills were filed to administer the trusts of 
 the settlement, and ascertain the priorities of the 
 various incumbrancers. The sole surviving trustee 
 of the settlement alleged that he had had no notice 
 of the appointment of 1843 : — Held, that the ap- 
 pointees under that deed were'[entitled in priority 
 to all other incumbrancers on the funds. Held 
 also, on the facts, that there was no ground for 
 making the sole surviving trustee of the settlement 
 liable for a breach of trust. Fhipps v. Lovegrovc 
 and Prosser v. Phipps, 42 Law J. Eep. (n.s.) 
 Chanc. 892 ; Law Eep. 16 Eq. 80. 
 
 Semblo — that however desirable it might be for 
 new trustees of a fund to enquire, on their appoint- 
 ment, of the old trustees of it whether they have 
 had notice of any and what incumbrances on it, it 
 is not the practice to make such enquiries, nor 
 does the Court direct any such to be made when 
 it appoints new trustees. Ibid. 
 
 Costs of trustee when disallowed. [See 
 Costs in Equity, 41, 42.] 
 
TEUST AND TRUSTEE (C). 
 
 579 
 
 (0) Cestui que Tetjst. 
 
 (fl) Dealings between trustee and cestui que trust. 
 
 (1) Sales and purchases. 
 
 1. — If a legatee agrees to sell to the executor of 
 the ■will his legacy for an annuity, the burden 
 ■ndll lie on the executor to shew that there was 
 no unfairness in the transaction. In re Seal's Estate, 
 Gray y. Warner, 42 Law J. Eep. (n.s.) Chanc. 
 5o6; Law Eep. 16 Eq. 577. 
 
 2. — Sale by trustees to tenant for life held not 
 impeachable. Dicconson t. Talbot, supra B, No. 
 13. 
 
 (2) Set-off. 
 
 3. — ^Declaration upon an order of the Court of 
 Queen's Bench in Ireland (in an action by the 
 defendant against the plaintiff) by which the 
 plaintiff was dismissed and ordered to pay costs, 
 and which order had the force of a judgment of 
 nonsuit. Plea of set-off of other Irish judgments 
 recovered by the defendant against the plaintiff. 
 Eepbcation on equitable grounds, that the plaintiff 
 retained C. as his attorney to conduct his defence 
 in the Irish Court, and that the money ordered 
 to be paid to him, was due to C. for costs in the 
 action, and therefore became due to the plaintiff 
 as a trustee for C, and that the plaintiff sues 
 as such trustee : — Held, that the replication was 
 bad, as the lien of the attorney did not constitute 
 the relation of trustee and cestui que trust between 
 him and his client so as to prevent the defendant 
 from pleading a set-off, but was at most only 
 ground for the summary interference of the Coiu't 
 on an application to set off cross judgments. 
 Mercer v. Graves, 41 Law J. Eep. (n.s.) Q. B. 
 212; Law Eep. 7 Q. B. 499. 
 
 [See Undue Influence, 5.] 
 
 (J) Breach of tnist. 
 (1) Misapplication of trust funds. 
 
 4. — The manager of a benefit building society 
 established pursuant to G & 7 Will. 4. c. 32, de- 
 posited, in pursuance of a resolution passed by the 
 directors but contrary to the provisions of the Act 
 and the rules of the society, money of the society 
 with a finance company of which he was also 
 manager. The company gave a cheque to the mana- 
 ger for the repayment of the money to the building 
 society, but he did not pay over the money to the 
 society : — Held, on bill filed by the trustees of the 
 society (reversing the decision of the Master of 
 the EoUs), that the money was trust money im- 
 properly deposited with the finance company, 
 that the giving the cheque to the manager was no 
 discharge to the company, nor repayment to the 
 building society, and that, therefore, the trust 
 money being still in the hands of the finance com- 
 pany, a suit would lie in this Court on behalf of 
 the real owners to recover it, and that, without 
 making the directors of the building society a 
 party to it. Hardy v. The Metropolitan Land and 
 Finance Company, 41 Law J. Eep. (n.s.) Chanc. 
 257 ; Law Eep. 7 Chanc. 427. 
 
 5. — A. was the senior partner in a firm under 
 articles of partnership, whereby the partners were 
 
 to receive out of the profits five per cent, on their 
 reppective shares in the capital, and to divide the 
 bahince in a certain proportion, which bore no 
 relation to the value of their shares ; it was also 
 provided that the share of a partner dying should 
 be ascertained as therein directed, [and paid by 
 the survivors to his executors in two years from 
 his death, with interest at five per cent, from that 
 date. A. died, having by his will given his real 
 and personal estate to his executors, on trust to 
 divide the same among his children in equal 
 shares, and he appointed B., C. and D. his execu- 
 tors ; B. was a partner at the date of his death, 
 C. subsequently entered the firm ; D. never was a 
 partner. The value of the testator's share in the 
 partnership was duly ascertained, but was not 
 paid over to the executors ; but the firm treated 
 it as a debt due from the partnership, and credited 
 each of the testator's children with the amount of 
 his or her share in their books; with interest at 
 five per cent, on the amount so due, and annual 
 rests. AU the testator's children but one accepted 
 the arrangement, and ratified and approved it. 
 Upon bill by E„ the youngest child, upon her 
 coming into possession, against the execiitors for 
 administration of the estate, and seeking to make 
 them liable either for the profits made by the 
 partnership by the use of her share, or for com- 
 pound interest at five per cent, at her option, — 
 Held (reversing a decision of Bacon, V.C), that 
 though the employment of the trust fund in trade 
 by the firm was technically a breach of trust, yet 
 that, inasmuch as the amount of profit attributable 
 to capital alone was not ascertainable, and as the 
 trustees had acted bond fide, and had accounted to 
 her for the value of her share with five per cent, 
 compound interest, the Court would not call upon 
 them for an account of the profits, so as to enable 
 her to exercise an option between the profits and 
 the compound interest. Vyse v. Foster, 42 Law 
 J. Eep. (n.s.) Chanc. 245 ; Law Eep. 8 Chanc. 
 309 ; and see Flockton v. Bunning, Law Eep. 8 
 Chanc. 323 ». 
 
 "Whether, in case of a loan by a trustee to him- 
 self and others in breach of trust, the cestui qiie 
 trust may elect between interest and profits, 
 quaere. Ibid. 
 
 Trustees of a mixed fund of realty and perso- 
 nalty laid out 1,600Z. part of the personalty, upon 
 the erection of a house on the real estate, for the 
 bona fide purpose of increasing the value of the 
 whole as building land : — Held (reversing the de- 
 cision of Bacon, V.C), that the trustees should 
 not be entirely disallowed the sum so expended, 
 but if the plaintiff desired it, they should be ordered 
 to take the house themselves at ihe price of 1,600?., 
 and the value of the site as unbuilt upon. Ibid. 
 
 By directors of company. [See Company, 
 D 22-24.] 
 
 Trustee of shares for company : breach of 
 trust : conseqicence of allowing trustee 
 to hold share certificates. [See Com- 
 pany, G 52.] 
 
 Executor : deposit of moneys in private bank 
 on account current. [See Executor, 
 23.] 
 
 4e2 
 
680 
 
 TEUST AND TRUSTEE (C). 
 
 (c) Scde with depi-edatory condition. 
 
 6. — Trustees having power to sell under such 
 special or other conditions or stipulations as they 
 should think fit, sold by auction with a condition 
 limiting the title to commence in 1858 (fourteen 
 years previously). The next convenient root of 
 title was a deed of 1819, from which a good title 
 could he deduced, but the trustees could not find 
 this deed, and had only recitals of its contents. 
 Theye was also a condition that all recitals and 
 statements in the deeds and particulars should be 
 accepted as conclusive evidence : — Held, that the 
 sale under such conditions was a breach of trust, 
 and an injunction was granted at the suit of a 
 cestui que trust to restrain completion. And held 
 also, that such an injunction woidd be granted 
 against an innocent purchaser. Dance v. Golding- 
 ham, 42 Law J. Eep. (n.s.) Chanc. 777 ; LawEep. 
 8 Chanc. 902. 
 
 The bill was filed in the name of an infant hav- 
 ing a very small interest : — Held, that the Court 
 could not look into the motives of the next friend. 
 -Ibid. 
 
 Such a suit can be maintained by one cestui que 
 trust without making the others parties; Ibid. 
 
 (3) Liability of share of defaulting trustee. 
 
 7. — The principle which gives cestuis que trust 
 an equity against any interest in the trust funds 
 belonging to the trustee who has committed the 
 breach of trust, extends to any interest taken by 
 the trustee as next-of-kin of a deceased cestui 
 que trust. Such equity is prior to the interest of 
 a mortgagee of the trustee, as the trustee is con- 
 sidered to have paid himself before the interest 
 accrued. Jacubs v. Rylance, 43 Law J. Eep. (n.s.) 
 Chanc. 280; Law Eep. 17 Eq. 341. 
 
 (4) Liability of separate estate of feme covert. 
 
 8. — The separate estate of a married woman 
 is not liable for general torts committed by her, 
 nor for breaches of trust, unless the breaches of 
 trust consist in appropriation of trust funds com- 
 prised in the same settlement as that creating her 
 separate estate. Liability of a married woman's 
 separate estate discussed. Weyford v. Heyl, 44 
 Law J. Eep. (n.s.) Chanc. 567 ; Law Eep. 20 Eq. 
 321. nom. Wainford v. Reyl. ' 
 
 (6) Liability as constructive trustee. 
 
 9. — -Although the responsibility of trustees 
 may bo extended in equity to persons who are not 
 properly trustees, if they are found either making 
 themselves trustees de son tort, or actively parti- 
 cipating in any fraudulent conduct of the trustee, 
 to the injury of the cestui que trust, yet strangers 
 are not to be made constructive trustees, merely 
 because they act as agents of trustees in transac- 
 tions within their legal power, even though such 
 transactions may be such as the Court would not 
 approve of. Barnes v. Addy, 43 Law J. Eep. 
 (n.s.) Chanc. 513; Law Eep.'9 Chanc. 244. 
 
 A solicitor acting for the sole survivor of three 
 trustees, prepared, by his direction, a deed ap- 
 pointing the husband of the cestui que trust sole 
 trustee in his place, and another solicitor, acting 
 
 for the cestui que trust and her husband, perused 
 and approved of the draft. The deed was ex e- 
 cuted, and the trust fund transferred to the hus- 
 band as new trustee, and by him sold out an d 
 never replaced. There being no ground for im - 
 putingto either of the solicitors knowledge or 
 suspicion of any improper design in the transac- 
 tion, — Held, affirming the decision of Wickens, 
 V.C., that neither of them was liable for the loss 
 occasioned by the breach of trust. Ibid. 
 
 Breach of trust : complicity. [See Pein- 
 
 OIPAX AND SuitETY, 6.] 
 
 (6) Acquiescence and confirmation. 
 
 10. — A settlement made with the sanction of 
 the Court, on the marriage of an infant, of certain 
 funds alleged to represent the infant's share under 
 a will, does not operate as a confirmation of prior 
 dealings by the trustees, so as to preclude the 
 cestuis que trust under the settlement from filing 
 a bill charging the trustees with breaches of trust. 
 Zambaco v. Cassavetti, Law Eep. 11 Eq. 439. 
 
 11, — Where a married woman had a claim against 
 a trustee in respect of a breach of trust, and she 
 and her husband took no steps in respect of the 
 claim until the death of the trustee thirty-eight 
 years after: — Held, that the claim was barred by 
 acquiescence. Sleeman v. Wilson, Law Eep. 13 
 Eq. 36. 
 
 Attachment agaimst defaulting trustee. [See 
 
 Debtoes Act, 4-7.] 
 lAability of executor for involuntary losses. 
 [See ExECDTOE, 23, 24.] 
 
 (e) Conversion, 
 
 12. — A tenant for life of real estate under a 
 settlement, having power to charge the same with 
 6,000Z., to be raised and paid at such time and 
 for such purposes as he should think fit, by deed 
 charged the estate with the above sum, payable to 
 trustees for such purposes as he shoiild by will 
 appoint, and afterwards appointed the same by his 
 will for certain purposes, which partially failed : 
 — Held, that the part of the money undisposed of 
 was personalty, and went to the estate of the 
 next-of-kin. Simmons v. Pitt, 43 Law J. Eep. 
 (n.s.) Chanc. 267 ; Law Eep. 8 Chanc. 978. 
 
 13. — When land is subject to a power of sale, 
 and the power is exercised, it is converted into 
 personalty from the time of the sale, unless the 
 proceeds are re-iuvested in land, or are stamped 
 with a trust for re-investment in land. Atwell v. 
 Atwell, 41 Law J. Eep. (n.s.) Chanc. 23 ; Law 
 Eep. 13 Eq. 23. 
 
 A trust to re-invest the proceeds in land, or go- 
 vernment or real securities, with a direction super- 
 added that thesewhen purchased shall be and enure, 
 and be made liable to the same uses, trusts, estates, 
 limitations and provisoes, as the land originally 
 settled, does not amount to a trust for re-invest- 
 ment in Innd, at least when the limitations of the 
 land originally settled are applicable to personalty 
 as well as realty. Ibid. 
 
 14.— In March, 1862, L. and S. (who was the 
 wife of an alien) conveyed land of which they were 
 
TRUST AND TKUSTEE (C), (D). 
 
 581 
 
 tenants in common to a trustee, upon trust to sell 
 and stand possessed of the proceeds in trust for 
 L. and S. in equal shares, the share of S. to tie for 
 her separate use. In April, 1862, L. and S. en- 
 tered into an agreement to allot the lands in 
 severalty, and that the trustee should stand pos- 
 sessed of each such respective allotment on the 
 respective trusts declared by the deed of March, 
 and that nothing in the agreement should preju- 
 dice or aifect any of the powers or trusts of the 
 deed. No sale was ever effected and S. died in 
 1866, having by her will given to her husband 
 the alien, her personal estate absolutely, and a 
 life interest in her real estates : — Held, first, re- 
 versing the decision of one of the Vice-Chanoel- 
 lors, that the land was not in equity converted 
 into money, secondly, that the title of the alien 
 having accrued before the passing of the Naturali- 
 zation Act, 1870, that Act did not remove his 
 disability to hold land. Thirdly, following the 
 decision of Lord Eomilly, M.R., in Barrow v. 
 Wadkin (24 Beav. 1, 327 ; 27 Law J. Eep. (n.s.) 
 Chanc. 129), that the trust for the alien could be 
 enforced for the benefit of the Grown, Sharp v. 
 Be St. Sauvmr, 41 Law J. Eep. (n.s.) Chanc. 576 ; 
 Law Eep. 7 Chanc. 343. 
 
 (D) Teustee Eelief Act. 
 
 (a) Payment in. 
 
 (1) When justifiable 1 
 
 1. — By statute 56 Geo. 3. c. Ixxiii. (local) a 
 fund was constituted in the nature of a life in- 
 surance fund for the benefit of oflScers in the Cus- 
 toms, their widows and relatives. The Act pro- 
 vided that the directors of the fund might admit to 
 the benefits thereof nominees, of a subscriber 
 other thanhis relatives. By rules made for the 
 management of the fund under powers given by 
 the Act it was directed that the admission of a 
 nominee might be revoked either by the sub- 
 scriber or by the directors where there might be 
 cause to believe the admission had been pro- 
 cured in fraud of the policy of the fund, and that 
 the money forthcoming at a subscriber's death 
 might be appropriated by his will or by an instru- 
 ment in writing signed by him in the presence of 
 an attesting witness, and deposited with the direc- 
 tors during his life, but it was provided that one- 
 third of the money should be set aside as the 
 portion of the subscriber's widow, while the other 
 two-thirds should, in default of any such a,ppro- 
 priation as before mentioned, go to his children 
 and their issue. A subscriber to the fund signed 
 a written instrument attested by a witness, and 
 thereby directed that a third of the money forth- 
 coming at his death should be paid to the trustees 
 of an insurance company. This direction was in 
 fact given to secure an advance which had been 
 made to the subscriber by the trustees and which 
 advance had been used for the subscriber's own 
 benefit. After the subscriber's death the in- 
 surance company claimed the money which had 
 been so directed to be paid them, but the sub- 
 scriber's family also claimed it on the ground that 
 the direction was void, and the directors of the 
 
 fund having also notice that questions were raised 
 as to the payment of succession duty, paid the 
 money into Court under the provisions of the 
 Trustee Eelief Act. On ^a petition for payment 
 out by the trustees of the insurance company, — 
 Held, that the directors were justified in paying 
 the money into Court, and were entitled to their 
 costs thereout as between solicitor and client. In 
 re Maclean's Trusts, 44 Law J. Eep. (n.s.) Chanc. 
 145 ; Law Eep. 19 Eq. 275. 
 
 Held also, that the trustees of the insiiranc e 
 company were assignees of an assured person 
 within the meaning of section 17 of the 16 and 17 
 Vict. c. 96, and that no succession duty was pay 
 able as between the subscriber and them. Ibid. 
 
 [And see infra Nos. 6, 7.] 
 (2) Effect cf, on powers of trustee. 
 
 2. — A trustee having a discretionary power as 
 to the application of a trust-fund, does not neces- 
 sarily abandon it by paying the trust-fund into 
 Court under the Trustee Eelief Act. In re Lan- 
 don's Trusts, 40 Law J.^Eep. (n.s.) Chanc. 370. 
 
 (i) Service out of jurisdiction. 
 
 3, — The Court has power to order service of 
 a petition under the Trustee Relief Act upon 
 a respondent out of the jurisdiction, in the same 
 manner as in the case of proceedings com- 
 menced by bill. In re Haney, 44 Law J. Eep. 
 (n.s.) Chanc. 272 ; Law Eep. 10 Chanc. 275. 
 
 (c) Payment out. 
 
 (1) French lunacy. 
 
 4. — Where a fund belonging to an English- 
 man residing abroad and found lunatic there 
 under a foreign inquisition is paid into Court 
 under the Trustee Eelief Act, the Court has a 
 discretion to refuse to transfer the corpus to the 
 foreign provisional committee of the estate of 
 the lunatic, though such committee is duly con- 
 stituted according to the laws of the country 
 where the inquisition was held, and has power to 
 sue and give valid receipts for the fund. In re 
 Gamier, 41 Law J. Eep. (n.s.) Chanc. 419 ; Law 
 Eep. 13 Eq. 532. 
 
 (2) Mistake in settlement. 
 
 5. — "Words were inserted in a settlement by mis- 
 take. The Court being convinced of the mistake, 
 ordered funds, which had been paid into Court 
 under the Trustee Eelief Act, to be paid to the 
 persons who would be entitled under the settle- 
 ment as intended to be drawn, without rectify- 
 ing the settlement. In re Be la Touche's Settlement, 
 40 Law J. Rep. (n.s.) Chanc. 85 ; Law Rep. 10 Eq. 
 599. 
 
 {d) Costs. 
 
 (1) Improper payment in. 
 
 6, — Trustees are not entitled, simply to relievo 
 themselves of liability, to pay their trust fund 
 into Court under the Trustee Relief Act ; they 
 are bound to act in the trust if there is no reason- 
 
582 
 
 TRUST AND TRUSTEE (D), (B). 
 
 able donbt or cliffioulty in the way, and if they 
 pay the fund into Court -without sufficient cause 
 they" thereby render themselves liable to costs. 
 In re Elliots Trusts, 42 Law J, Rep. (n.s.) Chanc. 
 289; LawEep. 15 Eq. 19J-. 
 
 7. — Trustees who pay into Court a fund claimed 
 in default of appointment, after satisfactory evi- 
 dence of the non-exercise of the power, will be 
 ordered to pay the costs of paying the fund into 
 Court. In re Wylly's Trusts (28 Bear. 458) not 
 followed. In re OuU's Trusts, 44 Law J. Rep. 
 (n.s.) Chanc. 664 ; Law Rep. 20 Eq. 561. 
 
 (2) Unfounded claims. 
 
 8, — The respondents who make an unfounded 
 claim to a fund, and so occasion the payment of it 
 into Court under the Trustee Relief Acts, will be 
 ordered to pay the costs of getting the fund oait of 
 Court. In re Benton's Police/ Trusts, 43 Law J. 
 Rep. (n.s.) Chanc. 715. 
 
 (3) Whether payable out of corpus or income. 
 
 9. — Costs of trustee upon petition by tenant for 
 life for payment of dividends ordered to be paid 
 out of income. In re Mason's Trusts ; Ex parte 
 Smilhett, Law Rep. 12 Eq. 111. 
 
 10. — Where a fund had been paid into Court 
 under the Trustee Relief Act on account of the 
 inability of a sole trustee to act, — Held, that on 
 an application relating solely to the payment of 
 dividends, the trustee's costs might be charged on 
 the corpus. In re Wood's Trusts, 40 Law J. Rep. 
 (N.s.) Chanc. 179 ; Law Rep. 11 Eq. 165. ^ 
 
 11. — The costs of all parties of a petition pre- 
 sented by a tenant for life and other persons 
 interested in the fund for the payment of the 
 income of a fund which has been paid into Court 
 under the Trustee Relief Act, are payable out of 
 the income. The rule laid down in In re Marner's 
 Trusts, 36 Law J. Rep. (n.s.) Chanc. 58 ; Law 
 Rep. 3 Eq. 432, adopted as the established practice 
 of the Court. In re Evans's Trusts, 41 Law J. 
 Rep. (n.s.) Chanc. 512 ; Law Rep. 7 Chanc. 609. 
 
 (E) Tetistee Act. 
 («) Application whether in Chancery or Imnacy, 
 
 1. — A petition for the appointment of new 
 trustees, and a vesting order, where the trust 
 estate has become vested in a lunatic who has not 
 been properly appointed a trustee, should be pre- 
 sented inXunacy as well as in Chancery. In re 
 Mason, 44 Law J. Rep. (n.s.) Chanc. 678 ; Law 
 Rep. 10 Chanc. 273. _ ' 
 
 2. — Where the sanction of the Court is required 
 to the sale of an ecclesiastical lease to the Eccle- 
 siastical Commissioners by reason of a beneficiary 
 being of unsound mind, the application should, 
 under 23 & 24 Vict. c. 124, s. 38, be made in 
 Chancery, and not in Lunacy. In re Cheshire's 
 Estate, 41 Law J. Rep. (n.s.) Chanc. 208; Law 
 Rep. 7 Chanc. 60. 
 
 Appointment of new trustee in place of 
 lunatic trustee. [See Lunatic, 2.] 
 
 (4) Service on new trustee. 
 
 3. — A petition for appointment of a new trustee 
 in the place of one of unsound mind need not be 
 served on the latter. In re Green. In re Murton's 
 Trusts, Law Rep. 10 Chanc. 272. 
 
 (c) Appointment of new trustees. 
 (1) Appointment of feme sole. 
 
 4. — Order made to appoint a /eme sole a trustee ; 
 following In re Campbell's Trust (31 Beav. 176). 
 In re Berkley, 43 Law J. Rep. (n.s.) Chanc. 703 ; 
 Law Rep. 9 Chanc. 720. 
 
 Part of a testator's estate consisted of shares 
 upon which there was an unlimited liability. 
 Upon a petition to appoint a new trustee.- an order 
 was made that one of the continuing trustees, in 
 whose name the shares stood, should sell them, 
 and invest the proceeds in the names of himself 
 and the other trustees. Ibid. 
 
 (2) Appointment in place of bankrupt trustee. 
 
 5. — The "Court" authorised by the 117th 
 section of the Bankruptcy Act, 1869, to appoint a 
 new trustee in place of a bankrupt trustee is the 
 Court of Chancery. Coombs v. Brookes, 41 Law 
 J. Rep. (n.s.) Chanc. 114; Law Rep. 12 Eq. 61. 
 
 (3) Residence abroad. 
 
 6. — A trustee permanently residing abroad, 
 does not thereby become " incapable to act," so as 
 to enable the persons to whom the power of 
 appointing new trustees in such an event has 
 been given, to appoint a trustee in his place ; 
 but the Court has jurisdiction, under the 32nd 
 section of the Trustee Act, 1860, to appoint a new 
 trustee in such a case without the consent of or 
 service of the petition on the tnistee so resident 
 abroad, and will exercise that jurisdiction and 
 also make the usual vesting order if it appears to 
 the Court " expedient " so to do. In re Blanchard 
 (30 Law J. Rep. (n.s.) Chanc. 516) distinguished. 
 In re Bignold's Settlement, 41 Law J. Rep. (n.s.) 
 Chanc. 235 ; Law Rep. 7 Chanc. 223. 
 
 (4) Constructive trustee. 
 
 7.— -Executors of a will, which contained no 
 appointment of trustees, set apart a sum of money 
 to answer a legacy; the fund was standing in the 
 name of the surviving executor: — Held, that he 
 was a constructive trustee within the Trustee Acts, 
 and new trustees -\rere appointed on petition. In 
 re Davis's Trusts, 40 Law J. Rep. (n.s.) Chanc. 
 566 ; Law Rep. 12 Eq. 214. 
 
 (5) Discharge of one trustee. 
 
 8. — One of three trustees desiring to retire, and 
 no person being willing to be trustee in his place : 
 — Held, that upon a petition under the Trustee 
 Act, 1850, the Court could appoint the two con- 
 tinuing trustees to be trustees in substitution for 
 the three trustees, so as to discharge the retiring 
 trustee from the trusts. In re Stokes's Trusts, 41 
 Law J. Rep. (n.s.) Chanc. 290; Law Rep. 13 Eq. 
 333. 
 
TEUST AND TRUSTEE (E)— TURNPIKE (B). 
 
 683 
 
 (6) Ty'ustees pre-deceasing testator. 
 
 9. — Where all the trustees of real estate named 
 in a will have pre-deceased the testator, new 
 trustees may be appointed if the heir of the tes- 
 tator is before the Court. In re Smirthwaite's 
 Trusts, 40 Law J. Rep. (n.s.) Chauo. 176; Law 
 Eep. 11 Eq. 251. 
 
 (7) Infant devisee. 
 
 10. — A vendor contracted to sell some land to 
 a railway company, and died, having devised the 
 land to an infant. The company had entered into 
 possession under their statutory powers, but had 
 not accepted the title. On petition under the 
 Trustee Act, the Court made an order declaring 
 the infant a trustee for, and directing that on piyr- 
 ment of the purchase-money he or some proper 
 person should convey to, the company. In re 
 Lowry's Trusts, 42 Law J. Rep. (n.s.) Chanc. 609 ; 
 Law Rep. 15 Eq. 78. 
 
 (8) Vesting order. 
 
 (i) Oopyholds. 
 
 11. — A mortgagor of copyholds refusing for 
 twenty-eight days to make a surrender in accord- 
 ance with his covenant, an order was made vesting 
 the legal estate in the mortgagee, subject to the 
 proviso for redemption. Im re Crowes Mortgage, 
 41 Law J. Rep. (n.s.) Chanc. 32 ; Law Rep. 13 
 Eq. 26. 
 
 (ii) Leaseholds. 
 
 12. — The Coxirt will not re-appoint as trustee 
 a person already duly appointed for the purpose 
 of making a vesting order under section 34 of the 
 Trustee Act, 1850, but will appoint an additional 
 trustee, and then make the order. In re Mandel's 
 Trusts (8 W. R. 683) not followed. In re Driver's 
 Settlement, Law Eep. 19 Eq. 352. 
 
 TURNPIKE. 
 
 (A) Tolls. 
 
 («) " Taxed cart." 
 (5) Exemptions. 
 
 (1) Locomotive steam 2}lough. 
 
 (2) Dissenting minister. 
 
 (B) Evasion of Toll. 
 
 (C) Application of Tolls. 
 
 (B) Powers of Turnpike Trustees. 
 
 [Provision for the reduction of interest on 
 certain mortgage debts secured on turnpike roads. 
 33 & 34 Vict. c. 22.] 
 
 (A) Tolls. 
 
 (a) " Taxed cart." 
 
 1, — By a local Act the trustees of a turnpike 
 road were empowered to take a certain toll "for 
 every horse or other beast drawing any car or 
 chair or other such like carriage with double seats 
 (except a dog cart), or any phaeton, caravan, or 
 
 taxed cart, or any four-wheeled light carriage,- if 
 drawn by one horse or other beast only " : — Held, 
 that the words " taxed cart" mean such a cart as 
 comes within the designation of "taxed cart" in 
 43 Geo. 3. c. 161, and do not apply to any cart, 
 simply because it is a cart in respect of which a 
 tax is paid. Pardy v. Smith (28 Law J. Eep. 
 (n.s.) M. C. 150) dissented from. Williams v. 
 Lear, 41 Law J. Eep. (n.s.) M. 0. 76; Law Eep. 
 7 a. B. 285. 
 
 (i) Exemptions, 
 (!) Locomotive steam plough. 
 
 2. — A steam engine, which, in being taken 
 along a turnpike road for the purpose of working 
 a plough for hire, and on its way to take up a 
 plough to be driven on a farm not occupied by the 
 owner of the engine, having on it the necessary 
 plough gear, passes through a turnpike-gate more 
 than three miles distant from where the plough 
 is, is liable to toll under 24 & 25 Vict. c. 70, s. 1, 
 and is not within the exemption arising from 24 
 & 25 Vict. c. 70, s. 12, and 3 Geo. 4. c. 126, ». 32, 
 inasmuch as it is not a horse or carriage conveying 
 a plough, or a plough itself. Skinner v. Visger, 
 43 Law J. Eep. (n.s.) M. 0. 49 ; Law Rep. 9 Q. B. 
 199. 
 
 (2) Dissenting minister. 
 
 3.— The 3 Geo. 4. c. 126, s. 32, enacts that " no 
 toll shall be demanded or taken by virtue of this 
 or any' other Act or Acts of Parliament on any 
 turnpike road of or from (amongst other persons) 
 any person going to or returning from his, her, or 
 their usual place of religious worship tolerated by 
 law on Sundays," &c. A dissenting minister had 
 assigned to him by the persons having authority 
 in his connection certain Sunday and week-day 
 services in a district comprising thirteen parishes. 
 He had to preach in the parish of F. on three 
 Sundays in the quarter, and on other Sundays he 
 had to preach at four other parishes in the district : 
 — Held, that in going from his residence to the 
 chapel of F. which was out of the parish where 
 he resided, he was within the above exemption, 
 and exempt from toll. Smith v. Barnett, 40 Law 
 J. Rep. (n.s.) M. C. 15 ; Law Eep. 6 Q. B. 34. 
 
 (B) Evasion op Toll. 
 
 4. — H., the occupier of land adjoining a turn- 
 pike road, made an opening through the fence 
 which separated his land from the turnpike road, 
 and another opening through the same fence at a 
 few yards' distance. He also made a road over 
 the land in his occupation, connecting the two 
 openings in the fence, between which was a toll 
 gate, at which the trustees of the turnpike road 
 were authorised to take tolls. By means of the 
 two openings in the fence, and the road connecting 
 them, he was able to use the turnpike road with- 
 out passing through the gate : — Held, that in 
 doing so with intent to evade the payment of toll 
 he did not incur any liability to the penalty im- 
 posed by section 41 of 3 Geo. 4. c. 126. Harding 
 V. Headington, 43 Law J. Eep. (n.s.) M. C. 59; 
 Law Eep. 9Q,.B. 167. 
 
584 
 
 TUENPIKE (0)— UNDUE INFLUENCE (A). 
 
 (C) Application of Tons. 
 
 5. — A Local Turnpike Act, 4 Vict. e. xxxv., 
 
 after reciting that the prlncip.il sum borrowed on 
 
 the credit of the tolls under former Acts still 
 
 remained unpaid, together with arrears of interest 
 
 thereon, by section 1 8 directed that " all moneys 
 
 received by the trustees should be applied in the 
 
 first place in paying and discharging any interest 
 
 which might from time to time be owing in respect 
 
 of any money borrowed on the credit of the tolls ; 
 
 secondly, in maintaining and keeping the road in 
 
 repair ; and thirdly, in reducing and paying off 
 
 the principal sums borrowed": — Held, Quain, J., 
 
 doubting, on an application by the trustees to 
 
 justices for an Order on the highway board to 
 
 contribute under 4 & 5 Vict. c. 59, out of the 
 
 highway rates towards the repairs of a txirnpike 
 
 road, that the Act did not authorise the payment 
 
 of arrears of interest before repairing the road. 
 
 The Trustees of Market Harhoroitgh and Brampton 
 
 Turnpike Trust v. The Kettering Highway Board, 
 
 42 Law J. Eep. (n.s.) M. C, 137; Law Eep. 8 
 
 Q.B. 308. 
 
 (D) Powers of Ttjenpike Trustees. 
 
 6. — By a Local Turnpike Act, 5 Vict. c. Ixix. 
 s. ", in case the trustees should keep in good 
 repair part of a road within the parish of G. B. 
 they wore empowered to take certain specified 
 tolls upon it. The tolls received by the trustees 
 in respect of this portion of the road were con- 
 siderably more than was sufficient to keep it in 
 repair : — Held, that so long as the trustees con- 
 tinued to take these tolls, and found them suffi- 
 cient to keep such part of the road in repair, they 
 could not in addition to the tolls claim to have an 
 order made on the parish of G. B. for the payment 
 of a further sum under 4 & 5 Vict. c. 59, s. 1, on 
 tlie ground that there was a general deficiency of 
 the funds of the whole turnpike trust. The 
 Trustees of the Market Harlorough and Brampton 
 Turnpike Trust v. The Market Harborough High- 
 way Board, 42 Law J. Eep. (n.s.) M. C. 139; 
 Law Eep. 8 Q. B. 327. 
 
 UNDUE INFLUENCE. 
 
 (A) Acts inter Vivos. 
 (a Solicitor and client. 
 (6) Parent and child. 
 (e) Trustee and cestui que trust, 
 (d) Persons in confidential relations. 
 
 (B) "Will. 
 
 (A) Acts inter Vivos. 
 
 (a) Solicitor and client. 
 
 1, — Where a mortgagee who was also a solicitor 
 took ii conveyance from the mortgagor, an tiged 
 labourer, who had no independent advice : — Held, 
 that in order to support the deed, the onus lay on 
 the mortgagee of shewing that the circumstances 
 were explained to the mortgagor. Prees v. Coke, 
 Law Eep. 6 Chanc. 645. 
 
 2,— The plaintiff having been induced by the 
 fraud and undue infiuence of L., her agent and 
 trustee, to execute deeds by which, without any 
 consideration, she convoyed all her property to 
 him absolutely, filed a bill against his executor to 
 set them aside. Her former solicitor, who pre- 
 pared and had the custody of the deeds, was 
 joined as a defendant for purposes of discovery, and 
 costs were prayed against him, as well as the 
 executor, on the ground of neglect of duty. The 
 bill also charged him with fraud, which however 
 was not proved. Throughout the litigation he 
 acted as the solicitor of the defendant executor. 
 A decree was made, setting aside the deeds with 
 costs against L.'s estate, and the solicitor was 
 ordered to pay the whole costs of the suit, in case 
 L.'s estate proved insufficient to pay them. Baker 
 V. Loader, 42 Law J. Eep. (n.s.) Chanc. 113; Law 
 Eep. 16 Eq. 49. 
 
 The Court will, in a proper case, order a solicitor 
 to pay the costs of litigation occasioned by deeds 
 improperly prepared by him. Ibid. 
 
 (h) Parent and child. 
 
 3. — A person seeking to set aside a voluntary 
 deed on the ground of undue parental influence 
 must not be guilty of unreasonable delay. Turner 
 V. Collins, 41 Law J. Eep. (n.s.) Chanc. 568; Law 
 Eep. 7 Chanc. 329. 
 
 In 1855 J. T. T., who had recently attained his 
 age of twenty-one years, and was entitled under 
 the will of his grandfather to a present income of 
 1,200Z., which would be increased to 2,200^. on 
 marriage, and to about 6,0001. on his attaining 
 twenty-five, and being also entitled under his 
 father's and mother's marriage settlement to trust 
 funds of about the value of 3O,O0W., part of which 
 was brought into settlement by" the father and 
 part by the mother, was induced by his father, 
 who had married and had a daughter by a second 
 wife, to execute a, deed whereby, subject to the 
 father's life interest, successive life interests in 
 the trust funds subject to the settlement, were 
 given to the wife and daughter by the second 
 marriage, and power was given to the father in 
 the event of his again becoming a widower and 
 marrying a third wife, to revoke the trusts of a 
 portion of the trust funds and appoint the same 
 for the benefit of the third wife and the issue of 
 the third marriage. In 1869 J. T. T. filed his bill 
 to have the deed reoti'fied by confining its opera- 
 tions to such portion of the trust fund as had been 
 brought into settlement by his father and by ex- 
 punging the power of revocation and new appoint- 
 ment: — Held, that though in its inception the 
 transaction was voidable as having been brought 
 about by undue influence, the plaintiff had by 
 delay forfeited his right to set aside such part of 
 the deed as gave life interests to his step-mother 
 and half sister ; but the Court being of opinion 
 upon the evidence that the clause giving the father 
 a power of revocation and re-appointment on a 
 third marriage had never been sufficiently ex- 
 plained to him, set aside that part of the deed. 
 Ibid. 
 
 4. — In a transaction with a person who is 
 
UNDUE INFLUENCE (A), (B). 
 
 685 
 
 known to be under the influence and control of 
 a father or mother (in this case the relationship 
 was that of step-father and step-daughter), it is 
 the duty of the person who is to reap the benefit 
 of the transaction to see that everything that is 
 done is fair and aboveboard, and that fall ex- 
 planation is given to the person conferring the 
 benefit; otherwise the transaction will not be 
 upheld. KempsoTi v. Ashbee, 43 Law J. Rep. (n.s.) 
 Chanc. 689 ; aflBrmed, on appeal, 44 Law J. Eep. 
 (n.s.) Chanc. 195; Law Rep. 10 Chanc. 16. 
 
 An act cannot be relied on as a confirmation 
 unless the voidable nature of the original trans- 
 action was known to the confirming party. Ibid. 
 
 A girl, under age, gave a promissory note as 
 surety for her step-father. Soon after coming of 
 age she executed, under his infiuence (as the 
 obligee knew), but with knowledge of the in- 
 validity of the promissory note, a bond to secure 
 payment of the same debt six years after date. 
 Shortly after the expiration of the period of six 
 years, and at the age of twenty-nine, she executed 
 another bond to secure the same debt, under 
 threat of legal proceedings. She was afterwards 
 sued on this bond, and thereiipon filed a bill to 
 avoid the bonds and to restrain the action: — 
 Held, that she was entitled to the relief prayed. 
 Ibid. 
 
 The biU. was not filed till nearly seven years 
 after the last bond was executed : — Held, that the 
 plaintiff was not barred by delay. Ibid. 
 
 (c) Trustee and cestui que trust. 
 
 5. — A testator devised his real estate to the 
 plaintiff, and gave various legacies to his other 
 relations ; and then, after reciting that he held a 
 farm from year to year, he declared it to be his 
 wish, and he authorised his trustees to give up the 
 tenancy thereof in favour of the plaintiff, provided 
 the landlord would accept him as tenant, and in 
 that event he bequeathed to him all the stock 
 on the farm. On the testator's death, it appeared 
 that his personalty, other than the farming stock, 
 would be insufficient to pay his debts and legacies, 
 and the trustees of the will, one of whom was the 
 landlord's agent, induced the landlord to refuse 
 to accept the plaintiff as tenant of his farm, unless 
 he agreed to take 200Z. and give up the testator's 
 realty for payment of his debts and legacies. The 
 plaintiff agreed accordingly, was accepted as 
 tenant, and executed a deed conveying the realty 
 to the trustees. About four years afterwards 
 he filed a bill to set aside this transaction : — 
 Held (affirming the decision of the Master of the 
 Rolls, 40 Law J. Rep. (n.s.) Chanc. 603), that the 
 trustees had been guUty of a clear breach of trust 
 in what they had done to induce the plaintiff to 
 execute the deed, and that it must be set aside, 
 and the trustees must pay the costs of the suit. 
 Ellis v. Barker, 41 Law J. Eep. (n.s.) Chanc. 64; 
 Law Eep. 7 Chanc. 104. 
 
 (d) Persons in confidential relationship. 
 
 Q, — There can be no confirmation of a fraudu- 
 lent gift or bargain obtained through undue in- 
 fluence by a donee or bargainee standing in a 
 Digest, 1870-1875. 
 
 confidential relationship towards the donor or 
 bargainor unless there be full knowledge on the 
 part of the latter of all the facts and the rights 
 arising out of them, and an absolute release from 
 the undue influence by means of which the fraud 
 was practised. Moxon v. Fayne, 43 Law J. Eep. 
 (n.s.) Chanc. 240 ; Law Eep. 8 Chanc. 881. 
 
 M., a young man, interested in a certain busi- 
 ness, under the advice of his family solicitor, en- 
 tered into an arrangement relating to the business 
 with P., who stood in a fiduciary position towards 
 him, and at the same time unknown to his solicitor 
 was induced by the influence of P. to enter into 
 other agreements completely nullifying the effect 
 of such arrangement. It was held that P. could 
 not, upon abandoning the fraudulent agreements, 
 set up the arrangement. Ibid. 
 
 A bill alleged that the defendant had formed 
 the design of possessing himself of the plaintiffs' 
 property, and in pursuance of this design had 
 perpetrated a series of frauds ; there was no evi- 
 dence to sustain this allegation to the full extent 
 of it, but there was substantial proof of fraud in 
 respect of several transactions : — Held, that the 
 plaintiffs were entitled to relief. Ibid, 
 
 (B) Will. 
 
 7. — The influence which is "undue" in the case 
 of gifts inter vivos is different from that which is 
 required to set aside a will. In the case of gifts> 
 or other transactions inter vivos, it is considered 
 by the Courts of Equity that the natural influence 
 arising out of the relation of parent and child, 
 husband and wife, doctor and patient, attorney 
 and client, confessor and penitent, or guardian and 
 ward exerted by those who possQSS it to obtain a 
 benefit for themselves is an "xmdue" influence. 
 Gifts or contracts brought aboixt by it are, there- 
 fore, set aside, unless the party benefited can shew 
 affirmatively that the other party to the trans- 
 action was placed "in such a position as would 
 enable him to form an absolutely free and un- 
 fettered judgment." The law regarding wills is 
 different. The natm'al influence which such rela- 
 tions as those in question involve may lawfully be 
 exerted to obtain a will or legacy, so long as the 
 testator thoroughly understands what he is doing 
 and is a free agent ; and hence the rules adopted 
 in Courts of Equity in relation to gifts inter vivos 
 are not applicable to the making of wills. Parfitt 
 T. Lawless, 41 Law J. Eep. (n.s.) P. ifc M. 68 ; Law 
 Eep. 2 P. &' D. 462. 
 
 Testatrix, a Roman Catholic, gave the bulk of 
 her property to A., whom she named residuary 
 legatee and devisee. A., who was a Eoman 
 Catholic priest, had lived in her house and been 
 her confessor for a number of years : — Held, that 
 undue influence could not be inferred from the 
 relation in which A. stood to the testatrix — con- 
 fessor and penitent — combined with the disposi- 
 tion of the property, and that it lay on the party 
 who impeached the residuary clause on the ground 
 of undue influence to establish the allegation. 
 Ibid. 
 
 He iq)on whom the burden of proving an issue 
 lies is not bound to prove every fact or conclusion 
 4F 
 
586 
 
 UNDUE INFLUENCE (B)— VACCINATION. 
 
 of fact upon wliicli the issue depends. From 
 every fact that is proved, legitimate and reason- 
 able inferences, may be drawn ; and hence, in 
 discussing whether there is, in any case, evidence 
 to go to the jury, what the Court has to consider 
 is -whether, assuming the evidence to be true, and* 
 adding to the direct proof all such inferences of 
 fact as in the exercise of a reasonable intelligence 
 the jury would be warranted in drawing from it, 
 there is sufficient to support the issue. Ibid. 
 
 UNDUE PEEFERENCE. 
 [See Eailwat, 38, 39.] 
 
 UNION ASSESSMENT COMMITTEE ACT. 
 [See Rate, 32-37.] 
 
 UNIVERSITY. 
 
 A fellow of a college at Oxford, who had a living 
 nine miles from Oxford, at which he actually re- 
 sided, and who also rented rooms in his college, of 
 which he had exclusive occupation, and at which 
 he frequently slept when he visited Oxford, — 
 Held, not a "resident" within s. 48 of 17 & 18 
 Vict. c. 81, so as to be eligible as a member of the 
 congregation of the University. The Queen v. The 
 Vice- Chancellor and Hebdomadal Council of Ox- 
 ford University, Law Rep. 7 Q. B. 471. 
 
 USAGE OF TRADE. 
 [See Custom.] 
 
 USURY. 
 
 1.— Although by 17 & 18 Vict. c. 60, the usury 
 laws are repealed, and by 31 & 32 Vict. o. 4, 
 dealings with reversionary interests can no longer 
 be set aside for inadequacy of consideration, the 
 Court has still jurisdiction to protect the unwary 
 from unconscionable bargains. Ti/ler v. Yates, 40 
 Law J. Rep. (n.s.) Chanc. 768 ; Law Rep. 6 Chanc. 
 665. 
 
 Therefore, where a bill discounter on advancing 
 money on a bill of exchange required a former 
 bill accepted by a minor without consideration to 
 be provided for out of the proceeds, and this was 
 made the foimdation for other bills which were 
 secured by charges on a reversionary interest, — 
 Held ^affirming the decision of one of the Vice- 
 Chancellors), that the charges could only stand as 
 security for the money actually advanced and in- 
 terest. Ibid. 
 
 2. — The Sales of Reversions Amendment Act 
 leaves untouched the settled law relating to con- 
 
 tracts in respect of reversionary interests in all 
 cases where ?ruila fides, fraud, or unfair dealing 
 can be shewn. Miller v. Cook, 40 Law J. Rep. 
 (n.s.) Chanc. 11 ; Law Rep. 10 Eq. 641. 
 
 A money-lender advanced to a young man, aged 
 twffnty-two, in distress for money and in fear of 
 arrest, the sum of 123^. ; taking from him a pro- 
 missory note for 1501., and two mortgages of his 
 reversionary interest in a legacy of 5001. and in a 
 share of residuary estate worth about 5001. more. 
 One of such mortgages secured the repayment of 
 501., with interest at the rate of 20Z. per cent, for 
 the firstmonth and 51. per cent, per month after- 
 wards, and the other secured 150^., with interest 
 at 20^. per cent, per annum, reducible to lOl. per 
 cent, on punctual quarterly payments, and both 
 these mortgages contained an absolute power of 
 sale without notice. Upon a bill filed by the bor- 
 rower again,st the money-lender to set aside the 
 securities, — Held, that the bargain was an uncon 
 scionaWe one, and amounted to unfair dealing 
 within the 31 & 32 Vict. c. 4 ; and it was declared 
 that the deeds should stand as a security only for 
 the sums actually advanced, with interest at 51. 
 per cent., but the Court directed that the defend- 
 ant should have his costs of suit added to the 
 amount to be found due on his securities. Ibid. 
 
 3. — The repeal of the usury laws, and the al- 
 teration of the law as to reversionary interests, 
 have left untouched the doctrines of this Court 
 both as to the protection of persons, who for any 
 reason are not fully competent to protect them- 
 selves, and as to the power to relieve against 
 what are called unconscionable bargains with 
 such persons. The Earl of Aylesford v. Morris, 
 42 Law J. Rep. (n.s.) Chanc. 146 : affirmed, on 
 appeal, 42 Law J. Rep. (n.s.) Chanc. 546 ; Law 
 Rep. 8 Chanc. 484. 
 
 Special circumstances under which the Court 
 relieved a young man from loans contracted by 
 him when just of age at the rate of 601. per cent, 
 per annum. Ibid. 
 
 4. — Loan of 85^. by a money-lender on mort- 
 gage of a reversion of 600Z. for 1001., bearing in- 
 terest at 5 per cent, per month. On reversion 
 falling into possession twelve years afterwards, 
 decree made for redemption on payment of 85Z. 
 with simple interest at 5 per cent, per annum. 
 Benyon v. Cooh, Law Rep. 10 Chauc. 389. 
 
 VACCINATION. 
 
 [30 & 31 Vict. c. 84, amended and in part re- 
 pealed. 34 & 35 Vict. c. 98.] 
 
 [The last Act explained and extended. 37 & 
 38 Vict. c. 75.] 
 
 1.— By s. 11 of 34 & 35 Vict. c. 98, " Any com- 
 plaint may be made . . . under the Vaccina- 
 tion Acts, 1867 and 1871, at any time not exceed- 
 ing twelve months from the time when the matter 
 of such complaint . . . arose, and not subse- 
 quently :— Held, that the period within which a 
 complaint that a child within the age of fourteen 
 years has not been successfully vaccinated, must 
 
YACCINATION— VENDOE AND PURCHASER (B). 
 
 §87 
 
 be made, runs from the time of giving notice to 
 the parent of the child to procure its being vac- 
 cinated, and that xinless the complaint be made 
 within that period no order directing vaccination 
 can be made under s. 31 of 30 & 31 Vict. c. 84. 
 Knight v. Halliwell, 43 Law J. Rep. (n.s.) M. C. 
 113; Law Rep. 9 Q. B. 412. 
 
 Pnrkis y. Huxtable (28 Law J. Rep. (n.s.) M. 0. 
 221) considered. Ibid. 
 
 2. — By the Vaccination Act of 1867, 30 & 31 
 Vict. u. 84, M. 31, "if any registrar, or any ofl&cer 
 appointed by the guardians to enforce the provi- 
 sions of the Act, shall give information in writing 
 to a justice of the peace that he has reason to 
 believe that any child under the age of fourteen 
 years, being within the union or parish for which 
 the informant acts, has not been successfully vac- 
 cinated, and that he has given notice to the parent, 
 or person having the custody of such child, to pro- 
 cure its being vaccinated, and that this notice has 
 been disregarded, the justice may summon such 
 parent or person to appear with the child before 
 him at a certain time and place, and xipon the ap- 
 pearance, if the justice shall find, after such ex- 
 amination as he shall deem necessary, that the 
 child has not been vaccinated, nor has already had 
 the small-pox, he may, if he see fit, make an order 
 under his hand and seal directing such child to be 
 vaccinated within a certain time," &c., and the 
 parent, &e., is subject to a penalty not exceeding 
 20s. if it be proved that he has not obeyed the 
 order : — Held, that a justice has power under this 
 section to make an order for the vaccination of a 
 child, though it has never been produced by the 
 parent or person summoned to appear before him. 
 Button V. Atkins, 40 Law J. Rep. (n.s.)M. C. 157 ; 
 Law Rep. 6 a.B. 373. 
 
 VAGRANT. 
 
 [31 & 32 Vict. c. 52, repealed. 6 Geo. 4, c. 83 
 extended to gaming in public places. 36 & 37 
 Vict. o. 38.] 
 
 Vagrant Act Amendment Act, 1868 : con- 
 stritction of, as to what is an instru- 
 ment of gaming or wagering. [See 
 Gaming, 6.] 
 
 VENDOR AND PURCHASER. 
 
 [And see Specific Peefobmance.] 
 
 (a) eoemalities eeqtiisite foe conteact of 
 
 Sale. 
 (B) Pakticulaes and Conditions of Sale. 
 
 (a) Misdescription in particulars. 
 
 lb) Misleading condition. 
 
 (e) Objections to and reqwititions on title. 
 
 {d) Valuation of timber. 
 
 (e) Depreciatory conditions. 
 
 (f) Penal conditions. 
 
 (0) Authority of House Agent. 
 (D) Construction and Effect of Contract 
 OF Sale. 
 
 (a) Description of subject-matter. 
 
 (i) Sale of business : implied covenant. 
 
 (e) Notice to vendor of charge on contract. 
 
 (d) Liability/ of vendor remaining in pos- 
 session. 
 (E) Time op the Essence op the Contract. 
 (E) Appoktionment of Purchase-money. 
 (G) Completion: Presence op Vendor. 
 (H) Parties to Conveyance. 
 (I) Vendor's Lien. 
 
 (K) Effect op Conveyance on Rights op 
 Vendor and Purchaser. 
 
 (a) Mistake as to property. 
 
 (6) Mistake as to title. 
 (L) Adverse Rights of third Parties. 
 
 (a) Purchaser without jnotice having legal 
 
 estate. 
 
 (b) Notice of tenancies and incumbrances. 
 (M) Deposit. 
 
 (a) Forfeiture of. 
 
 lb) Recovery of. 
 (N) Rescission of Contract. 
 (0) Sale by Court. 
 (P) Remedies at Law foe Breach op Contract. 
 
 [Questions arising between vendor and pur- 
 chaser as to requisitions, or objections, or compen- 
 sation, &c., may henceforth be determined in a 
 summary way by a Judge of the Court of Chancery 
 in chambers. 37 & 38 Vict. c. 78.] 
 
 [Protection by possession of legal estate as 
 against prior equities henceforth abolished even 
 in the case of bond, fde purchasers for value with- 
 out notice. 37 & 38 Vict. i;. 78, o. 7.] 
 
 [The last enactment repealed as from the date 
 thereof, except as to anything duly done there- 
 under before the present Act. 38 & 39 Vict. c. 87.] 
 
 (a) eormalities requisite foe contract op 
 Sale. 
 
 [See Frauds, Statute of, 2-11.] 
 
 (B) Particulars and Conditions of Sale. 
 (a) Misdescription in particulars. 
 
 1. — The plaintiff purchased at a sale by auction 
 for 2,500Z. certain property which was described 
 in the particulars of sale as an " immediate rever- 
 sion in fee simple." Shortly after signing the con- 
 tract he discovered that by the conditions of sale, 
 which were produced for the first time and read 
 aloud by the vendor's agent at the commencement 
 of the sale, the purchaser was to take the pro- 
 perty subject to the obligation of paying oif 
 mortgages for 2,500^., the gross value of the re- 
 version being under 5,O0OZ. : — Held, that the de- 
 scription in the particulars of sale was an improper 
 description, and the reading of the conditions of 
 sale in the auction-room was not sufficient to con- 
 vey to the purchaser a knowledge of the real facts ; 
 and that he was therefore entitled to have the 
 contract rescinded — affirming the decision of 
 Malins, V.C. (41 Law J. Rep. (n.s.) Chanc. 643 ; 
 Law Rep. 14 Eq. 124). Torrance v. Bolton, 42 
 Law J. Rep. (n.s.) Chanc. 177 ; Law Rep. 8 Chanc, 
 118. 
 
 4f2 
 
V88 
 
 Yendo:r and :purchasee (B). 
 
 (J) Misleading conditio'). 
 
 2. — Condition of sale that title was to commence 
 •with a will, the purchaser to assume that the tes- 
 tator was at his death beneficially entitled in fee, 
 free from incumbrances. The testator had con- 
 tracted for the purchase of the property, but the 
 purchase was not completed till many years after 
 his death : — Held, that the purchaser was not 
 boimd by the condition. The vendor refusing an 
 open reference as to title, his bill was dismissed. 
 Harnett v. Baker, Law Eep. 20 Eq. 50. 
 
 (a) Objections to and requisitions on title. 
 
 3. — In a contract for sale of lands containing 
 valuable quarries, was a clause reserving to the 
 vendor power to rescind in case any objection or 
 requisition should be persisted in: in another 
 clause provision was made for compensation in 
 case any error or mistake should appear to have 
 been made in the description of the property or 
 the vendor's interest therein. A requisition was 
 made by the purchaser, founded on an exception 
 in favour of the lord of the manor of B., of mines 
 and minerals in one of the title-deeds relating to 
 part of the land. The purchaser alleged, therefore, 
 that the quarries were not as to this part of the 
 land included, and he claimed compensation. The 
 vendor raised a contention that by custom or pre- 
 scription he had a right to the quarries, hut the 
 objection being persisted in, he rescinded the con- 
 tract : — Held (affirming the Master of the Rolls), 
 upon bill filed by the purchaser claiming specific 
 performance with compensation, that the requisi- 
 tion in question was one of title, giving the vendor 
 the right to rescind. Mawson v. Fletcher, 40 Law 
 J. Bep. (n.s.) Chanc. 131 ; Law Rep. 6 Chanc. 91. 
 
 4. — Real property was sold on the condition 
 that the vendor should deliver an abstract of the 
 title, and the purchaser should make his objec- 
 tions and requisitions in respect of the title within 
 twenty-one days from the delivery of the abstract ; 
 and all objections and requisitions which should 
 not be made within the time specified should be 
 taken to be waived ; and in case any purchaser 
 should make any objection to or requisition on the 
 title which the vendors should be unwilling or 
 unable to answer or comply with, the vendors 
 reserved to themselves the option at any time to 
 rescind the contract. The vendor having delivered 
 an abstract, the purchaser within the twenty-one 
 days made a frivolous objection to the title as dis- 
 closed in the abstract, and as he insisted on it the 
 vendor filed a hill for specific performance. The 
 purchaser having meanwhile discovered the exist- 
 ence of certain deeds which materially alFected the 
 title, and which were omitted from the abstract, 
 raised an objection on this ground for the first 
 time in his an,swer to the bill. This omission was 
 made intentionally, but bond fide and under the 
 advice of counsel, as it was supposed that the 
 deeds did not afifect the title. (The vendor, how- 
 ever, had, iinder a previous contract to sell -this 
 property, disclosed these deeds on the abstract 
 then delivered, and had abandoned such contract 
 when an objection founded on these deeds was 
 
 raised to the title.) Several months after the 
 filing of the answer, the vendor gave the purchaser 
 notice that he rescinded the contract, and the bill 
 was eventually dismissed on the purchaser's mo- 
 tion without costs. The purchaser having brought^ 
 an action against the vendor for breach of con- ' 
 tract in not deducing a good title, — Held (in the 
 Exchequer Chamber, per Blackburn, J., Keating, 
 J., Brett, J., Archibald, J., and Honyman, J.), that 
 the objection founded on the omission of the deeds 
 was an " objection to the title " within the mean- 
 ing of the condition, and entitled the vendor to 
 rescind, and that the action was not maintainable. 
 Per Grove, J. (agreeing with the decision of Bram- 
 well, B., in the Court below), that the vendor was 
 not entitled to rescind, since the option reserved 
 by the condition applied only to objections to the 
 title as disclosed in the abstract. Gray v. Fowler 
 (Exch. Ch.) 42 Law J. Rep. (n.s.) Exch. 161 ; 
 Law Rep. 8 Exch. 249. 
 
 5. — The plaintiff put up for sale by auction a 
 " valuable lease " of a house and premises. By 
 the sixth condition of sale, the abstract of title 
 was to commence with an underlease, dated &c., 
 and " no requisition or enquiry shall he made re- 
 specting the title of the lessor or his superior 
 landlord, or his right to grant such underlease " 
 &c. By the seventh condition of sale, the pur- 
 chaser was to bear the expense of verifying the 
 abstract, with the documents of title and all 
 charges incidental thereto, and all enquiries and 
 evidences which might be required by the pur- 
 chaser for verifying the abstract or otherwise in 
 support of the vendor's title were to be made, 
 sought for and obtained at his own expense. The 
 lease was knocked down to the defendant, who 
 paid a deposit, which, by the eleventh condition 
 of sale, would be forfeited if the defendant neg- 
 lected to comply with the conditions of sale. He 
 refused to complete the contract to purchase, be- 
 cause he discovered alimide that the lessor had 
 parted with the legal estate, and therefore had no 
 power to grant a valid lease ; — Held, that the 
 word " enquiry " in the sixth condition must be 
 taken to mean the same as " requisition ;" that 
 the defendant was not precluded by the conditions 
 of sale from taking the objection that he had 
 not got what he had expected to get, viz., a valu- 
 able lease, and that he was entitled to have his 
 deposit returned to him. Waddell v. Woolfe, 43 
 Law J. Rep. (n.s.) Q. B. 138; Law Rep. 9 Q. B. 
 315. 
 
 6. — Land was put up for sale by auction, sub- 
 ject to conditions (among -others) that "the ven- 
 dors should within seven days of the sale deliver 
 to the purdiaser an abstract of their title, all ob- 
 jections and requisitions not delivered to the ven- 
 dors within fourteen days after the delivery of the 
 abstract to be considered as waived, and in this 
 respect time to be of the essencS of the contract ; " 
 that "the vendors being trustees should not be 
 required to obtain the concurrence of any one in- 
 terested in the proceeds of the sale ; " and that " if 
 the purchaser should fail to ^omply with the con- 
 ditions his deposit should he forfeited." An ab- 
 stract was delivered to the purchaser within seven 
 
TEKDOE AND PtTECHASER (B), (B). 
 
 B89 
 
 days, shewing that the property had been devised 
 to trustees (of -whom the vendor was the survivor) 
 upon trust to pay the income to F. S^ for life, and 
 after his death to sell and di'^'ide the proceeds 
 among his children ; and that F. S. was still alive. 
 The abstract did not state whether he had children 
 liring, though there were in fact eight, all of age : 
 ■ — Held, that the vendor having thus no title to 
 sell the property, the purchaser was entitled to 
 recover back his deposit, although he had made 
 no requisition vrithin the fourteen days — the Court 
 being of opinion that the conditions as to waiver 
 and forfeiture referred only to the waiver of re- 
 quisitions for further information or security in 
 the case of a defective title capable of being made 
 good on the defects being supplied, but not to the 
 case of a title wholly bad. Held also, by Kelly, 
 C.B., that the abstract delivered was not a suffi- 
 cient abstract. Want v. StaUibrass, 42 Law J. 
 Eep. (n'.s.) Exch. 108 ; Law Eep. 8 Exch. 176. 
 
 Semble — by Martin, B., and Pollock, B., that 
 the abstract, if a true abstract of such title as the 
 vendors had, sufficiently indicating points calling 
 on the purchaser to make further requisitions, was 
 an abstract of their title within the meaning of 
 the condition, although the title was not siich as 
 the purchaser was bound to accept. Ibid. 
 
 (d) Valuation of timher. 
 
 7. — Eeal estate was sold, by order of the Court, 
 subject to certain conditions. The vendors' agent 
 made a mistake in his valuation of the timber in 
 one of the lots purchased. No fraud was imputed 
 to any one : — Held, that the vendors were not en- 
 titled to a revaluation of the timber ; or to have 
 the sale rescinded. Chriffiths v. Jones, 42 Law J. 
 Eep. (n.s.) Chanc. 468 ; Law Eep. 15 Eq. 279. 
 
 (c) Depreciatory conditions. 
 
 8. — Trustees having power to sell under such 
 special or other conditions or stipulations as they 
 should think fit, sold by auction with a condition 
 limiting the title to commence in 1858 (fourteen 
 years previously). The next convenient root of 
 title was a deed of 1819, from which a good title 
 could be deduced, but the trustees could not find 
 this deed, and had only recitals of its contents. 
 There was also a condition that all recitals and 
 statements in the deeds and particulars should be 
 accepted as conclusive evidence : — Held, that the 
 sale under such conditions was a breacli of trust, 
 and injunction granted at the suit of a cestui que 
 trust to restrain completion. Dance v. Golding- 
 ham, 42 Law J. Eep. (n.s.) Chanc. 777 ; Law Eep. 
 8 Chanc. 902. 
 
 Held, farther, that such an injunction would be 
 granted against an innocent purchaser. Ibid. 
 
 (/) Penal conditions. 
 
 Power of Court of Equity to relieve pur- 
 chasers against penal condition. [See 
 
 PENAtTY, 1.] 
 (C) AUTHOHITY OF HotTSB AOENT. 
 
 9. — An estate or house agent to whom instruc- 
 tions are given to procure a purchaser for property. 
 
 has not, though the price is named in the instruc- 
 tions, authority to enter into a binding contract 
 with the pxirchaser to sell such property. Earner 
 V. Sharp, 44 Law J. Eep. (n.s.) Chanc. 53 ; Law 
 Eep. 19 Eq. 108. 
 
 (d) constbhotion and effect of conteact of 
 Sale. 
 
 (a) Description of subject-matter, 
 
 10. — By an agreement for the disposal to the 
 defendant of the plaintiff's interest and goodwill 
 in a public-house the premises were described as 
 " the house and premises he now occupies known 
 by the sign of the White Hart, with stabling and 
 garden situate and being at " &c. The agreement 
 contained a stipulation that the plaintiff was not, 
 during the defendant's tenancy of the premises, 
 to be concerned in the trade of a licensed victual- 
 ling house within the distance of two miles from 
 the said premises under a penalty of 100^. It also 
 contained stipulations by the defendant to pur- 
 chase certain effects and stock by valuation, and 
 it stated that if the defendant was not accepted 
 ' by the landlord as tenant at a certain rent or 
 under, a deposit money of 50^. should be returned, 
 and the agreement should be void, and concluded 
 thus, "if either party shall refuse or neglect to 
 perform all and every part of this agreement they 
 hereby promise and agree to pay to the other who 
 shall be willing to complete the same the sum of 
 lOOZ. as damages, and recoverable in any of her 
 Majesty's courts of law : " — -.Held, that the words 
 " he now occupies " could not be rejected, and 
 therefore a coach-house which belonged to the pre- 
 mises, but which was shewn by extrinsic evidence 
 to be at the time of the agreement not in the occu- 
 pation of the plaintiff but of a person to whom the 
 plaintiff had let it for a term then unexpired, was 
 not included in the agreement. Magee v. Lavell, 
 43 Law J. Eep. (n.s.) C. P. 131 ; Law Eep. 9 C. P. 
 107. 
 
 Held also, that the lOOZ. mentioned at the end 
 of the agreement as damages was a penalty and 
 not liquidated damages. Ibid. 
 
 (6) Sale of business : implied covenant. 
 
 11. — Sale of business, the price to be ascertained 
 from the profits of the business during a certain 
 period. Held, to imply a covenant by the pur- 
 chasers to carry on the business so that the price 
 could be ascertained. They, having discontinued 
 the business, were held not entitled to an injunc- 
 tion to compel the performance on his part of the 
 agreement by the vendor. Telegraph Despatch 
 and Intelligence Company v. McLean, Law Eep. 
 8 Chanc. 668. 
 
 (c) Notice to vendor of charge on contract. 
 
 12. — Notice to one under contract to sell an 
 estate that his vendee has agreed to make a valid 
 assignment of the contract, if so requested, does 
 not put the vendor upon enquiry whether his ven- 
 dee has been requested to make, or has made such 
 valid assignment. Shaw v. Foster (H.L.), 42 
 
o90 
 
 VENDOR A"ND PUECHASER (D), (H). 
 
 Law J. Rep. (n.s.) Ohano. i9 ; Law Rep. 5 E. & I. 
 App. 321. 
 
 Where a deposit of title-deeds is accompanied 
 with a memorandum in writing, the kind and 
 amount of charge intended to be created by the 
 deposit must be ascertained solely by reference to 
 the written document. Ibid. 
 
 An agreement to assign a contract is an agree- 
 ment only to place the assignee in the position of 
 the assignor, subject to, not freed from, his obli- 
 gations under the contract. Ibid. 
 
 F. being mortgagee, with power of sale, con- 
 tracted to sell a leasehold property to P., and P., 
 after having paid one half of the purchase-money, 
 deposited the contract with a bank to which he 
 was indebted. At the same time he executed a 
 mortgage to the bank of certain freehold estates, 
 and signed a memorandum, by which he agreed to 
 execute a valid assignment of the contract for the 
 purchase of the leasehold property, by way of 
 mortgage, for further securing the amount of hi.s 
 debt to the bank, if the bank should at any time 
 request him to do so. The bank gave F. notice of 
 this agreement, and in their letter accompanying 
 the notice their solicitor described the agreement 
 as being a charge by P. on hie purchase. F. ac- 
 knowledged the receipt of the notice, but the bank 
 never made any further communication to him 
 until after F. had completed the sale to P., which 
 did not happen imtil some time after the period 
 fixed by the contract for completion. As soon as 
 the conveyance was executed to P., P. conveyed 
 over again to one S., who had no notice of the 
 agreement P. had made with the bank when he 
 deposited with them the contract for sale. P. then 
 became bankrupt : — Held, that F. was not bound 
 to treat the notice of P.'s agreement with the bank 
 as if it had been notice of an actual charge, and 
 that he was not liable to the bank for having com- 
 pleted the sale to P. without first communicating 
 with them. Ibid. 
 
 (d) Liability/ of vendor remaining in possession. 
 
 13. — An agreement for purchase of real estate 
 provided that the purchaser should be entitled to 
 the possession or rents from the 25th of March, 
 and in the event of the purchase not being com- 
 pleted on that day, the purchaser should pay in- 
 terest on the unpaid balance till completion. 
 Disputes having arisen, the purchase was not com- 
 pleted for several years, and the vendor refused 
 to allow the purchaser to take possession in the 
 meantime, but suffered the estate to remain unoc- 
 cupied and to fall into decay : — Held (ai&rming 
 the decision of the Master of the Rolls), that the 
 purchaser was entitled to charge the vendor with 
 rents and profits which, without wilful default, 
 he might have received, and also with deteriora- 
 tion, and to set off what might be found due against 
 his purchase-money and interest. Phillips v. 
 Silventer, 42 Law J. Eep. (m.s.) Cha;nc. 225 ; Law 
 Rep. 8 Chanc. 173. 
 
 (E) Time of the Essence op the Contract. 
 
 14, — If it be of the essence of the contract that 
 an act should be completed by a fixed date, an 
 
 extension of the time does not operate as an abso- 
 lute waiver of that condition, but only substitutes 
 the extended time for the original time. Barclay 
 V. Messenger, 43 Law J. Rep. (n.s.) Chane. 449. 
 
 M. and W., entitled to a Jease under a building 
 agreement, defeasible by notice in case they did 
 not complete buildings by the 1st of January, 
 1874, in July, 1873, entered into an agreement to 
 sell their interest to the plaintiffs for 2,000^., 
 200^. of which was paid on signing the agreement, 
 800/. and 1,000?. to be paid at the times specified 
 in the 6th clause, which was as follows : " If the 
 purchaser shall fail to pay either the 800Z. on the 
 14th of July, 1873, or tjie 1,000/. on the 31st of 
 July, 1873, or as to the 1,000/. upon such deferred 
 date as the parties may agree upon, all money 
 paid previous to such default being made shall be 
 absolutely forfeited and this contract become null 
 and void." The 800/. was duly paid. The time 
 for payment of the 1,000/. was extended to the 
 26th of August, 1873. The purchaser made de- 
 fault in payment at that date. The vendors gave 
 notice to determine the agreement, and a suit for 
 specific performance was instituted by the pur- 
 chasers : — Held, that by the 5th clause time was 
 made of the essence of the contract. That the 
 extension of the time to the 26th of August did 
 not operate as an absolute waiver of that condition, 
 but merely substituted the 26th of August for the 
 original date. Ibid. 
 
 Opinion of Lord Romilly in FarJcer v. Thorold 
 (IBBeav. 76), that after an extension of time, time 
 cannot be taken to be of the essence of the con- 
 tract, disapproved of. Bill dismissed with costs, 
 without prejudice to any action at law to recover 
 the 1,000/. Ibid. 
 
 (F) Apportionment of Pubohase-monet. 
 15. — Where on a sale by one contract of two 
 
 properties held under different titles, the money 
 is paid into Court to the credit of a cause, an 
 objection by the purchaser on the ground that 
 there is no provision for apportionment, and that 
 the cause is not connected with the deed under 
 which one of the properties is held, is not sustain- 
 able, as the Court will see the money properly 
 applied. In siich a case, however, the Court, for 
 the satisfaction of the purchaser, ordered appor- 
 tionment. Cavendish, v. Cavendish, Law Rep. 10 
 Chanc. 319. 
 
 (G) Completion: Presence of Vendor. 
 16. — ^A purchaser of real estate has no absolute 
 
 right to insist on the presence of the vendor at 
 the time of completion and payment. It is a 
 question for the jury whether such a requisition is 
 reasonable, and the mere circumstance that the 
 vendor was formerly confined in a lunatic asylum 
 will not be suflScient to render it reasonable where 
 it is shewn clearly that. at the time of completion 
 he is perfectly competent. Essex v. Baniell ; 
 Daniell v. Essex, Law Eep. 10 C. P. 538. 
 
 (fi) Parties to Conveyance. 
 
 17. — Where a colliery company entered into a 
 covenant by deed for the repayment of sums ad- 
 vanced, and for payment of a certain fixed rate 
 
VENDOR AND PUEOHASER (H), (L). 
 
 591 
 
 per ton of ooal, with power to the majority of the 
 lenders to appoint a receiver, and to enter and 
 distrain upon the collieries if the company could 
 not pay the rate for any half-year :-^Held, in the 
 'winding-up of the company under supervision, 
 that the lenders were not necessary parties to a 
 conveyance on sale by the liquidator of one of the 
 company's collieries. In re the Sankey Brook Coal 
 Company ; In re Sadley and Bramhall, i\ Law J. 
 Rep. (n.s.) Chanc. 119; Law Rep. 12 Eq. 472. 
 
 (I) Vendoe's Lien. 
 
 18. — The heir of an intestate who had con- 
 tracted to purchase land, was held entitled to the 
 lands freed from the vendor's lien as against the 
 estate of the intestate. Harding v. Harding, 41 
 Law J. Rep. (n.s.) Chanc. 523; Law Rep. 13 Eq. 
 493. 
 
 19. — ^Where by the contract for sale and pur- 
 chase of goods it is stipulated that payment shoiild 
 be made by the buyers' acceptances of the sellers' 
 drafts, if before the time for delivery of the goods 
 the purchaser becomes insolvent or the accept- 
 ances are dishonoured, the vendor still has a lien 
 for unpaid purchase-money. Difference in this 
 respect between acceptances of the purchaser and 
 those of a third person. Gunn v. Bolckow, 
 Vaughan ^ Co. (Lim.), 44 Law J. Rep. (n.s.) 
 Chanc. 732; Law Rep. 10 Chanc. 491. 
 
 Bights of unpaid vendors of railway com- 
 pany. [See Railway, 16, 17.] 
 
 (K) Effect of Contbvance on Rights of 
 Vendoe and Puechaseb. 
 
 (o) Mistake as to property. 
 
 20. — In 1866 A. purchased ahouse of residence 
 and groimds from B. The conveyance was pre- 
 pared by the purchaser's solicitor, but by a mis- 
 take, the minerals under the house were excepted 
 from it. The purchaser entered into possession, 
 and expended money in repairs and improvements ; 
 the vendor afterwards discovered the mistake, and 
 attempted to deal with the minerals ; thereupon, 
 five years after the purchase, the purchaser filed 
 a bill against him, praying for specific perform- 
 ance of. the original agreement, and to have the 
 conveyance rectified; the vendor had died, and 
 the suit had been renewed against his legal per- 
 sonal representative : — Held, that she must have 
 the option either of having the conveyance rectified 
 or having the whole purchase set aside, she re- 
 paying the purchase-money, with interest at 4 per 
 cent, per annum, and all sums expended by the 
 plaintiff in repairs and permanent improvements, 
 and the plq.intiff being charged with an occupation 
 rent. Bloomer v. Spittle, 41 Law J. Rep. (n.s.) 
 Chanc. 369 ; Law Rep. 13 Eq. 427. 
 
 (6) Mistake as to title. 
 
 21. — ^When an interest, either legal or equit- 
 able, in any real property has been sold, and the 
 conveyance thereof has been executed by the 
 parties to the same, the purchaser in the absence 
 of fcaud on the vendor's part cannot maintain an 
 
 action for money received for his use to recover 
 the price paid by him, if the vendor had no title 
 to the property sold and his conveyance turns out 
 to be worthless. In order to protect Iiimself, a 
 purchaser ought to take care that proper covenants 
 are inserted in the deed of grant to him. Clare v. 
 Lamh, 44 Law J. Rep. (n.s.) C. P. 177 ; Law Rep. 
 10 0. P. 334. 
 
 The defendants believing themselves to be en- 
 titled to an equity of redemption in a term of 
 years, purported to convey the same to the plain- 
 tiff for 240?. It afterwards appeared that they 
 were not entitled to the equity of redemption, and 
 that their conveyance was, in fact, worthless. The 
 plaintiff having sued for money received to his 
 use was nonsuited : — Held, that as the defendants 
 were innocent of fraud, the maxim " caveat 
 emptor" applied, that there was no such total 
 failure of consideration as to entitle the plaintiff 
 to maintain an action for money received, that it 
 was incumbent on the plaintiff to ascertain 
 whether the defendants had a good title to the 
 equity of redemption, and that the nonsuit was 
 right. Ibid. 
 
 (L) Adverse Rights of thied Parties. 
 (a) Purchaser without notice, ftaving legal estate. 
 
 22. — A purchaser for valuable consideration 
 without notice of any prior equity, having acci- 
 dentally acquired the legal estate under a deed of 
 which he had no notice at the time of the pur- 
 chase, is not affected with notice of anything con- 
 tained in such deed. Filcher v. Eawlins ; Joyce v. 
 Bawling, 41 Law J. Rep. (n.s.) Chanc. 486 ; Law 
 Rep. 7 Chanc. 269. 
 
 Per Lord Justice James. — Such a purchaser's 
 plea of a purchase for valuable consideration 
 without notice is an absolute, unqualified, un- 
 answerable defence, and an unanswerable plea to 
 the jurisdiction of the Court. Ibid. 
 
 B., a trustee, advanced trust money to A. in 
 1861, on a legal mortgage of land belonging to A. 
 in fee, the mortgage deed reciting the trust. By 
 collusion with B., A., in 1856, obtained the title 
 deeds, and also a reconveyance of the legal estate, 
 and then, suppressing the mortgage and recon- 
 veyance, conveyed as under his original title the 
 legal estate to C. by way of mortgage. In a suit 
 by B.'s cestui gue trust, — Held, reversing the 
 - decision of the Master of the Rolls (40 Law J. 
 Rep. j(n.s.) Chanc. 105 ; Law Rep. 11 Eq. 53), that 
 C. was entitled to rely on the legal estate acquired 
 through the suppressed reconveyance, and was 
 not affected with notice of any equitie^._ which, if 
 he had seen that deed, he might liave discovered 
 upon enquiry. Ibid. 
 
 Garter v. Carter (3 Kay & J. 617; 27 Law J. 
 Rep. (n.s.) Chanc. 74) distinguished. The same 
 case disapproved of by the Lords Justices, but 
 defended doubtingly by the Lord Chancellor. 
 Ibid. 
 
 iV) Notice of tenancies and incumbrances. 
 
 23. — A public-house and premises put up for 
 sale by auction were described in the particulars 
 
592 
 
 VENDOE AND PURCHASER (L), (M). 
 
 as in the occupation of certain persons at certain 
 rents. The conditions stated that the property 
 ■was sold " subject to existing tenancies." The 
 defendants, who were brewers, by their agent 
 became the purchasers of the property at the 
 auction. Shortly afterwards they discovered that 
 the property was in lease to another brewer for 
 a term of years, of which about nine remained 
 unexpired. Thereupon they refused to complete 
 their contract. In a suit against them by the 
 vendor for specific performance, — Held, that 
 there was a misdescription of the property, which 
 precluded the vendor from enforcing the agreement, 
 and that the purchasers had not constructive 
 notice of the lease. James v. Lichfield (39 Law J. 
 Eep. (n.s.) Chano. 248) dissented from. Caballero 
 V. Henty, 43 Law J. Eep. (n.s.) Chanc. 635; Law 
 Eep. 9 Chano. 447. 
 
 24. — The defendants were trustees for sale, 
 under a will, of certain farms, and on the 11th of 
 May, 1868, they entered into agreements with the 
 tenants thereof, that the latter should at Michael- 
 maSj 1869, give up possession of the farms held 
 by them, and that the defendants should allow to 
 the tenants the half-year's rent payable at Michael- 
 mas, 1868, and should also pay to them at 
 Michaelmas, 1868, a sum of money, and should 
 also allow to them at Michaelmas, 1869, or at the 
 termination of their tenancies, for all the hay, 
 straw and manure produced on the farms during 
 the preceding year at market value. Before the 
 date of this agreement the tenants had held the 
 farms from year to year pursuant to verbal agree- 
 ments on the terms of being paid fodder value 
 only, which is less beneficial to the outgoing 
 tenant than market value. On the 18th of July 
 the plaintiff contracted to purchase the farms. 
 He then had no notice of the agreements of the 
 11th of May, and on the "Sth of September he first 
 became aware of them. On the 6th of January, 
 1859, the purchase of the farms by the plaintiff 
 from the defendants was completed, but it was 
 stipulated between them that the purchase should 
 be without prejudice to the claim of the plaintiff 
 for an indemnity in consequence of the defendants 
 having entered into the agreements of the 11th of 
 May. One of the tenants afterwards sued the 
 plaintiff to recover the market value of the pro- 
 duce left by him on the farm, and the plaintiff 
 ultimately paid all the tenants for their hay, &c., 
 at market value : — Held (per Bramwell, B., 
 Blackburn, J., Mellor, J., Cleasby, B., and Pol- 
 lock, B., reversing the judgment of the Court of 
 Common Pleas as reported 43 Law J. Eep. (n.s.) 
 C.P. 74; Law Eep. 9 C. P. 196, dissentienU 
 Amphlett, B.), that the plaintiff was entitled to 
 recover from the defendant the amount which he 
 had paid to the tenants on account of the dif- 
 ference between market value and fodder value ; 
 for the agreements of the 11th of May, 1868, did 
 not amount to fresh demises but were contracts 
 personally binding the defendants, and that the 
 purchase must be taken to have been concluded 
 on the terms that the defendants would repay to 
 the plaintiff the difference between market value 
 and fodder value, if in point of law the defendants 
 
 had rendered themselves personally liable to pay 
 that amount to the tenants. Phillips v. Miller 
 (Exch. Ch.), 44 Law J. Eep. (n.s.) 0. P. 266 ; Law 
 Eep. 10 C. P. 420. 
 
 (M) Deposit. 
 (a) Forfeitwe. 
 
 25. — In the absence of any stipulation a pur- 
 chaser's deposit is forfeited if he fails to complete 
 the contract. Ex parte Barrell; In re Parnell, 
 44 Law J. Eep. (n.s.) Bankr. 138; Law Eep. 10 
 Chanc. 512. 
 
 26. — Where conditions of sale provided for 
 forfeiture of deposit on non-completion, the vendor 
 to be at liberty to re-sell and the purchaser to pay 
 the deficiency between the amount realised at the 
 second sale and the original price and expenses of 
 the first sale : — Held, that the vendor was not 
 bound to re-sell, and that on non-completion by 
 neglect of the pui'chaser he was entitled to retain 
 the deposit and the costs of the abortive sale. 
 Essex v. Danidl; Danidl v. Essex, Law Eep. 10 
 C. P. 538. 
 
 27. — Under the ordinary conditions for for- 
 feiture of deposit or non-compliance with con- 
 ditions of sale, and for delivery of requisition as 
 to title within fourteen days, where the vendor 
 had no title to sell, the deposit was held not for- 
 feited although the requisition as to the absence 
 of title was not made within the fourteen days. 
 Want V. SlaUibras, 42 Law J. Eep. (n.s.) Exch. 
 108 ; Law Eep. 8 Exch. 175. 
 
 (b) Becovery of. 
 
 28. — Particulars stated that property was to 
 be sold pursuant to a decree of the Court, and 
 one of the conditions was that if the purchaser 
 should make any objection the vendor should be 
 unable or unwilling to comply with, the latter 
 should be entitled to rescind, and the deposit 
 should be returned vrithout interest or costs. The 
 sale took place, and the deposit was paid and in- 
 vested. It afterwards appeared that the sale 
 took place before the chief clerk had made his 
 certificate, and the Court had decided in a suit 
 between the vendor and the purchaser of another 
 lot, that the purchaser was entitled to be dis- 
 charged : — Held, that the condition did not apply, 
 and that the purchaser was entitled to the return 
 of his deposit and to be indemnified against all 
 expenses he had been put to, and to the bank 
 annuities on which the deposit had been invested 
 and the dividends which had accrued thereon. 
 Powell V. Powell (2), 44 Law J. Eep. (n.s.) Chanc. 
 311; Law Eep. 19 Eq. 422. 
 
 29. — The plaintiff agreed to buy and the de- 
 fendant to sell a house ; the plaintiff paid a de- 
 posit, and the defendant was to prepare a written 
 contract of sale; the defendant prepared one 
 which stipulated that the purchaser should bear 
 the expense of verifying the title, and the vendor 
 be permitted to annul the sale if the purchaser 
 insisted on any objection which the vendor was ' 
 unable or unwilling to remove ; the plaintiff 
 refused to execute this contract, the defendant 
 
VENDOE AND PURCHASER (M)— VENUE. 
 
 5,93 
 
 resold, and the plaintiff brought his action to 
 recover the deposit : — Held, that the contract was 
 unreasonable, and the plaintiff entitled to recover 
 his deposit. Moeser v. Wisker, 40 Law J, Rep. 
 (n.s.)C.P.94; Law Rep. 6 C.P. 120. 
 
 30. — "When it appears from the abstract of 
 title delivered to a purchaser in pursuance of con- 
 ditions of sale, that the vendor has previously 
 executed a conveyance — on the face of it volun- 
 tary — comprising the lands in question, but 
 without e.vidence of its being void as against a 
 purchaser for value, the purchaser may refuse to 
 accept the title, seeing that its validity depends 
 on a doubtful state of facts, and may recover back 
 his deposit, althougli he might have made the 
 title good by acceptance. Clarke v. Willott, 41 
 Law J. Rep. (n.s.) Exch. 197 ; Law Rep. 7 Exch. 
 313. 
 
 [And see supra Nos. 5, 6.] 
 
 (N) Rescission of Contra.ct. 
 
 31. — A trader, after being served with the 
 petition on which he was afterwards adjudicated 
 bankrupt, purchased goods at an auction, and 
 removed them without payment, without dis- 
 closing the fact of the bankruptcy proceedings : — 
 Held, that this omission did not of itself amount 
 to a misrepresentation such as to avoid the con- 
 tract, and entitle the vendor to a return of the 
 goods. Ex parte Whittaker ; In re ShackUton, 44 
 Law J. Rep. (n.s.) Bankr. 91 ; Law Rep. 10 
 Chanc. 446. 
 
 [And see supra Nos. 1, 4, 5.] 
 
 (0) Sale by Court. 
 
 32. — ^Where real estate was sold, by order of 
 Court, under conditions providing that the pur- 
 chaser might take the timber at a price named, — 
 Held, that the vendors were not entitled to have 
 the timber revalued, or the sale rescinded, be- 
 cause their valuer had made a mistake in the 
 valuation of timber. Griffiths v. Jones, 42 Law J. 
 Rep. (n.s.) Chanc. 468 ; Law Rep. 15 Eq. 279. 
 
 33. — A testatrix in 1823 devised lands to A. and 
 B. as tenants in common in fee, and in case of 
 death of either under twenty-one and leaving no 
 child, the whole to go to the survivor, and in case 
 of death of both leaving no child, then over. A. 
 died under twenty-one without issue ; B. attained 
 twenty-one ; — Held, that the gift over would take 
 effect in case of his death, leaving no child. Else 
 V. Mse, 41 Law J. Rep. (n.s.) Chanc. 213 ; Law 
 Rep. 13 Eq. 196. 
 
 Conditions of sale, settled by the Court in 1871, 
 provided that a conveyance on a sale made by B. 
 in 1838 should be the root of title ; that no objec- 
 tion or requisition should be made with respect to 
 earlier title, and that recitals in deeds twenty 
 years old should be conclusive evidence of the 
 instruments recited. That conveyance purported 
 to recite the will, but stopped short of the final 
 gift over, thus shewing a good title to the fee in 
 B. : — Held, that a purchaser under the Court was 
 not precluded from shewing that B.'s title under 
 the will was defective, and that he was entitled to 
 PisEST, 1870-1875. 
 
 be freed from his contract, and to get all his costs. 
 Ibid. 
 
 (P) Remedies at Law foe Baeach of 
 Contract. 
 
 34. — If one contracts to sell real estate and is 
 unable to complete from want of title, whether he 
 be aware of the defect at the time of entering into 
 the contract, and does not disclose it, or not, and 
 even if he never had title, nor possession, nor any 
 right to possession, yet in the absence of fraud the 
 intending purchaser cannot, in an action for breach 
 of the contract, recover damages beyond his de- 
 posit with interest and costs. Flureau v. Thorn- 
 hill (2 "W. Bl. 1078) approved. Bain v. Fother- 
 gill (H.L.), 43 Law J. Rep. (n.s.) Exch. 243 ; Law 
 Rep. 7 E. & I. App. 158. 
 
 By Lord Chelmsford. — The rule is, without 
 exception, if a person enters into a contract for 
 the sale of real estate knowing that he has no 
 title to it, nor any means of acquiring it, the pur- 
 chaser cannot recover damages beyond the ex- 
 penses he has incurred, by an action for the breach 
 of the contract. He can only obtain other 
 damages by an action for deceit. Hopkins v. 
 Grazebrook (6 B. & C. 31) overruled. Ibid. 
 
 Semble — where the breach of the contract 
 arises not from the vendor's inability, that is, not 
 upon a question of title, but upon a question of 
 conveyancing, as from his own refnsal on the 
 ground of expense, or from whatever other motive, 
 to perform the contract himself, or to compel 
 others whom he can compel to concur in conveying 
 or in giving up possession, the proper remedy is 
 by bill in equity to enforce him to complete, and 
 to compel the completion of the contract. Whether, 
 therefore, Engell v. Mtch (38 Law J. Rep. (n.s.) 
 Q. B. 304 ; Law Rep. 4 Q. B. 659) should be fol- 
 lowed, quaere ? Ibid. 
 
 F. being under contract for the purchase of 
 mining interests of large value, contracted to sell 
 to B.,one of them, a leasehold interest, which was 
 subject to a restraint against assignment, except 
 with the consent of the reversioners. The consent 
 was refused, and F. was unable to complete. F. 
 knew at the time of his contracting with B. that 
 the consent was necessary, but he did not mention 
 it to him : — Held, that B. could not recover in an 
 action for damages any damages for the loss of his 
 contract beyond his deposit with interest and 
 costs. Ibid. 
 
 Damages for defect of title, [See Damases, 
 3, 4.] 
 
 VENUE. 
 
 1. — An action cannot be maintained in the 
 Courts at AVestminster to enforce payment of a 
 freehold rent issuing out of lands situate abroad. 
 Whitaker v. Forbes, 44 Law J. Rep. (n.s.) C. P. 
 332 ; Law Rep. 10 C. P. 583 : affirmed, on appeal, 
 45 Law J. Rep. (n.s.) C. P." 140 ; Law Rep. 1 C. P. 
 Div. 51. 
 
 2. — In an action under 26 Geo. 2. t. 14, s. 2, to 
 recover a penalty against a clerk to justices of the 
 4G 
 
§04 
 
 VENUE— VOLUNTARY SETTLEMENT (B). 
 
 peace for extorting excessive fees from the plain- 
 tiff, the venue is local by 31 Eliz. c. 5, s. 2 ; for 
 26 Geo. 2. c. 14, s. 2, gives a right of action for 
 the penalty to any person, and not to the party 
 grieved alone. Lewis v. Davis, 44 Law J. Eep. 
 (n.s.) Exch. 86; Law Eep. 10 Exch. 86. 
 
 Semhle — per Blackburn, J,, Mellor, J., and 
 Archibald, J., that the power given by 26 Geo. 2. 
 c. 14, to justices of the peace from time to time to 
 make a table of fees may be exercised, although 
 no table was made in 1783 as required by the 
 statute. Ibid. 
 
 3. — Where the defendant, in an application to 
 change the venue, on the ground of preponderance 
 of convenience in a trial at the place to which he 
 seeks to change it, comes by way of appeal from 
 a Judge at chambers, he must make out such a 
 strong case of preponderance of convenience as 
 will satisfy the Court that the determination of 
 the Judge was wrong. CJmrch v. Barnett, 40 
 Law J. Eep. (n.s.) C. P. 138; Law Eep. 6 C. P. 
 116. 
 
 The second resolution of the Committee of 
 Judges as to change of venue by the defendant, 
 referred to in De Rothschild v. Shihton (22 Law 
 J. Eep. (n.s.) Exch. 280 ; 8 Exch. Eep. 506 n.) 
 has never been adopted by the rest of the 
 Judges — per Willes, J. Ibid. 
 
 VOLUNTAEY ASSOCIATION. 
 
 Action by member for excision. 
 Action, 4.] 
 
 [See 
 
 VOLUNTAEY SETTLEMENT. 
 
 (A) OONSIDBEATION. 
 
 (a) Consideration not expressed on face of 
 deed, 
 
 (b) What amounts to payment or benefit. 
 
 (c) Immoral consideration. 
 
 (B) Validity as against Ceeditobs. 
 
 (C) Effect of, on Title of Settlor. 
 
 (D) Enforcement of. 
 (a) Incomplete trtist. 
 
 (6) Liability in respect of false recital. 
 (c) Trusts for maintenaiice of children. 
 
 (E) Setting aside. 
 
 {a) Absence of power of revocation. 
 
 (4) Innocent misrepresentation. 
 
 (c) Suit by creditor in action subsequent to 
 settlement for tort committed be- 
 fore it. 
 
 (A) Consideration. 
 
 {a) Consideration not expressed on face of 
 deed. 
 
 1. — A loan of money repayable on demand is a 
 sufficient consideration to take a settlement out of 
 the operation of the statute of 27 Eliz. u. 4, not- 
 withstanding such consideration may not have 
 
 been expressed on the face of the deed. Bayspoole 
 V. Collins, 40 Law J. Eep. (n.s.) Chanc. 289 ; Law 
 Eep. 6 Chanc. 228. 
 
 (A) What amounts to payment or benefit. 
 
 2. — In deciding whether a deed is voluntary or 
 not, the Court will anxiously lay hold of any cir- 
 cumstances shewing a consideration moving from 
 the grantee to the grantor. Rosher v. Williams, 
 44 Law J. Eep. (n.s.) Chanc. 419 ; Law Eep. 20 
 Eq. 210. 
 
 A contract for sale for value, which had been 
 entered into by a vendor upwards of ninety years 
 of age, was upon his death resisted by his devisee ; 
 first, on the ground of his incapacity and of undue 
 influence on the part of the purchaser (the evi- 
 dence as to which, however, entirely failed) ; and, 
 secondly, on the ground that the vendor had, by a 
 deed executed by him before the date of the con- 
 tract, conveyed the property in fee to the devisee, 
 his great nephew. The deed was expressed to be 
 in consideration of " natural love and affection," 
 and contained a covenant by the grantee to " com- 
 mence " a house upon the property according to 
 plans to be furnished by the grantor ; and that if 
 the grantor failed to furnish such plans, then the 
 grantee " would build such house as he, the 
 grantee, should think fit." No house was ever 
 commenced, and the deed contained no proviso for 
 re-entry, or other penalties for breach of cove- 
 nant. Upon a bill by the purchaser for specific 
 performance, — Held, that the deed- was purely 
 voluntary, there being an absence of any conside- 
 ration, by way of payment or benefit moving from 
 the grantee to the grantor, and specific perform- 
 ance decreed accordingly. Ibid. 
 
 (o) Immoral consideration. 
 
 3. — AVhere a settlement on the settlor's de- 
 ceased wife's sister was founded on the illegal 
 consideration of his marriage with her, and the 
 settled property was legally vested in trustees, 
 the Court declined, on bill by the legal personal 
 representative ten years afterwards, to set aside 
 the settlement. The settlor being partieeps cri- 
 minis, his representative stood in no better con- 
 dition. Distinction between the ease of an obli- 
 gation resting in fieri, and of a completed transfer 
 of specific property, both founded on illegal con- 
 sideration. Ayerst v. Jenkins, 42 Law J. Eep. 
 (n.s.) Chanc. 690 ; Law Eep. 16 Eq. 275. 
 
 (B) Validity as against Cbeditoes. 
 
 4. — A voluntary settlement executed by a man 
 on the eve of going into trade, and whether at the 
 time actually contemplating trade or not, is void 
 as against those who may become his creditors in 
 the course of his trade. MacJcay v. Donglas, 41 
 Law J. Eep. (n.s.) Chanc. 539 ; Law Eep. 13 Eq. 
 106. 
 
 A., while contemplating entering a firm as 
 partner, and being at the time interested with 
 the firm in certain mercantile speculations, but 
 not actually indebted, made a voluntary settle- 
 ment of all his property upon himself, his wife 
 
VOLUNTARY SETTLEMENT (B), (E). 
 
 695 
 
 and family. Six -weeks afterwards lie became 
 partner, and in about seven months from the 
 commencement of the partnership the firm be- 
 came insolvent : — Held, tliat the settlement was 
 fraudulent and void as against creditors. Ibid. 
 
 5. — A debtor made a voluntary settlement, 
 but at the same time he made provision for rais- 
 ing enough money to enable him to pay all 
 his existing debts. He raised the money, paid 
 some, but not all of his debts, and afterwards be ■ 
 came bankrupt. On bill by a creditor, whose 
 debt existed when the settlement was made, — 
 Held, that the settlement was not void under 1 3 
 Eliz. c. 6, as it was not made with a fraudulent 
 intent, and it was not the natural result of it to 
 defeat creditors. Kent y.' Eiley, il Law J. Rep. 
 (n.s.) Chanc. 569 ; Law Rep. U Eq. 190. 
 
 6. — A voluntary settlement was executed, in 
 1865, by a trader who, in 1874, filed his petition 
 for liquidation: — Held, that the settlement was 
 governed by the 91st section of the Bankruptcy 
 Act, 1869, and that, as the trader was unable to 
 shew that he was solvent at the time it was exe- 
 cuted, it was void as against the trustee. Ex 
 parte Dawson ; In re Dawson, 44 Law J. Rep. 
 (n.s.) Bankr. 49 ; Law Rep. 19 Eq. 433. 
 
 [And see Banirtjptct, G 36-38.] 
 
 (C) Effect of, on Title of Settloe. 
 
 7. — Vendor held entitled to a decree for specific 
 performance against a purchaser who had been 
 let into possession, notwithstanding a voluntary 
 settlement by the vendor. Peter v. Nicolls, Law 
 Rep. 11 Eq. 391. 
 
 Effect of, in abstract of title, as to right of 
 purchaser to rescind. [See Vendoe 
 
 A2ro PUHCHASEE, CO.] 
 
 (D) Enfobcement of. 
 
 (a) Incomplete trust. 
 
 8. — The Court will not enforce an incomplete 
 voluntary assignment, evidenced by delivery of a 
 box (r.3taining the key), such box containing 
 what purported to be a written memorandum of 
 gift of real estates and chattels, the memorandum 
 not being under seal. Morgan v. Malleson (39 
 Law J. Kep. (n.s.) Chanc. 680) and Richardson v. 
 Richardson (36 Law J. Rep. (n.s.) Chanc. 653) 
 doxibted. Warriner v. Rogers, 42 Law J. Rep. 
 (n.s.) Chanc. 681 ; Law Rep. 16 Eq. 340. 
 
 (J) Liability in respect of false recital. 
 9. — A married woman executed a voluntary 
 settlement, containing a recital that she had paid 
 2,000Z. to the trustee, and declaring trusts of that 
 sum. In point of fact she had not paid, and never 
 did pay any money to the trustee. The trustee 
 also executed the deed : — Hold, that neither the 
 settlor nor the trustee incurred any oliligation 
 whatever in respect of the 2,000^. Marler v. 
 Tommas, 43 Law J. Rep. (n.s.) Chanc. 73 ; Law 
 Rep. 17 Eq. 8. 
 
 (c) Trusts for maintenance of children, 
 
 10. — By a post-nuptial settlement a sum of 
 15,000^., secured by mortgage of the settlor's pro- 
 perty, was settled upon his children, with power 
 for the trustees to apply the income for their 
 maintenance. The money was never raised or 
 paid to the trustees ; the settlor maintained his 
 children until his bankruptcy: — Held, that the 
 children were entitled to the arrears of the fund. 
 In re Kerrison's Trusts, 40 Law J. Rep. (n.s.) 
 Chanc. 637; Law Rep. 12 Eq. 422. 
 
 The rule laid down in Mundy v. Lord Howe 
 (4 Bro. C.C. 223), and StocJcen v. Slacken (7 Law 
 J. Rep. (n.s.) Chanc. 305), does not apply to vo- 
 luntary settlements. Ibid. 
 
 (E) Setting aside. 
 (a) Absence of power of revocation. 
 
 11. — The authorities do not establish, and there 
 is no foundation in principle for a rule, that a 
 voluntary settlement of real estate containing no 
 power of revocation is voidable at the will of the 
 settlor. Hall v. Hall, 42 Law J. Rep. (n.s.) 
 Chanc. 444 ; Law Rep. 8 Chanc. 430. 
 
 The circumstances of the case were such that 
 a revocable voluntary settlement of real estate 
 would have effectuated the settlor's intentions of 
 providing for her children as well as an irre- 
 vocable settlement. The settlor, however, being 
 free from any fraud or undue influence, executed 
 an irrevocable settlement. She received the rents 
 and managed the property, mortgaged a portion 
 of it, and finally destroyed the settlement, believ- 
 ing it to have been revocable, and that the de- 
 struction of it was a revocation. She then devised 
 the estates comprised in the settlement to trustees 
 upon trusts different from those of the settlement. 
 On a bin filed after the death of the settlor to es- 
 tablish the settlement, and on a cross bill to set 
 it aside and carry otit the trusts of the will, — 
 Held, reversing the decision of one of the Vice- 
 Chancellors (41 Law J. Rep. (n.s.) Chanc. 667; 
 Law Rep. 14 Eq. 365), that there was no ground 
 for setting the settlement aside, and the trusts 
 thereof were directed to be carried into effect. 
 Ibid. 
 
 12. — A young man of improvident habits 
 settled, under the advice of a solicitor, 1,000^., 
 out of 2,700i., to which he was entitled, upon 
 trusts for investment, and to apply the income, or 
 so much thereof as the trustees should consider 
 might be beneficially so applied, for the benefit of 
 the settlor, and any wife or children he might 
 have during his life, with remainder to his wife 
 for life, with ultimate trust in default of issue 
 (the settlor being illegitimate), to relatives of the 
 person from whom he derived his interest. The 
 deed gave the settlor no voice in the appointment 
 of new trustee.s and no power of revocation: — 
 Held, affirming the decision of Stuart, V.C, that 
 the deed was reasonable and proper, and a bill by 
 the settlor to set it aside was dismissed with costs. 
 Coutts V. Ackworth (38 Law J. Rep. (n.s.) Chanc. 
 694) observed upon. Phillips v. Mullings, i\ 
 4g 2 
 
Vob 
 
 'VOLtTNTAEY SETTLlilMENT fE)— -WASTE (A> 
 
 L,nv J. Eep. (n.s.) Chanc. 211 ; 
 Chano. 2i4. 
 
 Law Eep. 7 
 
 (6) Innooent misrepresentation. 
 
 13. — Where a son, tenant in tail in remainder, 
 ehortly after attaining twenty-one, executed a 
 re-settlement, upon a misrepresentation innocently 
 made by his father that a certain subsisting 
 charge was only a charge if the father should so 
 direct, and the release of the alleged powers to 
 charge was the main consideration for the settle- 
 ment : — Held, that it must be set aside. Fane v. 
 Fane, Law Eep. 20 Eq. 699. 
 
 (c) Action subsequent to settlement for tort 
 committed before it. 
 
 14. — ^Nine months after a Toluntary settlement 
 had been made the. settlor became insolvent : — 
 Held, that the onus lay on him to prove that he 
 was solvent at the date of the settlement. A set- 
 tlement was set aside as against creditors gene- 
 rally in a suit instituted by a person who had re- 
 covered judgment against the settlor in an action 
 commenced after the date of the settlement for 
 a tort committed before it. Guardian of infant 
 defendants ordered to pay the plaintiffs costs. 
 . Crossley v. Elworthy, 40 Law J. Eep. (n.s.) Chanc. 
 480 ; Law Eep. 12 Eq. 158. 
 
 Deed obtained by undue influence. [See 
 
 Undue Infltjenoe, 6.] 
 Avoidance of voluntary settlement by bank- 
 [See Bankruptcy, G 36-38.] 
 
 WAGES. 
 
 [See SmppiNB Law, 
 [See Bank- 
 
 . of 
 X 1, 2.] 
 
 - - ■ bankruptcy. 
 EUPTCY, E 28, 29.] 
 
 Forfeiture of wages. [See Master and 
 Servant, 3.] 
 
 Claim for, under Master and Servant Act, 
 1867. [See Master and Servant, 17.] 
 
 Dedtcction of fines under Hosiery Manufac- 
 ture ( Wages) Act. [See Hosiery.] 
 
 WAB, OFEICE. 
 
 [Previous Acts amended, and certain officers 
 for the management of certain departments of the 
 War Office appointed by 33 & 34 Vict. u. 17.] 
 
 WAED OF COUET. 
 
 The proper religion in which an infant should 
 be brought up is that of its father. Hawkswortk 
 V. Hawksuiorth, 40 Law .T. Eep. (n.s.) Chanc. 
 634 ; Law Eep. 6 Chanc. 539. 
 
 It is improper for the Court to question a child 
 of eiglit and a half years upon doctrinal points, so 
 
 as to try to ascertain whether she has any predi- 
 lection for one religion over another. Ibid. 
 
 Stourton v. Stourton (26 Law J. Eep. (n.s.) 
 Chanc. 354, and 8 De Gex, M. & G. 760) con- 
 sidered. Ibid. 
 
 WAEEANTY. 
 
 Warranty. [See Contract, 
 26-29.] 
 
 Of title to bills. [See Bankruptcy, E 1.] 
 In lease of mines. [See Mine, 10.] 
 On sale of goods. [See Sale, 3, 4.] 
 Between landlord and tenant. [See Land- 
 lord AND Tenant, 18.] 
 Of seaworthiness. [See Marine Insurance, 
 37, 38.] 
 
 WAEEEN. 
 
 Grant of a "warren"' does not primA facie pass 
 the soil, though it may do so if such an intention 
 is shown by the context ; therefore, upon con- 
 struction of a grant of certain closes and "all 
 that warren of conies, with all and singular the 
 rights, members, and appurtenances whatsoever 
 in Pi., and ali that lodge or house thereupon built 
 called B. Lodge and all that warren of conies in 
 E., both which said warrens of conies are known 
 by the name of B. Warren, and extend themselves 
 over the wastes of B. : " — Held, that the words 
 " warren of conies " did not pass the soil, nor any- 
 thing more than a right to the conies ; and what- 
 ever was fairly incident to or necessary for 
 preserving or making profit out of them. Flarl 
 Beanchamp v. Winn (H.L.), Law Eep. 6 E. & I. 
 App. 223. 
 
 WASTE. 
 
 (A) What Amounts to Waste. 
 [a) Timber. 
 
 (A) New building. ^ 
 
 (B) ihfJUNCTION. 
 
 (C) Account. 
 
 (D) Damages. 
 
 [Equitable waste by tenants for life without 
 impeachment of waste prohibited as from Novem- 
 ber 2, 1874. 36 & 37 Vict. c. 66, s. 25.] 
 
 (A) What amounts to Waste. 
 
 (a) Timber. 
 
 1. — By the general law (which may, however, 
 be varied by special custom), timber consists of 
 oak, ash, and elm, of the age of twenty years and 
 upwards, provided they are not so old as no 
 longer to have a reasonable quantity of use- 
 able wood in them. Honywood v. Honywood, 43 
 Law J. Eep. (n.s.) Chano. 662 ; Law Eep. 18 Eq. 
 306. 
 
■WASTE (A)-"WATEIlCOTrRSE. 
 
 597 
 
 Except in the case of a timber estate, a tenant 
 for life, impeachable for waste, cannot fell timber. 
 He can fell anything that is not timber, save 
 trees planted for purposes of special utility or 
 ornament, the germens of underwood, and trees 
 which, though too young to be properly timber, 
 would grow into timber. Some, however, even of 
 these last, he may fell, if for the purpose of pro- 
 moting the growth of other timber in the same 
 wood. Ibid. 
 
 The property in timber, felled by a tenant for 
 life, or. any other person, or blown down by a 
 storm, is in the owner of the first vested estate 
 of inheritance, unless he has colluded with the 
 tenant for life to induce him to fell it, in which 
 case equity will not allow him to get the benefit 
 of his own wrong. The property in trees not 
 timber is in the tenant for life, and at law re- 
 mains so, though he may have committed waste 
 by felling them wrongfully, and made himself 
 liable for an action of waste ; but, quaere, if equity 
 would allow him to take the property in trees 
 felled thus. Ibid. 
 
 Where timber which is decaying, or which for 
 any special reason requires to be felled, is feUed 
 with the sanction of the Court, the proceeds are 
 invested and the income is given to the successive 
 owners of the estate, till the fund is taken away 
 by the owner of the first absolute estate of in- 
 heritance. The same course is adopted in eases 
 of equitable waste, where ornamental trees have 
 been felled. Ibid. 
 
 (b) New building. 
 
 2. — The erection of a new building which in- 
 creases the value of the property is not waste, 
 unless it destroy the identity of the property, or 
 impair the evidence of title. Jones v. Ohappell, 
 44 Law J. Eep. (n.s.) Chane. 668 ; Law Eep. 20 
 Eq. 539. 
 
 The owner of a house occupied by weekly 
 tenants is within the rule that a reversioner can- 
 not maintain an action in respect of a temporary 
 nuisance. Ibid. 
 
 Semble — that a weekly tenant can maintain a 
 suit for an injunction against a nuisance in re- 
 spect of his tenancy. Ibid. 
 
 (B) Injitkction. 
 
 3. — Where a person brings ejectment against 
 another to recover certain land, and discontinues 
 his action, he thereby admits that other's posses- 
 sion, and subsequent acts of ownership by him 
 will be looked upon as acts of trespass not putting 
 him in possession, and the person in possession 
 will be entitled to an injunction to restrain him 
 from cutting timber. Lowndes v. Settle (33 Law 
 J. Eep. (n.s.) Chanc. 451) followed. Stanford v. 
 Hurlstone, Law Eep. 9 Chanc. 116. 
 
 (C) Account. 
 
 4, — The right to an account in equity of the pro- 
 ceeds of timber wrongfully felled in commission 
 of waste, is only incident to the right to an in- 
 
 jimotion. Higgiiibotham v. Hawkins, 41 Law J. 
 Eep. (n.s.) Chanc. 828 ; Law Eep. 7 Chanc. 676. 
 
 Where after legal waste has been committed 
 time has run so as to bar the legal remedy in re- 
 spect thereof, the remedy in equity is also barred. 
 Ibid. 
 
 In a case of legal waste in cutting timber com- 
 mitted by a tenant for life, the Statute of Li mi- 
 tations begins to run as against the remainder- 
 man from the time of the waste being committed, 
 or at all events from the time when the proceeds 
 of the timber became money in the hands of the 
 wrongdoer, and not from the time when the estate 
 in remainder falls into possession. Ibid. 
 
 (D) Damaobs. 
 
 5. — A tenant in fee simple having contracted 
 to sell the reversion after his own life, cut down 
 the ornamental timber. After his death, in a 
 suit for the administration of his estate, the pur- 
 chaser of the reversion brought in a claim for 
 damages. In the opinion of the Court the evi- 
 dence did not shew that any injury had been done 
 to the reversion : — Held, that as the purchaser 
 had not applied for an injunction to restrain the 
 cutting, he could not now claim damages. But sem- 
 ble, if he had applied for an injunction, any timber, 
 the loss of which would, in his opinion, have been 
 injurious to the ornamental effect, would have 
 been protected. Buhb v. Yelverton, 40 Law J. 
 (n.s.) Chanc. 38 ; Law Eep. 10 Eq. 465. 
 
 WATEECOUESE. 
 
 Diverging stream confined in artificial course. 
 
 1, — A stream was divided at a spot E., by 
 stones placed there before living memory. Part 
 of the water flowed to a farm-yard, where it en- 
 tered a trough used for watering cattle. The over- 
 flow of water from the trough found a way, not 
 through any definite channel, but by percolation, 
 into a river, which also received the main part 
 of the stream. In 1847 W., who bought the land 
 between E. and the river, together with a mill 
 on the bank of that river, made a reservoir to 
 collect the overflow at the trough, and conducted 
 the water from the reservoir to the mill through 
 a tunnel or covered drain. In 1867 W. conveyed 
 to the plaintiff the mill, together with the right 
 to all waters, reserving to himself a supply of 
 water for domestic and other purposes. The de- 
 fendants, owners of land on the banks of the 
 stream above E., having caused an obstruction of 
 the stream above that point, and having thereby 
 substantially diminished the flow of water to the 
 reservoir, and, consequently, to the mill, the plain- 
 tiff' brought an action against them for the ob- 
 struction : — Held (affirming the decision of the 
 Court of Exchequer, 42 Law J. Eep. (n.s.) Exch. 
 85 ; Law Eep. 8 Exch. 107), that the plaintiff 
 having acquired the right of W. to an undimi- 
 nished flow of water to the trough, and conse- 
 quently a right to the water flowing thence to 
 the mill, was entitled to recover for the obstruQ- 
 
59f8 
 
 WATEECOirRSE-"WATEB BATE. 
 
 tion. HolJcer v. Forritt, 44 Law J. Rep. (n.s.) 
 Exch. 52 ; Law Rep. 10 Exoh. 59. 
 
 Bight to have water diverted. 
 
 2.- -The plaintiff was the occupier of land near 
 the margin of a brook. A canal company, under 
 the powers of their special Act, diverted the 
 greater part of the waters of the brook at a 
 point higher up its ooiu-se into a feeder, so as to 
 prevent them from coming down to the land of 
 the plaintiff. More than forty years afterwards 
 the defendants, a railway company, under the 
 authority of an Act of Parliament, acquired the 
 canal, and having power to discontinue the use of 
 it, made a cut in it so as to allow the water to 
 flow in its ancient coarse, and assigned the por- 
 tion of the canal on which the cut had been made 
 to a purchaser. After the conveyance by the de- 
 fendants, the plaintiff's crops were injured by a 
 flood, owing to the fact that the watercourse 
 during the long interval in which the stream was 
 diminished had become silted up, so as to be no 
 longer sufficient to carry off the flood of water in 
 its old natural state : — Held, that the plaintiff 
 had no cause of action against the defendants, by 
 Blackburn, J., and Hannen, J., on the ground 
 that although a claim to have water, which would 
 otherwise have flowed down to the plaintiff's 
 land, diverted over other land, was a claim to a 
 " watercourse " within the meaning of the Pre- 
 scription Act (2 & 3 Will. 4. c. 71), s. 2, yet that 
 the forty years' enjoyment by the plaintiff had 
 been of too precarious a character to satisfy the 
 statute. ■ By Cockburn, C.J., on the ground that 
 the diversion of the water was made and existed 
 solely for the benefit of the dominant owner, and 
 conferred no right on the owner of the servient 
 tenant. Mason v. The Shrewsbury and Her/ford 
 Railway Company, 40 Law J. Rep. (n.s.) Q, B. 
 293 ; Law Rep. 6 Q. B. 678. 
 
 Right to protection against flood. 
 
 3. — An extraordinary flood arising from na- 
 tural causes is a common enemy, against which a 
 man has a right to protect his own property, 
 although .the damage inflicted by the flood upon 
 his neighbour be thereby increased, provided he 
 does not interfere with the natural outlet of a 
 natural stream. Nield v. The London andj North- 
 Western Railway Company, 44 Law J. Rep. (n.s.) 
 Exch. 15 ; Law Rep. 10 Exch. 4. 
 
 Whether this right of self-protection against an 
 extraordinary casualty exists where the exercise 
 of it interferes with the natural outlet of a natural 
 stream — qusre. Ibid. 
 
 The defendants' premises adjoined a canal 
 which they owned and managed, and the plaintiffs 
 also possessed premises adjoining the canal at a, 
 point higher up. Owing to an extraordinary rain- 
 fall, the waters of a neighbouring river (which 
 did not in any way communicate with the canal) 
 rose, overflowed, flooded the adjacent fields, and 
 broke into the canal. To protect their own pre- 
 mises the defendants placed boards across the 
 canal at a point above their premises and below 
 
 the plaintiffs', after which the water in the canal, 
 swelled by the flood from the river, rose higher 
 and injured the plaintiffs' premises, doing them 
 more damage than it would have done had it not 
 been backed up by the boards : — Held, that as 
 the canal was not a natural stream and the plain- 
 tiffs had no right to the outlet of the canal water, 
 and as the flood had come into the canal from 
 natural causes and had not been brought there by 
 the defendants, the plaintiffs could not maintain 
 an action against them. Ibid. 
 
 Injunction at suit of canal company to restrain 
 
 abstraction of water : rights of riparian 
 
 owners. [See Canai, Company, 2.] 
 Injunction : drawing off subterranean waters. 
 
 [See Injunction, 14.] 
 Pollution of stream. [See Ndisanoe, 1 ; 
 
 Injunction, 16, 19.] 
 
 WATER RATE. 
 
 1.— The Waterworks Clauses Act, 1847 (10 & 
 11 Vict. c. 17), is incorporated with the .New 
 River Company's Act, 1852, and by section 68 of 
 the former Act it is enacted that the water-rates 
 " shall be payable according to the annual value 
 of the tenement supplied with water, and if any 
 dispute arise as to such value, the same shall be 
 determined by two justices." Section 46 of the 
 New River Company's Act, 1852, enacts that 
 " nothing in any Act incorporated therewith shall 
 prevent the company from recovering any sum of 
 money, not exceeding 50i!., which shall be due to 
 them for water-rates," &c., " by action or proceed- 
 ing in such manner as is by law provided for the 
 recovery of debts not exceeding 60^." : — Held, that 
 if a bon&fide dispute as to the annual value of the 
 tenement has arisen before any proceeding has 
 been taken for the recovery of the water-rate, 
 the company must get such value determined by 
 the justices before they sue for the recovery of the 
 water-rate, whether .the same be under or over 
 50^. The Governor and Company of the New 
 River v. Mather, 44 Law J. Rep. (n.s.) M. C. 
 105; Law Rep. 10 C. P. 442. 
 
 Quaere — if the jurisdiction of the Court for the 
 recovery of such rate is ousted, if the dispute as 
 to the annual value has not arisen until after pro- 
 ceedings have commenced in such Court for the 
 recovery of the rate. Ibid. 
 
 2. — The plaintiffs were required by their spe- 
 cial Act to furnish water to every inhabitant 
 occupying a house within a certain district, at a 
 rate which varied according to the amount of the 
 " rent per annum " of such house. The defend- 
 ant was the owner of several houses, which he let 
 to tenants for various terms not exceeding three 
 months. In respect of some of the houses the 
 defendant paid poor-rates, district rates, and 
 water-rates, instead of the tenants, either because 
 he had let the houses on those terms or because 
 the obligation was imposed on him by statute : — 
 Held (affirming the judgment of the Court below, 
 41 Law J. Rep. (n.s.) Exch. 233 ; Law Rep. 7 
 
WATER RATE— WAY (A). 
 
 599 
 
 Exch. 409), that in calculating the water-rate, the 
 payments made by the defendant in either case 
 must be deducted from the rents »t which the 
 houses were let. The Company of Proprietors of 
 the Sheffield Waterworks v. Bennett (Ex. Ch.), 42 
 Law J. Eep. (n.s.) Exch. 121 ; Law Rep. 8 Exch. 
 196. 
 
 WATERWORKS. 
 
 [And see Canal.] 
 
 The defendants, a waterworks company, laid 
 down and maintained, under the powers conferred 
 on them by Act of Parliament, a pipe for the pur- 
 pose of conveying water. The pipe was carried 
 along a turnpike road, the soil of which was in 
 K., who owned the land on both sides. He em- 
 ployed the plaintiff to make a tunnel under the 
 surface of the road which was in that spot raised 
 upon an embankment. In the course of the work 
 the plaintiff was obstructed by water which, with- 
 out the knowledge of anyone, escaped from the 
 pipe. The trustees of the road and the surveyor 
 of highways had consented to the tunnel being 
 made by K. The plaintiff gave notice to the de- 
 fendants, who repaired the. pipe, but not until after 
 the plaintiff had suffered injury by reason of the 
 obstruction to his works : — Held, that the plain- 
 tiff could not maintain an action against the de- 
 fendants. Cattle T. The Stockton Waterworks 
 Company, 44 Law J. Eep. (n.s.) Q. B. 139; Law 
 Rep. 10Q.B. 453. 
 
 WAY. 
 
 (A) CoNSTEirCTlON OF Geant. 
 
 {a) Eight appurtenant or in gross, 
 lb) Nature of right granted. 
 (c) Mode of enjoyment of right. 
 \i) Level crossings over railway. 
 
 (1) Imposing additional burden on ser- 
 
 vient tenement. 
 
 (2) Sestriction of user. 
 
 (B) Obsteuction : Right to go extra Viam. 
 
 (A) CONSTBUCTION OF GeANT. 
 
 (a) Right appurtenant or in gross. 
 l,_'Vyhere, P. having a right of passage from 
 the street to his yard over land of M., P. and M. 
 agreed to make a new passage, and P. released 
 his rights over the old passage, and M. conveyed 
 to him a small strip of land reaching across the 
 end of the new passage where it joined the yard, 
 together with right of way along a passage in- 
 tended to run between such strip of land and the 
 street, — Held, that this right of way was not a 
 right in gross, but appurtenant to the yard occu- 
 pied by P. Aekroyd v. Smith (10 Com. B. Rep. 
 164) distinguished. Injunction granted to P. to 
 restrain tenants of M. occupying warehouses 
 from allowing waggons, &o., to stand in the pas- 
 sage while loading and unloading. Thorpe v. 
 Brimfitt, Law Rep. 8 Chanc. 650. 
 
 (6) Nature of right granted. 
 
 2. — Grant in a lease of full liberty and right 
 of way and passage, and of ingress, egress, and 
 regress to and for the lessee, his workmen, and 
 servants, from time to time during- the continu- 
 ance of the term by, through, and over a certain 
 roadway or passage, jointly with certain persons : 
 — Held, to pass a right of way for foot passen- 
 gers only. Cousms y.Eose, Law Rep. 12 Eq. 366. 
 
 3. — The defendant, the owner in fee of a house 
 called Roseville, with a cottage and stable at- 
 tached to it, allowed the tenant to make an addi- 
 tion to the stable and to construct a hay loft. 
 The only openings to the hay loft were towards 
 an occupation road, part of Rose Cottage Earm, 
 which adjoined Roseville, and was also the pro- 
 perty of the defendant. The defendant further 
 permitted the tenant to take hay and straw along 
 this road to the openings in the hay loft, and the 
 tenant did so for some years without interruption 
 from the defendant or the tenant of Rose Cottage 
 Farm. Subsequently, the defendant conveyed 
 Roseville to the plaintiff in fee, together with 
 " all ways and rights of way, easements and ap- 
 purtenances to the messuage or dwelling-house, 
 cottage, land and hereditaments, or any of them 
 appertaining or with the same or any of them, 
 now or heretofore demised, occupied, or enjoyed, 
 or reputed as part or parcel of them, or any of 
 them, or appurtenant thereto " : — Held, that this 
 passed a right of way along the occupation road 
 for the purpose of carrying hay and straw to the 
 stable. Kay v. Oxley, 44 Law J. Rep. (n.s.) Q. B. 
 210 ; Law Rep. 10 Q. B. 360. 
 
 (c) Mode of enjoyment of right. 
 
 4. — When a private way is granted over a 
 piece of land of stipulated dimensions, the grantee 
 is not entitled to the use of every square inch of 
 the surface of the land. All that the grant con- 
 fers is a reasonable enjoyment of the land as a 
 road. Clifford v. Hoare, 43 Law J. Eep, (n.s.) 
 C. P. 225 ; Law Rep. 9 C. P. 362. 
 
 (d) Level crossings over railways. 
 
 (1) Imposing additional burden on servient 
 tenement. 
 
 5. — The authorities establishing the principle 
 that a right of way cannot be increased by im- 
 posing an additional burden on the servient 
 tenement, do not apply to lands taken by a rail- 
 way company. The United Land Company v. 
 The Great Eastern Railway Company, 43 Law J. 
 Rep. (n.s.) Chanc. 363 ; Law Rep. 17 Eq. 158. 
 
 (2) Sestriction of user. 
 
 6. — A railway company were empowered for 
 the purposes of their undertaking to take marsh 
 lands at Harwich belonging to the Crown, and 
 which had been acquired by the Crown for the 
 purposes of defence ; but they were required by 
 their Act to construct and maintain across, over 
 or under their railway, such communications as 
 the Commissioners of Woods and Forests should 
 
600 
 
 WAY (A)— WILL, CONSTBUCTION. 
 
 adjudge to lie necessary for the convenient use 
 and occupation of the Crown lands. Accordingly, 
 the company took certain lands which lay between 
 the railway and an estuary, and agreed with the 
 commissioners to make four level crossings over 
 their line as communications with these lands. 
 At this time the land was used for grazing pur- 
 poses only. Subsequently it was purchased by 
 the plaintiifs and laid out for building. There- 
 upon the railway company disputed the right of 
 the owners or occupiers of houses on the land to 
 use the level crossings, on the ground that the 
 right of way was restricted to the purposes for 
 which communication with the severed lands was 
 necessary at the time the railway was made : — 
 Held, that the grant of the right of way was not 
 so restricted, but gave the landowners a right of 
 way over the level crossings for all purposes , 
 which would not interfere with the proper work- 
 ing of the railway. The United Land Company 
 {him.) V. The Great Eastern Railway Company, 
 a Law J. Eep. (n.s.) Chanc. 685 ; Law Hep. 10 
 Chanc. 687. 
 
 A right of way acquired by prescription is re- 
 stricted to the purposes for which it was ac- 
 quired. But where such a right is acquired by 
 grant, the limit to the right of user is a question 
 depending on the construction of the instrument 
 of grant. Ibid. 
 
 (B) Obstruction : Eight to go extra Viam. 
 
 7. — If the grantor of a right of way obstructs 
 it, the grantee may go, extra viam, over the 
 grantor's land ; and the grantor or a purchaser 
 with notice from him will not be allowed to ob- 
 struct the substituted mode of access so long as 
 the original obstruction exists. Selby v. Nettle- 
 fold, 43 Law J. Hep. (n.s.) Chanc. 359 ; Law Rep. 
 9 Chanc. 111. 
 
 WEIGHTS AND MEASUEES. 
 
 1. — A person is not liable to the penalty im- 
 posed by the 5 & 6 Will. 4. c. 63, s. 21, for 
 using weights or measures which have been duly 
 stamped or sealed, merely because such stamp or 
 seal has become obliterated by time and use. Starr 
 V. Stringer, Law Eep. 7 C. P. 383. 
 
 2. — The appellant, when in the act of selling 
 provisions upon a highway, used for the purpose 
 of weigliing the said provisions a spring balance 
 which was incorrect, as being against the seller 
 and in favour of the purchaser. No fraud on the 
 public was intended ; — Held, that the spring 
 balance could not be seized under section 3 of 22 & 
 23 Vict. c. 56, nor was the appellant liable to the 
 penalty imposed by that section upon persons 
 having in their possession false or unjust beams, 
 scales or balances. Booth v. Shadgett, 42 Law 
 J. Eep. (n.s.) M. C. 98 ; Law Eep. 8 Q. B. 362, 
 nom. Brooke v. Shadgate. 
 
 WEST INDIES (INOUMBEEED ESTATES). 
 
 [The appointment and jurisdiction of the Com- 
 misssioners for the Sale of Incumbered Estates 
 in the West Indies continued. 38 Vict. c. 9.] 
 
 WIFE. 
 [See Baron and Feme.] 
 
 WILL. 
 
 (1) CONSTBUCTION OF WILLS. 
 
 (A) Parol Evidence of Intention. 
 
 (B) Contingent Wixl. 
 
 (C) Will in Execution of Power. 
 
 (D) Descriptions of Property. 
 
 (a) To what period referable. 
 
 (b) Lands. 
 
 (c) Lands in particular parish. 
 
 (d) Freehold houses : mortgage debt. 
 
 (e) Free occtopanoy of house. 
 
 (f) Leasehold villas with ornamental park, 
 
 (^) Property " specifioally " devised. 
 
 (h) Interim rents. 
 
 (i) Intermediate income. 
 
 {k) Annuity. 
 
 (I) Articles in or about house and pre- 
 mises. 
 
 {m) Furniture, ^o, 
 
 (ffl) " Money " or " moneys." 
 
 (o) Sums due and owing. 
 
 (p) Money in funds ; " small balance." 
 
 (q) Funds purchased out of savings of 
 married woman. 
 
 (r) Personal estate and effects. 
 
 (s) Testamentary expenses. 
 
 (E) Eesiduaey and General Devises and 
 
 Beqtjests. 
 (a) What they comprise. 
 
 (1) Proceeds of real estate passing 
 under gift of personalty. 
 
 (2) Trust and mortgage estates. 
 (i) What words carry residue. 
 
 (1) Gift of particular residue. 
 (i) of lands. 
 
 (is) Fund to provide for annui- 
 ties. 
 
 (2) •• All the rest " carrying real estate 
 not otherwise inentioned. 
 
 (3) Gift without naming donee. 
 (e) Residuary devise whether specific. 
 
 (d) Lapse of share ofresichie. 
 
 (e) Deduction of advances. 
 
 (F) Specific Devises and Bequests. 
 
 (G) Ambiguity and Uncertainty. 
 
 (a) Effect of blank in will. 
 
 (b) Misdescription of legatee. 
 
 (c) Misdescription of property. 
 
 (d) Parol evidence : when admissible. 
 (H) Who take. 
 
 (a) Charitable bequests. 
 
 (b) Gift to a class, 
 
WILL, CONSTRUCTION. 
 
 601 
 
 (1) Lapse. 
 
 (2) Period of ascertaining mem- 
 
 bers. 
 
 (c) Children surviving tenant for life. 
 
 (d) Children or their "families." 
 
 (e) " Children or legal issue." 
 If ) Illegitimate children. 
 
 (1) Whether they can take under 
 gift to children. 
 
 (2) Provisionfor after-born illegitimate 
 
 children. 
 
 (g) Brothers and sisters: brother en 
 ventre sa mere. 
 
 (h) " Nephews and nieces'' 
 
 (i) " Legal personal representatives." 
 
 (A) "Heirs." 
 
 (l) "Relatives" or relations. 
 
 (m) Child en ventre sa mere. 
 
 (») "Eldest son." 
 
 (o) " 'Ekery other son during his life." 
 
 (p) Cri/i to a woman and her children. 
 
 (g) Crift to a woman for life with re- 
 mainder to her husband. 
 
 (r) Per capita or per stirpes. 
 
 (s) Whether executors and trustees take 
 beneficially. 
 (I) What Estate ob Interest passes. 
 
 (a) Joint tenants or tenants in common. 
 
 (i) Joint tenancy or successive in- 
 terests. 
 
 (c) Estate of trustees. 
 
 (1) Whether legal estate passes to 
 trustees. 
 
 (2) Duration of legal estate. 
 
 (3) Annuity to trustee. 
 
 (d) Devise before Wills Act without 
 
 words of limitation. 
 
 (c) Devise of income passing fee. 
 
 (/) 'Repugnant devise or beqiiest. 
 
 Ig) Devise of copyholds. 
 
 (A) Renewable leaseholds: incidence of 
 charges. 
 
 (i) Rule in Shelley's case. 
 
 (k) Estate tail or life estate. 
 
 {I) I/ife estate or absolute interest. 
 
 (m) Absolute gift, whether cut down'. 
 
 (») Absolute gift or trust. 
 
 (o) Trust or charge. 
 
 (p) Gift by implication. 
 
 (j) Advowson : tenancy for life. 
 
 (r) Accumulations of income. 
 (K) Pbecatoey Trusts. 
 (L) Vesting : G-ift over. 
 
 (a) Gift to sons for their lives and 
 " at their death" to tlieir children. 
 
 (b) Gift to children " when and as they 
 should attain twenty-one." 
 
 (c) Gift to class ascertainableut apa/rticular 
 period with declaration as to vesting 
 of shares. 
 
 {d) Gift over on death without issue, 
 
 (1) To what period gift over is refer- 
 able. 
 
 (2) Whether importing indefinitefailure 
 
 of issue. 
 
 (e) Gift over on death " leaving " no issue. 
 Dkjbst, 1870-1875. 
 
 (/) GUfl over in default of "such issue " : 
 
 ambiguity, 
 (g) Implication of cross remainders, 
 (h) " And " for " or " and " or " for 
 
 " and." 
 (i) Gift over on death under twenty-one, 
 (k) Gift ofincomefor maintenance, 
 (l) Direction for payment at twenty-four. 
 {771) Absolute gift at twenty-five : gift over 
 
 on death, 
 (n) Gift over before interest vested. 
 (0) Gift over by implication, 
 {p) Gift over on insolvency, 
 (j) Gift over on failure of trust being 
 
 ascertained, 
 (f) Shifting clause, 
 (M) Hotchpot Clause. 
 (N) Substitution and Suevivokship. 
 
 (a) Substitution in lifetime of testator or 
 
 for life. 
 (6) Period of substitution of issue. 
 (e) Period of survivorship, 
 (c^) " Survivor " read ^* other." 
 (e) " Living " 'held to mean ' ' having issue 
 
 (0) Conditional and Coitoingbnt Gifts. 
 
 {a) Conditional gift fouiided on mistake. 
 
 lb) Impossible condition. 
 
 (c) Devise contingent on non-sale of pro- 
 perty. 
 
 {d) Gift for particular purpose. 
 
 (e) Condition as to residence. 
 
 (/) Condition in restraint of alienation. 
 
 {g) Condition in restraint of marriage. 
 
 (h) Condition not apportionable. 
 
 (i) Gift cum onere. 
 (P) Executory Gifts. 
 (Q,) Trusts bt Eobperence to other Trusts. 
 
 (a) Multiplication of powers, ^c. 
 
 (J) Vesting of leaseholds in tenant in tail. 
 (E) Kemoteness. 
 (S) Particular AVords. 
 
 (2) VALIDITY OF WILLS AND 
 REQUISITE FORMALITIES. 
 
 (A) Competency of Testator. 
 (a) Mental capacity, 
 {b) Undue influence, 
 (c) Onus of proof: suspicious circum- 
 
 (B) What papers are Testamentary. 
 
 (0) What Documents form Part of Will. 
 
 (D) Execution. 
 
 (a) Place of signature, 
 lb) Acknowledgement of signature. 
 (c) Execution of wrong will by mistake. 
 Id) Addition of clause after signature. 
 
 (E) Attestation. 
 
 (a) Form of subscription. 
 
 (6) Incomplete signature by witness. 
 
 (c) Signature as executor. 
 
 {d) Attestation by beneficiary. 
 
 (F) Will of Feme Covert inopbeativii ik 
 
 Events which happened. 
 4 H 
 
602 
 
 WILL, CONSTRUCTION (A), (D). 
 
 (G) Eevocation of Will. 
 
 (a) Alterations and obliterations. 
 (4) Tearing : animus revocandi. 
 (c) Will bv/rnt, but codicil preserved, 
 {d) Sevocaiion by subsequent instrument. 
 \e) Dependent relative revocation. 
 (/) Conditional revocation. 
 (g) Evidence. 
 
 (1) Admissibility of declarations by 
 
 testator. 
 
 (2) Burden of proof as to time of 
 
 cancellation. 
 (H) Republication and Revival of Will. 
 {a) Will of married woman. 
 (6) Revival by codicil. 
 
 (A) Parol Evidence of Intention. 
 
 As to admissibility of parol evidence to ex- 
 plain ambiguity or uncertainty. [See 
 infra G 8-10.] 
 
 [And soe Evidence, 1, 2 ; Legacy, 1, and 
 infra G, H 20.] 
 
 (B) Contingent Will. 
 
 1, — Testator while in India executed tlie 
 foUo-wing paper — "This is to certify that I, 
 Robert Newton, &o., &c., do at this time enjoy- 
 good health, and am of a proper and sound state 
 of mind. And I write this as my last will and 
 testament in case of a sudden or accidental death 
 befalling me in India," &c., &c. : — Held, that the 
 will was contingent on his dying in India, and, 
 as the testator returned and died in Bn^and, that 
 it did not take effect. Jobson v. Ross; In the 
 goods of Newton, 42 Law J. Rep. (n.s.) P. & M. 
 68. 
 
 2. — A will commenced thus : " This is the last 
 will and testament of me, G. T. E., that in case of 
 anything happening to me during the remainder 
 of the voyage, &c., I give and bequeath, &e." : — 
 Held, that it was a contingent will. In the goods 
 of Eobinson, 40 Law J. Rep. (n.s.) P. & M. 16; 
 Law Rep. 2 P. &D. 171. 
 
 3. — Win of a sailor commencing " Instructions 
 to be followed if I die at sea," — Held, contingent. 
 Lindsay v. Lindsay, LavrRep. 2 P. & D. 4.'59. 
 
 (C) Will in Execution of Powee. 
 1, — A testator having a power t.o appoint the 
 income of a fund to his wife for life, and no other 
 power of appointment, by his wiU directed pay- 
 ment of his debts, and then, by a separate clause, 
 devised all property, of whatever description, 
 belonging to him, " or over which he might at 
 his dece&se have any power, disposition or con- 
 trol," to his wife, her heirs and legal representa- 
 tives, in full property for ever absolutely : — Held, 
 that the will operated as an exercise of the 
 power. In re Teap^s Trusts, 43 Law J. Rep. 
 (n.s.) Chane. 87 ; Law Rep. 16 Eq. 442. 
 
 ClogstounY. Waloott (13 Sim. 623) not followed. 
 Ibid. 
 
 2. — R. D. bequeathed his residuary estate to 
 his wife for life, with a general testamentary 
 power over one moiety of it. The wife died, 
 
 having appointed to four persons, two of whom 
 predeceased her and having directed payments of 
 her debts, and appointed an executor : — Held, 
 that the next-of-kin of R. D., and not the next-of- 
 kin of the wife, were entitled to the shares of the 
 two deceased appointees. In re Barnes's Trust, 
 41 Law J. Rep. (n.s.) Chanc. 97 ; Law Rep. 13 
 Eq. 163. 
 
 [And see Powee, 2, 8, 6,] 
 
 (D) Descbiptions op Pbopbety. 
 
 (ffl) To what period referable. 
 
 1. — Testator by his will, dated 1861, devised 
 his " estate called Cleeve Court, vdth the appur- 
 tenances." Between the date of his will and his 
 death in 1866, he made several purchases of land 
 contiguous to his Cleeve Cotirt estate, and 
 evidence was offered to shew he considered theee 
 after-acquired lands to bs part of that estate : — ■ 
 Held, that the accretions to the property passed 
 by the devise. Castle v. Fox, 40 Law J. Rep. 
 (n.s.) Chanc. 302 ; Law Rep. 1 1 Eq. 542. 
 
 (i) Lands. 
 
 2.— The object of the 26th section of the Wills 
 Act (1 Vict. c. 26) was to abrogate a merely 
 technical rule tending in many cases to defeat the 
 intention of a testator using language in a natural 
 sense, and not to establish instead of that another 
 technical rule, which in particular cases might 
 have a like effect in a contrary direction. The 
 section merely shifts the onus probandi in accord- 
 ance with the natural primd facie use of language, 
 and throws it on those who deny that in a will 
 the word " lands " is meant to include customary 
 copyhold and leasehold estates. Frescotty. Barker, 
 43 Law J. Rep. (n.s.) Chanc. 498 ; Law Rep. 
 9 Chanc. 174. 
 
 The eifect of limitations in strict settlement 
 upon such question of construction considered. 
 Ibid. 
 
 (c) Lands in particular parish. 
 [See infra E 3.] 
 
 {d) Freehold houses : mortgage debt. 
 
 3. — The owner in fee of certain land in S. 
 Street leased the same on a building lease, and 
 then took an assignment of the lease by way of 
 mortgage. At the date of his death he was mort- 
 gagee in possession of the land and of certain 
 houses which had been built on it. By his will 
 he devised his Teal and personal estate to trustees, 
 as to trust and mortgage estates, subject to the 
 equities, and as to his " freehold houses in S. 
 Street " upon the trusts therein mentioned : — 
 Held, affirming the decision of the Master of the 
 Rolls (40 Law J. Rep. (n.s.) Chanc. 373 ; Law 
 Rep. 11 Eq. 454), that the mortgage debt did not 
 pass by the devise, but formed part of the testa- 
 tor's personal estate. Bowen v. Barlow, 42 Law 
 J. Rep, (n.s.) Chanc. 82 ; Law Rep. 8 Chanc. 
 171. 
 
WILL, CONSTRUCTION (I)). 
 
 603 
 
 (e) Free occupancy of house. 
 
 4. — Gift of the free occupancy of a house to 
 testator's -wife : — Held, that she had a right to 
 let it. Mannox v. Greener, Law Eep. 14 Eq. 
 456. 
 
 (f) Leasehold mllas.with ornamental park. 
 
 _ 5. — Bequest of six leasehold villas to one for 
 life, and by a subsequent codicil reciting his death, 
 bequest of the same to another, together with 
 any other house testator might build on an 
 adjoining space of ground, "together with the 
 ornamental park I am now forming opposite that 
 cottage and Tillas," for his life : — HelJ, that the 
 legatee could not take the villas without the 
 park, of which the tenure was onerous. Gree7i v. 
 Britten, 42 Law J. Eep. (n.s.) Ghanc. 187. 
 
 Bequest of share of leaseholds held in 
 partnership. [See Legacy, 5.] 
 
 (jr) Property " speciftcally " devised. 
 
 6. — A specific devise or bequest is a devise or 
 bequest by a description which identifies a par- 
 ticular subject then existing as intended to pass 
 to the donee in specie either directly or indirectly. 
 Giles V. Melsom (H.L.) 42 Law J. Eep. (n.s.) C.P. 
 122 ; Law Eep. 6 E. & I. App. 24. 
 
 A testator devised three properties to his three 
 sons respectively for life, with remainder in fee 
 to their respective children, and in case of the 
 death of either of them without issue between the 
 others "in the same manner as the estates de- 
 vised were limited to them respectively," subject 
 to the proviso that if either died leaving a widow, 
 but no children, the widow should have an estate 
 for life in the premises " so specifically devised " 
 to her husband : — Held, that the devise to such 
 widow attached, not only to the property origin- 
 ally devised to her husband, but also to property 
 coming to him under the contingent limitations. 
 Ibid. 
 
 Decision of the Court of Exchequer Chamber, 
 40 Law J. Eep. (n.s.) C.P. 233 ; Law Eep. 6 C. P. 
 532, reversed, and previous decision (39 Law J. 
 Eep. (n.s.) C p. 325) of the Court of Common 
 Pleas alBrmed. Ibid. 
 
 {h) Interim rents. 
 
 7. — Where a testator had specifically devised 
 certain lands, but notice to treat as to such lands 
 was served by a railway company and the pur- 
 chase-money fixed in his lifetime, so that the 
 devise was adeemed, — Held, that the rents re- 
 ceived between the death of testator and the con- 
 veyance of the property passed to the devisee. 
 Watts V. Watts, 43 Law J. Eep. (n.s.) Chanc. 77 ; 
 Law Eep. 17 Eq. 217. 
 
 8^ — ^A testator devised land to the first son of 
 J. M. in tail male, and after making other dis- 
 positions he gave the residue of his property to 
 trustees upon certain trusts. J. M. had no son at 
 the testator's death, but one was born about four 
 months afterwards. The trustees of the residue 
 received the intermediate rents: — Held, that 
 these rents formed part of the residue of the testa- 
 
 tor's estate, the infant son being only entitled to 
 the rents from his birth. In re Mowlem, 43 Law 
 J. Eep. (n.s.) Chanc. 353 ; Law Eep. 18 Eq. 9. 
 
 [And see infra 18.] 
 
 (i) Intermediate income, 
 
 0. — A testator declared a trust of the income of 
 his residuary estate for the separate use of G. 
 (one of three married daughters) during the joint 
 lives of herself and his sons-in-law I. and F. (llie 
 husbands of the other two) ; and after the death 
 of I. and P., or either of them, he directed that 
 their or his widows or widow should participate 
 equally with G. in the said income, so that the 
 same should be enjoyed by his said daughters, and 
 the survivors and survivor of them during their 
 or her lives or life, for their separate use. And 
 upon the death of the last sui-vivor, he gave " the 
 principal or capital " of the said stocks, funds and 
 securities equally between his grandchildren then 
 living who should attain twenty-one. G. died, 
 leaving her sisters and their husbands her surviv- 
 ing : — Held, that the income until both daughters, 
 or one of their husbands, should die, was not dis- 
 posed of by implication or otherwise, but went to 
 the next,of-kin. Isaacson v. Van Goor, 42 Law 
 J. Eep. (n.s.) Chanc. 193. 
 
 (k) Annuity. 
 
 [See Ankxiity.] 
 
 10. — A testator gave all his property to trustees 
 upon trust to pay the income to his wife for the 
 maintenance of herself and his children until the 
 youngest attained twenty-one, when the trustees 
 were to invest a "sufficient sum" to secure an 
 annuity of 501., which was to be paid' to his wife 
 " as the dividends were received ; " and " subject 
 thereto " the trustees were to "divide the whole 
 of his said trust estate " amongst his eight children. 
 Upon the testator's youngest childattaining twenty- 
 one, the5ncome_of the entire property was insuffi- 
 cient to meet the annuity: — Held, that the 
 deficiency was not payable out of the corpus. 
 Michell V. Wilton, 44 Law J. Eep. (n.s.) 
 Chanc. 490 ; Law Eep. 20 Eq. 269. 
 
 Charge of annuity on specifically devised 
 lands: freehench. [See Election, 5,] 
 
 (J) Articles in or about house and premisei-. 
 
 11. — A testator bequeathed his leasehold mill to 
 trustees upon certain trusts, and all the corn and 
 other articles which at his decease should be in 
 or about his dwelling-house, mill or premises, he 
 gave to his two sons absolutely^ — Held, that a 
 cargo of wheat consigned to the testator, and in 
 course of transit on the day of his death, passed 
 to the executors and not to the sons. Lane v. 
 Sewdl, 43 Law J. Eep. (n.s.) Chanc. 378. 
 
 (m) Furniture, ^c. 
 
 12.— Devise and bequest " of all my furniture, 
 &o., with my six freehold houses" (describing 
 4h2 
 
604 
 
 WILL, CONSTEUCTION (D). 
 
 them) : — Held, that waterworks company shares 
 did not pass under the expression, "&c." Bamaby 
 V. TasseU, Law Rep. 11 Eq. 363. 
 
 (m) " Money " or " moneys." 
 
 13. — A testator possessed of a small amount of 
 cash, but of considerable other property, both real 
 and personal, bequeathed his "principal money" 
 to his wife for life and children in remainder :— 
 Held, that the bequest carried all the personalty, 
 ■ including leaseholds. Frichard v. Prichard, 40 
 Law J. Eep. (n.s.) Chanc. 92; Law Eep. 11 Eq. 
 232. 
 
 14. — A testator by his will — after stating that 
 " as for his worldly goods and chattels, he be- 
 queathed them as follows :" gave certain pecuniary 
 legacies to his sons and daughter, and then be- 
 queathed to his daughter " all things in the house 
 remaining" of whatever kind, and "all moneys 
 both in the house and ovA of it." There was no 
 other gift of his residuary estate. The testator had 
 some moneys both in the house and out of it at 
 his death. He had also a sum of consols standing 
 in his name, and some shares in a benefit building 
 society : — Held, that the bequest of " moneys " 
 was specific, and that it did not carry the consols, 
 the shares in the building society, or the residuary 
 personal estate. Gollms v. Collins, 40 Law J. 
 Eep. (n.s.) Chanc. 541 ; Law Eep. 12 Eq. 455. 
 
 15. — A gift of money when accompanied with 
 other gifts which shew that it does not mean the 
 whole personal estate, will include money in the 
 house and at the bankers and arrears of income 
 due under a settlement, but it will not include the 
 apportioned parts of current dividends or a legacy 
 bequeathed to the testatrix by a person who pre- 
 deceased her by less than a year, which at the time 
 of her death remained unassented to by that 
 person's executors. Byrom v. Brandreth, 42 Law 
 J, Eep. (n.s.) Chanc. 824 ; Law Eep. 8 Chanc. 475. 
 
 Bequest of securities for wxiney. [See 
 Legacy, 8.] 
 
 (o) Sums due and owing. 
 
 16. — A testatrix trading in Antigua was enti- 
 tled as next-of kin of her son to an unascertained 
 share in certain partnership assets to which the 
 son had been entitled under a will. She gave all 
 the residue of her estate to trustees upon trust to 
 get in all " sums of money due and owing " to her, 
 to sell her stock, &c., and invest the proceeds for 
 the purposes therein directed; and she gave all 
 the rest and residue to her daughter: — Held 
 (affirming the decision of the Master of the Eolls), 
 that in the absence of any evidence as to the 
 state and nature of the partnership assets, the 
 interest of the testatrix therein under the intes- 
 tacy of her son was not a debt or sum of money 
 due and owing to her, and therefore not being 
 included in the first gift passed under the final 
 gift of residue to her daughter. Martin v. Hobson, 
 42 Law J. Eep. (n.s.) Chanc. 342; Law Eep. 8 
 Chanc. 401. 
 
 17. — Bequest of "all and every sum or sums of 
 
 money which maybe due to me at my decease," — 
 Held, to pass a sum of money recovered by way 
 of damages in an action by a testator's executor for 
 a breach of covenant committed by a lessee of the 
 testator in the testator's lifetime. Bide v. Harrison, 
 43 Law J. Eep. (n.s.) 86 ; Law Eep. 17 Eq. 76. 
 
 {p) Money in funds : " small balance.'' 
 
 18. — Grift "of 4,500?., money in the funds, to 
 my sister for her absolute use and benefit," fol- 
 lowed by specific legacy to her, "and at her 
 decease to H., the funded property to Y : " — Held, 
 a specific gift of ifiOOl. consols, belonging to the 
 testatrix and to her sister for life, with gift over 
 to Y absolutely. Gift of " any small balance in 
 the bank" held to pass a balance of 1,300?. odd. 
 Page v. Young, Law Eep. 19 Eq. 501. 
 
 (q) Funds purchased out of savings of married 
 woman. 
 
 19. — A married woman with separate estate 
 over which she had power of disposition notwith- 
 standing coverture, gave by will the whole of the 
 funds constituting such separate estate upon tru.st 
 for her nephews and nieces, and also bequeathed 
 all funds purchased out of the savings of her 
 separate estate upon the same trusts. She died, 
 leaving a large balance on her current account at 
 her bankers : — Held, that the testatrix had not 
 purchased any funds out of the savings at her 
 bankers, and that such savings were undisposed 
 of, and passed to her husband as administrator. 
 Askew V. Booth, 43 Law J. Eep. (n.s.) Chanc. 368 ; 
 Law Eep. 17 Eq. 426. 
 
 (r) Personal estate and effects. ' 
 
 20. — A testator by his will devised his real 
 estate (subject to certain charges) in strict settle- 
 ment, and gave all his "railway, canal, and navi- 
 gation shares .... and personal estate" to C, 
 his executor, upon trust, to pay his debts and 
 legacies, and gave his " residuary personal estate 
 and effects " to M. The testator was possessed of 
 two navigation shares, which by the Act creating 
 them were made of the nature of real estate. 
 Before the testator's death, the undertaking to which 
 the shares belonged became vested in a railway 
 company, by an Act which provided for the extin- 
 guishment of the freehold rights in the shares, 
 upon their conveyance to the railway company. 
 The testator's shares were never conveyed to the 
 railway company : — Held, that by the railway 
 company's Act, or if not, by the will, they were 
 coverted into personal estate, and went to the 
 residuary legatee under the gift of his "personal 
 estate and effects." Cadman v. Cadman, 41 Law 
 J. Eep. (n.s.) Chanc. 468; Law Eep. 13 Eq. 470. 
 
 (s) Testamentary expenses. 
 
 21. — A direction by a testator that his " testa- 
 mentary expenses " shall be paid out of certain 
 specified property includes the costs of a suit for 
 the administration of his estate. Miles v. Har- 
 
WILL CONSTRUCTION (E), (F). 
 
 605 
 
 rison (43 Law J, Rep. (n.s.) Chano. 685) followed. 
 HaHoe v. Ha/rloe, 44 Law J. Rep. (n.s.) Chanc. 
 471 ; Law Rep. 20 Eq. 471. 
 
 Legacy for maintenance of infant. [See 
 Legacy, 10.] 
 
 (E) Residuary and General Devises and 
 Beqttests. 
 
 (a) What they comprise. 
 
 (1) Proceeds of real estate passing under gift of 
 personalty. 
 
 1. — A testator gave his real estate and residuary 
 personal estate in trust for sale and conversion, 
 and directed his trustees to pay or apply the 
 annual income thereof unto or for the benefit of 
 his four illegitimate children (naming them), as 
 the trustees should think proper, until they re- 
 spectively attained the age of twenty-one years ; 
 and -apon their attaining that age, or, as to 
 daughters, marrying, to pay " the said residue of 
 his said personal estate" unto the said four 
 children equally. The testator's four children sur- 
 vived him, and one of them, a son, died under 
 twenty-one : — Held, first, that the proceeds of the 
 sale of the real estate passed under the gift of the 
 residue of the testator's "said personal estate," 
 and secondly, that the child who died under 
 twenty-one did not take a vested interest under the 
 residuary gift, and that, consequently, there being 
 no gift over, his one-fourth of the residue passed 
 to the testator's co-heiresses and next-of-kin. 
 Spencer v. Wilson, 42^ Law J. Rep. (k.s.) Chano. 
 754; Law Rep. 16 Eq. 501. 
 
 (2) Trust and mortgage estates. 
 
 2. — A testatrix, by her wiU, directed her debts 
 to be paid, and, after giving pecuniary legacies, 
 gave and devised the rest, residue, and remainder 
 of her real and personal estate to T. " for her own 
 absolute use and benefit " : — Held, that the mort- 
 gaged estate passed by the residuary devise, not- 
 withstanding the charge of debts and legacies, 
 which charge extended only to the testatrix's own 
 estate. In re Steven^ Will, 41 Law J. Rep. (n.s.) 
 Ch^nc. 637. 
 
 (6) What words carry residue. 
 (1) 6-ift of particular residue, 
 
 (i) Of lands. 
 
 3. — A testatrix gave certain freehold lands in 
 H., specifically described, to three persons in fee ; 
 she then devised " all the rest of my freehold 
 hereditaments in the parish of" H. to T. B. S. in 
 fee. There was no general residuary devise. The 
 specific gift failed, by reason of its being made 
 upon a secret trust for a charity : — Held, that the 
 land in H. specifically described descended to the 
 testatrix's co-heiresses, and did not pass to T. B. S. 
 Springett v. Jenings, 40 Law J. Rep. (n.s.) Chanc. 
 348; Law Rep. 6'Ohanc. 333. 
 
 (ii) Fund to provide for annuities. 
 4. — A testator gave a fund toparticulartrustees, 
 
 upon trust to invest on freehold mortgage enough 
 to provide for certain annuities, and gave the 
 residue of that fund to his nephew, J. A. The 
 will contained a general residuary bequest. Some 
 of the gifts of annuities, being charitable, were 
 void: — Held, that J. A. took the whole of the 
 particular residue. Aston v. Wood, 43 Law J. 
 Rep. (n.s.) Chanc. 716. 
 
 (2) '^All the rest" carrying real estate not other- 
 wise mentioned. 
 
 5. — A testatrix, after bequeathing a leasehold 
 house and several pecuniary legacies, gave " all the 
 rest " to A. : - Held, that the real estate of the 
 testatrix passed under these words to A. Attree 
 V. Attree, 40 Law J. Rep. (n.s.) Chanc. 192 ; Law 
 Rep. 11 Eq. 280. 
 
 (3) Gift without naming donee. 
 
 6. — D., by his will, gave all his properly to his 
 executor upon trust for the purposes of his will, 
 and after gifts of SOOl. to a daughter, and five 
 shillings a week to his son, X D., bequeathed the 
 remainder of his property "and any other pro- 
 perty of which I may die possessed, and I nomi- 
 nate and appoint my sou, R. D.," sole executor ; 
 hut the testator omitted to say to whom he be- 
 queathed the remainder : — Held, that the testator 
 had failed to express his intention, and that there 
 was an intestacy as to the residuary real and 
 personal estate. Driver v. Driver, 43 Law J. Rep. 
 (N.s.) Chanc. 279. 
 
 (c) Residuary devise whether specific. 
 
 7. — A residuary devise of land is specific as 
 well since as before the Wills Act (1 Vict. c. 26). 
 Lancefi^ld v. Iggulden, 44 Law J. Rep. (n.s.) Chanc. 
 203; Law Rep. 10 Chanc. 136. 
 
 {d) Lapse of share of residue. 
 
 8. — A testator bequeathed his residue to B. and 
 six others "and their respective executors, ad- 
 ministrators and assigns, to whom I bequeath the 
 same accordingly, and I declare that such shares 
 shall be vested interests in each of my residuary 
 legatees immediately upon the execution hereof :" 
 — Held, that on C. B.'s death before the testator 
 died her share lapsed and did not go to her per- 
 sonal representatives. Browne v. Hope, 41 Law 
 J. Rep. (n.s.) Chanc. 475; Law Rep. 14 Eq. 343. 
 
 (c) Deduction of advances, 
 
 . 9, — M. on the marriage of his daughter cove- 
 nanted to settle 8,500?., and he advanced 2,000/. 
 to purchase a share in a business for his son ; by 
 his will he gave the residue of his property equally 
 between his daughter and son : — Held, that these 
 advances were both pro tanto in satisfaction of 
 the children's shares. Stevenson v. Masson, 43 
 Law J. Rep. (n.s.) Chano. 134;LawRep. 17Eq. 78. 
 
 (F) SpEciric Devises and Bequests. 
 
 A testator gave certain legacies to his trustees 
 and to his wife, and then gave to his trustees 
 
606 
 
 WILL, CONSTRUCTION (F), (G). 
 
 copyhold and leasehold property, and all the 
 stocks, funds, and seciirities, and all sums of 
 money in his house or at his bankers, or else- 
 where at the time of his death, and also all debts 
 or sxims of money and securities for money owing 
 to him, upon trust to pay to his wife in addition 
 to the legacies and bequests therein given an 
 annuity, and subject to the annuity gave this 
 property to two children equally. He then gave 
 several other specific bequests and gave the residue 
 of his property to trustees upon trust for his wife, 
 but subject to the payment of debts, legacies, 
 and other charges : — Held, that the gift of copy- 
 hold and leasehold properties, and of stocks, 
 funds, securities, and debts was specific, and that 
 as there was no residuary estate out of which to 
 pay the legacies they must fail. Roffey v. Early, 
 42 Law J. Eep. (n.s.) Chanc. 472. 
 
 [And see supra D 6, 14, B 3, 7.] 
 
 (Gr) Ambiguity and XlNCEBTAmTY. 
 
 (a) Effect of blank in will. 
 
 1. — Testator purported to give a legacy, but 
 left the sum blank. A little further on the sum 
 of " ZOl." occurred casually in the middle of a 
 direction to the executors to sell testator's furni- 
 ture, &c. — Held, that a legacy of ZOl. was given. 
 Hihbert v. Hibbcrt, 42 Law J. Eep. (n.s.) Chanc. 
 383 ; Law Eep. 16 Eq. 372. 
 
 2. — A will, after gifts of legacies and direction 
 for payment of funeral expenses, contained the 
 
 words : " I leave to my sister, M. P." : — 
 
 Held, there was a gift of residue. Perkins v. 
 Fladffaie, 41 Law J. Eep. ^n.s.) Chanc. 681 ; Law 
 Eep. 14 Eq. 54. 
 
 3. — Bequest to " each of my four nieces," the 
 daughters of J., 500^., with a blank after the word 
 nieces. There were five daughters of J. : — Held, 
 that the blank was not sufficient to take the case 
 out of the settled rule and that each of the five 
 was entitled to 500^. McKcchnie v. Vaughan, 
 Law Eep. 15 Eq. 289. 
 
 [And see supra E 6.] ' 
 
 (6) Misdescription of legatee. 
 
 4. — A testator bequeathed personalty among his 
 nephew John and his niece Hannah, and the 
 children of his late nephew, Mark Ingle, and his 
 niece Eliza. The testator had a brother, Mark 
 Ingle, who was dead at the time of his making his 
 will, and who had left children, a nephew, Mark 
 Ingle, who was alive, and had children at the date 
 of the will, and a nephew, Eobei-t Ingle, who was 
 dead at that date, and had left one child : — Held, 
 that the children of the living nephew, Mark, 
 took, and that there was a gift to the niece Z., 
 and not to her children. In re Ingle's Trusts, 40 
 Law J. Eep. (n.s.) Chanc. 310; Law Eep. 11 Eq. 
 678. 
 
 5. — A testator directed an annuity to be bought 
 for " M. E., his housekeeper." At the date of his 
 will and his death E. R., the sister of M. E., was, 
 and had been for some time, his housekeeper, and 
 
 M. R., who was his housekeeper nine years before, 
 "had changed her surname by marriage: — Held, 
 that the description and not the name was mate- 
 rial, and that the housekeeper took the annuity 
 though wrongly named. In re Nmm's Will, 44 
 Law J. Rep. (n.s.) Chanc. 255; Law Rep. 19 Eq. 
 331. 
 
 6. — A will and three codicils of a testator had 
 been proved. The will contained a gift of 2,800Z. 
 each to the York and Leeds Hospitals, the second 
 codicil reciting the gifts in the will added 1,5001. 
 to each of these gifts, the third codicil purported 
 to revoke the last will, except a gift therein of 
 1,000^. to St. Catherine's College, which it pur- 
 ported to confirm. The will contained no such 
 gift. By the third codicil the testator gave 261. 
 to the Rev. J. D. C. Wickham, describing him as 
 curate of Holy Trinity Church. J. D. C. Wick- 
 ham had- never been curate of Trinity Church : — 
 Held, that the will which had been admitted to 
 probate was revoked by the third codicil, although _ 
 inaccurately referred to, that the intervening codi- 
 cils were not revoked, that St. Catherine's College 
 was entitled to ihe legacy of 1,000?., which the 
 testator purported to confirm by the third codicil. 
 That the Rev. J. D. C. Wickham was entitled to 
 the legacy of 251., although wrongly described, 
 and that neither the instructions for the will nor 
 any evidence of intention could be adduced to 
 shew that he was not the person for whom the 
 legacy was intended. Farrer v. St. Catherine's 
 College, Cambridge, 42 Law J. Eep. (n.s.) Chanc. 
 809 ; Law Eep. 16 Eq. 10. 
 
 [And see Legacy, 1-3 ; and infra Nos. 8-10.] 
 
 (c) Misdescription of property. 
 
 7. — Testatrix devised " all that my share and 
 interest in the messuages, lauds, and premises, 
 called or known by the name of the Dyflfrydd and 
 the Little Djflfrydd, situate in the parish of Kin- 
 nerley, in the county of Salop, now in the occupa- 
 tion of Mr. John Edwards." The testatrix was en- 
 titled to an undivided moiety of a compact estate 
 containing 224 aclres, all held under one title, part 
 of which was called the Dyffrydd, and the rest the 
 Little Dyffrydd, the bulk of which answered the 
 description contained in the will. There were, 
 however, in the estate two small fields which, 
 though in the occupation of John Edwards, were 
 not in the parish of Kinnerley and county of Salop, 
 but in the parish of Llandisilio and county of 
 Montgomery ; and one field which, though in the 
 parish of Kinnerley, was not, and never had been 
 in the occupation of John Edwards :— Held, that 
 the leading words which defined the subject of 
 the devise were "the lands known as the Dyffrydd 
 and the Little Dyffrydd," and that they were not 
 restricted by the words which followed, which 
 were merely an erroneous description, and might 
 be rejected. Hardwick v. Hardwick, 42 Law J. 
 Eep. (n.s.) Chanc. 636 ; Law Eep. 16 Eq. 168. 
 
 Railway shares and railway stock, [See 
 
 Legacy, 6.] 
 Shares in specif ed names. [See Legacy, 7.] 
 
WILL, CONSTRUCTION (G), (H). 
 
 607 
 
 {d) Parol evidence : wlien admissible. 
 
 8. — In construing a will the Court may, for the 
 purpose of identifying the person or thing intended 
 as the object or subject of the testator's bounty, 
 enquire into every material fact, and all the ex- 
 trinsic circumstances which were known to the 
 testator, relating as well to the person who claims 
 or the thing claimed as to the testator's family 
 and affairs. But the Court may not admit any 
 direct extrinsic evidence of the testator's intention, 
 unless there are more than one person or thing 
 equally answering the description he has used. 
 Charier v. Charter (H. L.), 43 Law J. Eep. (n.s.) 
 P. & M. 73 ; Law Rep. 7 E. & I. App. 364. 
 
 Where the object of the testator's bounty is not 
 correctly named, or is described by a name which 
 is only in part correct, then, if there is enough in 
 the will, when read with the knowledge of sur- 
 rounding circumstances, to shew who it was that 
 the testator intended to benefit, so that, if the 
 incorrect or partially correct description by name 
 were expunged, the gift would not be void for 
 uncertainty, the indications of intention discover- 
 able in the rest of the will are to prevail over 
 those which arise from the use of the inaccurate 
 or only partially correct description by name. 
 Ibid. 
 
 A testator by his will appointed his son, 
 "Forster Charter," his executor, and made him 
 his general devisee. At the date of the will he 
 had two sons, William Forster Charter and Charles 
 Charter. Another son, who was named Forster 
 Charter, had died many years before. The elder 
 son was usually called Willie — never Forster. 
 He for many years had lived 100 miles or more 
 away from his father, was married, and he carried 
 on an independent business as butcher. The 
 younger son, Charles, lived with his father and 
 mother, working on their farm. The will directed 
 the "executor, Forster Charter," to pay to the 
 testator's wife an annuity of 101., and to allow her 
 ordinary maintenance " so long as they reside 
 
 together in the same house But should 
 
 they think proper to live separately, then, besides 
 the annuity and the maintenance, the said ' Forster 
 Charter ' shall allow my wife, rent-free, the use of 
 the cottage," which adjoined his house. Any 
 difference between the executor and widow as to 
 the latter's maintenance was to be referred to the 
 arbitration of a person named, who lived near the 
 testator's farm. On the hearing of the case before 
 the Judge Ordinary, Lord Penzance, evidence of 
 the testator's intention to make Charles Charter 
 his executor and devisee was admitted: — Held, 
 that such evidence was not admissible. But that, 
 from the words, "so long as they reside together," 
 and from the other directions above mentioned, 
 there was enough to shew that the testator in- 
 tended to name his younger son, Charles, and that 
 the demonstration of the legatee thus afforded 
 must prevail over the incorrect description of the 
 legatee by the name " Forster Charter." Ibid. 
 
 Lord Chelmsford and Lord Hatherley dissented 
 on the ground that there were not in the will any 
 indications of intention that Charles should be the 
 executor so plain that they ought to be allowed 
 
 to prevail over the partially correct description by 
 name of the elder son and heir. Ibid. 
 
 [For the reports of the above case in the Courts 
 below, see 40 Law J. Eep. (n.s.) P. & M. 41 ; 
 41 lb. 10 ; Law Rep. 2 P. & D. 315.] 
 
 9. — The testator appointed as his executrix 
 " Georgiana Geraldine do Bellin," but there was 
 no person answering to the description. He left 
 a granddaughter named " Adelaide Geraldine de 
 Bellin," and a great granddaughter (who was only 
 six months old at the date of the execution of the 
 will) named " Georgiana Geraldine Kate de Bellin": 
 —Held, that extrinsic evidence was admissible to 
 shew whom the testator intended to designate by 
 the description " Georgiana Geraldine de.Bellin ; ' 
 and the evidence shewing that his granddaughter, 
 Adelaide Geraldine de Bellin, was the person whom 
 he meant, probate of the will was decreed to her 
 accordingly. /» the goods of O'Reilly, 43 Law J. 
 Rep. (n.s.) p. & M. 8. 
 
 10. — Testatrix, after making specific bequests 
 to his niece Clara and "my niece Laura, second 
 daughter of my brother, J. H. W.," bequeathed as 
 follows : " to each of my nieces, K. G., H. M. T., 
 H. B,. and Laura W. the sum of 50Z.," and further 
 bequeathed "to each of my nieces C. W., Laura 
 W., R. W., M. E. S. S. and E. G. S,, the sum ,of 
 100^., and gave the residue " in trust for the said 
 M. E. S., Laura W., E. G. M. and R. W." It ap- 
 peared that the testatrix had two nieces, one 
 Laura W., a daughter of her brother J. H. W., 
 and the other Laura Frances Tompkins W., a 
 daughter of her brother William W. Parol evi- 
 dence had been entered into to shew which Laura 
 was intended :— Held, that in the first gift the 
 person who was intended was accurately described ; 
 that there was no latent ambiguity and that parol 
 evidence was not admissible ; that the same Laura 
 W. mentioned in the first gift took both the lega- 
 cies of bOl. and lOOZ. and also the share of the 
 residue. Webber v. Corbett, 43 Law J. Rep. (n.s.) 
 Chanc. 164 ; Law Rep. 16 Eq. 615. 
 
 [And see supra No. 6,] 
 
 (H) Who taice. 
 
 (o) Charitable bequests. 
 
 1. — Testator bequeathed several annuities pay- 
 able out of the income of his residuary personal 
 estate, and to abate rateably if the securities pro- 
 vided for them proved insufficient, directing the 
 surplus income to be accumulated till the death of 
 the survi'i'ing annuitants. He bequeathed his 
 residuary personalty to be paid and divided into 
 five public charities according to the amounts set 
 after their names in the will. The sum of lOOZ. 
 only was set after the name of each charity. 
 There was a very large amount of personal estate 
 after providing for the annuities ; and the testator 
 left no next-of-kin : — Held, that the charities were 
 entitled to the whole of the residuary pure per- 
 sonalty ; but that, being charities, they could not 
 now call for the payment of the sui-plus to them, 
 and the accumulations must go on till further 
 order. HarbinY.MastermaniiO Law J.Rep.(N.s.) 
 Chanc. 760; Law Eep. 12 Eq. 659. 
 
608 
 
 WILL, CONSTRUCTION (H). 
 
 2. — A bequest of 2001. "to each of ten poor 
 clergymen of the Church of England, to be selected 
 by A." is not a charitable bequest. Thomas y. 
 Howell, 43 Law J. Rep. (n.s.) Ohane. 799 ; Law 
 Eep. 18Eq. 198. 
 
 3- — S. bequeathed 600Z. arising from such part 
 of his estate as should not be secured upon mort- 
 gages or chattels real, to apply the income to keep 
 in good repair the tombstones of himself and 
 several of his relatives, and directed the surplus 
 income to be given away on his birthday in charity : 
 — Held, that the prior gift to keep the tombstones 
 in repair being void, the whole fund went to the 
 charity. Bcmson v. Small, 43 Law J. Rep. (n.s.) 
 Chanc. 406 ; Law Eep. 18 Eq. 114. 
 
 [And see Charity, 12-24.] 
 
 {h) Gift to a Class. 
 (1) Lapse. 
 
 4. — A gift to all the nephews and nieces of a 
 testatrix's late husband who were living at the 
 time of his decease (excepting two by name), — 
 Held, a gift to a class, so that the shares of two 
 who predeceased the testatrix survived to the 
 others. Dimond v. Bostock, Law Rep. 10 Chanc. 
 368. 
 
 [And see infra No. 7.] 
 
 (2) Period of ascertaining m£mbers. 
 
 5. — By will the residue of a testator's real and 
 personal estate was given to trustees upon trust 
 to convert and get in as soon as conveniently might 
 be after the testator's decease, and to invest the pro- 
 ceeds and assign the same unto all and every tes- 
 tator's grandchild or grandchildren (except T. E, 
 B. H., or such grandchild as should then be in 
 possession of certain real estates before specifically 
 devised) as should "then be living," to be divided 
 between them when and as such grandchild or 
 grandchildren should respectively attain twenty- 
 one : — Held, that the period of ascertaining the 
 legatees was the time when the eldest of the 
 grandchildren, who were to share in the residue, 
 attained twenty-one. Hilliard v. Fulford, 42 
 Law J. Eep. (n.s.) Chanc. 624. 
 
 6, — Eeal and personal property was bequeathed 
 on trust for division among such of the testatrix's 
 grandchildren as should attain twenty-one equally, 
 with power for the trustees, during the' minority 
 of any of the children, to raise money for mainten- 
 ance : — Held, that the objects of the gift were 
 ascertained on the eldest child attaining twenty- 
 one, to the exclusion of after-born children. Gi/mb- 
 lett V. Perton, 40 Law J. Rep. (n.s.) Chanc. 556 ; 
 Law Eep. 12 Eq. 427. 
 
 Iredell V. Iredell (25 Beav. 485) andiBatemati v. 
 Gray (Law Eep. 6 Eq. 215) disapproved of. 
 Ibid. 
 
 7. — A testator by his will, which recited and 
 was intended to carry into effect articles made on 
 the marriage of his daughter, devised certain real 
 property to trustees to the use of the husband for 
 life, or until bankruptcy or insolvency, and after 
 
 bankruptcy or insolvency to the use of trustees 
 upon trust during the joint lives of husband and 
 wife, to pay the rents and profits to the wife for 
 her separate use, with remainder to the wife for 
 life, with remainder to trustees to preserve con- 
 tingent remainders, with remainder, subject to 
 power of appointment, to the children of the mar- 
 riage in fee as tenants in common, with benefit of 
 survivorship, and if only one child then to that one, 
 and in case every child, "born or to be born," 
 should die under the age of twenty-one years, and 
 without leaving lawful issue, born or to be born 
 in due time afterwards, then "to the use of the 
 heirs and assigns " of the wife " as if she had con • 
 tinned sole and unmarried." AH the children 
 died in the lifetime of the testator, but one had 
 attained the age of twenty-one years. The hus- 
 band became insolvent, and afterwards joined 
 with the wife in a conveyance to such uses as she 
 should by deed or will appoint. She appointed 
 by will to the defendant. The plaintiff was 
 heir-at-law both to the testator and to the wife. 
 In an action of ejectment brought to recover pos- 
 session of the property, — Held, that the words 
 " born or to be born," must be referred to the 
 time of making the will, and not to the death 
 of the testator, that this was therefore not the 
 case of a devise to a class that failed, but a case 
 of lapse, and the plaintiff was entitled as heir-at- 
 law of the testator. — Held, also, that the devise 
 to the heirs and assigns of the wife " as if she 
 had continued sole and unmarried," was a limita- 
 tion to her collateral heirs which would not 
 coalesce with the life estate previously limited to 
 her, and that the word "assigns" did not give 
 her a power of disposition over the property. 
 Broohman v. Smith, 40 Law J. Eep. (n.s.) Exch. 
 161 ; Law Rep. 6 Ex. 291. 
 
 [And see infra No. 24.] 
 
 (c) Children surviving tenant for life. 
 
 8. — Bequests of residue to a testator's niece for 
 life, with a direction that his trustees after her 
 decease should divide such residue amongst all 
 her children who should be living at her decease, 
 the same to be a vested interest in them respec- 
 tively on their attaining twenty-one, " but not to 
 be transferred until after the decease of the testa- 
 tor's niece :" — Held, reversing Stuart, V.C, that 
 the children of the niece who attained twenty-one,- 
 and died in her lifetime, were excluded from the 
 bequest. Williams v. Haythorne. Williams v. 
 Williams, Law Rep. 6 Chanc. 782. 
 
 (d) Children or their "families." 
 
 9. — Devise of freeholds to C. and his heirs, and 
 " in case he should die leaving no issue, then 
 equally between my surviving children or their 
 families " : — Held, a gift (on the death of C. with- 
 out is.sue) to the children of the testator, and the 
 children of such of them as were dead, as to such 
 children in joint tenancy. Burt v. Hellyar, 41 
 Law J. Eep. (n.s.) Chanc. 430; Law Eep. 12 
 Eq. 160. 
 
WILL, CONSTRUCTION (H). 
 
 609 
 
 (e) " CkUdren or legal issue." 
 
 10, — A testator devised lands to his daughterA. 
 in fee and by codicil ordered that the lands given 
 by his will to A. and her heirs, &c., should not be 
 so given but to all " the children or legal issue" 
 of A. his daughter to be divided amongst them 
 equally after the decease of his daughter A. and 
 her husband ; — Held, that all -the children of A. 
 living at the death of the testator (three of whom 
 died in her lifetime) and those who were born 
 afterwards took, subject to a life estate in A., 
 vested interests in fee to the exclusion of remoter 
 issue, who would, however, have been entitled if 
 there had been no sueh children ; in such case or 
 would be read and. Holland v. Wood, Law Rep. 
 11 Eq.91. 
 
 (/) Illegitimate children, 
 
 (1) Whether they can take under gift to children. 
 
 11. — In construing a will, a gift to " children " 
 may include existing illegitimate ohilJren, if from 
 expressions in the will, or from the state of the tes- 
 tator's family at the date of the will, the probability 
 that he intended them to take is sufficiently strong, 
 and this although the gift may be capable of 
 being extended to future legitimate children, so 
 that such future legitimate children would take 
 with the illegitimate children as a class under the 
 same gift. HUl v. Crook (H.L.), 42 Law J. Rep. 
 (n.s.) Chane. 702 ; Law Rep. 6 E. & I. App. 265. 
 
 A testator by his will left property for his 
 daughter, whom he described as Mary, the wife of 
 John Crook. Mary was not in law the wife of 
 John Crook, though she had gone through the 
 ceremony of marriage with him, he being the 
 widower of her deceased sister. The property was 
 to be held in trust for her for life to her separate 
 use, "independent of her present or any future 
 husband," with remainder to her " children." 
 There was issue of the union between Mary and 
 John Crook four children, of whom two were living 
 at the date of the will, and were always recognised 
 by the testator as his grandchildren :— Held, that 
 the two children living at the date of the will took 
 under the bequest to the children of Mary Crook. 
 Ibid. 
 
 Decision of the Court of Appeal in Chancery 
 (40 Law J. Rep. (n.s.) Ohanc. 216 ; Law Rep. 6 
 Chane. 311) affirmed. 
 
 12. — A testator having two illegitimate children 
 by M., married her, and by his will, executed the 
 day after his marriage, gave all his property " to 
 my wife M."for life, with liberty to direct the dis- 
 posal of the property amongst " our children by 
 will," in 'default to be divided "equally between 
 my children by her." The testator in his lifetime 
 acknowledged the two illegitimate children to be, 
 and treated them as, his children, and died with- 
 out having had any other children by M., leaving 
 her and the two illegitimate children surviving: — 
 Held, in a suit instituted by M. to administer the 
 estate of the testator, that the two illegitimate chil- 
 dren were the objects of the p'lwer of appoint.- 
 ment given to M., and would take iu.def.iult as the 
 children of the testator by her. Further, that they 
 
 DioEST, 1870-1875. 
 
 were not precluded from taking by the fact that 
 the testator might have had future legitimate 
 children by M., for such cliildren would have taken 
 as a class with the existing legitimate children. 
 Dorin V. Dorin, 43 Law J. Rep. (n.s.) Chane. 462; 
 Law Rep. 17 Eq. 463. 
 
 Wilkiiisnn-^.Adam (1 Ves. & B. 422), Beacharoft 
 V. Beachcroft (1 Madd. 430), and other authorities 
 considered. Ibid. 
 
 But this decision was reversed on appeal to the 
 House of Lords, their Lordships holding that the 
 word "children"!!! awill means pnMj(?/acie" legiti- 
 mate children" and cannot be extended beyond 
 that meaning, and, therefore, that tlie property 
 was undisposed of, subject to the widow's life 
 interest. Law Rep. 7 E. & I. App. 668. 
 
 13. — A testator bequeathed moneys in trust after 
 the decease of his daughter for " all the children 
 of his said daughter whether by her present puta- 
 tive husband or by any other person whom slie 
 might marry, who should attain the age of twenty- 
 one years, their executors, administrators and 
 assigns. But in ease his said daughter should die 
 leaving no issue either by her said putative hus- 
 band or by any other person, who should attain the 
 age of twenty-one years," then over. The testator 
 at the date of his will knew that his daughter had 
 an illegitimate son by J. B., with whom she was 
 then living, and he recognised this son as his 
 grandchild. After the testator's death, his daughter 
 married J. B., but had no other child: — Held, 
 that the illegitimate child was sufficiently desig- 
 nated by the will, and he having acquired a vested 
 interest on attaining twenty-one, and Ins mother 
 being sixty-seven years of age, that they were 
 entitled to liave the fund transferred to them. 
 In re Brown's Irusts, 43 Law J. Rep. (n.s.) Chane. 
 84; Law Rep. 16 Eq. 239. 
 
 14. — A testator bequeathed trust funds and 
 moneys " In trust for all the children, to be equally 
 divided amongst them, their respective executors, 
 administrators and assigns, of my brother 
 H. M. W., of my nephew A. W. D., of my sister 
 H. C. D., and of my niece M. B., of Jamaica, and 
 my nephew G. D. himself (if he shall be then 
 living, but not otherwise, the said G-. D. taking a 
 share with all such children), and the respective 
 shares of such children to be absolutely vested on 
 my decease." H. M. W. was dead at the date of 
 the will. He left three illegitimate children 
 only, who survived the testator. There was 
 enough in the case to enable the Court to pre- 
 sume that the testator was aware of the state of 
 H. M. W.'s family : — Held, following In re Her- 
 berts Trusts (1 Jo. & H. 121 ; 29 Law J. Rep. 
 (n.s.) Chane. 870), that the children of H. M. W. 
 could take under the bequest. Held, also, that 
 G. D. took two shares under it : the one vested ; 
 the other vested subject to be divested. Milne v. 
 Wood, 42 Law J. Rep. (n.s.) Chane. 545. 
 
 15. — Gift to the child or children of testators 
 niece C. held not to include C.'s only child, who 
 was illegitimate, although C. was fifty years old 
 at the date of the will and fifty-seven at the 
 date of a subsequent e5dicU. Pa,ul v. Children, 
 Law Rep. 12 Eq. 16 
 
 4 I 
 
610 
 
 WILL, CONSTRffCTION (H). 
 
 (2) Provision for after-bom illegitimate children, 
 
 16. — A gift by ■will by a testator or testatrix to 
 his or her illegitimate children by a particular 
 person is good as well as to a child born after as 
 before the date of the will, if the child obtains the 
 reputation of being such a child before the death 
 of the testator or testatrix. In, re Goodwin's 
 Trusts, 43 Law J. Eep. (n.s.) Chanc. 258 ; Law 
 Eep. 17 Eq. 346. 
 
 17. — Under a bequest to a testator's reputed 
 children C. and E. and all other the children 
 which he might have or be reputed to have 
 by M. L. (his deceased wife's sister, witli whom 
 he had gone through the ceremony of marriage), 
 then born or thereafter to be born, a child en ventre 
 sa mSre at the date of the will, who was born and 
 acquired in his lifetime a name by reputation as 
 the testator's child by M. L. — Held, (reversing a 
 decision of Wickens, V.C.,42 Law J. Eep. (n.s.) 
 Chane. 514), Lord Selborne, L.C., dissentiente, en- 
 titled to share ; and held by the Lords Justices 
 that every child who on the will coming into 
 operation had acquired such a name by reputation 
 would be entitled to share in such bequest ; and 
 that a provision by will for a testator's future 
 illegitimate children is not contra bonos mores. 
 Occleston v. Fallalove, 43 Law J. Eep. (n.s.) Chanc. 
 297 ; Law Eep. 9 Chanc. 147. 
 
 The decision of Wood, V.C, in Howarih v. Mills 
 (Law Eep. 2 Lq. 389) disapproved of. Decision 
 of Wickens, V.C, reported 42 Law J. Eep. (n.s.) 
 Chanc. 514; Law Eep. 9 Chanc. 148«., reversed. 
 Ibid. 
 
 {g) Brothers and sisters : brother en ventre 
 sa rn^re. 
 
 18. — ^Bequest to brothers and sisters, the shares 
 of brothers to vest at twenty-one, and those of 
 sisters at twenty-one or marriage ; — Held, that a, 
 brother not born, thoM^la en ventre samereyilien tl\a 
 eldest brother attained twenty-one, was excluded. 
 In re Gardiner's Estate. Garratt v. Weeks, Law 
 Eep. 20 Eq. 647. 
 
 (A) " Nephews and nieces." 
 
 19. — A testator having several nephews and 
 nieces, the children of his only sister, and two 
 great nephews, A and B, the children of a deceased 
 niece, gave an estate to A, the eldest of the two 
 great nephews. He then gave another estate upon 
 trust for his sister for life, and after her death to 
 be sold, the proceeds to be divided between B and 
 such other of his nephews and nieces as should be 
 living at his or liis sister's decease. Throughout 
 his will he used the word " great nephew "when he 
 intended A, with one exception where he called 
 him his nephew : — Held, that great nephews and 
 great nieces other than B. were not entitled to any 
 share in the proceeds of sale of the estate devised 
 in trust for sale. In re Blower's Trusts, 42 Law 
 J. Eep. (N.s.) Chanc. 24; Law Eep. 6 Chanc. 351. 
 
 Decision of Stuart, V.C, Law Eep. 11 Bq. 97, 
 reversed. 
 
 20. — Gift by the testator to his nephews and 
 niece.?, he having none of his own and no possibi- 
 
 lity of having any, — Held (affirming the decision 
 of the Master of the EoUs, 42 Law J. Eep. (n.s.) 
 Chanc. 353 ; Law Eep. 16 Eq. 305), to apply to 
 his wife's nephews and nieces. Sherratt v. Mownt- 
 ford, 42 Law J. Eep. (n.s.) Chanc- 688 ; Law Eep. 
 8 Chanc. 928. 
 
 There being no evidence that there was any 
 other class that could be intended, evidence that 
 the testator did not mean his wife's nephews and 
 nieces was held inadmissible. Ibid. 
 
 21. — The testatrix by will made this bequest : 
 ' ' I give to my niece A. B. my large china dish 
 and basin and three china plates." A. B. was not 
 the niece by blood of the testatrix, but of her 
 husband. 'The will contained other specific be- 
 quests to nephews and nieces who were the testa- 
 trix's nieces by blood. The testatrix also be- 
 queathed a sum of 6001. to two trustees upon trust 
 for investment and for payment of the income to 
 her sister E. B. for life, and after her decease she 
 bequeathed the capital equally amongst the whole 
 of her nephews and nieces who should be living 
 at her decease, declaring that in case any nephew 
 or niece should have died before the period of 
 distribution leaA^ing issue, the share of such nephew 
 and niece was to go to such issue ; and the tes- 
 tatrix directed her trustees to di\-ide the residue 
 of her household furniture and effects amongst, 
 and gave and bequeathed all the residue of her 
 personal estate and effects to, all her nephews and 
 nieces who shoidd be living at the time of her de- 
 cease in equal shares. The testatrix died, leaving 
 eleven nephews and nieces by blood, seven being 
 the children of a sister and four the children of a 
 brother. At the date of the will, and death of 
 the testatrix, there were nine nephews and nieces 
 by blood of her husband living, eight of them 
 (including A. B.) being children of one and one 
 being the child of another of the testatrix's hus- 
 band's sisters : — Held, that neither A. B. nor the 
 other children of the testatrix's husband's sisters 
 were entitled to share in the household furniture 
 or residuary estate. Wells v. Wells, 43 Law J, 
 Eep. (n.s.) Chanc. 681 ; Law Eep. 18 Eq. 504. 
 
 (i) " Legal personal representatives." 
 [See Makbiage Settlement, 12-14.] 
 
 {Jc) " Heirs." 
 
 22. — Bequest of personalty to the " heirs " of a 
 testatrix's brother, — Held, a bequest to his next- 
 of-kin according to the Statute of Distributions. 
 The circumstance that the testatrix had devised 
 real estate to a person "and to her heirs and 
 assignees," was held to make no difference. Ware 
 ■^.Rowland (15 Sim. 587) observed upon. Inre 
 Steevens' Trusts, Law Eep. 15 Eq. 110. 
 
 {I) " Relatives " or relations. 
 
 23. — Gift of residue " to my relatives share and 
 share alike as the law directs " : — Held, divisible 
 amongst the relatives under the Statute of Dis- 
 tributions per stirpes and not per capita. 
 V. Ashworth, Law Eep. 20 Eq. 410. 
 
WILL, CONSTRUCTION (H). 
 
 611 
 
 24. — Upon gift to relatives after the death of 
 A. and B. : — Held, first, that relatives meant the 
 persons who would take under the Statutes of 
 Distribution. Secondly, that the class was to be de- 
 termined at the death of the testatrix.^ Thirdly, 
 that the members of it took as joint tenants. Eagles 
 V. Le Breto-n, 42 Law J. Eep. (n.s.) Chanc. 362 ; 
 Law Eep. 15 Eq. 148. 
 
 25. — Gifts of various legacies to relations of 
 the testator, describing their relationship, and 
 amongst such gifts the following — "I also give 
 and bequeath to my niece, T. J., wife of S. J., or 
 their heirs; the sum of 400^." ..." I also give 
 and bequeath to J. B., who married my niece, 
 M. A. H., but is dead without leaving issue, the 
 sum of 100/." T. J. was an illegitimate child of 
 the testator's sister, and J. B. was, as described, 
 only a relation by affinity ; and there were other 
 legatees in the same position as each of them. 
 After some gifts to strangers, and other disposi- 
 tions, the testator continued — ' ' If the whole of my 
 property makes more than the whole amounts 
 mentioned in this my will, I request it to be divided 
 amongst myrelations in proportion to their separate 
 amounts " : — Held, that this residuary gift in- 
 cluded only such of the legatees as were relations 
 by blood. Hibbert v. Hibbert, 42 Law J. Rep. (n.s.) 
 Chanc. 383 ; Law Rep. 15 Eq. 372. 
 
 («») Child en ventre sa mere. 
 
 26. — In construing a will, a child en ventre sa 
 mere is treated as living where the effect is to leave 
 to the child an interest vested or contingent which 
 any other construction would take away from it, 
 unless there is a clear contrary intention. Pearce 
 V. Carrington, 42 Law J. Rep. (n.s.) Chanc. 616: 
 afiBrmed, on appeal, 42 Law J. Eep. (n.s.) Chanc. 
 900 ; Law Rep. 8 Chanc. 969. 
 
 (») " Eldest son." 
 
 27. — A gift to " all and every the sons of A. save 
 and except an eldest son " cannot be held to in- 
 clude an onli/ son of A. " Eldest " is equivalent to 
 " first horn." Tkite v. Benningham (H.L.), Law 
 Rep. 7 E. & I. App. 635, on appeal from the 
 Master of the Rolls in Ireland. 
 
 [And see Mareiage Settlement, 5.] 
 
 (o) " Every other son dwing his life." 
 
 28. — Devise of real estate on the death without 
 issue of the eldest sou of J. S., "to the use of every 
 other son of J. S. and the assigns of such son 
 during his life, with remainder to trustees to pre- 
 serve &c., and after his decease to the use of such 
 son's first and every other son successively" in tail 
 male : — Held, that the younger sons of J. S. took 
 as tenants in common for life, with remainder, as 
 to the share of each, to his sous in tail with cross- 
 remainders in tail. Surtees v. Surtees, Law Rep. 
 12 Eq. 400. 
 
 {p) Gift to a woman and her children, 
 
 29. — Bequest of residue to M. and such of her 
 children, " including her two eldest sons," as should 
 attain twenty-one. In a previous part of the will 
 
 was contained a bequest in trust for M. for life> 
 with remainder to her children surviving her who 
 should attain twenty-one, excluding the two eldest 
 sons : — Held, that M. took a life estate in the 
 residue with remainder to such of her children as 
 should attain twenty-one. In re Owen's Trusts 
 Law Rep. 12 Eq. 316. 
 
 [And see infra I 28-31.] 
 
 (j) Gift to a woman for life with remainder to 
 her husband. 
 
 30. — A gift to an unmarried woman for life 
 with remainder to her husband in fee gives a 
 vested remainder in fee to her first husband. 
 Radford v. Willis, 41 Law J. Eep. (n.s.) Chanc. 
 19 ; Law Rep. 7 Chanc. 7. 
 
 if) Per capita or per stirpes. 
 
 31. — Devise and bequest to the testator's wife 
 for life and after her decease as follows : — "one 
 half to my brothers and sisters for their life, and 
 then to come to their children, and in the same 
 manner to my wife's brother and brother's children 
 and grandchildren." At the date of the will the 
 testator had one brother and three sisters living, 
 another brother and another sister having died 
 leaving children. At the same date there was one 
 wife's brother living, two wife's brothers having 
 died, of whom one left children and grandchildren. 
 The testator's wife and brothers and sisters pre- 
 deceased him, but his wife's brother survived : — 
 Held, that one moiety was divisible among ' the 
 children living at the testator's death, of all his 
 brothers and sisters per stirpes; that the wife's 
 brother took a life estate in the other moiety, and 
 that after his death it was divisible among all the 
 children and grandchildren Uving at the testator's 
 death, or coming into existence during the lifetime 
 of the tenant for life, of himself and the other 
 wife's brothers who left children or grandchildren, 
 families taking ptr stirpes and children and grand- 
 children of each family per capita. Barnaby v. 
 Tassell, Law Rep. 11 Eq. 363. 
 
 32. — Devise and bequest of residue to the tes- 
 tator's children A., B., C, D., E., and " to the 
 children of his daughter F. deceased," and "the 
 children of his daughter G. deceased, to be divided 
 amongst them in equal shares and proportions : — 
 — Held, that the grandchildren took per capita 
 and not per stirpes. Payne v. Webb, Law Eep. 1 9 
 Eq. 16. 
 
 [And see infra N, 5.] 
 
 (s) Whether executors and trustees take beneficially. 
 
 33.— The statute 11 Geo. 4. & 1 "Will. 4. c. 40, 
 was not intended to introduce any new rule for the 
 construction of wills, and does not therefore apply 
 where there is an express gift of residue to an 
 executor. Its effect merely is that an executor is 
 to be a trustee for the next-of-kin, unless it ap- 
 pears by the will that he was intended to take 
 beneficially. Williams v. Jrkle (H.L.), Law Rep. 
 7 E. & I. App. 606. 
 
 Will (of a testator who had a sister, wife, and 
 
 two illegitimate children) appointing G. execatoi , 
 
 4i2 
 
%1^ 
 
 ■WILL, CONSTRUCTION (II), (I). 
 
 and trustee if lie should sur\ivc him, but if ho 
 should die in his lifetime 13. Gift of legacies of 
 1,OOOZ. each to G. and B., 2,000/. to a great 
 nephew, and 100/. apiece to the wife and children. 
 Gift of annuities to wife, children and sister. 
 Gift of freeholds and leaseholds (specially de- 
 scribed) and all other real estate and residue of 
 personal estate to G. " for all my estate therein if 
 he shall be alive at my decease," and if not then to 
 B. " for all my estate therein." Power to trustee 
 to change investments, to be guardian of children 
 during minority, and other usual powers : — Held 
 {dissentiente Lord Chelmsford), that G. took bene- 
 ficially. Ibid. 
 
 34. — Will appointing two of the testator's sons 
 executors, and giving various legacies, but contain- 
 ing no residuary bequest. Codicil directing the 
 executors and the three principal legatees to pay 
 all expenses of administration &c., "it being the 
 testator's desire that no part of the said expenses 
 should be borne by the residuary legatees of his 
 will : " — Held, that the executors were not benefi- 
 cially entitled to the residue, but that there was 
 an intestacy. Travers v. Travers, Law Eep. 14 
 Eq. 275. 
 
 Legacy to execiUor. [See Legacy, 4.] 
 
 (I) What Estate oe Interest passes. 
 {a) Joint tenants or tenants in common. 
 
 1, — Gift to A. and B. (in terms creating a joint 
 tenancy) followed by a proviso for survivorship to 
 B. if A. died without children ; — Held, to create 
 a tenancy in common. Syves v. Eyves, 40 Law J. 
 Eip. (n.s.) Chanc. 252 ; Law Rep. 11 Eq. 639. 
 
 2. — The testator gave and devised his real 
 and personal estate to his wife for the use and 
 benefit of herself and all his children : — Held, 
 reversing the decision of one of the Vice-Chan- 
 cellors (40 Law J. Eep. (n.s.) Chanc 640 ; Law 
 Eep. 12 Eq. 432), that the wife and children took 
 as joint tenants. Netoill v. NewUl, 41 Law J. Eep. 
 (n.s.) Chanc. 432 ; Law Rep. 7 Chanc. 253. 
 
 3. — The words " all and every the child and 
 children," — Held to create a joint tenancy. Mor- 
 gan r. Britten, 41 Law J. Rep. (n.s.) Chanc. 70 ; 
 Law Eep. 13 Eq. 28. 
 
 4. — A direction that a class should take " be- 
 tween them " creates a tenancy in common. The 
 Altorney-Generaly. Fletcher, 41 Law J. Rep. (n.s.) 
 Chanc. 167; Law Rep. 13 Eq. 128. 
 
 5. — A testator, after giving by his will his 
 residuary estate to ,T. J. and W. F., in terms which 
 would create a joint tenancy, by codicil directed 
 that J. AV. should participate in the bequest with 
 J. J. and W. F. : — Held, that the residuary lega- 
 tees took as tenants in common. Eobertsnn v. 
 Fraser, 40 Law J. Rep. (n.s.) Chanc. 776 ; Law 
 Eep. 6 Chanc. 696. 
 
 6. — A testator gave property to the children 
 of A. li'i'ing at a prescribed period, and the issue of 
 deceased children, so as such issue should have no 
 greater share than their parents would have taken 
 if living, and he afterwards provided that if any 
 one or more of such issue should be then dead, 
 having left lawful issue, then the issue of such 
 
 issue as should be so dead should receive the 
 share which their, his or her parent would have 
 taken if living:— Held, that the eJffect was to 
 create a joint tenancy amongst the members of 
 the various families, subject to this, that if anyone 
 died leaving issue it must be considered for the 
 purpose of determining the share which such issue 
 were to take, as if he had survived the period of 
 distribution, but had severed the joint tenancy at 
 the date of his death. Held, also, that the issue 
 of gi'andchildren of A. must be confined to children, 
 and that the issue of a grandchild who was dead 
 at the date of the will took. Heasman v. Pearse, 
 41 Law J. Rep. (n.s.) Chanc. 705 ; Law Eep. 7 
 Chanc. 275 : on appeal, from Malins, V.C., 40 Law 
 J. Rep. (n.s.) Chanc. 258 ; Law Eep. 11 Eq. 522. 
 
 The words " then living," though in one clause 
 of a will they were held by virtue of the above- 
 mentioned proviso to refer to the period of distri- 
 bution, were in another clause to which the proviso 
 was held inapplicable, considered to refer to the 
 death of a tenant &r life. Ibid. 
 
 [And see supra H 24, and infra M 4.] 
 
 (6) Joint tenancy or successive interests. 
 
 7. — A testator by will directed that the share 
 of his daughter should accumulate during the life 
 of her husband, and after his death, if there should 
 be any children living, " it should be secured for 
 their benefit and that of their mother ; " if no 
 children, that it should go to the daughter abso- 
 lutely : — Held, that after the death of her husband 
 the daughter was entitled to the income for life, 
 and with remainder to her children. Combe v. 
 Hughes, 41 Law J. Eep. (n.s.) Chanc. 693 ; Law 
 Rep. 14 Eq. 416. 
 
 [And see supra H 29.] 
 
 (e) Estate of trustees. 
 (1) Whether legal estate passes to trustees. 
 
 8. — A testator devised a freehold to trustees 
 for the benefit of E. for life for her separate use, 
 and after her death upon triists for such of the 
 children of E., as being sons should attain twenty- 
 one or being daughters should attain that age or 
 marry. E. died after the testator, leaving an in- 
 fant daughter who did not marry before attaining 
 twenty-one : — Held, that the legal estate was in the 
 trnstfes, and the daughter of E. took the property 
 on attaining twenty-one, but the interim rents went 
 to the testator's residuary devisee. In re Eddels' 
 will, 40 Law J. Eep. (n.s.) Chanc. 316 ; Law Eep. 
 11 Eq. 559. 
 
 On a petition for payment out of the interim 
 rents which had been paid in under the Trustee 
 Relief Acts, the Court decided that the legal estate 
 was in the trustees. Ibid. 
 
 9. — A testator devised freehold and copyhold 
 estates to trustees, their heirs, executors, adminis- 
 trators and assigns, upon trust during the natural 
 life of his son A. to receive the rents and profits 
 thereof, and to pay the same to A. and his assigns 
 during his life, or permit him to receive the same. 
 
■WILL, CONSTEtrOTION (I). 
 
 61S 
 
 And aiter the decease of A., the testator devised 
 the same to the sole use and behoof of the "heirs 
 of his body hiwtully begotten. The testator ap- 
 pointed the trustees and another executors, and 
 declared that the receipts of his trustees and 
 executors should be good discharges : — Held, on 
 demurrer to a bill for specific performance of an 
 agreement for the sale of freeholds and copyholds, 
 that there was a legal estate in the trustees and 
 their heirs during the life of A. in the copyholds, 
 and demurrer allowed as to the copyholds. 
 Baker v. Parson (42 Law J. Rep. (n.s.) Chanc. 228 
 not followed. Houston v. Hughes) 6 B. &. C. 403 
 commented on. Baker v. White, 44 Law J. Eep. 
 (n.s.) Chanc. 651 ; Law Rep. 20 Eq. 166. 
 
 [And see infra No. 20.] 
 
 10. — A testator, who died in 1826, heing a 
 mortgagee of Blackacre devised real estate (except 
 mortgage and trust estates) on certain trusts, and 
 de^-ised mortgage estates to the trustees upon trust 
 for reconveyance on payment of the mortgage 
 debts. He afterwards entered into a contract to 
 purchase the equity of redemption in Blacliacre, 
 and paid the purchase-money, but no conveyance 
 was executed : — Held, that by the contract he had 
 acquired a new absolute interest, that thereby the 
 devise in the will was revoked, and Blackacre was 
 thereby undisposed of, that no dry legal estate 
 remained in the trustees, and that there was no 
 express trust within the Statute of Limitations to 
 support the claim of the heir, who had lain by for 
 more than twenty years. Yardley v. Holland, Law 
 Eep. 20 Eq. 428. 
 
 (2) Dii/ration of legal estate. 
 
 11. — E. made the following will : " Subject to 
 the payment of my just debts, funeral expenses, 
 &c., I give and bequeath to my wife the clear 
 rentals of my two dwelling-houses (which were 
 leasehold), Nos. 17 and 19 in P. Street; and after 
 the decease of my wife two other dwelling-houses, 
 &c., I leave to my son R. as well as the house 
 No. 17 P. Street. And I direct that my son R. is 
 to have no power or authority whatever to receive 
 any rents from the said property, except so far 
 as to receive his share of any surplus existing after 
 payment of ground rent, &c., but that the said 
 rents shall be received and all matters appertain- 
 ing to the property aforesaid to be under the 
 management of the executor and executrix. And I 
 also direct that after his decease his share of the 
 property be equally divided between his children ; 
 but should he die without leaving lawful issue, I 
 then direct that the same be equally divided 
 amongst the sur^^ving children of my daughter 
 M. A., share and share alike. I appoint my son- 
 in-law, J. C, and his wife, M. A., my executor and 
 executrix." The executors proved the will, and 
 received the rents, and paid those of No. 17 to the 
 widow during her life, and after her death to E., 
 who died without leaving issue : — Held, first, that 
 the assent of the executors to the particular 
 estates was an assent to the bequest in remaind er. 
 
 Secondly, that the executors took the legal estate 
 in No. 17 as trustees, though there was no direct 
 bequest to them, but that the performance of the 
 trust only required that the legal estate should be 
 vested in them during the lives of the widow and 
 R., and on the death of the latter without issue, 
 the legal estate vested in the surviving children of 
 M. A. Stephe7ison v. The Mayor and Corporation 
 of Liverpool, 44 Law J. Rep. (n.s.) Q. B. 34; 
 Law Rep. lOQ.B. 81. 
 
 (3) Annuity to trustee. 
 
 12. — An annuity was given by will to A. B., 
 one of the trustees of the testatrix, " so long 
 as he should continue to execute the office of 
 trustee under her will : " — Held, that the an- 
 nuity ceased when the estate was handed over to 
 a cestui que trust absolutely entitled. Hull v. 
 Christian, 43 Law J. Rep. (n.s.) Chanc. 861 ; Law 
 Rep. 17 Eq. 546. 
 
 {d) Devise before Wills Act without words of 
 limitation. 
 
 13. — A testator by a will made before 1838, 
 gave to his wife, whom he nominated executrix, 
 certain land, without words of limitation, and all 
 his personalty, but if she married again, the land 
 was to be reserved by trustees and sold for the 
 benefit of all his children equally. Then he di- 
 rected, " that my executrix shall pay my eldest 
 son the sum of bl. a year for wages, as long as he 
 shall continue to labour on the farm after my de- 
 cease : " — Held (affirming the judgment below, 40 
 Law J. Rep. (n.s.) Exch. 132 ; Law Rep. 6 Exch. 
 190), that the wife's estate was, by the direction 
 to pay wages, enlarged from an estate for life to 
 an estate in fee defeasible on her marrying again. 
 Also, that the estate for life was so enlarged, be- 
 cause the testator's intention that his wife should 
 take the fee could be collected from the gift over 
 in the event of her marrying again. Pickwell v. 
 Spencer (Exch. Ch.), 41 Law J. Rep. (n.s.) Exch. 
 73 ; Law Rep. 7 Exch. 105. 
 
 (c) Devise of income passing fee. 
 
 14. — Devise to children of an equal share in all 
 the income of real estate, — Held, to pass the fee. 
 Mannox v. Greener, Law Rep. 14 Eq. 466. 
 
 (/) Bepugnant devise or bequest. 
 
 15. — A testator devised " to my mother . . . 
 all my real and personal estate . . . and 
 knowing that what I . . . devise . . . 
 to my said mother will become the prope'rty of her 
 husband, R. G. . . . I therefore declare the 
 intention of this my will to be that the said R. G. 
 being my . . . mother's husband and a kind 
 stepfather to me shall hold and enjoy all my said 
 real and personal estate ... to him, his 
 heirs, executors, administrators, and assigns for 
 ever, and to be absolutely at his free will and dis 
 posal, provided that he does not at any time dis- 
 pose of any portion of my said property to any or 
 either of my late father, T. G.'s family : " — Held, 
 that the mother took a life estate and interest in 
 
b'i4 
 
 "WILL, CONSTRTJCTION (I). 
 
 the realty and personalty, and her husband a re- 
 mainder in fee in the realty, and an absolute in- 
 terest in remainder in the personalty. Grawnor 
 T. Watkins, 40 Law J. Eep. (n.s.) C. P. 197 ; Law 
 Eep. 6 C. P. 500. 
 
 And held, by the Exchequer Chamber, that, 
 whatever might be the exact nature of the estate 
 of the mother, her husband took at all events a 
 remainder in fee in the realty after her decease. 
 40 Law J. Kep. (n.s.) 0. P. 220 ; Law Rep. 6 0. P. 
 500. 
 
 16. — A testator gave all his real and personal 
 estate to trustees upon trust to pay the residue of 
 his personal estate to his wife for her own absolute 
 use and benefit, and after several other devises he 
 gave all the money, if any, that should be remain- 
 ing after payment of his wife's just debts, &c., to 
 legatees named : — Held, that the widow took an 
 absolute interest in the residuary personal estate. 
 Ferry v. Merritt, 43 Law J. Eep. (n.s.) Chanc. 
 608; Law Eep. 18 Eq. 152. 
 
 {g) Devise of ( 
 
 17. — A devise of copyhold estate under the 
 Wills Act (7 Will. 4. & 1 Vict. u. 26), s. 3, con 
 veys no estate to the devisee before admission, and 
 where the devisee does not intervene, the heir has 
 a right to be admitted. Garland v. Mead, 40 
 Law J. Eep. (n.s.) Q.B. 179 ; Law Eep. 6 Q. B. 
 441. 
 
 (A) Retiewable leaseholds : incidence of charges. 
 
 18. — W. T. was beneficially entitled for his 
 life to renewable leaseholds for three lives held on 
 trust to renew and subject to certain charges. 
 All the cestuis qtie vie having died, and W. T.'s 
 right to renew being disputed by the reversioner, 
 the trustee of the leaseholds, with the consent of 
 the persons entitled to the charges, in order to 
 facilitate the obtaining of a renewal, transferred 
 the legal estate to W. T. by a deed which recited 
 (though contrary to the fact) that the charges had 
 been paid by AV. T. Thereupon W. T. obtained a 
 ' renewal (without prejudice to the question in dis- 
 pute), and to avoid litigation, purchased the re- 
 version in fee. He subsequently paid off the 
 charges and mortgaged the premises in fee. By 
 his will, reciting that the charges were subsisting, 
 he devised his interest in the premises to T. T. 
 subject to the charges : — Held (aiBrming the de- 
 cision of Bacon, V.C., 41 Law J. Rep. (n.s.) Chanc. 
 673 ; Law Eep. 14 Eq. 295), that T. T. took the 
 fee subject to the charges. Trumper v. Trumper, 
 42 Law J. Eep. (n.s.) Chane. 641 ; Law Eep. 8 
 Chanc. 870. 
 
 (i) Eule in Shelley's case. 
 
 19. — Devise (after 1837) of copyholds and free- 
 holds to trustees to hold unto them and their heirs 
 on trust to pay unto or permit A. to receive the 
 rents during his life, and after his death to the 
 use of the heirs of his body, with a gift over in 
 case he died without leaving issue : — Held, that 
 A. took an equivalent estate for life with a legal 
 remainder to the heirs of his body in both the 
 freeholds and copyholds. Baker v. Parson, 42 Law 
 J. Eep. (n.s.) Chanc. 228. 
 
 The Statute of Uses not applying to copyholds, 
 on a devise of freeholds and copyholds together, 
 the legal estate in the copyholds attracts that in 
 the freeholds and makes it vest in the first devisee. 
 Ibid. 
 
 Copyholds are, however, to the same extent as 
 freeholds, subject to the nde that the legal estate 
 in the trustee shall be construed to be the smallest 
 estate necessary for the execution of the trust. 
 Ibid. 
 
 20. — A testator, by will, dated in 1827, de- 
 vised his estate to trustees and their heirs upon 
 trusts that they and their heirs should stand 
 seised of the same during the life of W. C, and 
 until the whole of the testator's debts and the lega- 
 cies were paid, upon trust, to set and let the same 
 and apply rents and yearly profits and the value of' 
 whatever timber might be considered at its best 
 growth, from time to time, in discharge of his 
 debts and legacies until they were paid, and from 
 thenceforth to pay the rents to W. C. during his 
 life ; and after W. C.'s death, and payment of the 
 debts and legacies and expenses, the testator de- 
 vised t he estate to the heirs of the body of W. C, 
 and for default of such issue, to his own right 
 heirs. In 1830 the trustees by deed reciting that the 
 debts and legacies were paid, conveyed the estates 
 to W. C. for his life. W. C. shortly afterwards 
 suffered a common recovery, and then mortgaged 
 the estate in fee to W. In 1861 W. C, the father, 
 and W., his mortgagee, had filed a bill for a con- 
 veyance of the fee against the heir of the surviving 
 trustee and W. C, the son (W. C.'s heir-apparent). 
 W. C, the son, instead of asking to be dismissed 
 as not being heir during his father's lifetime, put 
 in an answer disputing the plaintiff's title. In 
 1865 a decree was made for the conveyance of the 
 fee to the plaintiff. W. C, the father, had since 
 died. This suit was instituted in 1873 by W. C, 
 the son, against W., the mortgagee: — Held, 1. 
 That the trustees took a legal fee under the vrill, 
 that the rule in Shelley's case therefore applied, 
 and that W. C. .acquired a good equitable fee by 
 the recovery. 2. That if they had only taken a 
 life estate, their conveyance of it to W. C, the 
 father, enabled him to suffer a recovery, and bar 
 the contingent remainders at law and in equity, 
 and was no breach of trust. 3. That W. C, the 
 son, having chosen to answer in the former suit, 
 was bound by the decree. 4. A general devise to 
 trustees and their heirs primd facie gives the fee, 
 and it lies on the parties alleging that they take a 
 less estate to shew what less estate they take. A 
 trust to set and let, and a direction to sell timber, 
 are groxmds for not cutting down the estate. Col- 
 lier V. Walters, 43 Law J. Eep. (n.s.) Chauc. 216 ; 
 Law Eep. 17 Eq. 252. 
 
 The decision on the same will in Collier v. 
 Jlfcfican (34 Beav. 426; 34 Law J. Eep. (n.s.) Chanc. 
 555), that the trustees took a fee determinable 
 when the debts were paid, disapproved of. Ibid. 
 
 Devise to the heirs and assigns of a married 
 woman "as if she had contimied sole 
 and unmarried," held not to coalesce 
 with a life estate previously limited to 
 her. [See supra H 7.J 
 
WILL, CONSTRUCTION (I), 
 
 615 
 
 (i) Estate tail or life estate. 
 
 21. — Devise to trustees upon trust to permit 
 A. to receive the rents for his life, and after his 
 decease upon trust to permit the first son of A. 
 and the heirs of his body " to receive the rents for 
 their respective lives, severally and successively 
 in tail male," and in default of such issue over : — 
 Held, that A. took an estate in tail male, and not 
 merely a life estate. Hugo v. Williams, 41 Law 
 J. Rep. (n.s.) Chanc. 661 ; Law Eep. 14 Eq. 224. 
 
 22. — ^Direction that certainreal estate shouldre- 
 main in the testator's family, as long as there was a 
 lineal son descendant of his sons, and if no lineal 
 male descendant from the eldest, the next to be 
 entitled, and so on : — Held, that the eldest son 
 took an estate tail in possession. Mannox v. 
 Greener, Law Eep. 14 Eq. 466. 
 
 (2) lAfe estate or absolute interest, 
 
 23. — A testator by his will, after reference to 
 the provision thereinafter made for his grand- 
 daughter, directed that, as to certain shares, until 
 his granddaughter M. attained the age of twenty- 
 one years, or should be married with consent, 
 his executors shpuld hold them upon trust 
 to pay the dividends to his daughter, Mrs. S. ; 
 but when his said granddaughter should attain 
 the age of twenty-one years, or before upon 
 marriage with consent, upon trust to pay the 
 dividends to M. during her life, apart from 
 her husband ; and in case of her marriage with 
 consent, then upon such marriage he gave to his 
 executors such a sum of money as would, with the 
 value of the shares, make up 2,600^., upon trust 
 to settle the same for the benefit and provision of 
 M., for her separate use, with power in such set- 
 tlement for M. to dispose of the same among her 
 issue, or if no issue, a general power of disposi- 
 tion; and the will contained a gift over in the 
 event of M. dying under twenty-one and unmar- 
 ried. M. attained twenty-one, but was .still unmar- 
 ried : — Held (affirming the decision of Wickens, 
 V.C), that she was not entitled absolutely but 
 took an interest for life, subject to any question 
 that might arise on marriage. Savage v. Tyers, 
 41 Law .T. Eep. (n.s.) Chanc. 815; Law B.ep. 7 
 Chanc. 356. 
 
 24. — A testatrix by will appointed certain 
 real estate to her husband upon trust for his own 
 use for life, "with power to take and apply the 
 whole or any part of the capital arising therefrom 
 to and for his own benefit." After his decease 
 " subject jis aforesaid " over to other persons. 
 The husband died without exercising the power : 
 — ^Held, that he had only a life estate, and that 
 the property went to the persons to whom it was 
 given in remainder after his decease. Pemiock 
 V. Pennock, 41 Law J. Eep. (n.s.) Chanc. 141 ; 
 Law Eep. 13 Eq. 141. 
 
 (ot) Absolute gift, whether cut down. 
 
 25. — Gift of entire residiie to testator's "wife, 
 E., and after her death to be equally divided to 
 the children, should there be any," and appoint- 
 ment of wife executrix. There being no children ; 
 
 — Held, that the wife was absolutely entitled. 
 Crosier v. Crosier, Law Eep. 15 Eq. 282. 
 
 26. — Gift of residue in trust for testator's 
 children (sons at twenty-one and daughters at 
 twenty-one or marriage), and if any of the child- 
 ren should die before attaining a vested interest, 
 their shares to go to their children, with a proviso 
 that, notwithstanding the trusts aforesaid, on the 
 marriage of any daughter a moiety of her share 
 should be held in trust for her for life with re- _ 
 mainder to her children: — ^Held, that the daughters 
 who attained twenty-one without having been mar- 
 ried took absolutely. In re Bowling's Tnists, Law 
 Eep. 14 Eq. 463. ^ 
 
 («) Absolute gift or trust. 
 
 27. — A testator, a retail shopkeeper, devised a 
 freehold house to his wife to be at her will and 
 disposal in any way she might think best for her- 
 self and family : — Held (affirming a decision of 
 one of the Vice-Chancellors), that a charge upon 
 the house by the widow's will of an annuity in 
 favour of an illegitimate child of a son of herself 
 and the testator was valid. Lambe v. Eames, 40 
 Law J. Eep. (n.s.) Chanc. 447 ; Law Eep. 6 Chanc. 
 597 : affirming Malins, V.C, 40 Law J. Eep. (n.s.) 
 Chanc. 15 ; Law Eep. 10 Eq. 267. 
 
 28. — Personal property was bequeathed to a 
 married woman for her own proper use and benefit 
 for ever for her separate use, and the proceeds to 
 be applied in the bringing up and maintenance of 
 her children : — Held, that there was no trust. 
 Mackett v. Mackctt, 41 Law J. Eep. (n.s.) Chanc. 
 704 ; Law Eep. 14 Eq. 49. 
 
 29. — Under a bequest of " all my property and 
 effects, whatsoever and wheresoever, unto my dear 
 wife, S. L. E. (trusting that she will do justice to 
 any children we may have) for her own absolute 
 use and benefit," S. L. E. was held entitled to the 
 property absolutely. Ellis v. Ellis, 44 Law J. Eep. 
 (n.s.) Chanc. 225. 
 
 30. — Will appointing testator's widow execu- 
 trix and bequeathing to her all his property " for 
 her sole use and benefit in the full confidence that 
 she will so dispose of it amongst all our children 
 both during her lifetime and at her decease, doing 
 equal justice to each and all of them : " — Held, 
 that she took a life interest with a power of ap- 
 pointment amongst the children. Ware v. MaX- 
 lard (16 Jur. 492) followed. Curnick v. Tucker, 
 Law Eep. 17 Eq. 310. 
 
 31. — Gift to testator's wife " for her sole use 
 and benefit, in the full confidence that she will 
 so bestow it on her decease to my children in a 
 just and equitable spirit, and in such manner and 
 way as she feels would meet my full approval : " — 
 Held, a life interest with power of disposition 
 amongst the children. Le Marchant v. Le Mar- 
 chant, Law Eep. 18 Eq. 414. 
 
 32. — A testator before the Wills Act, be- 
 queathed leaseholds to his daughter, E. H. He 
 gave his residue, after a life interest to his wife, 
 to E. H., " for her own benefit and her children;" 
 if his daughter should die without issue he gave 
 the whole to his wife, for life, with remainders 
 over : — Held, that E. H. was entitled to the re- 
 
616 
 
 WILL, CONSTRUCTION (I), (L). 
 
 sidue in remainder absolutely, and that the words, 
 " without issue," referred to an indefinite failure 
 of issue, and that the gift over was void for re- 
 moteness. Fisher v. Webster, 42 Law ■?. Rep. (n.s.) 
 Chano. 156 ; Law Rep. 14 Eq. 283. 
 
 (o) Trust or charge. 
 
 Thtsf or charge: devise to corporation: 
 surplus rents. [See Chaeity, 23, 24.] 
 
 {p) Gift by implication. 
 
 As to gift of intermediate income by impli- 
 cation. [See supra D 9.] 
 
 Absolute gift by implication. [See Leo aoy, 
 12.] 
 
 (j) Advowson: tenancy for life. 
 
 33. — A testator, who, being a clergyman, was 
 a patron of a living then full, directed that if it 
 should become vacant by his decease, the presen- 
 tation should be offered by his executors to two 
 clerks named by him in succession, and if both 
 shoidd decline, he directed his executors to pre- 
 sent any clerk whom they might select, and, when 
 the church was full, to sell the advowson and in- 
 vest the proceeds in Consols, and pay the income 
 to his widow during her life, for the maintenance, 
 support and education of herself and their children. 
 The testator died, leaving five infant daughters, 
 who were his co-heiresees-at-law. At his death the 
 church was full, and the executors tried to sell 
 thfi advowson ; but before they could succeed in 
 so doing, the living became vacant by the death 
 of the incumbent ; whereupon a special case was 
 filed for the opinion of the Court as to whether 
 the daughters, the widow, or the executors were 
 entitled to present ; — Held, that the widow would 
 take the proceeds of the advowson for her life, and 
 not jointly with her daughters. Also, that the 
 legal estate in the advowson passed, until sold, to 
 her daughters as trustees for the purposes of the 
 will ; and that the widow was entitled to nominate 
 a clerk to be presented by her daughters to the 
 existing vacancy. Briggs v. Sharp, 44 Law J. 
 Rep. (n.s.) Chanc. 510; Law Rep. 20 Eq. 317. 
 
 (r) Accumulations of income. 
 
 34. — A testator directed the income of real and 
 personal estate to be accumulated so long as the 
 rules of law would permit ; and on the death of 
 A., that the estate and accumulations should be 
 applied in the purchase of freehold estatp, which 
 should be conveyed to G., and his heirs. Gr. was 
 convicted of felony, and sentenced to four years' 
 penal servitude : — Held, that Gr. had no immediate 
 right to payment, and the Court refused to do 
 anything beyond continuing the accumulation. 
 Semble — the income after twenty-one years down 
 to the death of A. was undisposed of, and so far 
 as it arose out of realty would belong to the testa- 
 tor's heir, and so far as it arose from personalty to 
 his next-of-kin. Talbot v. Jevers, 44 Law J. Rep. 
 (n.s.) Chanc. 646 ; Law Rep. 20 Eq. 255. 
 
 Legacy to separate use with direction to 
 'e. [See Leoaoy, 11.] 
 
 (K) Pebcatobt Tetjsts. 
 
 [See supra I 27-32, and Tbust, K. A. 1 1, 12.] 
 
 A testator bequeathed a sum of stock to trus- 
 tees of a charity to pay for painting and repairing 
 a gravestone for a certain day yearly, and to pay 
 the balance for the purpose of the charity : — Held, 
 there was a valid bequest subject to a precatory 
 trust. Hunter v. BullocTc, 41 Law J. Rep. (n.s.) 
 Chanc. 637 ; Law Rep. 14 Eq. 45. 
 
 (L) Vesting : Gift over. 
 
 (a) Gift to sons for their lives and " at their 
 death " to their children. 
 
 1. — A testator directed the interest of the re- 
 sidue of his estate to be paid to his sons, C. T. and 
 J., equally for their lives, and at their death the 
 principal to be divided equally between the chil- 
 dren of C. T. and the children of J. C. T. and J. 
 survived the testator. C. T. having died in the life- 
 time of J. : — Held, that the words, " at their 
 death," meant " at their respective doatlis," and 
 that, on the death of C. T., a moiety of the fund 
 became immediately divisible among his children. 
 Wills V. Wills, 44 Law J. Rep. (n.s.) Chanc. 582 ; 
 Law Rep. 20 Eq. 342. 
 
 (6) Gift to children " when and as they should 
 attain twenty-one." 
 
 2. — A testator bequeathed - money in trust for 
 A. for life, and after her decease to the children of 
 A., when and as they should attain the age of 
 twenty-one years; but if A. should die without 
 lawful issue, then over : — Held, that the gift to the 
 children of A. was contingent upon their attaining 
 the age of twenty-one years. Eree v. Ferfect (1 
 Coll. C.C. 128) not followed. Kidn.an v. Kid- 
 man, 40 Law J. Rep. (n.s.) Chanc. 359. 
 
 (c) Gift to class ascertainable at a particular period, 
 with declaration as to vesting of shares. 
 
 3.— A. legacy was given among a class payable 
 at the death of M. S., with a declaration that the 
 shares were to be vested interests on the majority 
 or marriage of the donees. M. S. survived the 
 testatrix : — Held, that the shares of members of 
 the class who died after M. S. under age passed to 
 their representatives. Simpson v. Peach, 42 Law 
 J. Rep. (n.s.) Chanc. 816 ; Law Rep. 16 Eq. 208. 
 
 4. — A testator gave the residue of a mixed fund 
 (after a life interest to his wife) among the chil- 
 dren of his three brothers who should be living at 
 the death of his wife or his own death, which 
 events should happen last, per capita, to be paid 
 and vested in them at twenty-one, or if females on 
 marriage. One of the nieces survived the testator 
 and his wife, but died under twenty-one, unmar- 
 ried: — Held, that she took a vested interest. In 
 re Parr's Trusts, 41 Law J. Rep. (n.s.) Chanc. 
 170. 
 
 [And see Marriage Settlement, 8 ; and supra H 
 S-10.] 
 
"WILL, CONSTRUCTION (L). 
 
 6ir 
 
 (d) Gift over on death without isstie. 
 (1) To what period gift over is referable. 
 
 5. — A testator bequeathed funds to A. for life, 
 ■with remainder to his two daughters in equal 
 moieties for their respective lives, with remainder 
 to their children, and in default of such children, 
 ■with remainder to the testator's t'wo sons, ■\vith re- 
 mainder in case his said sous should both die ■with- 
 out issue to B. absolutely, and in case B. should 
 die ■without issue then over. B. survived A. and, 
 all the testator's sons and daughters, who all 
 died ■without issue, and finally died herself 
 •without issue: — Held, that B. took an absolute 
 indefeasible interest in the funds, and that inas- 
 much as she survived the period of distrib^ation, 
 the divesting clause never took ejBfect. In re 
 Heathcoie's Tnists, 43 La^w J. Eep. (n.s.) Chanc. 
 269 ; Law Eep. 6 Chanc. 46. 
 
 6, — The fourth rule laid do^wn in Edwards v. 
 Edwards (15 Beav. 367 ; s. c. 21 La^w J. Eep. 
 (n.s.) Chanc. 324) that where a life or other estate 
 is given to one or more of the objects of the testa- 
 tor's bounty, and on the determination of that 
 estate the subject disposed of is given to another 
 person with a direction that if the latter shall die, 
 without leaving a child, his share shall go over, 
 the words indicating death ■without issue refer to 
 that event occurring before the period of distribu- 
 tion, that is before the determination of -the estate, 
 disapproved. Ingram v. Soutten (H.L.), 44 Law 
 J. Eep. (n.s.) Chanc. 56 ; Law Eep. 7 E. & I. App. 
 408, and O'Mahoney v. Burdett, 44 Law J. Eep. 
 (n.s.) Chanc. 56, n. ; Law Eep. 7 E. &I. App. 388. 
 
 A testator bequeathed funds in trust for A. for 
 life, with remainder to his two daughters in equal 
 moieties for their respective lives, with remainder 
 to their children, and in default of such children, 
 to the testator's two sons, with remainder, in case 
 his said sons should respectively die without issue 
 living at their deaths, to B. absolutely, and in 
 ease B. should die ■without issue living at the time 
 of her death, then over. B. survived A., and all 
 the testator's sons and daughters, who all died 
 ■without issue, and finally died herself without 
 issue : — Held, that on B.'s death ■without issue, 
 after the determination of the pre^vious estates, 
 the gift over took effect. For death without issue 
 living at the time of such death, must be taken 
 as intended in the absence of expressions pointing 
 to death during the continuance of the prior es- 
 tates, to mean death at any time. Ibid. 
 
 Held also, that the fact that the gift was in the 
 first instance to B. absolutely was not enough to 
 prevent this operation of the gift over contained 
 in the proviso foUo^wing that gift. Ibid. 
 
 7.— Under a gift to X. for life with remainder 
 to A., and if A. die unmarried or ■without children, 
 to B., the gift over to B. wiU take effect upon A.'s 
 dying unmarried or without children at any time 
 unless a contrary intention appear by the ■will. 
 OMahmey v. Burdett (H.L.) Law Eep. 7 E. & I. 
 App. 388 ; 44 Law J. Eep, (n.s.) Chanc. 66, /t. 
 
 JCdwards v. Edwards (16 Beav. 357) discussed, 
 and the fourth rule laid down therein controverted. 
 Ibid. 
 
 PiCJEST, 1870-1876. 
 
 8. — The rule established by 0' Mahoney \ . Bur- 
 dett (44 Law J. Eep. (n.s.) Chanc. 56, ■/(. ; Law Eep. 
 7 B. & I. App. 388) and Ingram v. Soutten (44 
 Law J. Eep. (n.s.) Chanc. 56 ; Law Eep. 7 E. & 
 I. App. 408) is only that a gift over on death 
 without issue means death ■without issue at any 
 time, unless a contrary intention appears by the 
 will. Olivant v, Wright, 46 Law J. Eep. (n.s.) 
 Chanc. 1 ; Law Eep. 10 Chanc. 220. 
 
 A direction, after the death of the tenant for 
 life, to divide the property, — Held, without rely- 
 ing on other possible grounds for the same con- 
 struction, a sufficient indication of such contrary 
 intention. Ibid. 
 
 (2) Whether importing indefinite failure of issue. 
 
 9. — Gift of realty and personalty to J. and the 
 heirs male of his body, but in case of his death 
 without heirs male of his body to P. in the same 
 manner, and in case of his death without heirs 
 male of his body to S. in the same manner. Codi- 
 cil reciting that by the will the property was given 
 in the event of the death of J. " without leaving 
 male issue him surviving " to P., revoking that gift, 
 and in the eventof thedeathof J. "■without leaving 
 male issue him surviving," giving the property 
 to the eldest daughter of J. : — Held, that 
 section 29 of 1 Vict. u. 26 (The Wills Act) 
 did not apply; that the gifts over to P. and 
 S. were void as to the personalty, as being on 
 an indefinite failure of heirs, and were not 
 affected by the codicil ; and that J. took an abso- 
 lute interest in the personalty subject to an exe- 
 cutory gift over to his daughter if he died without 
 male issue surviving him. Dawson v. Small, Law 
 Eep. 9 Chanc. 651. 
 
 10.— Gift by ■will in 1821 to A. (subject to a 
 life interest), and if A. died without issue then 
 over : — Held, that the gift over was void for re- 
 moteness. Fisher v. Webster, 42 Law J. Eep. (n.s.) 
 Chanc. 156 ; Law Eep. 14 Eq. 283. 
 
 [And see Marriage Settlement, 9.] 
 
 (e) Gift over on death " leaving " no issue. 
 [And see infra No. 15.] 
 
 11, — A testatrix devised to her granddaughter 
 for her sole use during her lifetime, and after her 
 death to her children in equal parts, and in case 
 she should die leaving no issue, then to the next- 
 of-kin. The granddaughter had one child who 
 died before her : — Held (affirming the judgment 
 of the Court of Queen's Bench), that the words 
 "leaving no issue " meant " having had no issue," 
 and that the child took a vested interest. Tre- 
 haine v. Layton, 44 Law J. Eep. (n.s.) Q,. B. 202 ; 
 Law Eep. lOQ.B. 459. 
 
 (/) ^fl "W ™ default of " such issue " : 
 ambiguity. 
 
 12. — A testator had issue living at the time of his 
 
 will, a son F. (who had then li^nng two sons, F. and 
 
 and three daughters E., I. and S.), a daughter 
 
 I. and four grandchildren, issue of a deceased 
 
 4K 
 
618 
 
 ■WILL, CONSTRUCTION (L). 
 
 daughter S. By his will he deviserl his heredi- 
 taments to his son F. for life, with remainder to 
 his eldest grandson F. for life, with remainder to 
 the first and other sons of the grandson successively 
 in tail male.; and for default of such issue to R., 
 the second son of his son F. for life, with re- 
 mainder to his first and other sons successively in 
 tail male, or for default of such issue to the third, 
 fourth and other sons of his son F. thereafter to 
 be born successively in tail male ; and in default 
 of such issue, to the testator's daughter I. for 
 life, with remainder to her first and other sons 
 successively in tail male ; and for default of such 
 issue, to his granddaughter E. for life, with re- 
 mainder to her first and other sons successively in 
 tail male; and for default of such issue, to his 
 granddaughter I. for life, with remainder to her 
 first and other sons successively in tail male ; and 
 for default of such issue to his granddaughter S. 
 for life, with remainder to her first and other sons 
 successively in tail male ; and for default of such 
 issue, to all and every the fourth, fifth and other 
 daughter or daughters of his son F. successively, 
 and in remainder, one after another, and the heirs 
 male of their bodies ; and " for default of such 
 issue, to the use and behoof of all and every other 
 the issue of my body ; and for default of such 
 issue, to my right heirs for ever." And he ex- 
 pressed a desire " to prevent as far as might be 
 the dispersion of his estates among several per- 
 sons " : — Held, that the words " all and every other 
 the issue" were not to be read in the strict sense 
 of intending to exclude those coming within the 
 class who were provided for before, and were 
 supposed to have failed, but rather to complete a 
 provision for all the issue, so as to make the estate 
 go over by force of the words in the limitation " in 
 default of such issue " only upon failure of all the ' 
 testator's issue ; and that thus a vested remainder 
 in tail general was created which descended to 
 the testator's grandson F. ; and that, he having 
 executed a disentailing deed, and all the previous 
 estates having expired, his devisees were entitled 
 to the property. Allgood v. Blake ; Beed v. Blake; 
 and Boach v. Blake (Exch. Gh.), 42 Law J. Rep. 
 (n.s.) Exoh. 101 ; Law Rep. 8 Exch. 160. 
 
 Decision of the Court of Exchequer (41 Law J. 
 Rep. (n.s.) Exoh. 217; Law Rep. 7 Exch. 339) 
 aifirmed. Ibid. 
 
 13. — Devise to a trustee " as to " one estate 
 to uses in favour of a testator's elder son and the 
 sons of that son in tail male and tail general, 
 with remainder to the second son and his sons in 
 tail male and tail general, with remainder to the 
 daughters of the two sons successively in tail male, 
 and " as to " another estate to similar uses, pre- 
 ferring the second son and'his issue to the first 
 son and his issue, with a gift over " in default of 
 such issue male and female of all the sons and 
 daughters of my sons then in trust and to the use 
 of my daughter " : — Held (by Lords Chelmsford, 
 Westbury, Colonsay, and Cairns, Hatherley, L.C., 
 dissentinte), that the gift over was ambiguous, and 
 that under the circumstances the most reasonable 
 ionstruction was to refer it to both estates, and 
 that the words " as to " did not necessarily indi- 
 
 cate the commencement of a devise complete an 
 itself. Abbott v. Middleton (7 H. L. C. 89) ap- 
 proved and followed. Gordon v. Gordon, Law 
 Rep. 5 E. & I. App. 254. 
 
 (g) Implication of cross remainders. 
 
 14. — J. H. by his will devised his estate to his 
 brother "W. H., and " After his decease, I give 
 and devise the same unto his four sons, William, 
 George, Peter, and Thomas Pitts Hannaford, my 
 nephews, for their respective natural lives, as 
 tenants in common, and not as joint tenants ; and 
 after the several and respective deceases of my 
 said nephews, then I give and devise the share or 
 shares of them, my said nephews respectively, 
 unto their respective • eldest sons now living, for 
 and during their respecti ve natural lives ; and after 
 the several deceases of such eldest sons, I give 
 and devise the same share or shares unto the first 
 son of the body of such eldest sons of my said 
 respective nephews, and the heirs male of the 
 body of such first sons lawfully issuing ; and, in 
 default of such issue male of the first sons of the 
 body of the eldest sons of my said nephews respec- 
 tively, then I devise the aforesaid share or shares 
 iinto the said second, third, and all and every 
 other son and sons of the body of the respective 
 eldest sons of my said respective nephews, seve- 
 rally and successively, according to their respec- 
 tive seniorities, and the heirs male of the body 
 of such second, third, and all and every other 
 sons of such eldest sons respectively lawfully 
 issuing. And for default of such issue, I give and 
 devise the same share or shares unto the second 
 and third, and all and evury other son and sons 
 now living of my said respective nephews, seve- 
 rally and successively, according to their respective 
 seniorities ; and unto the son and sons of such 
 second and third, and other sons of my said 
 respective nephews, in the same manner, and for 
 the same estate and estates, as I have hereinbe- 
 fore given the same to the eldest sons of my 
 respective nephews and their sons. And, for de- 
 fault of such issue, I give and devise the same 
 unto all and every the son and sons hereafter to 
 be born of my said respective nephews, severally 
 and successively, according to their respective 
 seniorities, and their heirs in tail male. And, for 
 default of such issue, I give and devise the same 
 to my own right heirs for ever, it being my will 
 and intention that the said lands shall go and 
 remain in my name and family for ever, or as long 
 as the law will permit such enjoyment of the 
 same : " — Held, that the effect of the limitations of 
 the will was to create by implication cross re- 
 mainders between the devisees and their respective 
 heirs, and that therefore two of the testator's 
 nephews having died without leaving male issue,the 
 male heirs of the two other nephews were entitled 
 £is tenants in common to the shares of the two first 
 above-mentioned nephews. Hannaford v. Hanna- 
 ford (Exch. Ch.), 41 Law J. Rep. (n.s.) Q. B. 
 62; Law Rep. 7 Q. B. 116. 
 
 15. — A testator gave his residuary estate upon 
 trust for his three daughters for life, and if any 
 
WILL, CONSTRUCTION (L). 
 
 619 
 
 of his dauglitei's should die leaving isswe, a share 
 proportioned to the number of his daughters was 
 to go to the issue of sueh daughter, and if only 
 one of such daughters should die leaving issue 
 the whole to sueh issue, and if all his daughters 
 should die without issue, then to his sisters. The 
 testator had three daughters. One daughter died 
 leaving four children, one of whom died leaving 
 two chUdren born after their grandmother's death ; 
 afterwards another of the testator's daughters died 
 a spinster : — Held, reversing the decision of one 
 of the Vice-Chancellors, that there were implied 
 cross limitations so that the surviving daughter 
 had a life interest in half the share of the 
 daughter so last dying. In re Bidye's Trust, 4 ] 
 Law J. Eep. (n.s.) Chanc. 787 ; LawEep. 7 Chanc. 
 665. 
 
 Held, further, that the gift to issue was to the 
 issue living at the death of the daughter, and, 
 therefore, the three survivors of the four children 
 and the representative of the dead one were now 
 entitled to the second moiety, and would, if the 
 third daughter of the testator died without issue, 
 become entitled to the whole. Ibid. 
 
 [And see supra H 28.] 
 
 (A) " And " for " or,'' and " or "for " and." 
 
 16. — A gift over in case A. B. dies in the life- 
 time of a testator's wife and without issue will fail, 
 if A. B. survive the testator's wife, though he die 
 without issue. Seed v. Braithwaite, '40 Law J. 
 Kep. (n.s.) Chanc. 355; Law Eep. 11 Eq. 514. 
 
 The cases of Grey v. Pearson (6H. L. C. 61) 
 and Doe v. Jessop (12 East, 280) (which established 
 the above rule) and Brownswood v. Edwards (2 
 Ves. sen. 243) {contra) considered. Ibid. 
 
 17. — A testatrix in 1823 devised lands to A. and 
 B. as tenants in common in fee, and in case of 
 death of either under twenty-one and leaving no 
 child, the whole to go to the survivor, and in ease 
 of death of both leaving no child, then c\er, A. 
 died under twenty-one without issue ; B. attained 
 twenty-one : — Held, that the gift over would take 
 effect in case of his death, leaving no child. Else 
 V. Else, 41 Law J. Eep. (n.s.) Chane. 21 ; Law 
 Eep. 13 Eq. 196. 
 
 "Or" read "and" [See supra H 10.] 
 
 (i) Gift over on death under twenty -one. 
 
 18. — A testator, by his wEl, which recited, and 
 was intended to carry into effect, articles made on 
 the marriage of his daughter; devised certain 
 real property to trustees to the use of the husband 
 for life, or until bankruptcy or insolvency, and 
 after bankruptcy or insolvency to the use of trus- 
 teesupon trust during the jointlives of the husband 
 and wife to pay the rents and profits to the wife 
 for her separate use, with remainder to the wife 
 for life, with remainder to trustees tc preserve 
 contingent remainders, with remainder, subject to 
 power of appointment, to the children of the mar- 
 riage in fee as tenants in common, with benefit of 
 survivoi^hip, and if only one child, then to that 
 
 one, and in case every child " born or to be bom '' 
 should die under the age of twenty-one years, and - 
 without leaving lawful issue born or to be born 
 in due time afterwards, then " to the use of the 
 heirs and assigns of the wife as if she had con- 
 tinued sole and unmarried." There was one child 
 living at the date of the will. All the children 
 died in the lifetime of the testator, one having at- 
 tained the age of twenty-one years. The husband 
 became insolvent, and afterwards joined with the 
 wife in a conveyance to such uses as she should 
 by deed or will appoint. She appointed by will 
 to S. : — Held, in an action of ejectment, brought 
 by the heir-at-law of the testator against S., that a 
 child having attained the age of twenty-one years, 
 the ultimate limitation never took effect, that the 
 case was one of lapse, and that the heir-at-law 
 was therefore entitled to the property. Tarbuck 
 V. Tarbuck (41 Law J. Eep. (n.s.) Chanc. 129) ap- 
 proved. Brookman v. Smith (Exch. Ch.), 41 
 Law J. Eep. (n.s.) Exeh. 114 ; Law Eep. 7 Exoh. 
 271. 
 
 19. — Gift by a testator of all hisrealand personal 
 estate on trust to convert and pay legacies, with a 
 direction that the trustees should hold the residue 
 of his " said personal estate so converted " upon 
 trust to pay the income for the benefit of his four 
 natural children until they respectively attained 
 twenty-one, and upon their attaining that age 
 upon trust to pay the " said residue of his said 
 personal estate " to his four children equally : — 
 Held, first, that the proceeds of sale of real estate 
 passed under the gift of residue ; secondly, that the 
 children's shares did not vest till twenty-one, and 
 that the share of a child dying under twenty-ons 
 was undisposed of, and parsed to the testator's heir- 
 at-law and next-of-kin. Hansons. Graham, {&\&a. 
 239) distinguished. Ldyh v. Leigh (17 Beav. 606) 
 not followed. Spencer v. Wilson, 42 Law J. Eep. 
 (n.s.) Chanc. 754; Law Eep. 16 Eq. 501. 
 
 [And seeMAEKiA-GE Settlement, 10.] 
 
 (Jc) Gift of income for maintenance. 
 
 20. — A legacy, which would otherwise be con- 
 tingent on the legatee attaining a certain age, 
 will become vested if there is a direction to apply 
 in the meantime the income or so much thereof 
 as the trustees think fit for the legatee's main- 
 tenance, and no gift over of the unapplied income. 
 lox V. Fox, Law Eep. 19 Eq. 286. 
 
 Fulsford V. Hunter (3 Bro. C. C. 416), and In 
 re Ashmor^s Trusts (39 Law J. Eep. (n.s.) Chana. 
 202 ; Law Eep. 9 Eq. 99), not foEowed. Ibid. 
 
 [And see supra El.] 
 
 (Z) Direction for 'payment at twenty-four. 
 
 21. — A testator directed his trustess to pay 
 the income of 5,000?. to his nephew P., for his 
 maintenance or education, until he should attain 
 the age of twenty-four years ; and to pay him the 
 capital when he should attain that age, and if he 
 should die under that age, gift over. P. survived 
 the testator, and died under twenty-four. At tha 
 4 £2 
 
%% 
 
 'Will, constrijctIon (L). 
 
 timo of his death the trustees had iu their hauds 
 a sum of money rcprcsenliug aeeuiuiilations of'in- 
 come which had not been applied for P.'s bene- 
 fit : — Held, that this surplus income belonged to 
 P.'s representatives on two ^'ounds : first, that 
 the legasy had become vested liable to be cHvested ; 
 and secondly, that the income and capital were 
 subjects of separate and distinct gifts. In re Peek's 
 Trusts, 42 Law J. Eep. (n.s.) Chanc. 422 ; Law 
 Eep. 16 Eq. 221. 
 
 (m) Absolute gift at twenty-five : gift over nn 
 death. 
 
 22. — A testator gave all his personal estate to 
 his two sisters, one of whom was twenty-five years 
 old, and the other iiuder that age ; and he,directed, 
 that the former should have the immediate control 
 of her share, and theyounger upon attaining theage 
 of twenty-five years. And " incase of the death of 
 either of my sisters before me, or before marry- 
 ing and having children, the whole of the property 
 to go to the survi vor : " — Held, affirming the de- 
 cision of Malins, V.C. (40 Law J. Eep. (n.s.) Chanc. 
 1,^1; Law Eep. llEq. 222), that the younger sister 
 who after the testator's death attiiined twenty-five, 
 but had not married and had children, took, at 
 twenty-five, an absolute and indefeasible interest in 
 her share. . Clark v. Henri/, 40 Law J. Eep. (n.s.) 
 Chanc. 377 ; Law Eep. 6 Chanc. 588. 
 
 (») Gift over before interest vested. 
 
 23.— -Legacy to A. to be vested in him at twenty- 
 one, or if he should die under that age leaving 
 issue at his death, and in case he should die with- 
 out attaining a vested interest, then over. A. 
 attained twenty-one, and died in the testator's life- 
 time, leaving issue ; — Held, that the gift over took 
 effect. In re Gaitskell's Trusts, Law Eep. 15 Eq. 
 386. 
 
 (o) Gift over by implication, 
 
 24. — A testator gave residuary personalty to 
 trustees intrust for his daughter for life, and after 
 her death in trust for her issue as she should by deed 
 or will appoint, and in default of such appointment 
 and subj ect to any incomplete appointment in trust . 
 fur such persons generally as she should appoint, 
 and in default in trust for next-of-kin according 
 to the Statutes of Distribution. The daughter by 
 her will, after reciting that, as the fact then was, 
 there were no children of the marriage, exercised 
 her general power of appointment in favour of her 
 husband. After the date of the will she had 
 several children, but died without having altered 
 it, or otherwise exercised the power. Upon peti- 
 tion by the husband for payment out to him of the 
 fund, — Held, first, that in default of exercise of 
 the limited power the children took by implica- 
 tion ; secondly, that if not, the motive for the 
 exercise of the general power being the failure of 
 children, the appointment based upon such mo- 
 tive could not take effect, and the children took 
 in default of appointment as next-of kin under the 
 Statute of Distributions to the exclusion of the 
 husband. In re Jeffery's Trusts, 42 Law J. Eep. 
 (n.s.) Chanc. 17 ; Law Eep. 14 Eq. 36. 
 
 25.— A testator bequeathed a legacy to Mrs. C, 
 " for her absolute use and benefit, except as here- 
 inafter limited," and directed the same, with other 
 legacies to females, to be invested, and the interest 
 therefrom to be for the legatees' separate use ; 
 and in case any of the legatees should become 
 bankrupt, or assign the interest bequeathed to her, 
 the same was to fall into the testator's residuary 
 estate, " except in respect of Mrs. C, whose 
 legacy is to go to her children, according to her 
 appointment, and in default to them absolutely." 
 By Mrs. C.'s marriage settlement her husband had 
 covenanted to settle all after-acquired property of 
 his wife. Mrs. C. died without having become 
 bankrxipt or assigned her interest in the legacy, 
 and having by will appointed the same to her 
 children equally. The Commissioners of Inland 
 Eeveiiue thereupon insisted that Mrs. C.'s share 
 did not go to her children directly under the will, 
 but that her husband must take out administra- 
 tion to her estate, in order to obtain possession of 
 it. By consent the question was raised upon a 
 petition for the opinion of the Court under Lord 
 St. Leonards' Act (stat. 22 & 23 Vict. c. 35, s. 30) : 
 — Held (not without doubt), that by consent the 
 question, although between the Crown and a sub- 
 ject, might be decided on this petition ; and held 
 that under the will the legacy upon Mrs. C.'s 
 death went directly to her children. In re Ware's 
 Trusts, 41 Law J. Eep. (n.s.) Chanc. 121. 
 
 [And see supra D 9.] 
 
 {p) Gift over on insolvency. 
 
 26. — A testator gave the income of property to 
 one of his trustees for life, or till bankruptcy, or 
 till he should do or suffer anything to deprive him- 
 self of the enjoyment of the income. He was ad- 
 judicated bankrupt, the bankruptcy was annulled, 
 and ultimately his property revested in himself. 
 The trustees managed the property so that there 
 was no income payable to him in the meantime : 
 — Held, that he had not forfeited his life interest. 
 Bobins v. Base, 43 Law J. Eep. (n.s.) Chanc. 334. 
 
 27. — A gift over of leaseholds on insolvency 
 held to take effect though the insolvency (being 
 in Australia) did not affect the leaseholds. In re 
 Aylwyn's Trusts, 42 Law J. Eep. (n.s.) Chanc. 745 ; 
 Law Eep. 16 Eq. 586. 
 
 [And see Foefeitube, 1-7.] 
 
 ( j) Gift over on failure of trust being ascertained. 
 
 28. — A testator bequeathed the residue of his 
 estate in trust for such children as should be 
 living at the time of his death, or might be born 
 within due time afterwards ; and in case of failure 
 of such trust, to such of his brothers as should be 
 living at the time of the failure of the said trust 
 being ascertained. The testator left no children, and 
 had no posthumous child by his wife, who survived 
 him. A brother of the testator survived him only a 
 few days :— Held, that the failure of the trust was 
 ascertained at the time of the death of tlie testator, 
 as his widow was not then eiiceinte, and that the 
 gift of the residue had therefore vested. In the 
 
'WILL, CONSTEtrCTlON, (L), (N). 
 
 621 
 
 goods of Sidehottom, 41 Law J. Rop. (n.s) P. & 
 M. 23 ; Law Eep. 2 P. & D. 36o raows. Sidebot- 
 tomv. Sidebottom. 
 
 (/•) Shifting clause. 
 
 29. — A testator devised estates in P. intrust for 
 T., the second son of C, for life, with remainders 
 to his first and other sons in tail with remainders 
 .over, and declared that if T. or his issue male 
 shonld come into possession of estates in S. settled 
 on the marriaa;e of his father, the trusts of the 
 P. estates in favour of T. and his issue male should 
 cease, and the estates go over to the persons next 
 entitled in remainder. The S. estates, which were 
 settled on the marriage of T.'s father on the father 
 for life, with remainder to his first and other sons 
 successively in tail, were disentailed by the father 
 and the eldest son, and a considerable portion of 
 them, but not the whole, resettled to uses under 
 which, on the death of the elder son without issue, 
 T. and his father had an absolute joint power of 
 appointment over them. The father afterwards 
 died : — Held, that the event contemplated by the 
 shifting clause had not occurred, the interest ac- 
 quired by T. being under what was substantially a 
 new title, and not a continuation of the old one. 
 Meyriclc v. Mathias ; and Meyrich v. Laws, 43 
 Law J. Eep. (n.s.) Chauc. 521 ; Law Eep. 9 Chanc. 
 237. 
 
 Divesting clause: eldest son. [See Mae- 
 
 KIAGE SeTTLBBIENT, 11.] 
 
 Legajry vested or cotitingent. [See Legacy, 
 14.] 
 
 (M) Hotchpot Clause. 
 
 1. — Gift of realty among some of a testator's 
 children and bequest of personalty among all, with 
 a direction that to equalise their shares the chil- 
 dren to whom real estate was given should bring 
 them into account at values named. The executor 
 absconded with personalty, a considerable portion 
 of which was after many years recovered : — Held, 
 that the sum recovered must be treated as con- 
 sisting of principal with interest at 41. per cent, 
 from the testator's death ; that the devisees must 
 account for the values of their estates as part of 
 the principal, and that the part of the sum attri- 
 butable to interest must be apportioned among 
 them according to their shares. AcTcroyd v. 
 Ackroyd, Law Eep. 18 Eq. 313. 
 
 2. — A testator directed his business to be car- 
 ried on for a period, not longer than until his 
 youngest child attained twenty-one, and then sold ; 
 and directed the annual income of his estate to be 
 applied as a common fund for the benefit of his 
 children as the trustees thought fit until the 
 youngest attained twenty-one, the surplus income 
 to be accumulated in aid of the common fund, and 
 the income and accumulation to " follow the desti- 
 nation of the capital whence the same shall have 
 arisen." The capital was made divisible amongst 
 the children equally, and by a codicil the testator 
 directed that all advances by him should be 
 brought into hotchpot : — Held, that the accumu- 
 lations ought to be divided amongst the children 
 equally, they giving credit for sums allowed for 
 
 maintenance with interest, and for interest from 
 the testator's death on _advauc6s, and that the 
 capital of the advances ought to be brought into 
 hotchpot on the division of the capital of the 
 estate. Hilton v. Hilton, Law Eep. 14 Eq. 468. 
 
 3.— A testator being indebted to the trustees of 
 his daughter's settlement upon a covenant con- 
 tained in the settlement, by his will directed his 
 estate, after payment of debts, to be divided 
 amongst his children equally ; but if the net pro- 
 duce of his estate exceeded 40,0002. then his sons 
 were to have one-twentieth part more than the 
 daughters ; and he declared that the moneys due 
 on the above-mentioned covenant should be taken 
 in satisfaction '^ro tanto of the daughter's share, 
 and should be brought into hotchpot, and ac- 
 counted for accordingly. Upon realising the tes- 
 tator's estate it was found that, if the moneys due 
 upon the covenant were not to be brought into 
 account for the purpose of distribution, but were 
 to be treated as a debt, the estate would be under 
 40,000/. : — Held, that the moneys due upon the 
 covenant must be brought into account and treated 
 as part of the daughter's share, and that the sous 
 were therefore entitled to one-twentieth more 
 than the daughters. Fox v. Fox, 40 Law J. 
 Eep. (n.s.) Chanc. 182 ; Law Eep. 11 Eq. 142. 
 
 4. — A testator directed that in the division of 
 his property an estate belonging to one of his 
 children should be brought into hotchpot. After 
 the date of his will he acquiesced in the sale of 
 this estate and the settlement of the proceeds on 
 the child for life, with remainder to her children : 
 . — Held, that the condition was not thereby waived, 
 and that in the division of the testator's property 
 the estate must be brought into hotchpot. Mid- 
 dleton V. Windross, 42 Law J. Eep. (n.s.) Chanc. 
 655 ; Law Eep. 16 Eq. 212. 
 
 5. — Bequest of proceeds of sale and conversion 
 of real and personal estate in trust for a testator's 
 wife during life or widowhood, and afterwards for 
 her children living at her death or second mar- 
 riage, and the issue of any child dying before that 
 time, as tenants in common per stirpes, with a di- 
 rection that no " child" to whom he should have 
 " paid '-' any portion in his lifetime should partici- 
 pate in the trust property without bringing such 
 portion into hotchpot. On the marriage of one 
 of his daughters, the testator had covenanted to 
 stand seised of freehold property in trust for her 
 in fee. The daughter predeceased her father, 
 leaving several children : — Held, that the hotch- 
 pot clause could not be extended to include issue, 
 and therefore (whatever was the effect of the 
 word "pay") the daughter's children need not 
 bring the value of the freehold into hotchpot. 
 Hewitt V. Jardine, Law Eep. 14 Eq. 58. 
 
 (N) Substitution and Survivorship. 
 
 {cC) Substitution in lifetime of testator or tenant 
 for life. 
 
 1. —Bequest to the children of E., with a pro ■ 
 viso that if any " legatee " should die in the life- 
 time of the testatrix leaving children, such legacy 
 should be paid to the children of the deceased 
 
e^2 
 
 "WILL, CONSTETJCTIOW, (IT). 
 
 — Held, that a child of E. who was 
 dead at the date of the will was not a " legatee " 
 within the clause, and that the children of such 
 child could not take. In n Potter's Trusts (Law 
 Eep. 8 E(j. 52) and Adams v. Adams (Law Rep. 
 14 Eq. 246) distinguished. Hunter v. Cheshire, 
 Law Eep. 8 Ohanc. 751. 
 
 2. — Bequest to a testator's sister S., for her life 
 and after her decease, equally among the testator's 
 brothers and sisters, with a direction that should 
 any of his brothers and sisters die leaving issue 
 during the lifetime of S., their shares should be 
 equally divided among their children ; — Held, 
 that the children of a brother who died fifteen 
 years before the date of a wiU were entitled to a 
 share. Adarns v. Adams, Law Eep. 14 Eq. 246. 
 
 In re Potter's Trusts (Law Eep. 8 Eq. 52) fol- 
 lowed. Ibid. 
 
 3. — Devise to trustees for sale in trust for A. 
 for life, and at her death for her children then 
 living, and the issue of her children then dead, 
 followed by a proviso, that if the estate should be 
 sold and any money should become payable to the 
 issue of A., and any of such issue should then be 
 dead leaving issue, the issue of such issue should 
 take the share to which their parent would have 
 been entitled. In the will there was a previous gift 
 in joint tenancy to persons described as issue of A., 
 and who were issue, but were not children : — 
 Held, that the word " issue " in the proviso did 
 not include children of A., and that a child of A., 
 who survived her, but died before the period of 
 distribution, leaving issue, was indefeasibly enti- 
 tled. Decision of Malins, V.C., affirmed. Heas- 
 man v. Pearse, Law Eep. 7 Chanc. 660. 
 
 (6) Period of substitution of issue. 
 
 4. — A testator directedhis residue to be divided 
 on the death of his wife (who survived him) 
 equally between his brothers and sisters by name, . 
 and declared that if any of them should die leav- 
 ing issue, his, her, or their shares should go to his, 
 her, or their reF-pective issue : — Held, first, that 
 the class was to be ascertained, as to the issue of 
 a legatee who had died before the testator, at the 
 death of the testator, and as to the issue of a 
 legatee who had survived him at the death of the 
 legatee ; secondly, that the members of each class, 
 whether children or remoter issue of the legatee, 
 took per capita; thirdly, that they took as joint 
 tenants. Hobgen v. Neale, 40 Law J. Eep. (n.s.) 
 Chanc.'36 ; Law Eep. 11 Eq. 48. 
 
 (c) Period of survivorship. 
 
 5. — A testator gave the income of 4,000?. to his 
 wife, which he directed after her death to fall into 
 the residue. He gave his residue to his four sons 
 nominatim, with benefit of survivorship, but if 
 they should leave issue their shares were to go 
 over to their issue : — Held, that the 4,000Z. be- 
 longed absolutely to the sons who were alive at 
 the death of the widow and the isssue of such 
 as were dead. In re HilVs Trusts, 40 Law J. Eep. 
 (n.s.) Ohanc. 594 ; Law Rep. 12 Eq. 362. 
 
 {d) " Survivor " read " other." 
 
 6. — A testator devised freeholds in moieties to 
 the use of A. and B. respectively for life, with re- 
 mainder to the use of their respective children 
 equally as tenants in common in tail, and in de- 
 fault of issue of either A. or B., then to the same 
 uses in favour of the " survivor of them " and her 
 issue as thereinbefore declared concerning their 
 original shares ; remainders over. A. died leav- 
 ing a child, who thereupon became tenant in tail 
 of A.'s moiety. Subsequently B. died without 
 issue : — Held, that A.'s child then became tenant 
 in tail of B.'s moiety, " survivor " being read 
 " other." In re Eovfs Estate, 43 Law J. Eep. 
 (n.s.) Chanc. 347 ; Law Eep. 17 Eq. 300. 
 
 7. — A testator directed one-sixth share of a sum 
 of Bank annuities to be held upon trust for each 
 of his six daughters for life, with remainder for 
 benefit of her children, with a proviso that if any 
 of his daughters should die without leaving a 
 child who should live to attain a vested interest, 
 her share should be in trust for his surviving 
 daughters in equal shares during their respective 
 lives, with remainder for their respective children 
 pur stirpes, and the will contained a gift over in 
 case none of the testator's daughters should have a 
 child who should live to attain a vested interest. 
 One of the daughters died, lea^nng three sisters and 
 children of two deceased sisters her surviving, and 
 without leaving any child who attained a vested 
 interest in her share. Upon fiiilure of issue of 
 the daughter so dying, — Held, reversing the deci- 
 sion of the Master of the Eolls, that the children 
 of the deceased sisters were entitled to participate 
 in the share to which the daughter so dying had 
 been entitled for life, and the words, " surviving 
 daughters," must be construed to mean daughters 
 whose stirpes were surriving. Waite v. lAUlewood, 
 42 Law J. Eep, (n.s.) Ohanc. 216 ; Law Eep. 8 
 Ohanc. 70. 
 
 [And see Deed, 8.] 
 
 (e) " Living," held to mean " having issue living," 
 
 8. — A testator gave real estate to his son T. for 
 life, with remainder to his children in tail, with 
 cross remainders as to original and j,ccruing 
 shares, and failing such issue of T., " in trust for 
 my other children equally and the heirs of their 
 respective bodies, as tenants in common, or if 
 there be only one of my said children then living, 
 in trust for that child only, and the heirs of his 
 or her body," with cross remainders as to original 
 and accruing shares. Similar gifts of other real 
 estates were made to five other children. And the 
 testator gave personalty on trusts for the children 
 and issue, corresponding with the devise of the 
 real estates, and the will contained a clause substi- 
 tuting the issue of any child dying in the testa- 
 tor's lifetime for the parent. Ore of the other 
 children died without issue before T., and the 
 personal representatives of such child claimed a 
 share of the personalty of which T. was tenant for 
 life : — Held, that the limitation was to be read 
 " in trust for my other children who, or the issue 
 of whose bodies may be then living as tenants in 
 
WILL, CONSTRUCTION (N), (0). 
 
 623 
 
 common in tail, and if only one, for that one, and 
 the heirs of his or her body ; " and that tlie re- 
 presentatives of the child, who had previously 
 ■ died without issue, took nothing. Cooper v. Mao- 
 donald (No. 2), 42 Law J. Eep. (sr.s.) Chanc. 
 539 ; Law Eep. 16 Eq. 258. 
 
 (0) CONDITIONAI AND CONTINGENT GlFTS. 
 
 (a) ConditKmal gift founded on mistake. 
 
 1. — A testator having by his will given ifiOOl. to 
 certain charitable institutions, made a codicil as 
 follows: "Presuming and believing that the rental 
 of my estate will produce 16,000^. a year, I give 
 those institutions 4,000?. more." The income of 
 the testator's estate, however, was at his death 
 much less than 16,000?. a year : — Held, that, the 
 testator's reason for the gift of the second 
 4,000?., being the supposed increase of his pro- 
 perty, and the fact of such, increase being incor- 
 rect, the gift of this 4,000?. failed. Thomas v. 
 Howell, 43 Law J. Eep. (n.s.) Chanc. 511 ; Law 
 Eep. 18 Eq. 198. 
 
 Gifts founded on reasons applicable on the one 
 hand to the legatee, and on the other to the tes- 
 tator's property, distinguished. The Attorney- 
 General V. Lloyd (3 Atk. 551) observed upon. 
 Ibid. 
 
 (6) Impossible condition. 
 
 2. — Bequest to a college to found a professor- 
 ship according to certain rules which the testator 
 expressed his intention to prepare, and upon the 
 acceptance of which by the college, the bequest 
 was to be conditional. The testator having died 
 without preparing any rules, — Held, that the re- 
 ference to the rules could not be read as a descrip- 
 tion of the professorship, but as a condition 
 attached to the bequest, and that, the condition 
 having been rendered impossible by the act of 
 the testator, the bequest took effect. Yates v. 
 The University College, London, Law Eep. 8 Chanc. 
 454 : affirmed on appeal (H.L.), 45 Law J. Eep. 
 (n.s.) Chanc. 137 ; Law Eep. 7 E & I App. 438. 
 Non-compliance through ignorance. [See 
 Legacy, 22, 23.] 
 
 (c) Devise contingent on non-sale of property. 
 
 3. — A testator, by codicil, after reciting that he 
 had contracted to purchase certain land, and that 
 bis personalty might be deficient to enable his exe- 
 cutors to carry out the obligation of his will,directed 
 them to realise any such deficiency by sale for 
 not less than 8,000?. of the L. farm ; and in case 
 they should be unable to obtain 8,000?. for the 
 farm, he bequeathed the farm upon certain con- 
 ditions to Ms son, C. A., and in case they did sell 
 and obtain 8,000?. he directed 4,000?. of the same 
 to be invested in land for the benefit of C. A. 
 upon the same conditions as he would have inhe- 
 rited the L. farm in case of non-sale. There was 
 no deficiency, and the executors did not sell : — 
 Held, reversing the judgment of the Court of 
 Exchequer (39 Law J. Eep. (n.s.) Exch. Ill), 
 that the intention of the testator was not merely 
 to protect C. A. from damage, but to benefit him to 
 the further extent of at least 4,000?., and that to 
 
 carry out this intention the provision, " in case of 
 non-sale," might be construed as intended to ap- 
 ply to the case of a non-sale by reason of there 
 being no deficiency of personalty. , Warde v. Plumb 
 (Exch. Ch.), 40 Law J. Eep. (n.s.) Exch. 105. 
 
 (d) Crift for particular purpose. 
 
 4. — A testator by his will declared that it should 
 be lawful for his trustees, at the request of E. P., 
 during her life, and after her death, at their dis 
 cretion, to expend any sum or sums not exceeding 
 6,500?., in purchasing commissions for or obtain- 
 ing the promotion of W. P., in the army. E. P. 
 requested the trustees to pay, under the trusts of 
 the will, the sum of 6,500?. absolutely to W. P., 
 who was in the army. Before any payment had 
 been made, purchase in the army was abolished : 
 — Held, that W. P. was entitled to have the 
 6,500?., with interest at 4 per cent., from the 
 date of the request paid to him absolutely. 
 Falmer v. Flower, 41 Law J. Eep. (n.s.) Chanc. 193 ; 
 Law Eep. 13 Eq. 250. 
 
 (e) Condition as to residence. 
 
 5. — A testatrix made a codicil to her will as 
 follows : " 1 direct all interest given by my said 
 will to my niece, Elizabeth, the wife of William 
 Wilkinson, shall pass, as in xaj said will named 
 in case of her death, should she not cease to 
 reside in Skipton within eighteen months of my 
 death " : — Held, that the condition as to non- 
 residence was void. Wilkinson v. Wilkinson, 40 
 Law J. Eep. (n.s.) Chanc. 242 ; Law Eep. 12 Eq. 
 604. 
 
 6. — A testatrix being entitled to a leasehold 
 house for the life of K., and a term of twenty-one 
 years from his death, bequeathed it by that des- 
 cription in trust for her two nieces till marriage, 
 imposing conditions as to residence. Afterwards, K. 
 having died, the testatrix surrendered the old lease, 
 and took a fresh one for seventy-five years. She 
 then made a codicil, confirming her will. One of 
 the nieces married : — Held, that the trusts of the 
 will subsisted with regard to the seventy-five 
 years' term but only for the same period as they 
 would have subsisted in case the former lease had 
 been still in existence, and that the conditions 
 were not discharged. Wedgwood v. Benton, 40 
 Law J. Eep. (n.s.) Chanc. 526 ; Law Eep. 12 Eq. 
 290. 
 
 (/) Condition in restraint of alienation. 
 
 7. — Devise as follows : "To my mother all my 
 real and personal estate, and knowing that what I 
 devise to my said mother will become the pro- 
 perty of her husband, E. G., I therefore declare 
 the intention of my will to be that the said E. G., 
 being my mother's husband and a kind step- 
 father to me, shall hold and enjoy all my said real 
 and personal estate to him, his heirs, executors, 
 administrators, and assigns for ever, and to be 
 absolutely at his free will and disposal, provided 
 that ho does not at any time dispose of any por- 
 tion of my said property to any or either of my 
 late father's family " : — Held, that whatever estate 
 the mother took, her husband took an estate in 
 
624 
 
 WILL, CONSTRUCTION (0), (Q). 
 
 fee in the realty. Gravmor v. Watkins, 40 Law 
 J. Eep. (n.s.) C. p. 197, 220 ; Law Eep. 6 C. P. 
 500. 
 
 8.- -Devise in foe to a brother of a testatrix, 
 " on the condition thut he never sells it out of the 
 family : "—Held, that " the family " meant the 
 blood relations of the devisee, and that the con- 
 dition was valid in law as a partial restraint on 
 alienation. Observations on Attwater v. Attwater 
 (18 Beav. 330; 23 Law J. Eep. (n.s.) Chanc. 
 692). In re Maoleay, 44 Law J. Eep. (n.s.) 
 Chane. 441 ; Law Eep. 20 Eq. 186. 
 
 {g) Condition in restraint of marriage. 
 9.— H. B. by his will devised and bequeathed 
 his residuary real and personal estate to his two 
 sons, H. AV". B. and 0. B., in trust for sale and 
 conversion, and for investment on various securi- 
 ties ; and he directed his trustees to divide the 
 annual income of the trust fund, after certain 
 deductions, among his seven other children, 
 during their lives, in specified shares, of which his 
 two daughters, L. P. B. and N. M, S. B., were to 
 have ten each ; and he further directed that after 
 the death of the survivor of his said seven 
 children, the trust fund should be divisible be- 
 tween his two sons, H. W. B. and C. B., and their 
 respective executors, administrators and assigns, 
 in equal shares. By a codicil to his will H. B. 
 declared that on the marriage of either of his 
 daughters, L. P. B. and N. M. S. B., the bequests 
 of shares made to them by his will should be 
 void ; and in lieu of the same he gave to such one 
 of them as should have married four shares only 
 for her separate use ; and he gave such one of 
 them as should remain unmarried thirteen of the 
 same shares, and directed that on one of his said 
 daughters being married the tlu-ee overplus 
 shares, and in case of both his said daughters 
 marrying, the twelve overplus shares should fall 
 into and form part of his residuary estate, and be 
 divided as in his will was mentioned. L. P. B. 
 married after the death of H. B., — Held, that the 
 condition reducing her shares in case of marriage 
 was void, and that she was, although married, 
 entitled to the ten shares of the income of the 
 trust fund during her life. Bellairs v. Bellairs, 
 43 Law J. Eep. (n.s.) Chanc. 669; Law Eep. 
 18 Eq. 510. 
 
 10. — If a gift is made to a married man, 
 coupled with a condition that in the event of his 
 second marriage the gift is to go over, the con- 
 dition is inoperative. Allen v. JaoJcssn, 44 Law 
 J. Eep. (n.s.) Chanc. 336 ; Law Rep. 19 £q. 
 631. 
 
 (A) Condition not apjjortionahle. 
 
 11. — A testator directed that a specific sum of 
 10,000i. should be applied in paying off a charge 
 on his B. estate, if established ; and that, in case 
 it should be so applied, a charge of 13,000?. to 
 which his D. estate was liable should be raised 
 out of his B. estate. The 10,OO0Z. was accordingly 
 applied in paying off the charge on the B. estate. 
 Subsequently, the other personalty having proved 
 insufficient for payment of the testator's- debts, 
 
 the B. estate had to refund a pprtion of the 
 10,000Z. : — Held, that the disposition in favour of 
 the D. estate was upon a condition which was not 
 apportionable ; and that, unless the B. estate got 
 the 10,000/. in full, the right of the D. estate to 
 exoneration did not arise. Caldwell v. Cresswell, 
 Law Eep. 6 Chanc. 278. 
 
 («) Gift cum onere. 
 [See Lebacy, 13, and supra D 6.] 
 
 (P) Executory Gifts. 
 
 1. — A testator gave shares of his property to his 
 two infant daughters " to be settled on themselves 
 at their marriage." Upon the daughters attaining 
 twenty-one without having married, — Held, they 
 were entitled to have their shares paid and trans- 
 ferred to them absolutely. Magrath v. Morehead, 
 41 Law J. Eep. (n.s.) Chanc. 120; Law Rep. 12 
 Eq. 49. 
 
 2. — A testator devised his real estate to 
 trustees upon trust for one of his grand- 
 daughters, and directed that in the event of her 
 marrying under twenty-one (which event 
 happened), then they should assure the same by 
 deed to her for her life to her separate use, with- 
 out power of anticipation, with remainder to her 
 children as tenants in common in tail with re- 
 mainders over, with power to the trustees to 
 secure a life interest to the husband after the 
 death of the granddaughter either with or with- 
 out impeachment for waste : — Held, that the life 
 estate of the granddaughter must be subject to 
 impeachment for waste. Clive v. Clive, 41 Law 
 J. Rep. (n.s.) Chanc. 386 ; Law Rep. 7 Chanc. 
 433. 
 
 (Q) Trusts by Refebenoe to othee Teusts. 
 
 {a) Multiplication of powers, ^c. 
 
 1. — A testator by will gave specific estates to 
 trustees for each of his children for life, remainder 
 to their issue in tail with cross-remainders. He 
 gave each tenant for life power to appoint an 
 annuity not exceeding one-third of the estates 
 specifically devised to him or her to a husband or 
 wife surviving. After directing payment of his 
 debts, he gave the residue of his real and personal 
 estate to the trustees to divide between his 
 children, and hold on the same trusts as the 
 specifically devised estates : — Held, that the 
 referential trusts of the residue included all the 
 powers given over the specifically devised estates, 
 and gave powers to each tenant for life to appoint 
 an annuity of one-third of the income of his or her 
 share of residue, as well as of the specifically 
 devised estate, to a husband or wife surviving. 
 Cooper V. Macdonald, 42 Law J. Rep. (n.s.) 
 Chanc. 533 ; Law Eep. 16 Eq. 258. 
 
 2. — A bequest of leaseholds by reference to the 
 uses declared respecting freeholds : — Held, to 
 make the leaseholds subject to other limitations 
 and restrictions declared concerning the freeholds. 
 Heamnan v. Pearse, 40 Law J. Eep. (n.s.) Chanc. 
 2&ij; Law Eep. 11 Eq. 522, 
 
WILL, OONSTEUCTION (a), (S). 
 
 625 
 
 (6) Vesting of leaseholds in tenant in tail. 
 
 3. — A testator devised and bequeathed real and 
 personal estates in trust for the eldest sou then 
 living of the_ testator's daughter C. for life, re- 
 mainder to his first and other sons in tail, -with 
 like remainder to the other sons of C, with divers 
 remainders over, and an ultimate remainder to the 
 testator's right heirs and next-of-kin. The will of 
 the testator then provided that such person or per- 
 sons as should thereunder he entitled to an estate 
 tail in possession in the real estate should not be 
 absolutely entitled to the leasehold and personal 
 estates until he, she or they respectively should 
 attain the age of twenty-one years, and that the 
 said leasehold and personal estates should abso- 
 lutely belong only to such person or persons as 
 should first attain the age of twenty-one years, 
 and become entitled to an estate tail in possession 
 in his real estate under the trusts therein afore- 
 said, and in the meantime the same leasehold and 
 personal estates should remain subject to the 
 trusts thereinbefore declared : — Held (affirming 
 the decree of Stuart, V.O., 37 Law J. Rep. (n.s.) 
 Chanc. 865, sub nom. HoUoway v. Webber and 
 Molloway v. HoUoway), that the words " in posses- 
 sion " in the proviso in the will did not mean the 
 actual receipt of the rents and profits of the real 
 estat e, and that the proviso included only tenants in 
 tail by purchase, and was valid, and that the tenant 
 in tail entitl edby purchase who first attained the age 
 of twenty-one years, although in the lifetime of the 
 tenant for life, was absolutely entitled (subject to 
 his father's life interest) to the leasehold and 
 personal estates. Martelli v. HoUoway (H.L.) 42 
 Law J. Eep. (n.s.) Chanc. 26 ; Law Eep. 5 E. & I. 
 App. 532. 
 
 Devise and bequest of estate and effects : 
 trusts applicable to personalty : result- 
 ing trust to heir. [See Tetist, A 14.] 
 
 [And see Hbielooms.] 
 
 (R) Eemotenbss. 
 1. — ^A testator gave a fund to trustees upon 
 trust, after the decease of his daughter, for all the 
 children of his said daughter who should attain 
 the age of twenty-one years and the lawful issue 
 of such of them as should die under that age 
 leaving issue, which issue should afterwards attain 
 the age of twenty-one years or die under that age 
 leaving issue, as tenants in common, such issue to 
 take only the share which his, her or their parent 
 would have taken if living. In the events which 
 happened, no child of the daughter died under 
 twenty-one leaving issue : — Held, that the true 
 construction of the gift was to treat it as severed ; 
 so that if the interest attributable to any one 
 child should, in the events which happened, be- 
 come void for remoteness, the interests of the 
 other children would not be affected. Therefore, 
 in the events which had happened, the entire gift 
 was good. Webster v. Boddington (26 Bf.av. 128) 
 distinguished. Seaman v. Wood {22 Beav. 581) 
 not followed. In re Moseley's Trusts, 40 Law J. 
 Eep. (n.s.) Chanc. 275 ; Law Eep. 11 Eq. 499. 
 Digest, 1870-1875. 
 
 2. — Where property is limited in remainder 
 after an estate tail to trustees upon trust to sell 
 and distribute the proceeds amongst a class to be 
 ascertained at the determination of the estate tail, 
 the gift of the proceeds will not be void for 
 remoteness, even though the class may comprise 
 individuals beyond the limits of the rule against 
 perpetuities. Heasman v. Pearse, 41 Law J. Eep. 
 (n.s.) Chanc. 705; Law Eep. 7 Chanc. 276. 
 
 Decision of Malins, V.C. (40 Law J. Eep. (n.s.) 
 Chanc. 258; Law Eep. 11 Eq. 622) reversed. 
 Ibid. 
 
 And see Lboacy, 33 and supra I 32, Q, 2. 
 
 (S) Pabtiotjlar Woeds. 
 
 "Ml and every child or children." [See 
 
 supra I 2.] 
 " All my shares." [See Legacy, 19. 
 "All the rest." [See supra E 5.] 
 "And" for " or." [See supra H 10 ; L 16, 
 
 ir.] 
 
 "As to." [See supra L 13.] 
 
 " Between them." [See supra I 3.] 
 
 " Children." [See supra H 11-14.] 
 
 " Children born or to be born." [See supra 
 
 H7.] 
 " Children or legal issue." [See supra H 10.] 
 "Eldest son." [See supra H 27, and 
 
 Markiage Settlement, 5.] 
 " Et cetera." [See supra D 12.] 
 "Every other son during his life." [See 
 
 supra H 28.] 
 " Family." [See supra D 9 ; H 9 ; 8.] 
 " Free occupancy of house." [See supra D 4.] 
 " Freehold houses." [See supra D 3.] 
 "Furniture, Sfc" [See supra D 12.] 
 " Heirs." [See supra H 22.] 
 " In or about fiouse and premises" [See 
 
 supra D 11.] 
 " Issue." [See supra N 3.] 
 " Lands." [See supra D 2.] 
 "Leaving no issue." [See supra L 11.] 
 "Legatee." [See supra N 1.] 
 " Living " read " having issue living." [See 
 
 supra N 8.] 
 " Money." [See supra D 13-15.] 
 " Nephews and nieces." [See supra H 
 
 19-21. 
 " Next-of-Hn." [See Maeeiage Settle- 
 ment, 15.] 
 "Or" read "and." [See supra H 10; 
 
 16, 17.] 
 " Personal estate and effects." [See supra 
 
 D20. 
 " Personal representatives." [See supra, 
 
 Maeeiage Settlement, 12-14.] 
 " Sailway shares." [See Legacy, 6.] 
 " Selatives," "relations." [See supra H 
 
 23-25.] 
 " Securities for money." [See Legacy, 8.] 
 " Small balance." [See supra D 18.] 
 " Specifically" devised. [See supra D 6.] 
 "Such issue." [See supra L 1 2, 13.] 
 " Sums due and owing." [See supi-a D 
 
 16, 17.] 
 
 4L 
 
626 
 
 "WILL, CONSTRUCTION, FORMALITIES, ETC. (A), (0). 
 
 "Survivor" read "other." [See supra N 
 
 6,7.] 
 " Testamentary expenses." [See supra D 21 ; 
 
 Legacy, 17.] 
 " Then living." [See supra H 5.] 
 " Without issue." [See supra I 32,] 
 
 (2) VALIDITY OF WILLS AND REQUISITE 
 FORMALITIES. 
 
 [Mortgage or deed of sale by a devisee of lands 
 in a register county to prevail over any assurance 
 from an heir-at-law, if previously registered, 
 although the will was not registered. 37 & 38 
 Viet. e. 78, s. 8.] 
 
 (A) COMPBTENCT OP TeSTATOE. 
 
 (a) Mental capacity. 
 
 1. — In contemplation of law the expression, 
 " sound mind " does not mean a " perfectly 
 balanced mind." The question of mental sound- 
 ness is one of degree. In considering it large 
 allowance must be made for the difference of 
 individual character; but in every case the 
 highest degree of mental soundness is required in 
 order to constitute capacity to make a testamen- 
 tary disposition, inasmuch as the act involves a 
 larger and a wider survey of facts and things than 
 is required in the other transactions of life. 
 Banks v. Goodfellow (39 Law J. Rep. (n.s.) Ci.B. 
 237) considered. Boughton v. Knight, 42 Law J. 
 Rep. (n.s.) p. & M. 25 ; Law Rep. 3 P. & D. 64. 
 
 (6) Undue influence. 
 
 2.— The influence which is "undue" in the 
 case of gifts inter vivos is different from that 
 which is required to set aside a will. In the 
 case of gifts or other transactions inter vivos, it 
 is considered by the Courts of Equity that the 
 natural influence arising out of the relation of 
 parent and child, husband and wife, doctor and 
 -patient, attorney and client, confessor and peni- 
 tent, or guardian and ward exerted by those who 
 possess it to obtain a benefit for themselves is an 
 "undue" influence. Gifts or contracts brought 
 about by it are, therefore, set aside, unless the 
 party benefited can shew affirmatively that the 
 other party to the transaction was placed in such 
 a position as would enable him to form an abso- 
 lutely free and unfettered judgment. The law 
 regarding wills is different. The natural in- 
 fluence which such relations as those in question 
 involve may lawfully be exerted to obtain a will 
 or legacy, so long as the testator thoroughly 
 understands what he is doing and is a free agent ; 
 and hence the rules adopted in Courts of Equity 
 ia relation to tjifts inter vivos are not applicable 
 to the making of wills. Parjitt v. Lawless, 41 
 Law J. Rep. (n.s.) P. & M. 68; Law Rep. 
 2 P. &; D. 462. 
 
 (o) Omis of proof : suspicious cvrcumsta/nces. 
 
 S.-rThere is no rule that if it is proved or 
 admitted that a testator was of sound mind, 
 memory and understanding, and that a. will has 
 been read over to him or that he has read it to 
 himself, and ■ that he has signed it, he must be 
 taken to have known and approved of the contents 
 of such will, and that such knowledge and 
 approval must be held to extend to every part of 
 such will. The presumption in favour of every 
 part of the will arising where these circumstances 
 exist may be removed where the proof that the. 
 will was read to or by the testator is open to 
 suspicion, or where there is room for a suggestion 
 of fraud, especially in cases where the will has 
 been prepared and propounded by strangers in 
 blood to the testator, but who are beneficiaries 
 under it. For the onus of proving an instrument 
 as the last will of a free and competent testator 
 lies on him who propounds it, and where the 
 person propounding is himself a beneficiary under 
 it and also a stranger in blood to the testator, 
 the Court should be vigilant and jealous in ex- 
 amining the evidence supplied in support of. the 
 instrument or will. Fulton v. Andrew (H.L.), 44 
 Law J. Rep. (n.s.) P. & M. 17 ; Law Eep. 7 
 E. & I. App. 448. 
 
 (B) What Papers are Tbstamentaet. 
 
 4. — A. executed as a will a paper writing, 
 which commenced — " I have given all that I have 
 to B. ; " and contained provisions which were 
 consistent with an intention that it should take 
 effect after A.'s death : — Held, that the instru- 
 ment WEis testamentary. In the goods of Coles, 41 
 Law J. Eep. (n.s.) P. & M. 21 ; Law Rep. 2 
 P. & D. 362. 
 
 (C) "What Documents form Part of Wii,!.. 
 
 5. — A testator wrote his will on the first side of 
 a half sheet of paper. There was an unfinished 
 bequest in the body of the will, and this he com- 
 pleted on the back of the page, marking by an 
 asterisk the place where the endorsement was to 
 be read into the will. The attesting witnesses 
 did not see the endorsemeot, but there was 
 evidence that it was written before the execution 
 of the will : — The Court held that the endorse- 
 ment formed part of the will, and ordered it to 
 included in the probate. In the goods of Burt, 40 
 Law J. Eep. (n.s.) P. & M. 26; Law Rep. 
 
 2 P. & D. 214, sub nom. Birt. 
 
 6. — The presumption that several sheets found 
 tied together constituted a testator's will, — Held, 
 not rebutted by suspicious circumstances, arising 
 from the numbering of the sheets, tending to a 
 contrary conclusion. Rees v. Rees, Law Eep. 
 
 3 P. & D. 84. 
 
 Mistake in residuary clause : words intro- 
 duced not in instructions : codicil. 
 [See Probate, 30, 31.] 
 Validity and effect of probate in Canada : 
 construction of statute. [See Colonial 
 Law, 8.] 
 
WILL, FOEMALITIES, ETC. (D). 
 
 62r 
 
 (D) EXBCCTION. 
 
 (a) Place of signature. 
 
 7. — A will was written on the upper part of 
 one side of a piece of paper with a considerable 
 blank beneath it, and on the back of the paper 
 was written the attestation clause and signatures 
 of the deceased and witnesses. Upon proof that the 
 will was written before execution, — Held, that it 
 was duly executed. In the goods of Archer, 40 
 Law J. Eep. (n.s.) P. & M. 80 ; Law Eep. 2 P. 
 & D. 252. 
 
 8. — ^A testatrix wrote her will on a " lithograph 
 form" She began the instrument — "This is the 
 last will " &c. — on the second side of the sheet of 
 foolscap, continued it on the third side, and passing 
 over the fourth side, on which were printed the 
 words — " Form of will where the property is given 
 to one or more absolutely," finished it on the first 
 side by inserting the names of the executors in the 
 blank space left for the purpose in the "form," 
 filling in the date and signing her name on the 
 bottom of the page : — Held, a valid execution 
 within the meaning of 15 Vict. c. 24. In the 
 goods of Wotton, 43 Law J. Eep. (n.s.) P. & M. 
 14 ; Law Eep. 3 P. & D. 159. 
 
 9. — A testatrix made her will, using for the 
 purpose a printed form, which covered two sides 
 of a sheet of paper. The first side contained the 
 usual heading, a clause of revocation, and one for 
 the appointment of executors, and at the foot of 
 the page there was a printed attestation clause. 
 At the top of the second page were printed the 
 words, " The will continued," and at the foot of 
 the page there was a second printed attestation 
 clause. The blank spaces in both pages had been 
 filled up, and specific legacies given, but the resi- 
 due was notdisposed of. The testatrix executed the 
 will by making her mark in the space left for her 
 name in the attestation clause at the foot of the 
 first page, and the witnesses attested her mark by 
 subscribing their names on the same page. She 
 then made her mark in the space left for her name 
 in the attestation clause at the foot of the second 
 page, but the witnesses did not attest it : — Held, 
 that the two pages constituted the will, and, con- 
 sequently that it was not duly executed the 
 signature of the testatrix at the foot or end of it 
 not having been attested by the witnesses. In the 
 goods of Bilkes, 43 Law J. Eep. (n.s.) P. & M. 38; 
 Law Eep. 3 P.&D. 164. 
 
 10. — ^Where a testator signed his name at the 
 end of his will on the tenth sheet, and put his 
 initials on the first nine sheets, and two put of 
 three witnesses signed on the first nine sheets, but 
 not on the tenth sheet : — Held, that the will was 
 not duly executed. Phipps v. Hale, Law Eep. 3 
 P. & D. 166. 
 
 11. — ^A testator's wiU covered four pages of a 
 sheet of foolscap paper, and was continued on a 
 fifth page, being the first of a second sheet. At 
 the bottom of the fifth page was a formal attesta- 
 tion clause, with the signatures of the witnesses, 
 and the signature of the testator appeared at the 
 top of the sixth or following page, preceded by 
 these words : " To which will and testament I 
 
 hereunto annex my seal and signature :" — Held, a 
 valid execution, within the 15 Vict. o. 24. In the 
 goods ofHorsford, 44 Law J. Eep. (k.s.) P. & M. 
 0; Law Eep. 3 P. & D. 211. 
 
 A testator wrote a codicil to his will upon a sheet 
 of foolscap paper, covering the first page and half 
 the second. The signatiu-es of the testator and 
 attesting witnesses were on a separate paper, 
 which was attached to the codicil by a string. 
 The Court being satisfied that the papers were so 
 attached when the testator acknowledged his sig- 
 nature to the witnesses, and they attested it ; — 
 Held, that the instrument was duly executed. 
 Ibid. 
 
 (A) Acknowledgment of signatmre. 
 12. — A testator asked two witnesses to put their 
 mark to a paper, but did not tell them that it was 
 his will, or make any statement in regard to it. 
 Being illiterate, the witnesses could not say 
 whether his signature was on the paper at the 
 time, and there was no evidence on the point : — 
 Held, an insiifficieut execution of the will. Pear- 
 son V. Pearson, 40 Law J. Eep. (n.s.) P. & M. 53 ; 
 Law Eep. 2 P. & D. 4,')1. 
 
 The cases on execution by acknowledgment of 
 the testator's signature reviewed. Ibid. 
 
 13. — The attesting witnesses to a will, which 
 purported to be executed by mark, were asked, in 
 the deceased's presence, to sign the will. A mark 
 was on the will when they signed, but there was 
 no evidence that it was made by the deceased, or 
 that he knew the contents of the will, nor did he 
 refer to it. The Court pronounced against the 
 will on the ground that the evidence faUed to 
 shew an acknowledgment of the deceased's signature 
 or that he knew and approved of its contents. 
 Morritt v. Douglas, 42 Law J. Eep. (n.s.) P. & M. 
 10; Law Eep. 3 P. & D. 1. 
 
 14. — A testator's acquiescence in any act of a 
 third person done in his presence and in that of 
 the attesting witnesses, which imports that a sig- 
 nature upon the will is that of the testator {ex, gr., 
 a request that the witnesses should sign "beneath 
 the testator's signature") is a virtual acknowledg- 
 ment of the signature. And such acquiescence 
 may be inferred from the testator's silence. Ingle- 
 sant V. Inglesant, 43 Law J. Eep. (n.s.) P. & M. 
 43 ; Law Eep. 3 P. & D. 172. 
 
 15. — A testatrix produced a paper to A. and B., 
 and saying, "This is my will," asked them to 
 witness it. The will covered three pages of a 
 sheet of paper. The signature of the testatrix was 
 at the foot of the third page. The witnesses sub- 
 scribed their names on the fourth page, but did 
 not see the signature of the testatrix or any part 
 of the writing on the paper. The Court, being 
 satisfied that the signature of the testatrix was on 
 the will at the time she produced it to the witnesses : 
 — Held, that there had been a sufiScient acknow- 
 ledgment, and that the will was duly executed. 
 In the goods of Janaway,, ii Law J. Eep. (n.s.) P. 
 &M. 6. 
 
 16. — The mere production of a testamentary 
 
 instrument, which has no formal attestation clause, 
 
 with a request by the deceased that the witnesses 
 
 will sign it, is not sufficient to justify the infer- 
 
 4l2 
 
628 
 
 WILL, FOEMAXITIES, ETC. (D), (F). 
 
 ence that it has abeady heen signed by the de- 
 ceased. Fischer v. Popham, 44 Law J. Eep. (n.s.) 
 P. & M. 47 ; Law Eep. 3 P. & D. 246. 
 
 (o) Execution of wrong will hy mistake. 
 
 17. — B. and C, sisters, living together, having 
 agreed to make mutual wills, B. prepared the in- 
 struBients. In both wills the bequests and objects 
 of the sisters' testamentary bounty were the same, 
 with this exception, that while B. gave a legacy 
 of 19Z. 19s. to a particular charity, 0. gave a 
 legacy of like amount to a different charity ; and in 
 both wills the same executors were appointed. On 
 the death of B. it was found that each sister had 
 by mistake executed the paper prepared for the 
 other. The Court was moved to grant probate of 
 the instrument executed by B., but declined to 
 treat it as her will, and rejected the application 
 for probate. In the goods of Hunt, 44 Law J. 
 Eep. (n.s.) p. & M. 43 ; Law Eep. 3 P. & D. 280. 
 
 ((?) Addition of clause after signature. 
 
 18. — A testator added a clause to his will after 
 he had himself signed, but before the witnesses 
 had signed :— Held, that probate must issue with- 
 out the clause. In the goods of Arthur, Law Eep. 
 2 P. & D. 273. 
 
 (E) Attestation. 
 
 {a) Form of subscription. 
 
 19. — No particidar form of subscfiption is re- 
 quired by 1 Vict. c. 26. s. 9. A mark will do, 
 though the witness may be able to write ; but 
 whatever form the subscription may assume, it 
 must be made animo testandi. In the goods of 
 Enyon, 42 Law J. Eep. (n.s.) P. & M. 52 ; Law 
 Eep. 3 P. & D. 92. 
 
 A. and B. attended to witness the execution of 
 his will by C. The testator and B. signed by mark. 
 A then wrote the testator's name against his mark, 
 and also the name of B. against his mark, together 
 with the word " witness "—Held, an insufficient 
 subscription by A., the writing being intended by 
 him as an identification of the marks of B. and 
 C, and not as evidence of his own attestation. 
 Ibid. 
 
 (J) Incomplete signature by witness. 
 
 20. — A testatrix executed her will by making 
 her mark in the presence of two witnesses. The 
 first witness signed his name. The second witness 
 then proceeded to subscribe the will, but being old 
 and infirm, could only write " Saml.," the abbre- 
 viation of his Christian name, and left his signa- 
 ture incomplete : — Held, an insuificient subscrip- 
 tion, the act which the witness intended as his 
 subscription — the writing of his full signature — 
 not having been completed. In the goods of Had- 
 dock, 43 Law J. Eep. (n.s.) P. & M. 29 ; Law 
 Eep. 3 P. & D. 169. 
 
 (c) Signature as executor. 
 
 21. — A. signed his will in the presence of two 
 persons who also signed in A.'s presence. Oppo- 
 site the signature of one of the witnesses was 
 •written "executor," opposite the signature of the 
 
 other "witness." The Court being of opinion on the 
 evidence that though the former witness deposed 
 that he signed as executor, he did not mean to sign 
 exclusively as executor, but also to attest the sig- 
 nature of the deceased : — Held, that the will was 
 duly executed. Qriffiths v. Griffiths, 41 Law J. 
 Eep. (n.s.) p. & M. 14 ; Law Eep. 2 P. & D. 300. 
 
 {d) Attestation by beneficiary. 
 
 22. — A testatrix by her will gave a bequest to 
 her son Gr. A. One of the two witnesses attest- 
 ing the execution of the will was the wife of G-. A. 
 By a subsequent codicil attested by two indepen- 
 dent witnesses the testatrix confirmed her will : — 
 Held, that the execution of this codicil was equi- 
 valent to a re-execution of the will ; and since the 
 codicil was attested by independent witnesses, the 
 bequest to G-. A. was valid. Anderson v. Anderson, 
 41 Law J. Eep. (n.s.) Chanc. 247; Law Eep. 13 
 Eq. 381. 
 
 23. — A beneficiary under a will attested the 
 will as a third witness, and deposed that he did so 
 at the testator's especial request as a token of 
 approval : — Held, that the attestation invalidated 
 the bequest. Cozens v. Crout, 42 Law J. Eep. 
 (n.s.) Chanc. 840. 
 
 24. — By a wiU made since 7 Will. 4. & 1 
 Vict. c. 26, certain land and houses, after the 
 deaths of the testator's niece S. A. and her husband 
 J. A. (to whom life interests had been given), 
 were directed "to be equally divided among 
 the children " of the said S. A. and J. A. The 
 will purported to be attested by three witnesses, 
 two of whom were Thomas and Sarah, children of 
 the said S. A. and J. A. : — Held, that the devise 
 to the children, although it was a devise to them 
 as tenants in common, was a devise to a class, 
 so that the whole was to be taken by those who 
 after the testator's death came within the limits 
 of such class and were capable of taking, and 
 therefore the shares of Sarah and Thomas, who 
 as attesting witnesses were themselves incapable 
 of taking, went to the other members of the 
 class, and not to the heir-at-law of the testator. 
 Fell V. Biddulph, 44 Law J. Eep. (n.s.) C. P. 402; 
 Law Eep. 10 C. P. 701. 
 
 Qusere — whether a person who sees the testator 
 sign the will, and who afterwards attests the will 
 but not in the testator's presence, and who there- 
 fore is not an attesting witness within the mean- 
 ing of section 9 of 7 Will. 4. & 1 Vict. c. 26, is 
 rendered by the 15th section incapable of taking 
 anything under the will. 
 
 (F) Will op Feme Coveet inopeeative in 
 Events which happened. 
 
 25. — A married woman made a wiU in exercise 
 of a power, but appointed no executor. The vriR 
 was dependent on events which never happened, 
 and the legatees named in it died in the lifetime 
 of the testatrix. The wiU being clearly inopera- 
 tive, the Court refused to admit it to probate. In 
 the goods of Graham, 41 Law J. Eep. (n.s.) P 
 & M, 46 ; Law Eep. 2 P. & D. 385. 
 
"WILL, FORMALITIES. ETC. (G). 
 
 629 
 
 (G) Ebvocation of Will. 
 
 (a) Alterations and obliterations. 
 
 28. — A testator duly executed his -will and sub- 
 sequently a codicil in ■which he coniirmed his ■will. 
 On his death the ■will was found ■with several pas- 
 sages scored out in pencil, and before those pas- 
 sages the ■word "query " in the hand^writing of the 
 deceased. There ■was evidence to she'w that the 
 alterations ■were made before the execution of the 
 codicil, and that when he executed it he had not 
 the will before him nor made any reference to it. 
 The Court being satisfied that the alterations 
 were intended by the testator to be deliberative, 
 not final, excluded them from the probate. In the 
 
 foods of Hall, 40 Law J. Eep. (n.s.) P. & M. 37 ; 
 ,aw Eep. 2 P. & D. 256. 
 27. — A will was written upon a lithographed 
 form, which was filled up by the testatrix in her 
 own handwriting. In the body of the instrument 
 there was certain pencil ■writing, which was partly 
 obliterated, and partly written over in ink. A 
 portion of the pencil ■writing remained however 
 legible, and was capable of being read on ■with the 
 rest of the will. The Court, looking to the ap- 
 pearance of the instrimient, and to the fact that 
 the ■writing in ink read on with the print and 
 formed a complete ■will, held that the ■writing in 
 pencil was merely deliberative, and ordered that 
 probate should issue ■without it. In the goods of 
 Adams, 41 Law J. Eep. (n.s.) P. & M. 31 ; Law 
 Eep. 2 P. & D. 367. 
 
 28. — A testator obliterated certain bequests in 
 the ■will by pasting strips of paper over them, so 
 that the ■writing beneath could not be read, and 
 on these strips wrote new legacies. In the codicil 
 to the ■will a strip of paper was placed over the 
 amount of a legacy, and on the strip of paper 
 covering the amount of the legacy the word " ten " 
 was ■written, but the legatee's name remained un- 
 touched. The alterations were unattested, and 
 the ■witnesses did not notice the strips of paper 
 pasted on the instruments at the time of execu- 
 tion: — Held, that the word "apparent," in the 1 
 Vict. 0. 26. s. 21, means apparent on the face of 
 the instrument in the condition in which it is left 
 by the testator, and that if he has recourse to 
 extraordinary means to obliterate what he has 
 ■written, the Court is not bound to take any steps 
 to undo what he has done. It therefore declined 
 to order the strips of paper, which effectually ob- 
 literated the passages which they covered, to be 
 removed from the -will, and directed that probate 
 should issue -with those parts in blank. In the 
 goods of Horsford, 44 Law J. Eep. (n.s.) P. & M. 
 9; Law Eep. 3 F. & D. 211. 
 
 With respect to the codicil, being of opinion 
 that the testator's intention was only to revoke 
 the original bequest, in the event of his ha^ving 
 effectually substituted another bequest in its 
 place, it held that the doctrine of dependent rela- 
 tive revocation became applicable, and that the 
 Court might have recourse to any means of legal 
 proof by which to ascertain the original disposi- 
 tion of the testator. It therefore directed the 
 strip of paper pasted on it to be removed, and de- 
 
 creed probate of the codicil in its original and 
 unaltered condition. Ibid. 
 
 29. — A testator duly executed his will, bequeath- 
 ing inter alia some leasehold property therein 
 described to trustees for his children. Upon his 
 death it appeared that the description of the pro- 
 perty had been struck through with a pen, and 
 that before the final clause of the will a bequest 
 of the same property to trustees for the benefit 
 of his ■wife had been interlined in the handwriting 
 of the testator. After the original signature a 
 duly executed and attested memorandum followed, 
 stating that the words had been struck out for 
 the benefit of his ■wife : — Held, that the me- 
 morandum siifiieiently referred to the alteration 
 and interlineation to entitle the will as altered to 
 be admitted to proof. In the goods of Treeby, 44 
 Law J. Eep. (n.s.) P. feM. 44 ; Law Eep. 3 P. & 
 D. 242. 
 
 30. — Alterations in a will bearing an earlier 
 date than that of the ■will, but not other^wise 
 shewn to have been made prior to the execution 
 of the will, will not be recognised or admitted to 
 probate. In the goods of Adamson, Law Eep. 3 
 P. & D. 263. 
 
 (J) Tearing: animus revooandi. 
 
 31. — A testator duly executed his ■will in 1828. 
 It was ■written on seven sheets of brief paper, and 
 each sheet was signed by the testator and the three 
 attesting witnesses. On the testator's death, in 
 1870, the will was found in a chest in which he 
 kept papers of importance, with about eight lines 
 at the top of the first sheet torn off. In all other 
 respects the ■will was perfect, and there was no 
 e^videnoe as to the circumstances under which the 
 mutilation was effected : — Held, that part revoca- 
 tion of the instrument was only intended, and 
 probate accordingly decreed of the ■will in its muti- 
 lated state. In the goods of Woodward, 40 Law J. 
 Eep. (n.s.) p. & M. 17 ; Law Eep. 2 P. & D. 206. 
 
 32. — A testator being led to believe by a friend 
 that his will was invalid, tore it and told his ■wife 
 to put it in the fire. The fire had not been 
 lighted, but the ■wife placed the pieces in the 
 grate. A few minutes afterwards the testator be- 
 thought himself that his friend might possibly be 
 ■wrong, and he took the pieces from the grate and 
 preserved them : — Held, that there had been no 
 revocation, the act of tearing not having been ac- 
 companied by the aniwMS revocandi ; and probate 
 was granted of the ■will as contained in the pieces. 
 6Hles V. Warren, 41 Law J. Eep. (n.s.) P. & M. 
 59 ; Law Eep. 2 P. & D. 401. 
 
 33. — Where a testator, iiT a fit of delirium tre- 
 mens, tore up his ■will, but, on recovering, expressed 
 regret, — Held, that the ■will was not revoked. 
 Brtmt V. Brwit, Law Eep. 3 P. & D. 37. 
 
 (e) Willbv/rnt; but codicil preserved. 
 
 34. — Where a testatrix, having executed a ■will 
 and codicil, destroyed the ■will by burning it, but 
 preserved the codicil, — Held, that the codicil, not- 
 withstanding that its meaning was dependent 
 upon the will, must be admitted to probate. In 
 the goods of Turner, Law Eep. 2 P. & D. 403. 
 
630 
 
 WILL, FORMALITIES, ETC. (G). 
 
 (d) Revocation by subsequent instrument. 
 
 35. — A testator executed two wills — the first in 
 England, the second in Italy, where he was domi- 
 ciled at the time of his death. The English will 
 disposed of realty and personalty, and nominated 
 B. executor. The second, or Italian will, disposed 
 of the personalty only, but contained a general revo- 
 catory clause : — Held, that the second will revoked 
 the first, including the appointment of the executor. 
 And B., the executor, who resisted revocation of 
 the probate of it, granted to him in common form, 
 was condemned in costs. Cottrell v. Cottrell, 41 
 Law J. Eep. (n.s.) P. & M. 57 ; Law Eep. 2 P. 
 & D. 397. 
 
 36. — A testator duly executed his will. On the 
 day of his death he wrote to his brother the fol- 
 lowing letter : — " Enclosed I hand you an order to 
 get my will from Mr. D., which please burn as 
 soon as you receive it without reading it. I will 
 leave you my share as a deed of gift, leaving it to 
 your honour to pay out of it 100?. each to each 
 of my two sisters, and lOOZ. to T. P." The 
 signature of the deceased was attested by two 
 witnesses, and the paper was valid as a testamen- 
 tary paper : — Held, that it was a writing declar- 
 ing an intention to revoke, within the meaning of 
 1 Vict. ti. 26, s. 20, and that it revoked the will. 
 In the goods of Dm-ance, 41 Law J. Eep. (n.s.) P. 
 & M. 60 ; Law Eep. 2 P. & D. 406. 
 
 37. — A testator, who was by birth a British sub- 
 ject, bat domiciled in Spain at his death, duly 
 executed a wiU in England. He subsequently 
 executed in Spain several codicils which were valid 
 by the law of Spain, and he lastly executed in 
 England a further codicil. This paper contained 
 no mention of the Spanish codicils, or the property 
 with which they dealt, and it concluded thus — "I 
 confirm the dispositions contained in my will, in 
 whatever does not clash or interfere with the con- 
 tents of this codicil, which is to be considered as 
 my last and deliberate will": — Held, that the 
 Spanish codicils were not revoked, and that they 
 were entitled to probate with the English docu- 
 ments, as together constituting the complete tes- 
 tamentary disposition of the deceased. In the 
 goods of Be La Saussaye, 42 Law J. Eep. (n.s.) P. 
 & M. 47 ; Law Eep. 3 P. & D. 42. 
 
 38. — A. by her will bequeathed the residue of 
 her estate, after the payment of debts and certain 
 legacies, to her daughter absolutely ,'and appointed 
 her sole executrix. By a subsequent testamen- 
 tary paper which purported to be her last will, 
 but contained no revocatory clause or bequest 
 of the residue, she gave all her estate to 
 her daughter for' life and appointed her 
 sole executrix, and then gave certain legacies pay- 
 able after her daughter's decease : — Held, that as 
 the second will did not dispose of the residue, it 
 did not revoke the residuary bequest in the earlier 
 will, and that both instruments were therefore 
 entitled to probate. In the goods of Petchell, 43 
 Law J. Eep. (n.s.) P. & M. 22 ; Law Eep. 3 P. 
 & D. 153. 
 
 39, — A testatrix, a married woman, made, in 
 1859, under a power contained in her marriage set- 
 tlement, a will, whereby she appointed all the real 
 
 and personal estate over which she had any power 
 of appointment to her husband. In 1863 she 
 made a second will, which also referred to the 
 power, but left undisposed of a portion of the pro- 
 perty included in the settlement. The will con- 
 cluded with a general revocatory clause : — Held, 
 that the will of 1859 was revoked by the later 
 instrument. In the goods of Eustace, 43 Law J. 
 Eep. (n.s.) p. & M. 46 ; Law Eep. 3 P. & D. 
 183. 
 
 [And see Will, Consteuction, & 6.] 
 
 (e) Dependent relative revocation. 
 
 40. — A testatrix, in 1865, duly executed a 
 will, in which she appointed A. and B. executors, 
 and named A. one of the residuary legatees. Some 
 years afterwards she determined to exclude A. 
 from the will, and in 1872 she dictated to C, 
 using the will as a copy, what was apparently in- 
 tended to be a formal testamentary paper. She 
 then tore off and burnt the upper portion of the 
 will, leaving the residuary clause and the attes- 
 tation and the signatures of herself and attesting 
 witnesses, and having drawn her pen through A.'s 
 name in the clause, she put away the papers, viz., 
 the portion of the will which she had preserved 
 and the paper which was written from her dicta- 
 tion, saying that she would " leave them there 
 with her signature as her will," and that "she 
 would consult her solicitor to see that what she 
 had done was correct." She saw her solicitor 
 some months afterwards, but did not mention to 
 him the subject of her will : — Held, that tie tes- 
 tatrix did not intend to cancel her will in toto ; 
 that she intended the cancellation of the portion 
 of it which she destroyed to be dependent on the 
 validity of the new disposition, and that as it 
 failed, there had been no cancellation. Probate 
 was therefore decreed of the portion of the will 
 which was preserved, with A.'s name restored, 
 together with the draft of the part of the wiU 
 which was destroyed. Dancer v. Crabb, 42 Law 
 J. Eep. (n.s.) p. & M. 53; Law Eep. 3 
 P. & D, 98. 
 
 41. — A testator executed a will on the 8th 
 of September, 1866, and on the 21st of February, 
 1871, added a codicil thereto. The will was sub- 
 sequently destroyed by his wife, by his direction, 
 but not in his presence. On the 29th of Sep- 
 tember, 1872, he executed the following codicil — 
 " I desire to cancel the will that I made in 1866, 
 and that the will that I made on the 17th of 
 October, 1865, with the codicil dated the 21st of 
 February, 1871, shall stand as my last will and 
 testament." The document which he executed on 
 the 17tli of October, 1855, was a marriage settle 
 ment and not a will : — Held, that the will of the 
 8th of September, 1866, was suflBciently identified 
 by the reference in the second codicil, that its re- 
 vocation was not dependent on the validity as a 
 testamentary paper of the settlement, and that 
 the will was therefore absolutely revoked. In the 
 goods of Gentry, 42 Law J. Eep. (n.s.) P. & M. 
 49 ; Law Eep. 3 P. & D. 80. 
 
 The Court, by consent of parties, -allowed the 
 
WILL, PORMALITIES, ETC. (G), (H). 
 
 631 
 
 settlement of 17th October, 1865, to be included 
 in the probate granted of the codicils. Ibid. 
 
 [And see supra No. 28.] 
 
 (/) Conditional revocation. 
 
 42. — Where a testator obliterates the name of 
 a legatee and substitutes that of another, intend- 
 ing to revoke the former bequest by substituting 
 the name of the second legatee, but the second 
 bequest cannot take effect for want of compliance 
 ■with the Wills Act, the will may be pronounced 
 for in its original state, if that is ascertainable by 
 any means of legal proof. In the goods of 
 M'Cabe, 42 Law J". Kep. (n.s.) P. & M. 79 ; Law 
 Eep. 3 P. & D. 94. 
 
 A wiU contained a bequest to " my sister, Louisa 
 Gralsworthy," the words, " sister Louisa," being 
 written on an erasure, and the writing obliterated 
 being illegible. In the absence of evidence when 
 the alteration was made, the Court being of opi- 
 nion, upon extrinsic evidence, that the words 
 erased were " niece Edith," and that the testa- 
 trix only intended to revoke the original bequest 
 conditionally on her sister taking it, granted pro- 
 bate with the words, " niece Edith," restored. 
 Ibid. 
 
 (g) Evidence. 
 
 (1) Admissibility of declarations by testator. 
 
 43. — A "wUl which was in the testator's pos- 
 session was not forthcoming at his death. In 
 order to rebut the presumption of revocation by 
 destruction, evidence was produced and admitted 
 of declarations by the testator shewing an inten- 
 tion to adhere to the will. Evidence of declara- 
 tions to the opposite effect, viz., that he did not 
 intend to leave his property in the manner dis- 
 posed of by the will, and that he had destroyed 
 it by burning it, was produced by the opponents 
 of the will : — Held, that such declarations by the 
 testator were also admissible, not as evidence of 
 the fact of destruction, but as evidence of inten- 
 tion not to adhere to the will. Keen v. Keen, 42 
 Law J. Eep. (n.s.) P. & M. 61 ; Law Eep. 3 P. & 
 D. 105. 
 
 44. — Where the presumption of revocation, 
 arising from a testator's will which was in his 
 possession not being found after his death, is 
 sought to be rebutted by evidence of declarations 
 by the testator of an intention to adhere to the 
 will, counter-evidence of declarations of an inten- 
 tion not to adhere to the will, e. g., a declaration 
 by the testator that he had burnt his will, is ad- 
 missible. Keen v. Keen, Law Eep. 3 P. & D. 105. 
 
 (2) Burden of proof as to time of cancellation. 
 
 45. — A testator made his will in 1834, and 
 upon his death in 1870 the will was found among 
 his papers with the signature cancelled : — Held, 
 that it lay upon the party who alleged the revo- 
 cation of the instrument by cancellation to prove 
 that the cancellation took place before the Wills 
 Act came into operation, and that in the absence 
 
 of such proof the will was entitled to probate 
 Benson v. Benson, 40 Law J. Eep. (n.s.) P. & M. 
 1 ; Law Eep. 2 P. & D. 172. 
 
 (H) Eepuelication and Ebvivai. of Will. 
 (a) WiU of married woman. 
 
 46.— The object of section 34 of the Wills 
 Act is to get rid of republication as a method of 
 conferring testamentary validity even as regards 
 a will made before the date of the Act, and not to 
 extend its operation to wills made since the Act. 
 Therefore, the will of a married woman, made in 
 1869 with the assent of her husband, was held 
 not to be revived by republication after his death, 
 and held further, that whatever support, autho- 
 rity, or efficacy the will might have derived from 
 the husband's concurrence was extinguished by 
 his death. Noble v. Willock, 40 Law J. Eep. (n.s.) 
 P. & M. 60; Law Eep. 2 P. & D. 276, nom. 
 Noble V. Phelps and Willock). 
 
 The testatrix made her will while under cover- 
 ture, and by it, after disposing of certain property 
 to which she was entitled to her separate use, be- 
 queathed " all the residue of the real and personal 
 estate which I shall possess or have power to dis- 
 pose of at the time of my decease to my niece 
 M. W." After the will was executed her husband 
 died, bequeathing her considerable personal pro- 
 perty. Shortly afterwards she died herself, with- 
 out having executed her will, — Held, that although 
 the Court would be warranted by the principles 
 laid down in Thomas v. Jones (2 J. & H. 475 ; 
 31 Law J. Eep. (n.s.) Chanc. 732 ; 1 De Gex, J. & 
 S. 63 ; 32 Law J. Eep. (n.s.) Chanc. 139), in holding 
 that the testatrix, having full power over the pro- 
 perty acquired from her husband at the time of 
 her death, and having used language in the will 
 sufficiently large to include it, had effectually dis- 
 posed of it, yet that it was its duty to conform to 
 the decision of the Privy Council in Barnes v. 
 Vincent (1 Moo. P. C. 201), and to leave the ques- 
 tion for the Court of Construction. It accord- 
 ingly refused a general probate of the will, but 
 made the limited grant as full as it possibly could 
 so as not to prejudice the parties or fetter the 
 Court of Construction. Ibid. 
 
 (6) Revival by codicil. 
 
 47. — The name of J. S., one of the executors 
 appointed by the will, was written on an erasure. 
 There was no evidence to shew at what time the 
 alteration was made in the will, but there was 
 evidence of a declaration by the testator before 
 the execution of the codicil to the will, that he 
 had appointed J. S. one of his executors : — Held, 
 that the declaration sufficiently shewed that the 
 alteration had been made in the will before the 
 execution of the codicil, and that the codicil being a 
 republication of the will, confiriiied it in its altered 
 state. In the goods of Sykes, 42 Law J. Eep. (n.s.) 
 P. & M. 17 ; Law Eep. 3 P. & D. 26. 
 
 48. — A testator executed a will on the 11th 
 of Ma:y, 1866, in which he appointed his sou sole 
 executor and residuary legatee, and on the 12th 
 of May, 1871, he added a codicil thereto. On the 
 
632 
 
 WILL, POEMALITIES, ETC. (H)— WOtrNDING. 
 
 7th of November, 1871, he executed another -will 
 which in terms revoked all other wills and codi- 
 cils. On the 19th of December, 1872, he executed 
 a codicil which began — " This is a codicil to the 
 will of B. Eeynolds, dated May, 1866," and it 
 concluded — " I confirm the appointment of my 
 son as residuary legatee and executor of my will 
 and codicil. Signed and declared to be a codicil 
 to the will of B. Reynolds, dated May, 1866 :"— 
 Held, that the will of the 11th of May, 1866, was 
 alone revived, and probate granted of such will 
 with the codicil of the 19th of December, 1872. 
 In the goods of Eeynolds, 42 Law J. Rep. (n.s.) 
 P. & M. 20 ; Law Eep. 3 P. & D. 35. 
 
 [And see supra No. 22.] 
 
 Will in executio7i of power. [SeePowEE, 7.] 
 
 WINDING UP. 
 [See Company, I.] 
 
 WINE .#ND BEERHOUSE ACT. 
 [See Alehouse, 21.] 
 
 WITNESS. 
 
 [See Admieaity, 31 ; Company, I 34-40 ; 
 DrvOEOE, 33-35 ; Evidence; Practice 
 AT Law, 22 ; Pkactice in Equity, 
 143-145 ; Pbobate, 50, 51.] 
 
 WORK AND LABOUR. 
 
 The plainti:^' had been employed by a. local 
 board of health to construct certain main sewers. 
 Having completed the main sewer, the plaintiff 
 was leaving the work, when the surveyor stopped 
 him and requested him not to go away, as he was 
 wanted to construct the connections between the 
 house drains and the sewer. The plaintiff asked 
 who was to be responsible for the payment, to 
 which the surveyor answered that the defendant, 
 who was the chairman of the local board, was 
 waiting to see the plaintiff about it. The plain- 
 tiff then had an interview with the defendant, at 
 which the defendant said, " What objection have 
 you to making the connections ? " The plaintiff 
 said, " I have none, if you or the board will order 
 the work, or become responsible for the payment." 
 The defendant said, "Go on and do the work, 
 and I will see you paid." Accordingly the plain- 
 tiff constructed and completed the connections : — 
 Held, reversing the judgment of the Court of 
 Queen's Bench (39 Law J. Rep. (n.s.) CI. B. 275), 
 that there was evidence to go to^the jury of the 
 personal liability of the defendant. Mouutstephen 
 
 V. Lakemaii {Ex. Ch.), 41 Law J. Eep. (n.s.) Q. B. 
 67 ; Law Rep. 7 Q. B. 196 : affirmed, on appeal to 
 the House of Lords, 43 Law J. Eep. (n.s.) Q. B. 
 188 ; Law Rep. 7 E. & I. App. 17. 
 
 Action : cross-action. [See Action.] 
 
 WORKSHOP REGULATION ACT. 
 
 [The above Act amended as to penalties in- 
 curred by Jews for working on Sunday. 34 & 35 
 Vict. c. 19.] 
 
 By 30 & 31 Vict. c. 146, ». 6, the following 
 regulations shall he observed with respect to the 
 employment of children, &c., in workshops: — 
 No child under the age of eight years shall be 
 employed in any handicraft. By section 4, " em- 
 ployed " shall mean occupied in any handicraft, 
 whether for wages or not, under a master or under 
 a parent. " Handicraft " shall mean any manual 
 labour exercised by way of trade or for the pur- 
 poses of gain in or incidental to the making any 
 article or part of an article, or the altering, re- 
 pairing, &c., or otherwise adapting for sale any 
 article. "Workshop" shall mean any room or 
 place whatever, whether in the open air or under 
 cover, in which any handicraft is carried on by 
 any child, &c., or to which and over which a per- 
 son by whom such child is employed has the right 
 of access and control. By section 5, if any such 
 child is so employed, in contravention of the Act, 
 the occupier of the workshop in which it is so 
 employed, and the parent of, or the person de- 
 riving any direct benefit from the labour of, or 
 having control over the child, are made liable to 
 penalties. An information was preferred against 
 the respondent, as the occupier of a workshop, for 
 employing a child under eight years of age, in 
 contravention of the Act. It appeared from the 
 evidence that the child was found in a workroom 
 occupied by the respondent, engaged in plaiting 
 straw under his superintendence. The mother of 
 the child sold the plait for her own benefit, found 
 the straw, and paid the respondent threepence a 
 week for the teaching : — Held, that the child was 
 employed in a workshop in contravention of the 
 Act, and that the respondent was liable to the 
 penalty, although he had no interest in the work 
 done, or in the proceeds of it. Beadon v. Parrott, 
 40 Law J. Rep. (n.s.) M. C. 200 ; Law Rep. 6 
 a. B. 718. 
 
 WOUNDING. 
 
 Under the 20th section of the 24 & 25 Vict. 
 c. 100, it is a misdemeanour to unlawfully and 
 maliciously wound any person. By 14 & 15 Vict. 
 c. 19, s. 5, upon the trial of any indictment for 
 felony where the indictment shall allege that the 
 prisoner wounded any person, if the jury are 
 satisfied that the defendant is guilty of wounding, 
 but are not satisfied the defendant is guilty of the 
 felony charged, the jury may acquit him of the 
 felony and find him guilty of unliwful wounding. 
 
WOUNDING— yOEKSHIRE EEGISTRY ACT, 
 
 633 
 
 and he may thereupon he punished as if he had 
 been convicted of the misdemeanour of unlawful 
 ■wounding. The prisoner was indicted for unlaw- 
 fully and maliciously wounding with intent to do 
 grievous bodily harm. The prosecutor was using 
 a punt in a creek of a river for the purpose of 
 shooting wild fowl, lying with his face downwards 
 in the punt, and paddling with his arms over the 
 sides. When slewing the punt round to return 
 home, he suddenly heard the report of a -gun, 
 and found himself shot and wounded seriously. 
 The prisoner had fired the shot in the direction of 
 the punt, with the intention of .frightening the 
 prosecutor from again coming into the creek for 
 the purpose of fowling, and not with the intention 
 of doing him grievous bodily harm. The prisoner 
 at the time and afterwards asserted that if the 
 prosecutor had not slewed the punt round at the 
 moment of his shooting, the shot would hot have 
 struck him. The jury found the prisoner guilty of 
 unlawful wounding under 14 & 15 Vict. c. 19, s. 5 : 
 —Held, that the 5th section of the 14 & 15 Vict. 
 c. 19, must be construed as if the word " malicious " 
 were applied to wounding; and that there was 
 evidence on the above facts of a malicious wound- 
 
 ing by the prisoner, and the conviction was right. 
 The Qitem v. Ward, 41 Law J. Eep. (n.s.) M. 0. 
 69 ; Law Kep. 1 C. C. R. 356. 
 
 WRIT OF ERROR. 
 [See Ekeob.] 
 The fiat of the Attorney-General is a condition 
 precedent to the issuing of a writ of error in a 
 criminal case, and if a convicted person bring an 
 action against the Olerk of the Petty Bag for not 
 sealing a writ of error to bring up his conviction, 
 the Court will stay the action as frivolous and vex- 
 atious, on its appearing that no fiat had been 
 obtained. Castro v. Murray, 44 Law J. Rep. (n.s.) 
 M. C. 70 ; Law Rep. 10 Exch. 213. 
 
 YOEKSHIRE REGISTRY ACT. 
 [See MoKTGAQB, 26, 27.] 
 
 DiaE3T, 1870-1875, 
 
 4M 
 
TABLE OF CASES. 
 
 PAGE 
 
 Abhot y. Bates, Cmtom 1 . . . .215 
 
 V. Frasei, Colonial £aw 16 . . . 125 
 
 Abbott V. Abbott, Foreign Court . . . 257 
 
 V. Parfitt, Executor 15 . . . .251 
 
 Abel V. Lee, Parliament 32 . . . . 408 
 Aberdare Local Board v. Hammett, Fublic 
 
 Health Act 3 487 
 
 Abepgavenny, Earl of, v. Erace, Limitations, 
 
 Statute of 16 337 
 
 Abinger, Lord, v. Ashton, Mines 9 . .376 
 Accidental Death Insurance Co., in re ; Allin's 
 
 case, Convpany E 20 . . . . . 151 
 Chappell's case and Laukester's case, 
 
 Compariy^X^ 151 
 
 Aotoojd T. Acfcroyd, Will, Construction Ml. 621 
 Adair's Settled- Estates, in re, Settled Estates 
 
 Aots 12- . • 524 
 
 AdaHis v. Adams, WUl, Construction N 2 , 622 
 
 , ex parte, Attorney 2 . , . .34 
 
 , ex parte, in re Ball, Company G 64 .163 
 
 , — — , Bankruptcy E 10 . . .57 
 
 I in re, ex parte Birmingham Gaslight and 
 
 Coke Co., Bankruptcy M 7 . . .74 
 
 , in re, ex parte Greenway, Attachment 7 33 
 
 s ' , Bankruptcy E 23 . 59 
 
 , in re, ex parte Shellard, Stamps 4 .555 
 
 case ; in re United Ports Co., Company 
 
 E 17 150 
 
 in the goods of. Will, Formalities 27 . 629 
 
 Adamson v. Hammond, Probate 69 . .478 
 
 , in the goods of, ^'xecM^or 1 . . . 250 
 
 , in the goods of. Will, Formalities 30 629 
 
 Adamson's case, in re, in re Paraguassu Steam 
 
 Tramway Co., Company D 44 . . .141 
 Adansonia Fibre Co., in re; Miles' Claim, 
 
 Bill of Exchange S 90 
 
 , Company H 10 . . . .169 
 
 Addison -v. Cox, Mortgage IS . . . 382 
 Addison's case ; in re Brampton and Long- 
 town Bail. Co., Company A 5 . , . 132 
 .K)lus, The, Shipping Law T 6 . . . 647 
 Aerated Bread Co. v. Grigg, Bread 2 . .99 
 African Merchants, Company of, v. British 
 
 and Foreign Marine Insurance Co., Marine 
 
 Insurance 19 351 
 
 Agra Bank V. Barry, ilfor/i^a^e 28 . . 884 
 , ex parte ; in re European Bank, 
 
 Banker 6 43 
 
 . •, in re London and Mediterranean Bank, 
 
 Company 'K^- • . 169 
 
 Agriculturists' Cattle Insurance Assoc, in re. 
 
 Company I 58 . . . . .179 
 
 Albert Average Association, in re, Maiine 
 Insurance 4 . . . ... 348 
 
 , in r6. Practice in Equity 26 . . 447 
 
 ; Blyth's Case, Marine Insurance 4 . 348 
 
 Albert Life Assurance Co., in re. Company 
 
 D 73 . • 146 
 
 , Parlby's Case, Co»zya»y G 39 . .159 
 
 ■ Western Life Assurance, ex parte, Com- 
 pany E-6 147 
 
 Albert, The, Admiralty 37 . . . .14 
 Albert Edward, The; Shipping Law F 17 . 635 
 Aldridge v. Cato, Colonial Law 31 . . 127 
 
 Alexander v. Campbell, Arbitration 2 . .27 
 
 V. , Marine Insurance 15, 51 . 361, 360 
 
 V. Kirkpatrick, Scotch Law 14 . . 520 
 
 V.Mills, Costs in Equity II . . .202 
 
 V. , Power 24 . ' . . . .438 
 
 — — V. , Specific Performance 19 . . 852 
 
 V. Vanderzee, Sale 6 . ' . . 513 
 
 Alexandra, Ths, Admiralty 14 . . .13 
 Alison's case. Company E 6 . . . . 148 
 Allan V. Gott, Admihistration 32 . . .10 
 
 ■ V. Overseers of Liverpool, Bates 13 . 502 
 
 V. Eoyden, Production 1 . . .480 
 
 AUchiu's Trusts; in re ; ex parte Furley ; ex 
 
 parte Earl Eomney, Charity 18 .' .112 
 
 Allen V. Allen, Partition 14 ... 413 
 
 V. Edwards, Mortgage 47 . . . 386 
 
 : V. Forbes; Practice in Equity 97 . • 454 
 
 V. Gloucester, Bishop of, C'A«reA4, 14. 116, 117 
 
 V. Jackson, Will, Construction 10 ' . 624 
 
 V. London and South-Western Eail. Co., 
 
 Master and Servant 11 . . . . 368 
 
 — V. Martin, Trespass 6 . . . . 569 
 
 V. Taubridge, Hackney Carnage 4 . 273 
 
 ■■ ex parte ; re Middleton, B'dl of Sale 25 98 
 
 AUetson v. Chichester, Wake, claimant, 
 Bankruptcy G 17 . . . . 64 
 
 AUgood v. Blake, Will, Construction J-i 12 .617 
 Alliance Bank (Lim.) v. Kearsley, Partner- 
 ship 12 . ■ . • . . . ... 416 
 
 Allin's ease, in re. Accidental Death Insur- 
 ance Co., Company E 20 . . . . 151 
 
 Allison V. Bristol Marine Insurance Co., 
 Marine Insurance 20 .... 362 
 
 :, Shipping Law 1 1 . . . . 539 
 
 AUones v. EUkan, Costs in Equity 26 . . 203 
 
 Allsop V. Wheatoroft, CoBejtawi 3 . .213 
 
 4m2 
 
636 
 
 TABLE OF CASES. 
 
 PAGE 
 
 Amtler v. Bolton, Partnership 21 . .418 
 American, The, and The Syrian, v. The Aracan, 
 
 Shipping Law F 9 334 
 
 Amerique, The, Admiralty 40 . . .15 
 Amherst's Trusts, in re, Forfeiture 1 . . 259 
 
 , Will, Formalities 22 . . . .628 
 
 Anderson v. Anderson, Costs in Equity 16 . 202 
 
 v. Morice, Marine Insurance 39 . . 357 
 
 V. The Pacific Fire and Marine Insurance 
 
 Co., Marine Insurance 16 . . . .351 
 
 v. Pignet, Baron and Feme 31 . .86 
 
 V. Dower 1 .... 237 
 
 V. , Satisfied Terms Act . .51? 
 
 V. The Owners of the San Roman, 
 
 Shipping Law Ell . . . . 532 
 Andrews t. Brook, Probate 51 . . . 476 
 V. Mayor, &c., of Hyde, Municipal Cor- 
 poration 3 383 
 
 V. Eaeburn, Practice in Equity 69 . 451 
 
 V. Salt, Parent and Child 3 . . .401 
 
 inre, /«/o«i 17 282 
 
 , in the goods of, Probate 37 . . 474 
 
 Angas V. Lee, Mortgage 11 . . . . 380 
 Angel, in re ; ex parte Matthews, Bankruptcy 
 
 M3 73 
 
 Angell V. Duke, Frauds, Statute of 5 . . 264 
 Angerstein, ex parte ; in re Angerstein, 
 
 Bankruptcy Q 5 82 
 
 , in re ; ex parte Smith, Banhruptcy H 68 
 
 Anglesey, Marquis of, in re. Apportionment 8 . 25 
 Anglo-Danubiau Steam Navigation Co , in re. 
 
 Company X>i6 142 
 
 Anglo-Egyptian Navigation Co. v. Rennie, 
 
 Contract 23 189 
 
 Anglo-Moravian Hungarian Railway Co. in 
 
 re ; Dent's case. Company & 3 . . 152 
 
 , Company G- 26 . . . . 156 
 
 in re; Forbes' case. Company G 3 .162 
 
 Annette, The, Admiralty 27 . . . .14 
 Antilope, The, Admiralty 22 . . . .13 
 Antony v. Brecon Markets Co., Towns Police 
 
 Acts 565 
 
 Applebee v. Percy, Negligence 1 . . . 392 
 Appleby v. Johnson, Contract 33 . .192 
 Appletreewict Lead Mining Co., in re. Com- 
 pany 36 158 
 
 Appleyard v. Appleyard and Smith, Divorce 
 
 56 233 
 
 Archer, in the goods of, Will, Formalities, 7 627 
 Arden's, Lord, Estates, in re. Lands Clauses 
 
 Act i6 313 
 
 Arden v. Wilson, Copyholds 6 . . .'194 
 Argles, in re, Attorney 36 . . . .38 
 Argos, Cargo ex. The, Admiralty 5, 8 . .12 
 
 , Shipping Law 16. . . 540 
 
 Armstrong v. Armstrong, Costs in Equity 8 .201 
 
 V. , Power 28 .... 439 
 
 T. , Receiver 5 . . . . 508 
 
 V , Trust B 12 . . . .576 
 
 V. Lancashire and Yorkshire Railway 
 
 Co., Carrier 11 104 
 
 T. Stokes, Principal and Agent 5 . . 460 
 
 Arnold v. Blaker, Highway 8 . . .276 
 
 V. Bradbury, Patent {Specification) 6 . 420 
 
 V , Patent {Issues) 37 . . . 424 
 
 PAGE 
 
 Arnold v. Cowie, "The Glendowor," Admi- 
 ralty, Z9 15 
 
 V. Dixon, Partition 22 ... 414 
 
 V. Holbrook, Highways 9 . . . 276 
 
 V. Woodhams, Baron and Feme 17 .85 
 
 Arthur, in the goods of. Will, Formalities 18 . 628 
 Arthur Average Association, in re, ex parte 
 Cory and Hawkesley, Company, C 3 . .132 
 
 , ex parte, Marine Insurance 1, 52 . 347, 350 
 
 Articled Clerk, in re. Attorney 8 . . .35 
 Ash, in re; ex parte Fisher, Bankruptcy 
 
 B 13 50 
 
 , , Bill of Sale 23 .... 97 
 
 Ashbury Railway Carriage and Iron Co. v. 
 
 Riche, Company D 1 . . . .133 
 
 Ashby T. Sedgwick, Costs in Equity 14 . 202 
 
 Ashcroft T. Crow Orchard Co., Shipping Law 
 
 H 7 . 639 
 
 , in re ; in re Howard, Acknowledg- 
 ment 3 ....... 2 
 
 Asliforth V. Redforth, Evidence 5 . .246 
 
 Y. , Sale 2 512 
 
 Ashliu V. Lee, Limitations, Statute of 30 . 339 
 Ashmead's Trusts, in re, National Debt . .391 
 Ashton V. Corrigan, Specific Performance 8 . 650 
 
 V. Robinson, Partnership 9 . . . 419 
 
 , in re ; ex parte Marland, Bankruptcy 
 
 L 19 73 
 
 Ashursfrv. Fowler, Company D 22 . . 137 
 
 V. Mason, Company D 22 . . . 137 
 
 Ashwell V. Lomi, Evidence 19 . . . 248 
 Ashworth v. Redford, Evidence 5 . . . 246 
 
 V. , Sale 2 512 
 
 , ex parte ; in re Hoare, Bankruptcy 
 
 {Adjudication) C 10, {Adjourned meeting) 
 
 Dv4 34, 65 
 
 Askew V. Booth, Practice in Equity 115 . 456 
 
 , Will, Construction D 19 . . .604 
 
 Askew' s case; in re Ruby Consolidated 
 
 Mining Co., Company D 61 . . . 144 
 Aspden v. Seddon, Mines 7 . . . . 376 
 Assignee of the Countess D., ex parte ; Parfitt 
 
 T. Chambre, Administration 7 . . .7 
 Astley V. Earl of Essex, Annuity 4 . .23 
 
 T. Condition 4 . . . . 1 82 
 
 V Forfeiture 8 . . . .260 
 
 Aston V. Meredith, Partition 2, 7 . 412, 413 
 
 v. Wood, Legaay 13, 30 . . 324, 326 
 
 V. Will, Construction E 4 . . 605 
 
 Atkinson v. Littlejvood, Anrmity 13 . .24 
 v. Newcastle and Gateshead Water- 
 works Co., Action 2 3 
 
 V. Queen's Proctor, Probate 72 . , 479 
 
 Attorney-General V. Alexander, ifeDe)j«« 4 , 511 
 
 V. Barker, Crown 214 
 
 V. Black, Income Tax .... 279 
 
 V. Cambridge, Mayor of. Market 4 .361 
 
 V. Campbell, Legacy and Succession 
 
 Duty 15 328 
 
 V. Castleford Local Board, Practice at 
 
 Law 13 447 
 
 V. Production2&, Zl . .483,484 
 
 V. Cockermouth Local Board, Injunction 
 
 34 287 
 
 V. , Public Health Act i . , 487 
 
TABLE OF CASES. 
 
 637 
 
 PAOE 
 
 Attorney-General v. Clements, Marriage i .361 
 
 V. English, Mementary Education Act 3 2-tl 
 
 V. Fletcher, Tenants in Common 2 . 563 
 
 T. Will, Construction li . .612 
 
 V. Gilpin, Stamps S . . . . 555 
 
 V. Great Eastern Eailway Co., Injunc- 
 tion 15 285 
 
 V. Railway i . . . . 492 
 
 V. Great Western Railway Co., Bailviay 
 
 33 497 
 
 V. Hackney Board of Works, Injunction 
 
 19 285 
 
 V. Halifax, Corporation of. Costs in 
 
 Equity 1 201 
 
 V. Hankey, Charity 21 ... 113 
 
 v. Kirk ; Kirk v. The Queen, Injunc- 
 tion 44 288 
 
 T. Littledale, Legacy and Succession 
 
 Duty 13 329 
 
 V. liomas, Probate 75 . . . . 479 
 
 V. Lonsdale, Costs in Equity 38 . . 204 
 
 T. Mutual Tontine Westminster Cham- 
 bers Association, ifCTCTjwe 3 . . .511 
 
 V. North London Eailway Co., Railway 
 
 40 498 
 
 V. Pratt, 'Probate 76 . . . .479 
 
 V. Ray, Annuity 7 . . . .24 
 
 V. Eead, Marriage 5 . . . .362 
 
 T. Stewart, CAariiy 27 . . .114 
 
 V. Terry, i?JTOr 512 
 
 T. The Wax Chandlers' Co., Charity 2t 113 
 
 V. Whitwood Local Board, Production 
 
 26,-37 483, 484 
 
 of Hong Kong i. Kwok a Sing, Extra- 
 dition 1 253 
 
 T. , Habeas Corpus 2 . . . 272 
 
 of Victoria v. EUersbank, Colonial 
 
 Law 40 128 
 
 T. Glass, Colonial Law 40 . . . 128 
 
 Attorneys, Society of, ex parte, Charter . 114 
 
 Attree v. Attree, Will, Construction E 5 . 606 
 Atty V. Etough, Practice in Equity 132 . 467 
 
 AtweU V. Atwell, T»mi!C 13 . . .680 
 Auckland v. Westminster Local Board, 
 
 Metropolis 4 372 
 
 Austin V. Austin, Divorce 27 ... 230 
 
 V. Cull, Parliainent 33 ... 408 
 
 V. The Guardians of Bethnal Green, 
 
 Corporation 2 197 
 
 Australasian Bank v.. Willan, Colonial Law 
 
 37 . .127 
 
 Australia Direct Steam Navigation Co., in 
 le, ex T^arte Baker, Company 169 . .180 
 
 Shipping Law V 2 . . . 648 
 
 Australian Agricultural Co. v. Saunders, 
 Marine Insurance 27 .... 353 
 
 , Steam Navigation Co., The, v. 
 
 Morse, Shipping Law M 2 . . . 644 
 
 Axmann v. Lund, Patent 6 . . . . 420 
 Aylesford, Earl of, T. Morris, Usury 3 . . 586 
 Ayerst v. Jenkins, Trust A3 . . . 673 
 
 T. Voluntary Settlement 3 . . 694 
 
 Aylwin's Trusts, in re. Forfeiture 6 . . 259 
 
 , Power 23 438 
 
 i-T — , Will, Construction L 27 . . .620 
 
 Aynsley v. Glover, Injunction 38 
 
 V. , Light and Air 4 . . . 
 
 V. , Prescription . . . . 
 
 Ayres, ex parte, Practice in Equity 61 . 
 
 V. The South Australian Banking Co., 
 
 Banker 9 
 
 V. — • — , Colonial Law 34 . . . 
 
 PAGE 
 
 288 
 333 
 458 
 450 
 
 43 
 127 
 
 Babhage v. Babbage and Manning, Divorce 
 
 36 
 
 231 
 
 181 
 
 39 
 
 61 
 
 61 
 
 653 
 
 402 
 
 Baber's Trusts, in re, Composition Deed 4 
 Baile v. Baile, Attorney 47 . 
 Bailey v. Finch, Bankruptcy F 3 . 
 
 V. Johnson, Bankruptcy F 2 . 
 
 V. Piper, Specific Performance 23 . 
 
 V. Williamson, Parks Regulation Act . 
 
 , ex parte ; re Fielder and Sumner, Costs 
 
 in Equity 68 206 
 
 , ex parte ; in re Jecks, Bankruptcy G 21 64 
 
 Bailey's Patent, in re ; Patent 9 . . . 420 
 Baillie, ex parte, in re Cooper, Bankruptcy 
 
 N23 78 
 
 Baily v. Amy, Colonial Law 26 . . . 126 
 Bain V. Fothergill, Z)aOT«5'es 3 . . .216 
 
 V. , Vendor and Purchaser 34 . 693 
 
 V. Sadler, Administration 13 . .7 
 
 V. ■ , Executor 7 . . . . 250 
 
 Baker v. Clark, Prohibition 4 . . .485 
 
 V. Loader, Attorney 20 . . . .36 
 
 V. , Vndue Influence 2 . . . 684 
 
 V. Parson, WiU, Construction! 19 .614 
 
 V. White, WUl, Construction 19. .612 
 
 , ex parte; in re Australian Direct 
 
 Steam Navigation Co., Company I 69 . 180 
 
 , -, Shipping Law V 2 . . .648 
 
 Baker's case, re Contract Corporation, Com- 
 pany I 36 176 
 
 , {Infant Transferee), Company G 21 . 155 
 
 . . 'Trusts, in re, Lunatic 18 .' . .344 
 
 Baldwin v. Casella, Negligence 2 . . 392 
 
 V. Ray, Injunction 21 . . , . 285 
 
 V. White, Municipal Corporation 2 . 387 
 
 , in re. Attorney 25 . . . .37 
 
 Ball, in re ; ex parte Adams, Company G; 64 . 163 
 
 ■ , , Bankruptcy R 10 . . .57 
 
 , in re ; ex parte Hicks, Bankruptcy 
 
 N 34 .79 
 
 BaUacorkish Silver Mining Co. v. Dumbell 
 
 and Harrison, Mines 2 . . . .375 
 Balmain v. Lickford, Costs at Law, 3 . . 197 
 'BaMc,'^^, Shipping Law T IQ . . .648 
 Banda and Kirwee Booty, The, Booty of War 98 
 Bank of Hindustan, China and Japan, v. 
 
 Allison, Company E 10 . . . . 149 
 
 , in re, ex parte Allison, Company E 6 . 148 
 
 , in re, Allison's case, Campbell's case and 
 
 Hippesley's case. Company's! 8 . .148 
 
 , in re, Campbell's case, Company E 7 . 148 
 
 , in re, Fricker's case. Company I 37 .176 
 
 , in re, Harrison's ease. Company G 60 . 161 
 
 of India, Australia and China, v. 
 
 'KenAevaon, Shipping Law's II . . 529 
 of Ireland v. Perry, Bill of Exchange 
 
 24 .93 
 
638 
 
 TABLE OF CASES. 
 
 PAGE 
 
 Bank of London and National Provincial 
 Inpuranoe Association, in re, Durliam's Pe- 
 tition, Company 1 132 
 
 of South Australia v. Abraliams, Com- 
 pany D 49 ...... 142 
 
 . of . Van Diemen's Land v. Bank of 
 
 Viatoii^f, Bili of Exchange 15 . . .91 
 Banks v. Crossland, Master and Servant 15 369 
 
 V. Goodfellow, Costs in Equity 20 202 
 
 Banner v. Johnston ; in re Barned's Banking 
 
 Co., Company H 3 167 
 
 , ex parte ; in re Key worth, Bankrwptcy 
 
 E.21 59 
 
 , , BanJeruptey G 42 . . .67 
 
 Banque de Credit Commercial v. de Gas, At- 
 
 tatihToent 9 34 
 
 Banyard, ex parte, Attorney 4 . . .35 
 Barclay v. Messenger, Vendor and Purchaser 
 
 14 590 
 
 ■ , ex parte, in re Joyce, Bill of Sale 5 . 96 
 
 T. , Fixtures 5 . , . . 257 
 
 Bardwell v. Sheifield Waterworks Co., Com- 
 
 paiiy D 71 145 
 
 Barfi.eld t, Loughborough, Partnership 16 .417 
 Barker's Estate, in re, Erandulent Convey- 
 ance 2 266 
 
 Barnahy 7. Earle, Bond 2 . . . .98 
 
 V. TasseU, Praetice in Equity 136 . 457 
 
 V. — ^ — , Will, Construction {Furniture) 
 
 D .12, {Per capita or stirpes) H 31 . 603, 611 
 Barned's Banking Co., in re ; Banner v. John- 
 ston, Company H 3 167 
 
 , in re, Leech's Claim, Company H 4 .168 
 
 , in re. Joint Stock Discount Co., ex parte. 
 
 Company H 6 168 
 
 Barnes V. Addy, PaWies 3 . . . .411 
 
 V. , Thist C 9 . . . .880 
 
 T. Akroyd, Nuisance, 3 . . . 399 
 
 Barnett, ex parte ; in re Deveze, Bankruptcy 
 
 P 7 . 62 
 
 Barnptt's case; in re Essex Brewery Co., 
 
 Company G 17 155 
 
 ■ In re Stranton Iron and Steel Co., Com- 
 pany G 41 159 
 
 Barnstaple Election Petition, Costs at law 23 200 
 BarrgU, ex parte ; in re Parnell, Vendor and 
 
 Purchaser 25 692 
 
 Barrett v. Markham, Friendly Society 8 .268 
 Barron, ex parte ; in re Irving, Bankruptcy 
 
 N.16 77 
 
 Barry, ex parte ; in re Pox, Bankruptcy G 13 63 
 Bartlett v, Pees, Mortgage 43, 46 . . . 386 
 Barton v. Muir, Crown Lands 1 . , .215 
 
 y. Pigott; Highway 19 . . . 277 
 
 Basnett v. Moxon, Partition 10 . , .413 
 Batchelor, in re ; Sloper v, Oliver, Baron and 
 
 Fem,e 5 83 
 
 Bateman, in the goods of. Probate 23 . . 473 
 Bateman's case ; in ra l)evonport, &c., JVCU 
 
 Co., Company G 73 168 
 
 Trusts, in re. Forfeiture 9 . . . 260 
 
 Bates V. Bates, Practice in, Egmty 103 . . 455 
 Bateson v. Gosling, Principal and Surety 18 . 468 
 
 v. Oddy, Hackney Carnage 1 . . 272 
 
 £ath,Act, iiire,.£an(^ C7aus«s.ic^ 58 • .316 
 
 PAGE 
 
 Bath, Mayor, &o., of, v. Inland Revenue, 
 Stamps 2 854 
 
 Batley v. Amy, Colonial Law 26 . . . 126 
 
 V. Kynoch, Costs in Equity 75 . • 207 
 
 V , Patent 33, 36 . . . 423, 424 
 
 Batstone v. Salter, Advancement 4 . .17 
 
 V. _— , Trust A 18 674 
 
 Battison v. Hobson, Practice in Equity 110 . 455 
 Batut V. Hartley, Bailment 2 . . .41 
 Baum, ex parte ; in re Edwards, Banknmtcy 
 
 3 80 
 
 Baxendale v. London, Chatham and Dover 
 
 Eailway Co., Damages 17 . . . .219 
 Baxter v. Blower, Injunction 49 . , . 289 
 Bayley v. Manchester, Sheffield and Lin- 
 colnshire Eailway Co., Carrier 2 . . 102 
 Bayley's Settlement,, in rfi. Marriage Settle- 
 ment 8 . . , 363 
 
 Baylis V. Lintot, Costs at law 1 . . . 197 
 Bayspool y. Collins, Voluntary Settlement 1 . 594 
 Beadon v. Parrott, Workshop Regulation Act 632 
 Beak's Estate, in re ; Beak v. Beak, Donatio 
 
 Mortis Causa 2 237 
 
 Beal V. Marchais, Shipping Law P 28 . . 536 
 
 's Estate, in re ;. Gray y. Warner, Trust 
 
 CI 579 
 
 Beale V. Beale, Probate 73 . . . . 479 
 Beall v. Smith, Lunatic 13 . . . .343 
 
 v. , Practice in Equity 83 . . 453 
 
 Beattie v. Lord Ebury, Company D 29 . .139 
 
 V , Costs in Equity 63 . . . 206 
 
 V. ., Frattd 3 261 
 
 Beauchamp, Earl, v. Madresfield, Overseers 
 
 of. Parliament 15 405 
 
 y. Winn, Jurisdiction in Equity 1 . . 298 
 
 V. , Warren . . . . . 696 
 
 " Beaumaris Castle," The, Admiralty 63 .15 
 Beaumont's Trusts, Confirmation of Sales 
 
 Actl 183 
 
 Bechervaise v. Great Western Eailway Co., 
 
 Practice at Law 12 ... . 441 
 
 V. Lewis, Pleading at Law 6 . . .428 
 
 Beck V. Stringer, Petroleum 1 . . . 426 
 Beck's case, in re United Ports, &o., Co. Com- 
 pany I 48. 177 
 
 Beckerwaise (See Bechervaise) 
 
 Beckett v. Buckley, Judgment 6 . . . 295 
 
 v. Corporation of Leeds, Presumption 6 . 459 
 
 Bedford, Duke of, v. Dawson, Lands Clauses 
 
 Act 13 309 
 
 Beer y. London and Paris Hotel Co., Com- 
 pany D 6 134 
 
 Begbie v. Penwick, Bill of Sale 4 . . .96 
 
 v . — , Costs in Equity 79, 80 . . 207 
 
 y. Phosphate Sewage Co., Action 5 . 3 
 
 Belaney v. Ffrench, Attorney 42 . . .38 
 Bell V. Crane, Sates 21 .... 605 
 
 V. Holtby, Fines and Recoveries 1 . 256 
 
 ■ y. , i^ecific Performance 21 . .552 
 
 V. Turner, Practice in Equity 6 . . 446 
 
 , in the goods of, PTOjaie 57 . . . 477 
 
 Bellairs v. Bellairs, Will, Construction 9 . 624 
 Bellamy v. Hoyle, County Court 7 . . 209 
 
 . , in the goods of. Probate 47 . . . 476 
 
 Bellasis' Trusts, in re, Tiiist A 2 . . . 672 
 
TABLE OF CASES. 
 
 639 
 
 PAQB 
 
 Bellerophon, The, Admiralty 29 . . .14 
 
 I V. , Shipping Law, F IS. . , 534 
 
 Bellwood'sWill, in re; in re East, Tkust B 28. 578 
 Bendle v. Watson, Pcurliament 52 . . . 410 
 Benmore, The, .4i?«iira% 36 . . .14 
 
 Bennett's Claim ; Erskine y. Adeane, Landlord 
 
 and Tenant 18 
 
 , , Lease 27 . 
 
 Trusts, in re. Bankruptcy L 14 
 
 Benjamin v. Storr, Nuisance 2 
 Benson t. Benson, Will, Formalities 46 
 Bent v. Cull en,. Annuity 1 . . , . 
 
 , in re, ex parte Mackenzie, Bill of Sale, 
 
 14, 19 91 
 
 Bentons Policy Trusts, in re, 2Vm5< D 8 
 Benyon v. Cook, Usury 4 . . . , 
 Berdan's Patent, in re. Patent 8 . . . 
 Beresford r. Browning, Partnership 4 . 
 Berger, in re. Bankruptcy Q 9 . 
 Bergheinj v. Blaenavon Iron and Steel Co. 
 
 {hrm.'). Damages 2 
 Berkeley's Estate, in re ; Berkeley v. Mason, 
 
 Administration 39 
 
 Will, in re. Lands Clauses Act 60 . 
 
 V. , Practice in Equity 30 
 
 V. , Tmiantfor Life 7 . ... 
 
 Berkley v. Berkley ; in re Berkley, Tnist E 4 682 
 Bermondsey, Vestry of, v. Johnson, Metro- 
 polis 3 . 
 
 V. Eamsey, Metropolis 14 . 
 
 Berry v. Gibbons, Administration 40 . 
 
 V. , Practice in Equity 118 . 
 
 Best V. Donmall, Infant 4 . . . , 
 
 V. TTill , Pleading at Law 7 . 
 
 , T. Pembroke, Attachment S . 
 Best's Settlement Trusts, in re, Marfiage Set- 
 
 tlement 13 
 
 Bes-wick v. Alker, Parliament 30 . . 
 Bethel t. Abraham, Trust B 9 . 
 Bethlem Hospital, in re, ia»(fo Clauses Act 5\ 314 
 Bettison, in re. Church 11 . . . . 117 
 Betton's Trust Estates, Baron and Feme 4 . 83 
 Betta T. Cleaver, Costs in Equity 72, 76 . 206, 207 
 
 T. Great Eastern Eailway Co., Lands 
 
 Clauses Act i% 314 
 
 ^ v. Thompson, J'oriie* 5 . . .411 
 
 r V. Willmott, Patent 21 ... 422 
 
 Beulah Park Estate, in re Sargood's Claim, 
 Company "3.25 171 
 
 306 
 321 
 
 72 
 399 
 631 
 
 23 
 
 3,97 
 582 
 586 
 420 
 416 
 82 
 
 216 
 
 10 
 314 
 448 
 661 
 
 371 
 373 
 11 
 456 
 280 
 428 
 
 364 
 407 
 676 
 
 Beveridge v. Beveridge, Company D 9 
 
 I V. , Partnership 14 . . . 
 
 Beynon v. Cook, Usury 4 , . . . 
 
 Bibby v. Naylor, Practice in Equity 108 
 
 Bicknell's Settled Estates, in re, Settled Es- 
 tates Acts 4 . . . . 
 
 Bide V. Harrison, Legacy 9 . 
 
 T. , Will, Construction D 17 
 
 Biel's Estate, in re; Gray v. Warner, 
 in Equity 18 
 
 Bigg V. London, Corporation of, Injvmction 35 . 
 
 Bignold's Trusts, in re, Triiat E 6 
 
 Billson v.. Crofts, Forfeiture 4 
 
 Binns v. Fisher, Bond 1 
 
 V. , Jurisdiction in Equity 7 
 
 Birch V. Birch, Divorce 19 . 
 
 Costs 
 
 134 
 417 
 586 
 456 
 
 524 
 324 
 604 
 
 202 
 287 
 582 
 269 
 98 
 298 
 229 
 
 PAGB 
 
 Birchall v. Pugin, Attorney 52 , . .40 
 Bird V. Bird's Patent Sewage Co., Company 
 
 D.55 143 
 
 , in re ; Oriental Bank v. Savin, Executor 
 
 24 262 
 
 Birkbeck, ex parte. Municipal Corporation 6 . 388 
 Birks V. Silverwood, County Court 18 . . 210 
 Birmingham and Staffordshire Gas Co. v. 
 
 Ratdiffe, Arbitration 13 . . . .28 
 ex parte, re Fanshaw & Yorston, Bank- 
 ruptcy 02 80 
 
 , , Landlord and Tenant 11 . . 306 
 
 — - Banking Co.'s Claim, in re Patent File 
 Co., Company D 45 . . . . . 142 
 
 Gaslight and Coke Co., ex parte ; in re 
 
 Adams, Bankruptcy M 7 . . ; .74 
 
 , Eector of St. Martin's, ex parte, Burial 3 100 
 
 Birt, in the goods of, Will, Formalities 5 . 626 
 Biscoe V. Great Eastern Eailway Co., Negli- 
 gence 34 399 
 
 Bishop's ease, in re Financial Insurance Co., 
 
 Company G 58 162 
 
 Bishop, ex parte, in re Tonnies, Bankruptcy 
 
 G36 .66 
 
 , in le, ex parte Paper Staining Co., 
 
 Bankruptcy 8 80 
 
 Bissell, in re, ex parte Duignan, Bankruptcy 
 
 L12 71 
 
 Black V. Brown, Company G 48 . . .160 
 
 & Co.'s case, in re Paraguassu Steam 
 
 Tramroad Co., Company G 40 . . . 159 
 Blaclcburn v, Dickson, in re Dickson, Ad- 
 ministration 11 7 
 
 , ex parte, in re Cheeseborough, Bank- 
 ruptcy B 7 49 
 
 Blackman v. Cornish, Practice in Equity 60 . 450 
 Blackmore v. North Australian Co., Colonial 
 
 Law 36 127 
 
 Blackwood v. London Chartered Bank of 
 
 Australia, Crown Lands 3 . . .216 
 
 Blades v. Lawrence, London 2 . . . 340 
 
 , ex parte. Attorney 5 . . . .35 
 
 Blake, in re, ex parte Coker, Bankruptcy 4 80 
 Blake's Patent, in re, Patent 27 . . . 423 
 Blakeley Ordnance Co., in re, Brett's case. 
 
 Company G 71,72 . . . .164,166 
 Blamires v. Lancashire and Yorkshire Eail- 
 way Co., Eailway 30 .... 497 
 Blanchett v. Powell's Llantivit Collieries Co., 
 
 Shipping Law 19 541 
 
 Bland v. Bland, Divorce 67 ■ . . . 233 
 Blenkhom, in re, ex parte Jay, Bill of Sale 20 97 
 Bloomer T. Bernstein, >SnZe 1 3 . . . 614 
 
 V. Spittle, Vendor and Purchaser 20 . 591 
 
 T. Union Canal Coal Co., Company 
 
 D48 142 
 
 V. — , Mortgage 1 . . . . 378 
 
 Blower v. The Great Western Eailway Co., 
 
 Carrier 37 109 
 
 Blower's Trusts, Ee, Will, Construction G 19 610 
 Blyth's case ; in re Albert Average Associa- 
 tion, Marine Insurance 4 ... 348 
 
 Trusts, in re, Lands Clauses Act 61 .315 
 
 Board v. Board, Estoppel 8 ... 244 
 y, , lAmitations, Statute of 1 , ,334 
 
640 
 
 TABLE OF CASES. 
 
 PAGE 
 
 Eoatwriglit v. Boatwright, Limitations, Statute 
 
 of Id 337 
 
 Booking v. Jones, liaclmey Carriage 5 . . 273 
 Boddington v. Eoblnson, BeecL 6 . . . 224 
 Bolingbroke v. Swindon Local Board, Master 
 
 and Servant 10 368 
 
 , Lord, V. ToTvnsend, Practice at Law 6 . 440 
 
 BoUand, ex parte ; in re Cherry, Bankruptcy 
 
 B 6 .49 
 
 , ex parte ; in re Clint, Bankruptct/ 
 
 G 37 . . .... . .67 
 
 , ex parte ; in re Clint, Marriage Settle- 
 ment 23 365 
 
 , ex parte ; in re Holden, Bankruptcy 
 
 N 28 78 
 
 , ex parte ; in re Price, Bankruptcy 
 
 B 14 50 
 
 Bolognesi's case ; in re The London and Medi- 
 terranean Bank, Co»tp«TCy H. 8 . .169 
 Bolton T. Maddan, Contract 5 . . .187 
 Bond V. St. George's, Hanover Square, Parlia- 
 ment 44 ...... . 409 
 
 , in the goods of, Probate 7 . . . 471 
 
 Bonelli's Electric .Telegraph. Co., Collie's 
 Claim, Company D 18 . . . .136 
 
 , in re. Cook's Claim, Costs in Equity 37 204 
 
 , , Practice in Equity 126 . . 457 
 
 Boon V. Howard, Parliament 37 . . . 408 
 Booth V. Alcock, Lease 7 . . . . 318 
 
 V. Hutchinson, Bankruptcy 5 . .61 
 
 T. Shadgett, Weights and Measures 2 . 600 
 
 v. Turle, Frauds, Statute q/ 18 . .266 
 
 Bootle, in the goods of. Probate 1 . . 470 
 Borham v. Borham and Browne, Divorce 25 . 230 
 Borrell v. Barr, Practice in Equity 39 . . 448 
 Borries v. The Imperial Ottoman Bank, Prin- 
 cipal and Agent 10 461 
 
 Borrows v. Ellison, Limitations,. Statute 
 
 of 17 337 
 
 Boss, ex parte.; in re Whalley, Bankruptcy 
 
 C.5 53 
 
 Boston Election Petition, in re. Parliament 3 403 
 Bosworthen and Penzance Mining Co., re ; 
 
 Jones's and Taylor's case. Company G 26 . 156 
 Bothamley v. Sherson, Legacy 19 . . 325 
 
 Botting, ex parte ; in re Hostel, Bankruptcy 
 
 M14 75 
 
 Bottle Imp, The, Admiralty 35 . . .14 
 Bougainville, The, Shipping Law 28 . . 636 
 Boughton. V. Knight, Probate 66 . . . 478 
 
 r V. , Will, Formalities 1 . . .626 
 
 Bourdin y. Greenwood, Limitations, Statute 
 
 of 25 338 
 
 Bousquet v. Bent, Practice in Equity 68 .451 
 Bouvier, in re. Extradition 3 . . . 254 
 Bowditch.T. The "Wakefield Local Board, Pub- 
 lic Health Act 16 489 
 
 Bowen v. Barlow, Will, Construction D 3 . 602 
 
 , ex parte ; in re Powis, Bankruptcy 
 
 E29 ........ 60 
 
 , in re. Costs in Equity 69 . . . 206 
 
 Bower v. Smith, Marriage Settlement 17 . 864 
 Bowes V. Farrar, Practice in Equity 1 8 . 447 
 
 Bowring v. Shepherd, Company G 44 . . 169 
 —, Y, -^ — , Stock Exchange 5 , , , &S8 
 
 PAGE 
 
 Bows V. Eenwiek, Gaming 2 . . . 269 
 
 Boyd V. Petrie, Mortgage 7 . . . . 380 
 
 V. Phillpotts, CAmto* 1 . . .115 
 
 Boyd's Settled Estates, in re. Settled Estates 
 
 Acts 17 525 
 
 Bradburn v. The Great Western Eailway Co., 
 
 Damages 15 218 
 
 , V. —. — , Negligence 36 . . . . 399 
 
 Bradbury v. Hotten, Copyright 10 . .196 
 Bradford t. Williams, Shipping Law E 6 . 531 
 Bradshaw v. The Lancashire and Yorkshire 
 
 Eailway Co., Action 1 .... 3 
 
 V. , Damages 22 . . . .220 
 
 Br tin, in re. Forest of Dean 3 . . . 269 
 Bramptoun and Longtoun Eailway Co., in re. 
 
 Company I 35 176 
 
 ' , in re, Addison's case, Company A 5 . 132 
 
 ., in re, Shaw's Claim, Company H 22 . 171 
 
 , , Practice in Equity 64 . . 461 
 
 Brand v. Blow, Practice in Equity 90 . . 464 
 Brasyer t. Maclean, Sheriff 1 . . . 626 
 Breadalbane Peerage Claim, Peerage 1 . . 424 
 Brecon Markets Co., The, v. The Neath and 
 
 Brecon Eailway Co., Toll 2 . . . 665 
 Brelaz, in re ; ex parte Lopez, Bankruptcy 
 
 N 1 76 
 
 Bremner, in re ; ex parte Harper, Bank- 
 ruptcy L 9 (Seizu/re and Sale) . . .71 
 
 , , Bankruptcy N 24 (Bes judicata) . 78 
 
 Brett, ex parte ; re Howe, Bankruptcy E 27 60 
 
 r, , Bill of Exchange 9 . . .90 
 
 Brett's case ; re Blakeley Ordnance Co., Com- 
 pany G 71, 72 165 
 
 Bridges v. Tha North Loudon Eailway Co., 
 
 Carrier.8 104 
 
 Briggs V. Sharp, Will, Construction I 33 .616 
 —. v.V.^^ton,. Ma/rriage Settlement li . . 364 
 
 , ex parte. Attorney 30 . . . .37 
 
 Bright, in re ; ex parte Old, Bankruptcy 
 
 L 13 71 
 
 Brinsmead v. Harrison, Detinue 2 . .225 
 
 V. , Judgment, 12 . . . . 296 
 
 Bristol and North Somerset Eailway Co., in 
 
 TB, Lands Clauses Act 5S . . . .315 
 British and American Telegraph Company v. 
 
 The Albion Bank, Principal and Agent 7 . 461 
 
 V. Colson, Contract 14 ... 188 
 
 British American Telegraph Company, The, 
 
 Fowler's case. Company D 31 . . .140 
 British Mutual Investment Co. v. Cobbold, 
 
 Attorney 24 30 
 
 V. Smart, Mortgage 22 . . . 383 
 
 British Nation Life Assurance Association, . 
 
 in re. Company 1 44 . . ■ .177 
 
 Britton v. The Great Western Cotton Co., 
 
 Master and Servant 4 . . . . 367 
 Broadbent, in re ; ex parte Homan, Bill of 
 
 Sale 22 97 
 
 Broadwood's Settled Estates, in re, Settled 
 
 Estates Acts U 624 
 
 Brodrick v. Scale, Bill of Sale 11 . .96 
 Bromfield v. Bromfield, Divorce 18 . . 229 
 Brook V. Hook, Contract 17 . . .188 
 Brooke v. Avrillon, Maliciotts Prosecution 1 345 
 r V, Shadgate, Weights and Measwes 2 . 600 
 
TABLE OF CASES. 
 
 641 
 
 Skip- 
 
 Bi-ooke, ex parte ; in vd Hassall, Bankruptcy 
 
 G 23 
 
 Brookman y. Smith, Will, Constrnction H 7, 
 
 L 18 608, 
 
 Brophy v. Bellamy, T\-ust B 10 . 
 Broughton t. Broughtdn, Partnership 18 
 Brown v. Black, Company G 48 . 
 V. Brown, Divorce 15 {Jvdicud Separa- 
 tion) 
 
 V. , Divorce iZ {Witness) 
 
 v. Cur^ &c., of Montreal, Colonial Law 
 
 17 
 
 v. Hope, Wm, Construction E 8 . 
 
 T. McLaehlan, Colonial Law 36 . 
 
 T. McLaughlan, iViwy Council 2 . 
 
 V. Muller, Damages 5 . 
 
 T. Nugent, Public Entertainment 
 
 Y. The Powell Duffryn Coal Co. 
 
 ping Law E 15 ..... 
 
 T. Eye, Costs in Equity 50 . 
 
 v. Tamplin, Parliament 54 . 
 
 T. The Thames and Mersey Marine In- 
 surance Co., Production 10 
 
 V, Wales, Discovery 1 . 
 
 and Tucker's case. United Ports Insur 
 
 ance Co., Company G 13 . 
 
 , ex parte ; in re Jeavons, Bill of Sale 
 
 2 
 
 , ex parte ; in re Hooker, Bankruptcy 
 
 N20 . , 
 
 , in re ; ex parte the London and County 
 
 Bank, Bankru/ptcy A 6, B 22 . . 47, 
 
 , in re ; ex parte Mackay, BiU of Sale 2 
 
 , in the goods of. Probate 45 . 
 
 Brown's ease, in re the Metropolitan Carriage 
 Co., Company D 37 . . . . 
 
 Trusts, in re. Will, Construction H 13 . 
 
 Browne v. CoUins, Tenant for Life 10 . 
 
 T. Hope, Will, Construction E 8 . 
 
 V. McClintock, Fraud 4 . . . 
 
 , in re. Bankruptcy 1. 
 Browne's case ; in re the United Ports Insur- 
 ance Co., Company I 42 . 
 
 , Practice in Equity 75, 76, 
 
 84 452, 
 
 Browning T. The Provincial Insurance Co., 
 Marine Insurance 31, 49 . . . 355, 359 
 
 ; ex parte ; in re Marks, Bankruptcy 
 
 D 1 55 
 
 Bruce v. Bruce, Power 8 . . . .436 
 Bruff V. Cobbold, ex parte Ayres, Practice in 
 
 Equity 61 450 
 
 Brunei v. Brunei, Domicil 3 ... 237 
 
 Bruuskillv. Caird, TrKsiB 16 . . .576 
 Brunt V. Brunt, Will, Formalities 33 . . 629 
 Bruntou's Claim, in re the Hercules Insurance 
 
 Co., Company B.\2 169 
 
 Brutton v. The Vestry of St. George's, Han- 
 over Square, Metropolis 2 . . . .371 
 
 . , in re. Attorney 28 .... 37 
 
 Bubb V. Yelverton, Legacy 4 . . . 323 
 
 ■- V , Waste 5 597 
 
 Bucdeuch, Duke of, v. The Metropolitan 
 Board of Works, ^rjjim^iom 17 . . 29 
 
 V. , Lands Clauses Act 15 . .310 
 
 Digest, 1870-75. 
 
 Loan 
 
 53 
 521 
 
 79 
 406 
 
 449 
 575 
 126 
 132 
 89 
 
 65 
 247 
 232 
 427 
 121 
 472 
 475 
 465 
 155 
 
 Buchan, in re ; ex parte Henken Bank- 
 65 ruptcy.'B 34 ... . 
 
 Buchanan y. Andrew, Scotch Law 27 
 619 Buekland, in re ; ex parte Buckland, Banh 
 576 ruptcy N 36 . 
 
 418 Buckley v. Wrigley, Parliament 18 
 160 Budge v. Gummow, Practice in 
 
 43, 44 
 
 229 V , Trust B 5 
 
 231 Bugeja v. Camilleri, Colonial Law 28 
 
 Bulkeley v. Schutz, Company C 2 
 125 Bull V. Sullivan, Bill of Exchange 3 
 605 Bullen, in re ; ex parte the Liverpool 
 127 Co., Bankruptcy G 22 
 
 469 Bulley v. Bulley, Evidence 11 
 217 Bullock V. Bullock, ZJJTOrce 48 
 
 486 V. Caird, Pleading at Law 3 
 
 Burch V. Eeid, Church 34 . 
 533 Burchmore, in the goods of. Probate 14 
 205 Burden v. Morgan, Probate 41 
 410 Burgess v. Eve, Principal and Surety 
 
 Burke v. Leehmere, Company G 20 
 
 481 Burkinshaw v. Wilson, Practice in Equity 56 450 
 
 226 Burnaby v. Earle, Bond 2 . . . .98 
 
 Burnham National Schools, in re, Charity \ 110 
 
 . 154 'Qxaas 1/ . Poii\son, Master and Servant 'S . 368 
 
 e Burrell, ex parte ; in re Parnell, Vendor and 
 
 . 95 Purchaser 25 S92 
 
 Burrows v. The March Gas and Coke Co., 
 78 Damages 2Q . . . . '. .219 
 
 Burslem v. Attenborough, Pawnbroker . . "" 
 51 Burt V. Hellyar, Partition 1 ... 
 
 96 V. , Will, Construction H 9 . 
 
 476 - — , in the goods of. Will, Formalities 5 
 Burton v. Eyden, Friendly Society 7 
 
 1 40 V. Gray, Banker 6 . . . . 
 
 609 Bush V. The Trowbridge Waterworks Co., 
 
 561 Costs in Equity 6 
 
 605 V. , Lands Clauses Act 18 
 
 261 Bush's case, in re the Imperial Eubber Co., 
 
 80 Company G 36 
 
 Busk V. Adlam, Power 11. 
 176 Bustros v. Lenders, Arbitration 5 . 
 
 Busy Bee, The, Admiralty 25 . . . 
 463 Butcher v. Stead, Bankruptcy B 27 
 
 , ex parte ; in re Meldrum, Bankruptcy 
 
 B 28 . . ... 
 
 Butler, C. S., The, Admiralty 31 . 
 Butler's Will, in re. Lands Clauses Act 39 
 Butlin, in re ; ex parte Thorne, Bankruptcy 
 L7 ... ... 
 
 , , Bankruptcy Q, 3 
 
 Buxton V. Bust, Frauds, Statute o/ 13 ! 
 Bygott T. Hellard, Fraudulent Conveyance 2 
 Byrne v. Schiller, Shipping Law I 2 
 
 424 
 412 
 608 
 6a6 
 268 
 43 
 
 201 
 310 
 
 168 
 
 436 
 
 27 
 
 14 
 
 52 
 
 52 
 
 14 
 
 3ia 
 
 71 
 
 82 
 265 
 266 
 539 
 
 Byrom v. Brandreth, Will, Construction D 16 604 
 
 C — (an alleged lunatic), in re, Lunatic 4 . 342 
 C. S. Butler, The, Admiralty 31 . . .14 
 <ing Law F 32, T 16 . 637, 548 
 
 Caballero v. Henty, Vendor and Purchaser 
 23 ..."... , S'U 
 
 Cadiz Waterworks Co. v. Barnett, t^uiujjany 
 
 I 10 173 
 
 4N 
 
642 
 
 TABLE OF CASES. 
 
 PA8E 
 
 Cairo, The, Shipping Law T 12 . . . 647 
 Cadman v. Cadman, Will, Construction D 20 604 
 Calder v. Dobell, Frincipal and Agent i . 460 
 Caldwell v. CressTvell, Will, Construction 
 
 11 .624 
 
 Caledonia, The, Admiralty 27 . . .14 
 Caledonian Railway Co. v. Carmichael, Eail- 
 
 way 20 406 
 
 V. The Greenock and Wemyss Bay Eail- 
 
 way Co., Arbitration 10 . . . .28 
 Calisher v. Porbes, Mortgage 17 . . .382 
 Callanane v. Campbell, Legacy and Succes- 
 sion Duty 4 . . . . . 327 
 Calthrop v. Eummens, practice in Equity 1 9 447 
 Cama, ex pai'te, Company 'K 6 . . .168 
 Campbell's case, in re the Bank of Hindustan, 
 
 &c.. Company E 6, 8 . . . 
 Camps V. Marshall, Practice in Equity 36 
 Canadian Oil Works Corporation, in re ; Hay's 
 
 case. Company D 28 . 
 Cannington v. Nuttall, Patent 2, 3, 
 
 148 
 448 
 
 . 138 
 
 7, 20 
 420, 422 
 Cannon v. Johnson, Costs in Equity 43 . . 204 
 
 V. , Partition 25 . . . . 414 
 
 — ■ — V. Trask, Company D 19 . . . 136 
 Canwell t. Hanson, Metropolis 7 . . . 372 
 
 — — V. , Injunction 36 . . . . 288 
 
 Cape V. Soott, Common 3 . . . . 129 
 
 Capes V. Ball, Banlcruptcy M 24 . . .76 
 Capron v. Capron, Apportionment 5 . .25 
 Carew, ex parte ; in re Carew, Bankruptcy 
 M16 . . . . . . .75 
 
 Cargo ex Argos. See Argos. 
 Cargo ex Woosuug. See Woosung. 
 Carling's ease, in re Western Canada Oil 
 
 Co., Company D 40 141 
 
 Carlyon v. Tmscott, Trust A 10, E 14, 674, 576 
 Carmarthen & Cardigan Bail. Co. v. Ma- 
 
 chester & Milford Eail. Co., Evidence 6 . 246 
 Carry. Atkinson, Power 13 .... 436 
 
 V. , Trover 2 570 
 
 T. Morice, Injunction 42 . . . 288 
 
 . V. London & North-Western Eail. Co., Es- 
 toppel 10 244 
 
 Carr's Patent, in re. Patent 28 . . . 423 
 
 Trusts, in re. Baron and Feme 11 .84 
 
 Carribean Co., in re, Crickmer's case, Com- 
 
 ' panyGr Sk ' 159 
 
 Carritt T. Christian and Vane, Probate 63 . 477 
 Carstairs v. Taylor, Negligence 19 . . 395 
 Carter v. Ducie, Marriage Settlement 11 . 363 
 
 T. Maclaren, Scotch Law 12 . " 520 
 
 V. Mills, Parliament 9 ... 404 
 
 V. Scargill, Corairaci! 21 . . .189 
 
 , ex parte, in re Contract Corporation, Com- 
 pany I 34 . . , . . . .176 
 
 , inre, ex parte Jacobs, Bankruptcy E 33 . 61 
 
 Cartmell's case, in re County Palatine Loan 
 
 Co., Company DU 135 
 
 Cartwright, in re, Costs in Equity 53 . . 205 
 Carver v. Piuto Leite, Production 20 . . 482 
 Cary v. Hills, Executor 29 . . . .252 
 Oasella v. Darton, Bill of Exchange 33 . .94 
 Castle v. Fox, Will, Cmistruction D 1 , . 602 
 - — T. Gillett, Administration 30 . .9 
 
 PAGE 
 
 Castle T. Playford, Contract 22 . -189 
 
 Castro T. Murray, Writ of Error ■ ■ 633 
 
 Caswell V. Overseers of Wolverhampton, 
 
 Markets .361 
 
 Cator V. Great Western Insurance Co. of New 
 
 York, Marine Insurance 33 . . • 355 
 Cattle V. Stockton Waterworks Co., Negli- 
 gence 21 395 
 
 V. , Waterworks .... 699 
 
 Catton V. Mackenzie, Scotch Law 18 . . 520 
 Caudwell v. Hanson, Metropolis 7 . . 372 
 Cavander V. Bulteel, Partnership 6 . . 415 
 Cavendish v. Cavendish, Vendor and Pur- 
 chaser 15 590 
 
 Chadwick V. Chadwick, Practice in',Equi1y 104 455 
 Chaffers, in re, Practice at Law 23 . . 442 
 Chalfield v. Berchtoldt, Legam/ Duty 3 . .327 
 Challis's case, in re Empire Assurance Cor- 
 poration, Company E 16 . . . .150 
 Chalmers, ex parte, inre Edwards, Sale 11 . 514 
 Chamberlain v. King, Action 11. . .5 
 Chamberlayn V. Brockett, Charity \i,\5 . 112 
 
 V , Legacy 33 . . . .327 
 
 Chambers v. Green, Prohibition 1 . . . 485 
 Chanonry, The, Shipping Law F 12 . . 534 
 Chapman v. Chairman, Practice in Equity 100 454 
 
 , in re, ex parte Hooson, Debtors Act 4 . 221 
 
 , ime. Bankruptcy \2 . . .81 
 
 Chappell's case, in re Accidental Death In- 
 surance Co., Company E 19 . . . 151 
 Charitable Gifts for prisoners, in re, ex parte 
 Christ's Hospital, The Governors of, En- 
 dowed Schools 2 . . . .' .242 
 
 Lands Clauses Act 53 . . . . 314 
 
 Charity Schools of St. Dunstan in the West, 
 
 in re. Costs in Equity 36 . . . . 204 
 Charkieh, The, in the matter of, Admiralty 4. 12 
 
 , Admiralty 16 13 
 
 , Prohibition 3 485 
 
 , Shipping Law F 1 . . . . 533 
 
 Charles, The, Shipping Law T 9 . ■ . . 547 
 
 , ex parte, in re Charles, Bankruptcy 
 
 A 1 46 
 
 , in re, ex parte Macredie, Bankruptcy 
 
 E 14 .57 
 
 Lafitte ffi Co. V. Lafitte, Company H'19 170 
 
 Laffitte & Co., in re. Practice in Equity 
 
 59 450 
 
 , in re, Costs in. Equity 69, 74 . 206, 207 
 
 Charlesworth v. Holt, Annuity 14 . .24 
 
 , V. , Baron and Feme 32 . . .87 
 
 Charter v. Charter, Will, Construction G 8 . 607 
 Chartered Bank of India, Australia and China, 
 
 T. Henderson, Shipping Lam B 1 1 . . 529 
 Chartered Mercantile Bank of India, Lon- 
 don and China, v. Dickson, BUI of Ex- 
 change 13 91 
 
 Chasca, The, Shipping Law E 7 . . . 531 
 Chasemore v. Turner, Limitations, Statute of 
 
 27 338 
 
 Chatfield v. Berchtoldt, Legacy Duty 3 . . 327 
 Chatteris, ex parte, in re Studer, Bankruptcy ' 
 
 N27 79 
 
 , Company ISO . . . .175 
 
 Chatterton .V. Cay ('i Coyyr^A< 8 . , .195 
 
TABLE OF CASES. 
 
 6iS 
 
 PAGE 
 
 Chaudiire Gold Mining Co. of Boston v. Des- 
 
 barats, Colonial Law 12 . . , .124 
 
 Chauntler's Claim, in re Hazelfoot's estate, 
 
 Mortgage 8 380 
 
 Oheesebovough, in re, ex parte Hitchcock ; ex 
 
 parte Blackburn, Banhruptcy B 7 . .49 
 Cheetham v. Mayor of Manchester, Municipal 
 
 Corporation 1 387 
 
 T. , Publio Health Acts 10 . . 488 
 
 Cherry v. Thompson, Jurisdiction at Law 5 . 297 
 
 , in re, ex parte Bolland, Bankruptcy 
 
 B 6 49 
 
 , in re, ex parte Matthews, Banhruptcy 
 
 ai 82 
 
 Cheshire's Estate, in re, 3>«si E 2 . . 582 
 Chester v. Chester, Charity 8 . . .111 
 Chichester Municipal Election, in re. Munici- 
 pal Corporation 9 388 
 
 Chidgey v. "Whitby, Infant 5 . . . 281 
 ChileotL v. Chilcott, Divorce 65 . . . 233 
 Childs y. Hearn, BaUway 26 . . .496 
 
 , in re, ex parte New, Banhruptcy 
 
 E17 58 
 
 , in re, ex parte Nyholm, Shipping 
 
 Law I 14 542 
 
 Chorley, ex parte, in re South Essex Estuary 
 
 Company, Company H 1 1 . . . .169 
 Chorlton v. Stratford, Overseers of, Parlia- 
 ment 26 . . . . . . .407 
 
 . — . T. Tonge, Overseers of. Parliament, 46 409 
 
 Christie v. Christie, Costs in Equity 15 . . 202 
 
 V. , Pleading in Equity 2 . . 429 
 
 Christ's Hospital, Governors of, ex parte, in re 
 Charitable Gifts for Prisoners, Endowed 
 
 Schools 2 242 
 
 , , Lands Clauses Act 63 . . 314 
 
 Christofferson v. Hanson, Shipping Law H 3 538 
 Church v. Barnett, Venus 3 . . . . 894 
 Churchill v. Denny, Marriage Settlement 22 . 366 
 Citizens .Bank, Louisiana, v. First National 
 'Ba.rikj.BUl of Exchange 22 . . .92 
 
 ^, Estoppel 11 245 
 
 City and County Bank, in re, Company 12% .175 
 Discount Co. v. McLean, Bill of Ex- 
 change 27 93 
 
 of Brussels, The, Admiralty 49 . .15 
 
 of Cambridge, The, Shi/pping Law E 1 . 646 
 
 — — of London Brewery Co. v. Tenuant, Da- 
 
 mages 25 ' . .220 
 
 V. ■ , lAght and Air 1 . . . 333 
 
 of Mobile, The, Admiralty 24 . .14 
 
 of London Commissioners of Sewers' v. 
 
 Glasse, Common 1,2 . . . . 129 
 
 V. , Partif«6 . . . .411 
 
 V. , Practice in Equity 73 . . 452 
 
 of Moscow Gas Co. (Lim.) v. Interna- 
 
 natioual Financial Soc. (Lim.), Company 
 
 F 5 152 
 
 V. , Costs in Equity 61 . . . 205 
 
 Terminus Hotel Co., South-Eastern Eail. 
 
 Co.'s Claim, Company H 7 . . . 168 
 Clare v. Lamb, Vendor amd Purchaser 21 . 691 
 Clark v.- Fenwick, Practice in Equity 98 . 454 
 
 V. , Trust B 3 . . . .575 
 
 y. Heniy, Will, Construction L 22 . 620 
 
 PAQB 
 
 Clark V. School Board for London, Elementary 
 
 Education Act 2 . . . . .241 
 
 . V. -. — , Lands Clauses Act 17 . .310 
 
 Clark's Patent, in re. Patent 30 . . . 423 
 Clarke v. Clarke, Divorce 70 . . , . 234 
 
 V. Stanford, Haohna/ Carriage 3 , . 273 
 
 y Tolman, Costs in Equity 40 . ■ 204 
 
 — T. Willott, Vendor and Purchaser 30 . 693 
 Clarke's case, in re- The Quebrada Co., Com- 
 pany G 65 163 
 
 Claxton, ex parte, in re Claxton, Banhruptcy 
 
 C 14 54 
 
 Claydon v. "Emc^ Practice in E^ity 121 . 456 
 Claypole, Eector of, ex parte, Lands Clauses 
 
 ActZ2 . . . . ... 312 
 
 Cleland's case, in re Metropolitan Public 
 
 Carriage and Eepository Co., Company 
 
 G28 157 
 
 Clementson y. Mason, Municipal Corporation 
 
 14 389 
 
 Clemow y. Geach, Estoppel 6 . . . 244 
 Clergy Orphan Corporation, in re. Charity 30 114 
 Clergyman, in re a, CAmtoA 2 . . .116 
 Cieve y. Financial Corporation, Company 
 
 E 9 148 
 
 Clifford V. Hoare, Easement 2 . . . 238 
 
 V , Way 4 599 
 
 y. "Watts, Mines 10 . . . .376 
 
 Cline's Estate, in re. Apportionment 1 . .25 
 Clint, in re, ex parte Bolland, Banhruptcy 
 
 G37 ■ 67 
 
 , , Marriage Settlement 23 . . 366 
 
 Clinton's Trust, in re, ex parte HoUoway and 
 
 ex parte "Weare, Marriage Settlement 18 . 364 
 Clive y. Clive, Apportionment 9 . . .26 
 
 V. , Will, Construction P 2 . , .624 
 
 Clough y. The London and North-"We3tern 
 
 Eail. Co., Sale 18 515 
 
 , ex parte, in re Ingram, Inspectorship 
 
 Deed 1 289 
 
 Clough's Settled Estates, in re. Settled Estates 
 
 Acts 8 624 
 
 Clover V. Royden, Injunction 32 . . . 287 
 Clowes V. Staffordshire Potteries "Waterworks 
 
 Co., Injunction 17 .... . 285 
 Coal Economising Gas Co., in re, Gover's 
 
 case. Company A 4 132 
 
 Coates V. Brown, Practice in Equity 37 . 448 
 
 y. Collins, Couerean* 6 . . .213 
 
 Y. Tusgax A, Administration il . ,10 
 
 Coates's case. Company Gr Si: . . .158 
 Cobb, ex parte, in re Sedley, Banhruptcy 
 
 M2. . " 73 
 
 Cobbett V. "Woodward," Copyright 12 . .196 
 Cobeciued Marine Insurance Co. y. Bouteaux, 
 
 Shipping Law M 3 644 
 
 Coh'ha.m.T. Dalton, Debtors Act IZ . .222 
 
 Cochrane, ex parte, in re Meade, Banhruptcy 
 
 P 4 . . . . . . . .82 
 
 Cockayne v. Harrison, Attorney 41 . .38 
 
 V. , Tenant for Life 9 . . .561 
 
 , ex parte, in re Cockayne, Banhruptcy 
 
 L 2 . . . . . . . .70 
 
 Cockburn y. Marquis of Headfort, Practice 
 
 in Equity 101 454 
 
 4 N 2 
 
614 
 
 TABLE OE CASES. 
 
 PAGE 
 
 CooMe T. Soxith-Eastern Eail. Co., Carrier 5 103 
 Cocks V. Chandler, Trade MarTc 8 . .667 
 
 V. Manners, Charity 11 . . .111 
 
 Codrington t. Codrington, Election 2 . 
 
 -J v. , Marriage Settlement 26 . 
 
 T. Lindsay, Election 2 . 
 
 Codrington'a Charity, in re, Lands Claiises Act 
 
 iZ 
 
 Cogan V. Duffield, Baron and Feme 8 . 
 
 T , Marriage Settlement 3 
 
 Cohen, ex parte, in re Sparke, Bankruptcy 
 B 1 1 (Act of Bankrv/ptcy) .... 
 
 V. , Bankruptcy Gr 9 ( Order and 
 
 Disposition) 
 
 — — T. , Bankruptcy 5 [Injimction) . 
 
 Coker, ex parte, in re Blake, Bankruptcy 4 
 Colam V. Hall, Animals 1 . . . . 
 Colchester v. Law, Suitors' Deposits 
 Cbldwell, in re. Acknowledgement 1 
 Cole V. Kemott, BiU of Sale 24 . 
 
 T. Korth-Western Bank, Factor 1 . 
 
 , in re, ex parte Mutton, Bill of Sale 18 
 
 Coleman v. Bathurst, Game 2 . . . 
 Coles T. Pilkington, Contract 8 . . . 
 
 , in the goods of, Executor 2 . 
 
 , Will, Formalities 4 . . . . 
 
 Collie's Claim, in re Bonelli's Electric Tele- 
 Co., Company J) 18 
 
 Collier T. Walters, Practice in Equity 86 
 
 -v. , Trust's 1 .... 
 
 . T. , Will, Construction T 20 . 
 
 Collins V. Collins, Will, Construction D 14 . 
 
 , in rB, ex parte Lees, Bill of Sale 16 
 
 CoUis V. Hector, Conflict of Laws 4 
 Colmer V. Ede, Attorney 39 . 
 Colmore v. North, Beceiver 4 . . . 
 
 Colonial Bank of Australasia v. Willan, Co- 
 lonial Law 37 . . ". 
 Colquhoun t. Courtenay, Company G- 53 
 Coltman T. Gregory, Legacy 7 . . . 
 Combe v. Edwards, Church 24 
 
 V. Hughes, Will, Construction I 7 
 
 Commercial Gas Co. v. Scott, Gas 2 
 
 V. , Statute 6 . . . . 
 
 Steam Ship Co. v. Boulton, Shipping 
 
 Law H 8 
 
 . Union Insurance v. Lister, Insurance 
 
 10 
 
 Commins v. Scott, Frauds, Statute of 8 
 Commissioners of Inland Revenue v. ^a.rTi- 
 son. House of Lords 1 . . . . 
 
 . T. , Legacy and Sticcession Duty 1 1 . 
 
 of Sewers of the City of London v. 
 
 Glasse, Epping Eorest Case, Common 1,2. 
 
 y. , Parties 6 . . . . 
 
 — T. , Practice in Equity 73 
 
 Commonwealth Land Building, &c. Co., in re, 
 
 exparte HoUington, .^iioraej/ 17 
 Condon, in re, ex parte James, Bankruptcy 
 
 L 16 . . . . , . 
 
 Conn V. Garland, Practice in Equity 122 
 Conning, ex parte, in re Steele, BUI of Sale 1 
 ConoUy T. Maclaren, Sale 6 . 
 Consols Insurance Co., in re, Glanville's case. 
 Company G 56 . . . . 
 
 PAGE 
 
 Constantinople and Alexandra Hotel Co, in re, 
 Eeidpath's case. Company ff 14 
 , Evidence 15 - 
 
 240 
 365 
 240 
 
 313 
 
 84 
 
 362 
 
 60 
 
 63 
 
 80 
 
 80 
 
 22 
 
 559 
 
 2 
 
 98 
 254 
 
 97 
 268 
 187 
 260 
 626 
 
 136 
 453 
 575 
 614 
 604 
 
 96 
 183 
 
 38 
 508 
 
 127 
 161 
 324 
 120 
 612 
 271 
 556 
 
 639 
 
 292 
 264 
 
 278 
 328 
 
 129 
 
 411 
 452 
 
 36 
 
 72 
 456 
 
 95 
 613 
 
 162 
 
 Contract Corporation, in re, Company I 36 . 
 
 Baker's case. Company G 21 
 
 Baker's ease ; ex parte Carter, Company 
 
 134 
 
 Druitt's ease, Compamy I 32 
 
 Forbee's case, Banker 18 . 
 
 — , Company I 32 . 
 
 Gooch's case. Company G 74 {Transfer 
 
 to Infant) 
 
 Company 131 {Production of Docu- 
 
 164 
 248 
 176 
 168 
 
 176 
 
 176 
 
 44 
 
 176 
 
 165 
 
 175 
 457 
 165 
 292 
 305 
 203 
 
 489 
 400 
 
 50 
 
 457 
 407 
 485 
 
 Hakim's case, Practice in Equity 137 
 
 Hudson's case. Company G 77 
 
 Cook V. Fowler, Interest 2 . 
 
 V. Guerra, Landlord and Tenant 6 
 
 V. Hart, Costs in Eqiiity 24 . 
 
 V. The Ipswich Local Board, Public 
 
 Health Act li 
 
 v. Montagu, Nuisance 8 
 
 , in re; ex parte Izard, Bankruptcy 
 
 B 16 
 
 Cook's Claim ; in re Bonelli's Telegraph Co., 
 
 Practice in Equity 126 .... 
 Cooke V. Butler, Parliament 27 . 
 
 V. Gill, Prohibition 5 . . . . 
 
 Cooke's Settled Estates, re. Settled Estates 
 
 Acts 13 624 
 
 Coomhs V. Brookes, Trust E 5 . . .582 
 Cooper V. Cooper, Advancement 9 . .17 
 
 — v. Cooper, Election 1 . . . . 240 
 
 V. Kynock, Deed 7 . . . .224 
 
 V. Macdonald, Legacy 26 . . . . 326 
 
 v. , WUl, Construction N 8, Q 1 622, 624 
 
 , ex parte ; in re Bailey, Bankruptcy 
 
 N 23 
 
 , ex parte ; in re Zucco, Bankruptcy 
 
 G46 
 
 Coote V. Jecks, Bill of Sale 3 . . . 
 
 V. Whittington, Executor 30 
 
 Cope V. Barber, Church 21 . 
 
 V. Earl de la Warr, Trust A 7 . 
 
 V. Evans, Trade Mark 12 . 
 
 Copes V. Ball, Slater v. Jones, Bankruptcy 
 
 M 24 
 
 Copin Vi Adamson, Company G 81 
 
 T , Foreign Judgmient 3 
 
 V. Strachan, Company G 81 . 
 
 V. , Foreign Judgment 3 
 
 Copland v. Davies, Banker 8 . . . 
 
 V. Maxwell, Scotch Law 30 . 
 
 Corcoran t. "Witt, Costs in Equity 39 . 
 
 Core V. James, Bread 1 
 
 Cork Distillery Co. v. The Gloucester, Somer- 
 set and Wells llailway Co., Carrier 30 • 
 
 , Earl of, T. Eussell, Mortgage 42 
 
 V. , Parties 8 . . . . 
 
 i~— and Youghal Railway Co. v. Harnett, 
 Eailway 16 ..... . 
 
 Corkling v. Massey, Shipping Law E 13 
 
 Cornell v. Hay, Company D 26 . ■ . 
 
 V. Massey, Company D 26 . 
 
 V. Torrens, Company D 26 . 
 
 78 
 
 68 
 98 
 263 
 119 
 573 
 667 
 
 76 
 166 
 258 
 166 
 268 
 
 43 
 521 
 204 
 
 108 
 386 
 412 
 
 494 
 532 
 138 
 138 
 138 
 
TABLE OF CASES. 
 
 645 
 
 PAOB 
 
 Cornish v. Clark, SVaudident Conveyance 1 . 266 
 Cornwall v. Hawkins, In/ant 13 . . . 282 
 Corpus Christi College, Oxford, ex parte. 
 
 Lands Clauses Act 56 . . . .314 
 Corrie v. Sayers, -Practice in Equity 46 . 449 
 
 Corser v. Cartwright, Trust A 9 . . .574 
 Cory T. Bristow, flffl^es 7 . . . .601 
 
 V. The Churchwardens of Greenwich, 
 
 Bates 6 501 
 
 V. Fatten, Marine Insurance 10, 11, 
 
 349, 350 
 
 and Hawksley, ex parte; in re the 
 
 Arthur Average Association, Company 
 
 B 3 132 
 
 , , Marine Insurance 1, 51 . 347, 360 
 
 Costa Eica, Eepublie of, t. Erlanger, Produc- 
 tion 27 . . . . . . .483 
 
 V , No. 2, Production 36 . . 484 
 
 Coston V. Blackburn, Practice at Law^ 28 . 443 
 Cote, ex parte ; in re Deveze, Telegram . 559 
 
 Gotterell v. Stratton, Costs in Equity 12, 66 
 
 202, 206 
 Cotton V. GriUard, Trade Mark 5 . . . 566 
 Cottrell V. Cottrell, Will, Formalities 35 . 630 
 
 V. Finney, Mortgage 40 . . . 385 
 
 CottreU's Estate, re. Parent and Child 4 . 402 
 Coulston, in re ; ex parte Watkins, Bank- 
 ruptcy G 7 . . - . . . .62 
 Councell, Mary, in the goods of. Probate 39 . 475 
 Counhaye, in re. Extradition 2 . . .253 
 County Marine Insurance Co., re ; Eance's 
 
 case, Company I 23 175 
 
 County Palatine Loan and Discount Co., in 
 re; Cartmell's case. Company Dli . .135 
 
 , Teasdale's case, Company D 70 . . 1 45 
 
 Coupland's Claim ; in re Barned's Banking 
 
 Co., Company H 4 168 
 
 Courtaux v. Hewetson, Colonial Law 13 .124 
 Cousens v. Cousens, Costs in Equity 71 . 206 
 
 T. Eose, Pleading in Equity 8 . . 430 
 
 V , Way 2 599 
 
 Couston T. Chapman, Scotch Law 8 . . 519 
 
 , in re ; ex parte Vaux, Bankrtiptcy G 8 63 
 
 , in re ; ex parte Ward, Bankruptcy 
 
 G 10 63 
 
 , in re ; ex parte Watkins, BanJcruptcy 
 
 G 7 62 
 
 Covell V. Covell, Divorce 40 . . . .231 
 Coverdale v. Eastwood, Marriage Settlement 1 362 
 Coward and Adams' Purchase, in re. Baron 
 
 and Feme 6 83 
 
 Cowes and Newport Eailway Co. v. The Board 
 
 of Trade, Telegraph Acts .... 659 
 Cowles Y. Gale, Specific Performance 6 . 650 
 
 Cox V. Cox, Divorce 89 . " . . . .233 
 
 V. Leigh, Landlord and Tenant 14 . 306 
 
 Cozens v. Crout; Will, Formalities 23 . .628 
 Crabtree V. Poole, Specific Performance 15 .551 
 Crabtree's Settled Estates, in re, Settled Es- 
 tates Acts 9 524 
 
 Cragoe v. Jonea, Principal and Surety 16 .467 
 Crampton v. The Varna Eailway Co., Specific 
 
 Perforrnance 5 550 
 
 Craven, in re ; ex parte Tempest, Bank- 
 ruptcy B 21 61 
 
 PAGE 
 
 Crawford, in re ; ex parte Kevan, Bankruptcy 
 
 B 9 49 
 
 Crawley v. Price, Lease 3 . . . .818 
 CrAdit Foncier of England v. Amy ; Batty v. 
 Amy, Colonial Law 26 . . . .126 
 
 , re. Company D 69 . . . .145 
 
 Foneier, &c., of England, ex parte ; in 
 
 re the Marseilles Extension Eailway Co., 
 Company H 18 170 
 
 Foneier of England v. Lord Sondes, 
 
 Practice in Equity 41 .... 448 
 
 Credland v. Potter, Mortgage 27 . . . 383 
 
 V , Begistration .... 609 
 
 Crenver Wheal Abraham United Mining Co., 
 
 in re, Company D 22 . . . .137 
 Crickmer's case ; in re the Carribean Co., 
 
 Company G 37 , . 159 
 
 Criekmore v. Freeston, Mortgage 30, 41, 384, 386 
 Crisp V. Crisp, Divorce 50 ... . 232 
 Crispin, ex parte ; in re Crispin, Bankruptcy 
 
 A 2 46 
 
 Crompton v. Lea, Mines 17 • . . . 377 
 Cromwell, The, Admiralty 51 . . .15 
 Cronshaw v. The Wigan Burial Board, 
 
 Burial i 100 
 
 Crook V. Hill, Will, Construction H 11 . .609 
 Cross V. Alsop, Parliament 31 . . 407 
 
 V. Pagliano, Shipping Law E 16 . . 633 
 
 , in re ; in re the National Assurance 
 
 Association, Practice in Equity 23 . . 447 
 Crosse V. Eaw, iease 10 . . . .319 
 Crossley v. Elworthy, Voluntary Settlement 14 696 
 
 Y. Maycock, Contract 9 . . .187 
 
 , ex parte ; in re Taylor, Bankruptcy 
 
 N 18 78 
 
 Crouch V. The CrAdit Foneier of England, 
 
 Company D 51 142 
 
 v. Tregoning, Lease 31 . . .322 
 
 Crowe, ex parte ; in re European Life Assur- 
 ance Society, Company I 16 . . .174 
 Crowe's Mortgage, in re. Mortgage 54 . . 387 
 
 , Trust Ell 583 
 
 Crowley's Claim; Lacey v. Hill, Stock Ex- 
 
 •change 3 ,. 567 
 
 Crowther v. Appleby, Production 12 . . 481 
 Crozier v. Crozier, Will, Construction I 25 .615 
 Cruikshank v. Duffin, Executor 13 . . 251 
 Cubitt V. Maxse, Highway 1 ... 274 
 
 Cull V. Austin, Parliament 33 . . . 408 
 Cull's Trusts, in re, Trust D 7 . . .582 
 CuUen V. Trimble, Contagious Diseases Act 3 185 
 Cumberland, ex parte, Attorney 12 . .36 
 Cuninghame v. Anstruther, Scotch Law 23 . 620 
 Cunynghame's Trusts, re. Power 16 . . 437 
 Curling V. Walters^ iiforf^fl^'e 1 1 . . . 380 
 Curnick v. Tucker, Will, Construction I 30 .616 
 Curnot and Parkinson, re. Costs in Equity 62 206 
 
 , in re, Bankrwptcy G 16 . . .64 
 
 Currie v. Misa, Bill of Exchange 6 . .89 
 Curtejs V. Penning, Injunction 7 . . . 283 
 Curteis' Trusts, Marriage Settlement 24 . 366 
 Curtis T. Embry, Towns Police Act 1 . . 666 
 
 V. Williamson, Principal and Agent 6' . 461 
 
 V. , Trust A 15 . . . .574 
 
 Cuthbert v. Wharmby, Practice in Equity 112 455 
 
646 
 
 TABLE OF CASES. 
 
 Cuthbertson, in re; ex parte Edey, Bank- 
 ruptcy G 12 63 
 
 Cutler V. Turner, Master and Servant 18 . 370 
 
 Dagenhajn Thames Dock Co., in re ; ex parte 
 
 Hulse, Penalty 1 . . . . .425 
 Dagliah, ex parte ; in re Wilde, Bill of 
 
 Sale 4 95 
 
 , Fixtures 3 256 
 
 Dalbiac v. Delacourt, Costs at Law 10 . . 198 
 Dale V. Hayes, Tenant for Life 5 . . . 560 
 
 , in re ; ex parte Mirabita, Bankruptcy 
 
 M 21 75 
 
 Dallas V. Dallas, Divorce 22 ... 230 
 D'Alteyrac, "Countess, ex parte the Assignee 
 of the, Partitt v. Chambre, Administra- 
 tion 7 7 
 
 Dalzell, in re; ex parte Eushleigh, Bank- 
 ruptcy C 4 53 
 
 Dance v, Goldingham, Practice in Equity 81 453 
 
 '- V , Trust C 6 . . . .580 
 
 T. , Vendor and Purchaser 8 . . 589 
 
 Dancer v. Crabb, Will, Formalities 40 . . 630 
 Dando, in re ; ex parte Walton, Bg/nhruptcy 
 
 N31 79 
 
 Daniel v. Stepney, Lease 21 . . . . 320 
 Daniell v, Essex, Vendor and Purchaser 1 6, 
 
 26 590, 592 
 
 V. The Metropolitan Eailway Co., Car- 
 rier 1 ...... . 102 
 
 V. , Negligence 25 . . . . 396 
 
 Daniels v. Harris, Marine Insurance 37 . 356 
 Dannebrog, The, Admiralty 1 . . .11 
 Dapueto v. Wyllie; The Pieve Superiore, 
 
 Admiralty 6 12 
 
 T. : ,. Shipping Law 2. . . 545 
 
 D'Arc T. The London and North-Western 
 
 Eailway Co., Carrier 24 . . . . 107 
 Darnell V. Hunter, ilforf^a^'e 11 . . . 380 
 Dauney v. Chatterton, Theatre . . . 563 
 Daunt, in re ; ex parte the Joint Stock Dis- 
 count Co., Composition Deed . . .181 
 Davey V. Wietlisbach, Pflrrtiio« 24 '. .414 
 Davidson's Settlement, in re. Conflict of 
 
 Laws 7 184 
 
 Davies v. Brecknell, County Court 16 . .210 
 
 T , Probate 61 . . . .477 
 
 V. Duncan, Libel 8 . . . . 331 
 
 V. Fowler, Legacy 17 . . . . 325 
 
 V. Gregory, Probate 63 . . . 478 
 
 V. Harvey, Poor Law 1 . . .432 
 
 — — V. Lord Kensington, Parliament 12 . 405 
 — T- Y. Eeynolds, Probate 68 . . .. 478 
 — r- V. Solomon, Slander 2 ... 548 
 
 , in re ; ex parte Williams, Bankruptcy 
 
 G 20 64 
 
 Davies' case ; in re the Valparaiso Waterworks 
 
 Co., Company G 18 155 
 
 Trusts, in re. Will, Construction C 2 . 602 
 
 Davis T. Duncan, lAbel 8 . . . . 33! 
 
 V. Gregory, Probate 65 . . . . 478 
 
 V. Hedges, Action 9 .... 5 
 
 T. Park, Jurisdiction in Equity 12 .299 
 
 , ex parte; in re Davis, Bankruptcy Xi 8 71 
 
 PAGE 
 
 Davis's case ; in re the Durham Benefit Build- 
 
 ii)g, &c.. Society, Company H 2 . . 167 
 
 , Friendly Society 2 . . . 267 
 
 Trusts, in re. Trust E 7 ■ • -582 
 
 Dawe, ex parte ; in re Husband, Bankruptcy 
 
 G 29 66 
 
 Dawes v. Harness, Pleading at Law 2 . . 427 
 Dawkins v. Lord Eokeby, lAbel 10 . . 332 
 Dav7Son v. Coleman, Master and Servant 17 . 369 
 
 V. Fitzgerald, Arbitration 9 . . .28 
 
 V. The Midland Eailway Co., Railway 
 
 27 496 
 
 Y. SmaXl, Charity n . . . .112 
 
 V. , Will, Construction H 3, L 9 
 
 608, 617 
 , ex parte ; in re Dawson, Bankruptcy 
 
 G 36 . . , .... .67 
 
 , Voluntary Settlement 6 . . 695 
 
 Day V. Day, Limitations, Statute of 20 . . 338 
 De B. V. De B., Divorce 85 . . . .236 
 De Bay v. Griffin, Costs in Equity 54 . . 205 
 De Britto v. Hillel, Practice in Equity 53 . 450 
 De Gendre v. Bogardns, Practice at Law 7 . 440 
 De La Salle v. Moorat, Practice in Fruity 1 445 
 De la Saussaye, in the goods of. Will, For- 
 malities 37 630 
 
 De la Touche's Settlement, in re. Marriage 
 
 Settlement 28 366 
 
 , Trust 1)5 581 
 
 De Lancey v. The Queen, Legacy Duty 1 . 327 
 De Lisle v. Hodges, Power 18 . . . 437 
 De Mattos v. Saunders, Bankruptcy F 1 . 61 
 
 V. , Marine Insurance 32 . . 355 
 
 De .Eochefort v. Dawes, Mortgage 32 . . 384 
 De Eosaz v. Eich, Costs in Equity 9 . . 202 
 De Serre v. Clarke, Power 19 . . . 438 
 De Vecchj, in re ; ejc parte Isaac, Bankruptcy 
 
 11 81 
 
 De Vitre v. Belts, House of Lords 8 . . 278 
 
 — V. .; , Injunction 39 . . . 288 
 
 De Witte v. Palin, Infant 2 . . . .280 
 De Wolf V. The Archangel Maritime Bank, 
 
 Marine Insurance 29 .... 354 
 
 De Worms v. Mellier, Injunction 10 . . 2S4 
 Dean v. Bennett, Dissenters .... 226 
 
 V. Sharp, Practice in Equity 106 . . 455 
 
 and Gilbert's Claim ; in re the Patent 
 
 Floor Cloth Co., Cow^arey H 20 . .171 
 Deanes v. Kitchin, Practice in Equity 128 . 457 
 Death V.Harrison, County Court 21 . . 211 
 
 V. , Interpleader 2 . . . 293 
 
 Deere, in re ; ex parte Deere, Attorney 26 . 37 
 
 , Debtors Act 9 . . . . 222 
 
 Delves v. Delves, Practice in Equity 120 . 456 
 Demetrius, The, Admiralty 30' . . .14 
 Dempsey, ex parte ; in re Dempsey, Debtors 
 
 Act 19 223 
 
 Dennett v. Atherton, Covenant 7 . . . 214 
 Dennis v. Tovell, Harbour 1 . . . 273 
 
 — :— V. Whetham, Sheriff 3 ... 626 
 
 Denoon v. The Home and Colonial Assurance 
 
 Co., Marine Insurance 21 . . .352 
 
 Denny v. Hancock, Costs in Equity 10 . . 202 
 
 V. , Specific Performance 18 . 562 
 
 Dent's case. Company 9 3. . . .152 
 
TABLE OF CASES., 
 
 647 
 
 PAGE 
 
 Dent's ca,se, Compaiit/ Gr 26 . . . .156 
 Denton, in re ; Denton v. Strong, Arbitra- 
 tion 27 , . . ... 31 
 
 Colliery Co., in re ; vx parte Shaw, Com- 
 
 •pany G 38 159 
 
 Denyssen v. Mostert, Colonial Law 20 . . 126 
 Deverell V. Burnell, CoMiraci; 19 . . .188 
 Deveze, in re, ex parte Barnett, Banh-wptcy 
 
 F 7 62 
 
 , ex parte Cote, Telegram . . .659 
 
 Devonport, &c.. Milk Co., in ro, Bateman's 
 
 case, Company C7S 165 
 
 Dewhurst, ex parte, in re Leggett, Bill of Ex- 
 change 25 93 
 
 , ex parte, in re Vanlohe, Bankrupts/ 
 
 C 8 49 
 
 Dicconson v. Talbot, Trust B 13 . . .576 
 Dickesonv. Hilliard, itW 12 . . .332 
 Dickin, ex parte, . in re Foster, Bankruptcy 
 
 E 25 59 
 
 Dickinson t. Fletcher, Mines 20 . . . 377 
 
 T. , Penalty 2 . . . . 245 
 
 Dickson, in re, Blackburn v. Dickson, Admi- 
 nistration 11 7 
 
 Die Elbinger, &c. See Elbinger. 
 Dignam v. BaUy, Pleading at Law 5 . . 428 
 Dilkes, in the goods of. Will, Construction 9 . 627 
 Dillon T. Onnningham, Debtors Act 14 . . 222 
 Diraond v. Bostock, Will, Construction H 4 . 608 
 Dimson Estate Fire Clay Co., in re, Com/pami 
 
 1 62 . . . : : .' .^ ■: 179 
 
 Dinn v. Blake, Arbitration 20 . . .30 
 Dinoon t. Home and Colonial Assurance Co., 
 
 Marine Insurance 21 . ... 352 
 
 Disderi & Co., in re, Company!) 42 141 
 
 Dixon T. Birch, Innkeeper 3 . 289 
 
 v. Dixon, Divorce 86 . . . . 236 
 
 V. Enoch, Discovery 2 . . . .40 
 
 T. Evans, in re Agriculturists' Cattle 
 
 Insurance Co., Co«8pffi«y D 17 . . 136 
 
 T. London Small Arms Co., Patent 22 . 422 
 
 V. Muckleston, Mortgage, 23 . . . 383 
 
 , in re, ex parte Gordon, Bankruptcy 
 
 E 11 (Proof by executors of partner) . . 57 
 
 , Bankruptcy 9 (Injunction) . . 80 
 
 Doggett V. Eastern Counties Rail. Co., Prac 
 
 tice in Equity Hi 455 
 
 Donaldson v. Donaldson, Apportionment 10 . 26 
 
 , in the goods of. Probate 35 . . . 474 
 
 Donisthorpe, in re. Lunatic 2 . . . 342 
 Dorin v. Dorin, Will, Construction H 12 . 609 
 Dorman, ex, parte, in re Lake, Bwiikruptcy 
 
 G 3 62 
 
 Doss V. Secretary of State for India, Colonial 
 
 Law 24 126 
 
 V. , Jurisdiction in Equity 16 . 299 
 
 Donbleday v. Hosking, Friendly Society 4 . 268 
 Dougan's case, in re Empire Assurance Cor- 
 poration, Company D 54 (Acts ultra vires) . 143 
 
 , Company ^ 18 (Amalgamation) . . 150 
 
 Douglas V. Douglas, Cbre/ZsciJ o/ ifla/s 3 . 183 
 
 T. , Domicil 2 , . . . 237 
 
 , Election 8 . . . .241 
 V. Webster, Conflict of Laws 3 . .183 
 T. , Election 8 , . . .241 
 
 PAKE 
 
 Douglas, in re, ex parte Eyder, Bankruptcy E 6 61 
 
 in re, ex parte Snowball, Bankruptcy 
 
 B 25, 36 51, 53 
 
 in re, ex parte Wilson, Bankruptcy E 1 6 58 
 
 Dow T. Black, CofoniaZ iaw 3 , . . .123 
 Doward v. Lindsay, Shipping Law F 15 . 535 
 Dowdeswell v. Francis, County Court 26 . 212 
 Dowling v. Pontypool, Caerleon and New- 
 port Bail. Co., Railway 6 ... 493 
 Dowling's Trusts, in re, Will, Construction I 26 615 
 Drake v. Trefusis, Lands Clauses Act 31 .312 
 Driffield, ex parte, Coraziy Coro«e)- . . 2U8 
 
 V. Deakin, Launceston Election Peti- 
 tion, Parliament 4 . . . . . 404 
 
 Drinkwater v. RatclifiFe, Partition 5, 16 . 413 
 Driver v. Driver, Will, Construction E 6 . 605 
 Driver's Settlement, in re, Trust E 12 . . 583 
 Droitwich Salt Co., in re, Company D 62 . 144 
 Druitt's case, in re Contract Corporation, 
 
 Company I 33 176 
 
 Drummond v. Saut, Limitations, Statute of 
 
 5 335 
 
 Dudgeon v. Pembroke, Marine Insurance 17, 
 
 38 . . . ' . . . . 361, 356 
 Dudman v. Vigar, Tithes 1 ... 664 
 
 Due Checchi, The, Admiralty 22 . .13 
 
 Duffield, in re, ex parte Peacock, Bankruptcy 
 
 M 13 75 
 
 Dugdale v. Dugdale, Administration 24 . 9 
 V. Lovering, Contract 30 . . , 191 
 
 V. Meadows, Legacy and Succession 
 
 Duty 10 328 
 
 Duignan, ex parte, re Bissell, Bankruptcy 
 
 L 12 71 
 
 Duke of Sutherland, The, Shipping Law 7 18 635 
 Diilwich College, in re. Costs in Equity 61 . 206 
 Dummelow, in re, ex parte Euflle, Bank- 
 
 rwptcy LI 70 
 
 Duncan v. Beeson, Stock Exchange 1 . 657 
 
 V. Cashin, Interpleader 1 . . .293 
 
 -v.'SiW, Company (161 . . .162 
 
 V. , Stock Exchange 1 . . .557 
 
 V. Eoster, Shipping Law E 12 . .532 
 
 — V Scottish North-Eastern Bail. Co., 
 Rates 23 ... . . . 505 
 
 Duncombe v. Brighton Club and Norfolk 
 
 Hotel Co., Debtor and Creditor 7 . .221 
 Dunn V. Birmingham Canal, &c., Co., Canal 1 101 
 Dunne y. EngUsh, Practice in Equity 13, 
 
 92 446, 454 
 
 V. , Principal and Agent 19 . .462 
 
 Dupueto V. Wyllie, The Pieve Superior, Ad- 
 miralty 6 12 
 
 Durance, in the goods of, Will, Formalities 36 630 
 Durant v. Carter, Parliament 40 . . . 409 
 
 V. Withers, Parliament 34 . . . 408 
 
 Durham v. Spence, Practice at Law 3 . 440 
 
 — — Permanent Building Society, in re, 
 Davis's case, Co»iyffi«y H 2 . . -.167 
 
 , in re, Davis's case and Wilson's case. 
 
 Friendly Society 1 267 
 
 , in re, ex parte Wilson, Arbitration 3 . 27 
 
 Durham's Petition, in re. Company CI. .132 
 Dutton V. Atkins, Vaccination 2 . . .587 
 y'MavshiCompanyT) 21 . , . 136 
 
648 
 
 TABLE OF CASES. 
 
 PAGE 
 
 Dyke v. Elliot, The Gauntlet, Foreign Enlist- 
 ment Act 1 257 
 
 V. Williams, Probate 64 . . . 478 
 
 Dyte's case, in re India and London Life 
 Assurance Soc, Company E 14 . . . 150 
 
 Eadon v. Jeffcock, Mines 3 . . . . 375 
 Eagles Y. Le Breton, Joint Tenants 2 . . 294 
 
 V. , Will, Constrmtion H 24 . .611 
 
 Earl Spencer, The, Shipping Law F 22 . . 535 
 East, in re ; in re Bellwood's Will, Trust B 28 578 
 
 of London Rail. Co., ex parte, in re 
 
 King's Leaseholds, Lands Clauses Act 5 . 308 
 
 London Eail. Co. t. Whitchurch, Bates 
 
 16 .603 
 
 London Waterworks Co., v. Leyton 
 
 Sewer Authority, Sewers 2 . . . 525 
 
 , in re, Tnist B 28 . . . .658 
 
 of England Banking Co., in re, Pear- 
 son's case. Company I 51 . . . .178 
 
 Easterbrook t. Barker, Inspectorship Seed 5 . 290 
 Easton v. Richmond Highway Board, High- 
 way 14 277 
 
 Eastwood V. Millar, Gaming 3 . . .269 
 Ebbs V. Boulnois, Bankruptcy L 18 . .73 
 Ebsworth v. Alliance Insurance Co., Marine 
 
 Insurance 45 ..... 358 
 
 Eclipse Gold Mining Co., in re. Company 
 
 G82 166 
 
 Eddel's Will, in re. Will, Construction! 8 . 612 
 Edey, ex parte, in re Cuthbertson, Bankruptcy 
 
 G12 63 
 
 Edinburgh Street Tramways Co. v. Black, 
 
 668 
 443 
 610 
 
 Edgson T. Cardwell, Practice at Law Zi 
 
 T. , Replevin 2 . . . . 
 
 Edgware Highway Board v. Harrow District 
 
 Gas Co., Highway 12, 13 
 Edmonson v. Sharp, Practice in Equity, 106 . 
 Edsall, in re. Acknowledgement 4 
 Edwards t. Aberayon Mutual Ship Insurance 
 Co., Marine Insurance 54 ... 
 
 V. Coombe, Bankruptcy M 17 
 
 T. Warden, Mutual Benefit Society 
 
 , ex parte. Church 29 . 
 
 , ex parte, in re Marylebone (Stingo 
 
 Lane) Improvement Act, Lands Clauses 
 
 Actio 
 
 , in re, ex parte Baum, Bankruptcy. 3 
 
 , in re, ex parte Chalmers, Sale 11. 
 
 , in re, ex- parte Eyles, Bankruptcy L 1 1 
 
 , in re ; in re London, Brighton and 
 
 South Coast Rail. Co., Marriage Settle- 
 ment 20 . . . . . , . 364 
 
 , in ve. Infant 1\ 281 
 
 Elbinger Actien Gesellschaft v. Armstrong, 
 
 Damages 10 217 
 
 V. Clayo, Principal and Agent 8 . ,461 
 
 Elliott V. Majendie, Gunpowder 2 . . 272 
 
 , in the goods of. Probate 28 . . . 473 
 
 Elliot's Trusts, in re. Trust D 6 . . . 58 1 
 Ellis V. Barker, Undue Influence 5 . . 585 
 
 V. Burch, Parliament 85 . . . 408 
 
 v. Ellis, 7>Msi;A 11 . . . .574 
 
 276 
 
 455 
 
 2 
 
 360 
 
 75 
 
 391 
 
 121 
 
 309 
 80 
 
 514 
 71 
 
 PAGE 
 
 Ellis V. Ellis, Will, Construction 129 . ■ 616 
 
 V. Great Western Rail. Co., Railway 24 496 
 
 V. Loftus Iron Co., Negligence 5 . . 393 
 
 T. McHenry, Qomposiiion Deed 7 . . 181 
 
 V. Saxon, Pleading at Law 4 . . 428 
 
 V. Silber, Jurisdiction in Equity 1 1 . 299 
 
 V. Wilmot, Principal and Surety 19 . 468 
 
 , ex parte, in re Kain, Bankruptcy N 32 79 
 
 Ellis's Trusts, in re. Baron and Feme 21 . 86 
 Elmer v. Creasy, Mortgage 49 . . . 386 
 
 V. , Pleading in Equity 12 . . 43 1 
 
 Elmslie & Co., in re, ex parte Tower Subway 
 
 Co., Costs in Equity 56 . . . . 205 
 El pis. The, Admiralty 45 . . . .15 
 Else V. Else, Vendor and Purchaser 33 . 593 
 
 V. , Will, Constructionjj 17 .619 
 
 Elway V. Davies, Forest of Dean 1 . . 258 
 Elworthy, ex parte, in re Elworthy, Bank- 
 ruptcy M 5 74 
 
 Emanuel v. Bridger, Bankruptcy E 24 . .69 
 Emerson, ex parte, in re Hawkins, Bank- 
 ruptcy G 4 62 
 
 Emilien Mary, The, Mersey Dock Acts . . 371 
 
 , Shipping Law B 12 (Short delivery), 
 
 M 4 (Authority of master) , . 529, 544 
 
 Emma Silver Mining Co., in re. Company I 33 176 
 
 Challis's 
 
 484 
 
 Production 41 
 Empire Assurance Corporation, 
 
 case. Company E 1 6 . 
 , in re, Dougan's case. Company D 54 
 
 (Acts ultra vires) ..... 
 
 , Company E 18 (Amalgamation) 
 
 , Furdyee's case, Company E 16 
 
 , Leeke's case. Company D 14 
 
 , Somerville's case. Company E 16 
 
 Empress, The, Admiralty 19 . . . 
 
 Energie, The, Shipping Law G 1 . 
 
 England v. Cowley, Trover 6 . • . 
 
 , in re, ex parte Hare, Bankruptcy E 22 
 
 , in re, ex parte Sheriff of Middlesex, 
 
 Bankruptcy M 10 
 
 Englebach v. Nixon, Bankruptcy G 34 
 
 V. , Interpleader 1 . . 
 
 English, and Foreign Credit Company v. Ar- 
 
 duin. Contract 12 .... . 
 Joint Stock Bank, ex parte, in re Finney, 
 
 Bankruptcy G 1 (Appointment of Trustee) . 
 
 , Bankruptcy N 25 (Registrar) 
 
 Assurance Co., in re, Holdich's case. 
 
 Company H 14 . 
 
 Insurance 1 . 
 
 Epping Forest case. Common 1,2. 
 
 , Practice in Equity 73 .... 
 
 Enyon, in the goods ofi Will, Formalities 19 
 Erskine v. Adeane, Landlord and Tenant 18 
 
 V. , Lease, 27 .... 
 
 Esk and The Niord, The, Shipping Law F 11 
 Espley V. Wilkes, Easement 4 . . . 
 Essex V. Daniell, Vendor and Purchaser 16, 
 
 26 690, 692 
 
 Brewery Co., in re. Company G 17 .156 
 
 Estcourt V. Estcourt Hop Essence Co., Costs 
 
 in Equity 27 203 
 
 V. , Principal and Agent, 26 . . 464 
 
 V. , Trade Mark 13 . . . 567 
 
 150 
 
 143 
 160 
 1,50 
 14] 
 150 
 
 13 
 537 
 671 
 
 69 
 
 74 
 
 66 
 
 293 
 
 187 
 
 62 
 78 
 
 170 
 290 
 129 
 452 
 628 
 306 
 321 
 634 
 238 
 
TABLE OF CASES. 
 
 640 
 
 PAGE 
 
 Etherington V. Wilson, OAanVy 29 . . Ill 
 Ettershank v. Attorney-General of Victoria, 
 
 Colonial Law 40 128 
 
 EugAnie, The, Shipping Law C 4 {Master's 
 
 Wages), F 18 {Lights) . . . 530, 535 
 European Bank, in re, ex parte Agra Bank, 
 
 Banker 6 43 
 
 , in re, Master's ease. Company Gr 68 . 162 
 
 , in re, ex parte Oriental Commercial 
 
 Bank, Company H 9 169 
 
 Central Bail way Co., in re, Sykes's case, 
 
 Company D 43 141 
 
 Life Assurance Society, in re, ex parte 
 
 Crowe, Company 116 . . . . 174 
 Eustace, in the goods of. Will, Formalities 39 630 
 Euxine, The, Admiralty 55 . . . .16 
 Evans v. Bear, Debtors Act 7 . . . 222 
 
 T. Hallam, Bankruptcy G 25 . .65 
 
 v. Pughe ; Lloyd v. Pughe, Baron and 
 
 Fenie 2 83 
 
 V. Roe, Practice at Law 31 . . . 443 
 
 , , Contract 3i . . . .192 
 
 Evans, in re. Lands Clauses Act 38 . . 312 
 Evans's Trusts, in re, Trust D 11 . . .582 
 
 case. Costs in Equity 57 . . . 205 
 
 Claim, Kidd v. Boone, Administration 
 
 10 7 
 
 Evens' Claim, in re United Ports Co., Com- 
 
 pany'Si 15 160 
 
 Evered v. Evered, Divorce 49 . . . 232 
 Everingham v. Ivatt, Copyholds 4 . .194 
 Everton, Overseers of, ex parte. Prohibition 7 485 
 ^waj^ Y. Chuhh, Baron and Feme 27 . . 86 
 Exeter Election Petition, in re. Parliament 9 404 
 Exmouth Dock Co., in re. Company I 14, 19 . 174 
 Explorer, The, Admiralty 3 . . . .12 
 Express, The, Shipping Law K 2 . . , 543 
 Eyles, ex parte, in re Edwards, Bankruptcy 
 
 Lll .71 
 
 Fagg V. Lee, CA«toA 28 . . . .120 
 Fairbrother, in re, ex parte, Harding, Bank- 
 ruptcy G 18 . . . . • .64 
 Fairlamb v. Percy, Probate 27 . . . 473 
 Falkner v. Somerset and Dorset Railway 
 
 Co., Lands Clauses Act 9 . . . . 309 
 Falvey v. Stanford, Practice at Law 36 . 443 
 
 Fane v. Fane, Voluntary Settlement 13 . . 596 
 Fanny M. Carvill, The, Shipping Law F 18, 
 
 25 535 
 
 Fanshaw, in re, ex parte Birmingham and 
 
 Staffordshire Gas Co., Bankruptcy 2 .80 
 
 , , Landlord and Tenant 11 . . 305 
 
 Farhall v. Farhall, Administration 5 . .6 
 
 V. , Executor 12 . . . .25 
 
 Farqnhar v. Haddon, Legacy 5 . . . 323 
 Farquharson's Application for Letters Patent, 
 
 in re, Patent 11, 12 421 
 
 Farrer v. St. Catherine's Coll. Cambridge, 
 
 Legacy 2 323 
 
 V , Will, Construction G 6 . . 606 
 
 V. Sykes, Practice in Equity 7 . . 446 
 
 Fastnedge, in re, ex parte Kemp, Bankruptcy 
 
 G 14 63 
 
 Digest, 1870-1875. 
 
 PAOE 
 
 Fearon v. Mitchell, Market 1 . . .360 
 Featherston v. Wilkinson, Shipping Law E 4 531 
 Featherstone v. Cooke, Company D 3 . . 133 
 Fell V. Biddiilph, WUl, Formalities 24 . . 628 
 
 V. Whittaker, Landlord and Tenant 13 305 
 
 Felstead v. Gray, Practice in Equity 130 . 467 
 Fenner v. The London and South-Easteru 
 
 Railway Co., Production 4 ... 480 
 
 Fenton v. Blackwood, Mortgage 35, 36 . .384 
 Fenwick v. Begbie, Costs in Equity 80 . . 207 
 
 V. East London Railway Co., Injimc- 
 
 fion25 286 
 
 'FeTgasouY.Feiga&oa, Debtors Act 1,6 . 221, 222 
 
 V. Gibson, Executor 8 . . . . 250 
 
 and Hutchinson, ex parte. Shipping Law 
 
 F 30 536 
 
 , Merchant Shipping Act . . . 370 
 
 Fernie v. Scott, Parliament 24 . . . 406 
 Ferrao's ease, in re Paraguassu Steam Tram- 
 way Co., Company G 30 . . . . 157 
 Ferrers, Earl, v. Stafford and Uttoxeter Rail- 
 way Co., Lands Clauses Act GJ . . . 315 
 Ferrige, ex parte, in re Ferrige, Bankruptcy 
 
 N 33 79 
 
 Fiddey, in re, Heinrich v. Sutton, Attorney 
 
 44, 45 39 
 
 , in re, Jones v. Frost, Attorney 48 . 39 
 
 , in re, Hoghton v. Hoghton, Administra- 
 tion 38 .10 
 
 , Practice in Equity lis . . . 456 
 
 Fielden V. Ashworth, Will, Construction K 23 610 
 
 V. Northern Railway Co. of Buenos 
 
 Ayres, in re Jones, Attorney 22 . . .36 
 Fielder, in re, ex parte Bailey, Costs in Equity 
 
 58 205 
 
 Financial Insurance Co., in re. Bishop's case. 
 
 Company Cc 58 162 
 
 Finch V. Marcon, Executor 23 . . . 252 
 
 V. Prescott, Executor 17 . » . 251 
 
 V. Westrope, Costs in Equity 3 . . 201 
 
 Finlinson v. Porter, Trespass 4 . . . 569 
 Finnegan v James, Patent 35 . . . 423 
 Finney, in re, ex parte English Joint-Stock 
 Bank, Bankruptcy G 1 {Appointment of 
 
 Trustee) 62 
 
 , , Bankruptcy N 25 {Registrar) . 78 
 
 Firth V. Midland Railway Co., Lands Clauses 
 
 Acts 308 
 
 V. Specific Performance 12 . . 551 
 
 V. The Queen, East India Company . 239 
 
 V. Widdieombe, Overseers, Parliament 46 409 
 
 Firmstone's case, in re Malaga Land Co., 
 
 Company G 31 157 
 
 Fischer v. Popham, Will, Formalities 16 . 627 
 Fisher v. Apollinaris Co., Compromise 2 . 182 
 
 , V. , Injunction 2 . . . . 283 
 
 V. , Jurisdiction in Equity 8 . . 298 
 
 V. Fisher, Lands Clauses Act 66 . . 316 
 
 V. Liverpool Marine Ins. Co., Marine 
 
 Insurance 3 348 
 
 V. Melles, Lunatic 12 . . . . 343 
 
 V. , Partnership 23 . . . 419 
 
 V. Webster, Eemoteness 2 . , . 509 
 
 V. , Will, Construction I 32, L 10 
 
 615, 617 
 40 
 
650 
 
 TABLE OF CASES. 
 
 PAOB 
 
 Fisher, ex. parte, in re Asli, Bankruptcy H 13 50 
 
 , , Bill of Sale 23 . . , .97 
 
 Fitzgerald, V. Fitzgerald, Divorce 67 . . 234 
 
 T. GrreensiU, Attachment 1 . .33 
 
 Fitzhardinge and The Gloucester and Berke- 
 ley Canal Co., in re. Lands Clauses Act 27 311 
 Fitzpatrick v. Kelly, Adulteration of Food 1 . 16 
 Flagstaff Silver Mining Co. of Utah, in re, 
 
 Company's. 17 . . • . .170 
 
 Fleet V. Murton, Principal and Agent 2 . 460 
 Fleming v. Cave, Costs at Law 23 . . 200 
 
 Fleming's ease, in re National Erovident Life 
 
 Assurance Society, Co»!pa«y E 12 . .149 
 Flemon's Trusts, in re. Lands Clauses Act 60 C15 
 Fletcher V, Baker, County Cotirt 2li . .211 
 
 Y.K.eiiiava'n, Specific Perfprmance 29 . 653 
 
 V. Krell, Master and Servant 1 . .366 
 
 Flitters v. Allfrey, Estoppel 5 . . .243 
 Flockton V. Bunning, Trust C 5 . . . 579 
 Flower V. Bradley, Admiralty 10 . . .12 
 
 V. Flower, Divorce 75, 79 . . . 235 
 
 Flux, in re. Attorney 36 . . . .38 
 Folkard v. Metropolitan Railway Co., Lon- 
 don i . . . .341 
 
 Folkestone, Corporation of, v. "Woodward, 
 
 Pitblic Health Acts 8 . . . . .487 
 Forbes v. The Ecclesiastical Commissioners, 
 
 Manor 2 347 
 
 ,x. Srpith, SootcJi Law SI . . .821 
 
 . V. Trefusis, Scotch Law 20 . . . 520 
 
 V. "Watt, Evidence 14 . . . 247 
 
 Forbes' case, in re Teme "V^alley Railway Co., 
 
 Company D 38 140 
 
 — . case, in re The Contract Corporation, 
 Bankruptcy 15 . . , . . .44 
 
 , , Company I 32 . . . .176 
 
 i in re Anglo-Moravian Railway Co., Com- 
 
 pany G 3 152 
 
 , Claim, in re Universal Non-Tariff In- 
 
 sxirance, Co., Insurance 7 . . . . 291 
 Ford V. Boon, ParK«»!e»i 53 . . .410 
 
 V. Foster, . TmfZe JlfarA 6 . . .566 
 
 V. Hart, Parliament 42 . . . 409 
 
 V. Pye, Parliament 41 . . . . 409 
 
 ., V. Tynte, 7«sMm»c« 6 . . . .291 
 
 V , Mortgage 31 . . . . 384 
 
 Fordyce's case, in re Empire Assurance Cor- 
 poration, Company 'El 16 . . . .150 
 Foreman V. Canterbury, Mayor, &e.. Highway 
 
 15 277 
 
 V. , Negligence 10 . . . . 393 
 
 Forest Queen, The, Admiralty 46 . . 15 
 
 Forester V. Read, Costs in Equity 2 . .201 
 Forrest, in re, ex parte Murray, Bankruptcy 
 
 as 82 
 
 Fofshaw V. De "Witt, Arbitration 30 . .31 
 
 v. , Costs at Law 6 . . . 198 
 
 Forster v. Abraham, Trust B 27 . . . 578 
 
 V. Forster, Scotch Law 1 , . . 519 
 
 . — -, H., in the goods of, Probate 6 . .471 
 Fortune Copper Mining Co. of "Western Aus- 
 tralia, in re, Company 129 . . .175 
 Foster, in re, ex parte Dickin, Bankruptcy 
 
 E 25 ' . 59 
 
 , ex parte, in rePooley, Bankruptcy C 12 54 
 
 PAGE 
 
 Fothergillv. Phillips, M«es 12 . . -376 
 
 V. Rowland, Injv/nction 3 . . ■ 283 
 
 V, ^ , Sale 7 . . . .. . • 513 
 
 Fothergill's case, in re Pen'allt Silver Mining 
 
 Co., Company G 33 138 
 
 Foulger v. Steadman, Railway 42 . . 499 
 
 Fowkes v..Pascoe, Legacy 28 . . . 326 
 
 V , Trust A 17 . . . -574 
 
 I'owler V. Lock, Negligence 30 . . . 398 
 
 v. — ; — , Bailment 1 . . . .41 
 
 V. HoUins, Trover 5 . . . . 570 
 
 Fowler's ease, in re British American Tele- 
 graph Co., Company D 34 . . . . 140 
 Fox V. Amherst, Common 4 . . . .129 
 
 V. Clarke, Deed 4 224 
 
 ,v.'D^\ly,BailinentZ9 . . .408 
 
 V. Fqx, Will, Construction L 20 ( Vesting: 
 
 gift over), 'M.S {Hotchpot Clause) . 619, 621 
 
 V. Lownds, Charity 6 ■ . . .111 
 
 , in rp, ex parte Barry, Bankruptcy Gr 13 63 
 
 Fox's cas9. Irrigation Co. of France, Com- 
 pany E ,3 . . . • . . .147 
 Foxon V. Gascoign, Attorney 50 . . .39 
 France v. France, Partition 23 . . . 414 
 
 V. Gaudet, Damages 8 . . . .217 
 
 V. , Trover 8 .... 571 
 
 5 in re, ex parte Tinker, Bankruptcy 18 70 
 
 Francesco v. Massey, Shipping Law H 5 . 538 
 Francis v.. Dow.deswell, County Court 26 . 212 
 Franklandj The, ^rfmraKy 21 . . .13 
 
 , The, and The Kestrel, Shipping Law 
 
 F 6 534 
 
 , in re. Attachment 4 . . . .33 
 
 Fraser v. Crawford, Scotch Law 34 . . 521 
 
 ; V. Telegraph Construction Co., Ship- 
 
 piitg Law B § . 528 
 
 , in tie goods of. Executor 3 . . . 250 
 
 Fraser's case, in re Pen'allt Silver Lead Min- 
 ing Co.,. Co»!^«ny ,G 23 ... .156 
 Frederick v. Attorney-General, Legitimacy De- 
 claration Act 3, 4 . . . . . 330 
 Freedom, Tte, admiralty, 18 . . .13 
 
 , Shipping Law B 2 . . . . 628 
 
 Freefiold and General Investment Co., in re, 
 
 Green's case, Company D 36 . . . 140 
 Freeman v. Commissioners of Inland Reve- 
 nue, Stamps 3 . . . . . . 565 
 
 Freeth v. JBurr, Contract 38 . . . .192 
 
 Freke v. Lord Carbery, Domicil 5 . . . 237 
 French's Trusts, in re. Practice in Equity 123 456 
 Frowen v..F"rewen, Ctej"eA 6 . . .116 
 Fricker's case, in re Bank of Hindustan, 
 
 China and Japan, Company I 37 . .176 
 Frier, The, Admiralty 37 . . . .14 
 
 Fritl^ V. Cameron, Marriage Settlement 27 . 366 
 
 .V. Regina, Petition of Eight 3 . . 426 
 
 Frost V. Knight, Sr«acA o/ Promise . .99 
 Fryer's Settlement, in re. Fryer v. Salisbury 
 
 and Dorset Rail. Co., Lands Clauses Act 44 313 
 Fulmore v. "Wait, Admiralty 7 . . .12 
 
 .V. , County Court 15 . . . 210 
 
 Fulton V. Andrew, Will, Formalities 3 . . 626 
 Furley v. Hyder, Infant 3 . . . .280 
 
 V. , Legacy 10 ... . 324 
 
 : ,v. — ;— , Tfinant for Life 14 . _ . .561 
 
TABLE OF CASES. 
 
 651 
 
 Furley, ex parte, in re Alchin's Trusts, 
 Charity 18 . ' 112 
 
 Furness, ex parte, in re Simpson, Partner- 
 ship 22 ... 418 
 
 Fussell V. Dowding, Marriage Settlement 26 365 
 
 Gr V. G , Divorce 4 . , . 
 
 Gabarrow v. Kreeft, Shipping Law B 13 
 
 Gains&rd v. Dunn, Administration 33 . 
 
 V. , Power 15 .... 
 
 Gaitskell's- Trusts, in re. Will, Construction 
 L 23 
 
 Gall V. Fenwiok, Administration 15 
 
 Galliers v. Metropolitan Bail. Co., Lands 
 Clauses Act 40 
 
 Gallin v. London and North- Western Eail. 
 Co. Carrier 13 . ; . . . . io5 
 
 Gandy t. ■ Adelaide Marine Insurance Co., 
 Marine Insiirance 6 
 
 Gann v. Johnson, Costs at Law 13 
 
 Garatty v. Potts, Alehouse 14 
 
 Gardner v.- Ellis, Church 26 ' . 
 
 Gardner's Estate, in re, Garratt v. Weeks, Will, 
 Construction B. 18 
 
 Garetty v. Potts. See Garatty r. Potts. 
 
 Garland v. Jacomb, Bill of Exchange 7 
 
 T. , Estoppel 9 . . . . 
 
 T. Mead, Copyholds 3 . 
 
 T. Will, Construction 117 
 
 Garnett v. McKewan, Banker 3 . 
 
 Garnier, in re, Sy-ust D 4 . 
 
 Garniss r. Heinke, Covenant 8 . . . 
 
 Garofolini, in the goods of, Probate 42 . 
 
 Garrard v. Garrard, Probate 22 . 
 
 Garratt v. Weeks, Will, Construction H 1 8 . 
 
 Gas Light and Coke Co. v. St. George, Ha- 
 nover Square, Vestry, Gas 1 
 
 .V. ■ , Statute 7 
 
 Gaudet v. Brown, The cargo ex Argos, The 
 Hewsons, Admiralty 8 
 
 Gaunt V. Fynney, Iryunction 22, 37 . 286, 288 
 
 Gauntlet, The, Dyke v. Elliott, Foreign En- 
 listment Act 1 
 
 ■■ , Foreign Enlistment Act 2 
 
 Gavin v. Hadden, Colonial Law 21 
 
 227 
 
 529 
 
 10 
 
 437 
 
 620 
 8 
 
 313 
 
 348 
 
 199 
 
 20 
 
 120 
 
 619 
 
 90 
 244 
 193 
 614 
 
 42 
 581 
 214 
 475 
 472 
 610 
 
 270 
 557 
 
 12 
 
 Geake y. !Ro8s, Debtor and Creditor 6 
 
 T. , Interest Z . . . . 
 
 Gearns v. Baker, Game 1 . . . . 
 
 V. , Landlord and Tenant 4 . 
 
 Gee V. Metropolitan Kail. Co., Carrier 10 . 
 
 Geipel v. Smith, Shipping Law E 10 
 
 Gendre v. Bogardus, Practice at Law 7 . 
 
 General Exchange Bank, in re, ex parte 
 Lewis, Company I 55 . . . . 
 
 , ex parte, London, Hamburg and Con- 
 tinental Bank, Company G 67 . 
 
 ■ Provident Assurance Co., in re, ex parte 
 
 National Bank, Banker 7 . 
 
 ' , , Company HI. 
 
 Boiling Stock Co., in re. Joint Stock Bis- 
 
 count Co.'s Claim, Company H 23 . 
 
 South American Navigation Co. ex parte, 
 
 in re Yglesias, Bill of Exchange 30 . 
 
 Gentry, in the goods of, WUl, Formalities 41 
 
 257 
 257 
 126 
 221 
 292 
 268 
 304 
 104 
 532 
 440 
 
 178 
 
 164 
 
 43 
 
 167 
 
 171 
 r4 
 
 630 
 
 PAGE 
 
 George and Eichard, The, Admiralty 38 . 16 
 
 , Shipping Law F 29 . . .536 
 
 Gething, in re, Patent 14 . . . .421 
 Giacometti v. Prodgers, Baron and Feme 12 . 84 
 Gibbs V. Cruickshank, ifepZewM 1 . . .510 
 
 V , li'espass 2 . . . . 569 
 
 V. David, Beceiver 2 . . . . 508 
 
 V. Grady, Marriage Settlement 15 . 364 
 
 , ex parte, in re Webb, Bankruptcy D 5 . 65 
 
 Gibson v. Barton, Company D 10 . . . 134 
 — — , in re. Lunatic 11 . . . . 343 
 
 Gilbert v. Guignon, Bill of Exchange 10 ,90 
 Giles V. Melsom, Will, Construction D 6 . 603 
 
 V. Warren, Will, Formalities 32 . . 629 
 
 Gill V. Bright, Eegina v. Justices of Devon 
 
 Alehouse 19 2-1 
 
 V. Continental Union Gas Co., Judg- 
 ment 10" 296 
 
 V. Downing, Mortgage 6 . . .380 
 
 V. Manchester, Sheffield and Lincoln- 
 shire Eail. Co., Carrier 36 . . .109 
 
 , in the goods of, Probate 49 . . .476 
 
 Gillam V.Taylor, CA<i)-% 16 . . .112 
 Gillebrand, ex parte, in re Sidebotham, Bank- 
 ruptcy N 6 76 
 
 -V . -^—, Bankruptcy 'S n . . .77 
 
 Gillet V. Thornton, Arbitration 8 . . .27 
 Gimblett v. Purton, Will, Construction H 6 . 608 
 Girdlestone v. North British Mercantile In- 
 surance Co., Practice in Equity 71 . .451 
 Gladstone v. Gladstone, Divorce 73 . . 235 
 
 v. Padwick, Judgment 2 . . . 294 
 
 Glanville's case, in re Consols Insurance Co., 
 
 Company G 55 162 
 
 Glasgow Union Eail. Co. v. Caledonian Eaii. 
 Co., Lands Clauses Act i8 . . . 314 
 
 V. Hunter, Lands Clauses Act 19 . .310 
 
 Glegg v. Eees, Pleading in Equity 8 . . 430 
 Glendonwyn v. Gordon, Scotch Law 16 . . 820 
 Glenduror, The, Admiralty 39 . . .18 
 Glengaber, The, Shipping Law T 8 . . 547 
 Glengarry, The, Shipping Law F 16 . . 638 
 Globe New Patent Iron and Steel Co., in re. 
 
 Company 18 173 
 
 Glover v. Coleman, Easement 6 . . . 239 
 
 V. Ellison, Practice in Equity 143 . . 458 
 
 , in re, ex parte Eadcliffe Investment 
 
 Co., Bankruptcy M 22 . . . .76 
 Godard v. Gray, Artion 6 . . . .4 
 
 . -v. -^ — , ForcigH Judgment 1 . . 237 
 
 Goida.Td V. Smith, Estoppel IS . . . 245 
 
 V. , Probate 55 . . . .477 
 
 Godrich v. Godrich, Divorce 17, 48 . 229, 232 
 
 V. -, Parent and Child 1 . .401 
 
 Gold V. Turner, London 8 . . . . 341 
 Golden, in re, ex parte Norton, Bankruptcy 
 
 B 2 48 
 
 Goldney v. Lording, Bankruptcy M 25 . .76 
 Goldsmi'h, in re, ex parte Osborne, Friendly 
 
 Society 3 267 
 
 Gomersall, in re, ex parte Gordon, Bank- 
 ruptcy P 6 82 
 
 Gomez, ex parte, in re Yglesias, Bankruptcy 
 
 G23 92 
 
 Gompertz v. Kensit, Costs in Equity 41 , .iiii 
 
 4o2 
 
652 
 
 TABLE OF CASES. 
 
 Gompertz t. Kensit, Marriage 3 . . .361 
 Grooch's case, in re Contract Corporation, 
 
 Compani/ G- 74 {Transfer to Infant) . .165 
 , Company I 31 {Production of Docu- 
 ments) 175 
 
 Good T. London Steamship Owners' Mutual 
 
 Protecting Association, Shipping Law B 3 528 
 Goodson V. Eiohardson, Injunction 28 . . 286 
 
 T. , Trespass 5 . . . . 669 
 
 Goodwin v. Eobarts, Scrip Certificates . . 521 
 Goodwin's Trusts, in re, Will, Construction, 
 
 H16 610 
 
 Gordon v. Gordon, Will, Construction L 13 . 618 
 
 , ex parte, in re Vinon, Bankruptcy K 11 
 
 {Proof by executors of partner) . . .57 
 
 ., , Bankruptcy 9 {Proceedings 
 
 against Trustee) 80 
 
 , ex parte, in re Gomersall, Bank- 
 ruptcy P 5 82 
 
 , in re. Marriage Settlement 30 . .366 
 
 Gore T. Special Commissioners of English 
 
 Fisheries, Salmon 1 518 
 
 Gore Langton's Estates, in re. Lands Clauses 
 
 Act 54, 58 314, 315 
 
 Gorissen's case, in re Monarch Insurance 
 
 Co., Company G 19 155 
 
 Gorris v. Scott, Action 3 .... 3 
 
 T. , Oontagious Diseases Act 1 . 185 
 
 Goss V. Hill, Probate 71 . . . .478 
 Gould V. Twine, Practice in Equity 140. 458 
 
 Gourley v. PlimsoU, Libel 15 . . .332 
 
 V. , Practice at Law 16 . . .441 
 
 Gover's case, in re Coal Economising Gas 
 
 Co., Company A 4 132 
 
 Gowan v. Broughton, Administration 22 . 8 
 
 V. Christie, Scotch Law 28 . . .521 
 
 Gower v. Gower, Divorce 23, 32 . . . 230 
 Grace v. Newman, Copyright 6 . . . 1 95 
 Grafham v. TurnbuU, Arbitration 26 . .30 
 Gragoe v. Jones, Principal and Surety 15 . 467 
 Graham y. McCuUoch, Bankruptcy G 6 .62 
 
 V. Winterson, Jurisdiction in Equity 10 299 
 
 Elizabeth, in the goods of, WUl, Formali- 
 ties 25 628 
 
 Grand Junction Canal Co. v. Overseers of 
 Hemel Hempstead, Bates 25 . . . 505 
 
 V. Overseers of King's Langley, Bates, 
 
 25 505 
 
 V. Shugar, Injunction 14 . . . 284 
 
 Grant v. Shaw, BiU of Sale 12 . . .96 
 GraTeley v. Barnard, Bond 3 ... 98 
 Gravenor v. "Watkins, Will, Construction 116, 
 
 7 614, 623 
 
 Gray v. Carr, Shipping Law H 2 . . . 537 
 
 V. Fowler, Vendor and Purchaser 4 . 588 
 
 T. Lewis, Company F 1 •. . . 151 
 
 T. Parties, 7 .... 411 
 
 v. Megrath, Bankruptcy 12. . .68 
 
 V. Seekham, Principal and Surety 8 . 466 
 
 T. Siggers ; Lucas v. Siggers, Practice in 
 
 Equity 47 449 
 
 V. TurnbuU, ffoMseo/iortis 2 . . 278 
 
 V. Warner, Costs in Equity 18 . . 202 
 
 V. Executor 32 . . . .253 
 
 v.. Trust Q,\ , . .679 
 
 PAGE 
 
 Great Eastern Eailway Co. v. Turner, Bank- 
 ruptcy G: 2 ...... 62 
 
 Great Northern Railway Co. v. Swaffield, Car- 
 rier i1 108 
 
 T. Witham, Contract 1 . . .186 
 
 Great Oceanic Telegraph Co. in re Harward's 
 
 case, Company D 32 . . . ■ 139 
 
 Great Western Colliery, Co. v. Tucker, Practice 
 
 in Equity 72 _ . 452 
 
 Great Western Insurance Co. v. Cunliffe, 
 Principal and Agent 17, 22 . . 462, 463 
 
 V. Bishop, Nuisance 6 . . . . 400 
 
 V. Blower, Carrier 37 . ■ • • 109 
 
 Great Western Eailway Co. v. May, Lands 
 
 Clauses Act 47 313 
 
 T. Talley, Carrier 17 . - • • 105 
 
 Great Wheal Busy Mining Co., re, King's 
 
 case. Company G 51 . . . .161 
 
 Greaves v. Greaves, Marriage 1 . . .361 
 Green v. Beaeh, County Court 1 . . . 208 
 
 V. Britten, CAani!y 22 . . . .113 
 
 V. , Tenant for lAfe 10 . . . 561 
 
 V. — , Will, Construction D 5 . . 603 
 
 V. Green, Divorce 10 ... . 228 
 
 , in re. Trust E 3 582 
 
 Green's case, in re Freehold and General In- 
 vestment Co., Company D 36 . . . 140 
 Greene v. West Cheshire Eailway Co., Specific 
 
 Performance 3 550 
 
 & King V. Bateman, Practice at Law 37 444 
 
 Greener, ex parte, in re Lindsay, Bankruptcy 
 
 E 13 57 
 
 Greenfield v. Eeay, Practice at Law 14 . . 441 
 Greening & Co., in re Marsh's case, Company 
 
 I 57 179 
 
 Greensill, in re, Atiachmmt 1 . . .33 
 Greenway, ex parte, in re Adams, Attach- 
 ment 7 .•■•.•• 33 
 
 , , Bankruptcy E 23 . - .59 
 
 Greenwood v. Wadsworth, Burial 1 . .100 
 ex parte, in re Liverpool Service Asso- 
 ciation, Company I 68 . . . . 180 
 Gregg v. Smith, 'Pedlars .... 424 
 Gresham Life Assurance Society, in re, ex 
 
 parte Penney, Company D 68 . . . 144 
 Greville, ex parte. Attorney 6 . . .36 
 Grier v. Grier, Landed Estates Court . . 304 
 
 V. , Marriage Settlement 2 . . 362 
 
 Grierson v. Cheshire Lines Committee, Lands 
 
 Clauses Act 7 308 
 
 Grif&th, in the goods of. Probate 36 . . 474 
 Griffith's case. Company E 13 . . . 149 
 Griffiths v. Griffiths, Will, Formalities 21 . 628 
 
 y. Jones, Vendor and Purchaser 7, 
 
 32 889, 593 
 
 T. Longdon and Everfield Drainage 
 
 Board, Land Drainage .... 303 
 
 Grimoldby v. Wells, Sale 10 . . . .514 
 
 GTiTo.'wooAv.M.oss, Landlord a^id Tenant W . 305 
 
 Gross, in re, ex parte Kingston, Banker 4 . 42 
 
 Grossi V. Grossi, Divorce 14 . . . . 228 
 
 Grove v. Comyn, Partition 8 . . .413 
 
 Guest V. Ovf rseers of East Dean, Bates 9 . 601 
 
 Gumni V. Uallett, Arbitration 28 . . .31 
 
 Gunn V. Bulcklow, Vaughan & Co., Sale 23 . 617 
 
TABLE OF CASES. 
 
 653 
 
 PAQ13 
 
 G-unn y. Buleklow, Vendor and Purchaser 19 . 591 
 
 T. Roberts, Shipping Law Ml . 64 1 
 
 Guanestead v. Price, Admiralty 7 . . .12 
 
 V. , County Court 15 . . .210 
 
 Uwinnell V. Earner, iease 1 1 . . . 319 
 
 H. V. P., falsely called H., Divorce 5 . . 227 
 Hackett v. Baiss, Light and Air 5 . . 334 
 
 Hadfield's case ; Webster v. Overseers of Ash- 
 
 ion-waAer-lijne, Parliament 20, 55 . 406, 411 
 Hadgraft v. Hewitt, Shipping Law R 3 . 646 
 
 Hadley v. M'Dougall, Production 22 . . 482 
 Haig V. Kaye, Frauds, Statute of 17 . . 266 
 Haigh V. Sheffield Corporation, Gaming 4 . 269 
 Hakim's case, Practice in Equity 137 . . 457 
 Hakon Adelsteen, The, Admiralty 23 . .13 
 Hale, in the goods of. Probate 24 . . . 473 
 Halfhyde v. Eobinson, Lunatic 7 . . 342 
 
 v. , Partition 9 . . . .413 
 
 Halford, ex parte, in re Jacobs, Bankruptcy 
 
 7. : . . . . .80 
 
 Halifax Union v. Wheelwright, Negligence 27 397 
 Hall V. Hall, Contempt of Court 1 . .185 
 
 V. , Voluntary Settlement 11 . . 596 
 
 T. Hargreaves, Practice in Equity 67 . 451 
 
 V. Levy, Estoppel 1 . . . . 243 
 
 V. Nixon, PiiMio Health Act 6 . . 487 
 
 V. North Eastern Railway Co., Carrier 
 
 14 105 
 
 — i — in re, ex parte Rock, Bankruptcy 013. 81 
 
 in the goods of. Will, Formalities 26 . 629 
 
 HaUiday v. Harris, County Court 17 • • 210 
 
 , ex parte, in re Liebert, Banlcrupiri/ B 24 51 
 
 Halliday's Settled Estates, in re, Siilded Es- 
 tates Acts 10 524 
 
 Halstead United Charities, in re. Lands 
 
 Clauses Act 55 314 
 
 Hamer v. Sharp, Principal and Agent 12 . 462 
 
 V. , Vendor and Purchaser 9 . . 589 
 
 Hamilton v. Graham, Scotch Law 26 . .521 
 
 V. Hector, Baron and Feme 33 . .87 
 
 T. , Parent and Child 2 . . .401 
 
 V. Nott, Production 14, 32 . . 481, 483 
 
 V. St. George's, Hanover Square, Metro- 
 polis 8 372 
 
 Hamilton's case, Lord C, in re La Mancha 
 
 Irrigation and Land Co., Company D 35 .140 
 Hammersmith Bridge Co. v. Overseers of 
 
 Hammersmith, Sewers 1 . . . . 525 
 Hammond v. Vestry of St. Pancras, Negligence 
 
 33 398 
 
 , ex parte. Bankruptcy 13. . .69 
 
 Hampton v. Bickard, Bastardy 5 . . .88 
 Hane/s Trusts, in re. Practice in Equity 124 . 456 
 
 , Trust D 3 681 
 
 Hankey's ease ; in re the International Con- 
 tract Company, Company 151 . . .178 
 Hankin, ex parte ; in re Buchan, Bankruptcy 
 
 B 34 53 
 
 Hannaford v. Hannaford, Will, Construction, 
 
 L 14 618 
 
 Harbin T. Masterman, Thellusson Act . . 564 
 
 V. , Will, Construction HI. . 607 
 
 Harbro; v. Combes, Copyholds 5 . . . 194 
 
 PAGE 
 
 Harbroe v. Combes, Infant 9 . . . 281 
 
 V. Harding, Vendor and Purchaser 18 .691 
 
 Harding v. Headington, Turnpike 4 . . 583 
 
 T. Metropolitan Railway Co., Lands 
 
 Clauses Act 5 .308 
 
 , ex -parte ; in ro Farebrother, Bank- 
 ruptcy G 18 64 
 
 , in the goods of, Probate 13 . . . 472 
 
 Hardy v. Metropolitan Land and Finance Co., 
 
 Trust C 4 579 
 
 Hardwick v. Brown, Municipal Corporation, 
 
 7 388 
 
 v. Hardwick, Costs in Equity 19 . . 202 
 
 V. , Will, Construction G 7 . .606 
 
 Hare, ex parte ; in re England, Bankruptcy 
 
 E 21 69 
 
 Hargreaves v. Diddams, Justice of the Peace 
 
 4 301 
 
 V. Hall, Practice in Equity 67 . . 451 
 
 Hargrove & Co., ex parte. Company C 3 .132 
 
 v. , Marine Insurance 1 . . . 347 
 
 Harmony and Montague Mining Company, in 
 
 re; Spargo's case, Company G 32 . .157 
 Harnet v. Baker, Vendor and Purchaser 2 . 688 
 T. Great Eastern Railway Co., in ro. 
 
 Arbitration 23 30 
 
 Harper and tlie Great Eastern Railway Co., 
 
 in le, Lands Clauses Act 29 , . .312 
 
 , ex parte. Arbitration 12 . . .28 
 
 , ex parte, in re Bremner, Bankruptcy 
 
 L 9 (Seizure and Sale) . . . .71 
 
 , , Bankruptcy's 24 (Ses Judicata) 78 
 
 , in re ; ex parte King, Bankruptcy M 
 
 20 75 
 
 , in re ; ex parte Linsley, Bankruptcy 
 
 15 69 
 
 Harrington t. Bowrey, Probate 70 . .478 
 
 V. Harrington, Heirlooms . . . 274 
 
 'B.ariisY.'Fa.'wcett, Principal and Surety 6 . 466 
 
 V. Harris,. Dswrce 31 .... 230 
 
 V. Nickerson, Auction 3 ... 40 
 
 V. Rich, Costs in Equity 9 . . 202 
 
 v. Scaramanga, Marine Insurance 41 . 357 
 
 V. Venables, Principal and Surety 1 . 464 
 
 , ex parte ; in re James, Banleruptcy B 
 
 37 ....;... 63 
 , ex parte ; in re Pulling, Bankruptcy 
 
 C 19 64 
 
 , in re Harris, Bankruptcy L 30 . .60 
 
 , Bankruptcy N 30 . . . .79 
 
 Harris's case ; in re Imperial Land Company 
 
 of Marseilles, Cwzifraci; 10 . . .187 
 Harrison v. Bank of Australasia, Shipping 
 
 Law L . , 544 
 
 V. Good, Injunction 20 ... 285 
 
 V. Harrison, Administration 25 . .9 
 
 V. , Conflict of Laws 2 . .183 
 
 V. Mexican Railway Co., Company G 
 
 68 164 
 
 T. Spensley ; in re Spensley's Estate, 
 
 Costs in Equity 22 202 
 
 , ex parte. Attorney 1 . . . .34 
 
 , in re. Patent 14 421 
 
 Harrison's ease ; in re Bank of Hindustan, 
 
 China and Japan, Co»ip«7!y'0 50 . . 161 
 
654 
 
 TABLE OF CASES. 
 
 PAGE 
 
 Harrison's Estates, in re, Costs in Equity 32 . 203 
 Hart V. Gumpach, International Lavj , , 293 
 
 V. Herwig, Specific Per/'orma/iicc 14 .551 
 
 , in re ; ex parte Hopkins, Bankruptcy 
 
 L 20 73 
 
 Hartel, ex parte ; in re Thorpe, Ban/cruptcy 
 
 A 8 47 
 
 Harter v. Harter, Probate 30 . . . 473 
 Hartland v. Murrell, Attorney 37 . . 38 
 
 Hartley's case ; in re Poole Fire Brick Co., 
 
 Company D 63 144 
 
 Harrey v. Farquhar, Scotch Law 5 . . 519 
 
 T. Hall, Debtors Act 2, U . . 221, 222 
 
 T. , Practice in Equity 14 . . 446 
 
 V. The Owners of the Euxine, Admiralty 
 
 65 16 
 
 V. Walters, Easement 7 . . ■ 239 
 
 V. Wilde, Administration 4 . . .6 
 
 V , Evidence 18 . . . 248 
 
 Harward's ease ; in re Great Oceanic Tele- 
 graph Co. (Lim.), Company D 32 . . 139 
 Hasluck T. Pedley, Apportimiment 4 . 25 
 
 Hassall, in re ; ex parte Brooke, Bankruptcy 
 
 G 23 65 
 
 Hassell v. Wright, Patent 17 . . .421 
 Hastings, Corporation of, v. Ivall, Costs in 
 
 Equity 53 . . ' ... 205 
 
 V. , Foreshore .... 258 
 
 T. , Production 33 . . . . 484 
 
 Hathesing t. Laing, Shippiiig Law B 10 . 529 
 Hatton V. Haywood, Judgment 5 . . . 295 
 
 , in re. Bankruptcy M 18 . . .75 
 
 Haverfordwest Election Petition, Parliament 
 
 12 405 
 
 Haward, ex parte ; in re Haward & Co., 
 
 Bankruptcy C 9 . . . . .54 
 Hawes, in re ; ex parte Jeffery, Bankruptcy 
 
 L21 73 
 
 Hawker, ex parte ; in re Keely, Bankruptcy 
 
 B 15 50 
 
 Hawkes v. Hubback, Marriage Settlement 
 
 6 ■ . 363 
 
 Hawkins v. Allen, Charity 3 . . .111 
 , in re ; ex parte Emerson, Bankruptcy 
 
 G 4 62 
 
 Hawksworth v. Hawksworth, Ward of Court 696 
 Hawtrey v. BuUin, Fixtures 4 . . . 257 
 Hay V. Gordon, Colonial Law 23 . . . 1 26 
 
 , ex parte, Attorney 11 . . . .35 
 
 Hay's case ; in re Canadian Oil Works Cor- 
 poration, Company D 28 . . . .139 
 Hayes v. Oatley, Trust B 21 . . 577 
 
 Haygarth v. Wearing, Fraud 6 . . . 261 
 Hayman v. Governors of Engby School, Public 
 ' ' ' 490 
 
 442 
 455 
 
 llay ne v. Pratt, Practice at Law 21 
 
 Hay ward V. Pile, Practice in Equity 111 
 
 Hayward and Batten, ex parte ; in re Hay- 
 ward & Co., Bankruptcy N 2 . 
 
 , , Bill of Exchange 1 . 
 
 , ex parte ; in re Hayward, Bankruptcy 
 
 9. 
 
 Hazlefoot's Estate, in re ; Channtler's Claim, 
 Mortgage 8 
 
 Head V. Tattersall, Sale 17 . 
 
 76 
 
 54 
 
 380 
 615 
 
 PAOB 
 
 Healey v. Corporation of Batley, Public 
 
 Health Act IZ 489 
 
 Heartley v.. Nicholson, ZV«si A 4 . . 673 
 
 Heasman v. Pearse, Will, Construction I 6, 
 
 13, G 2, E 2 . . . 612, 622, 624, 625 
 Heath v. Crealock, Attorney 16 . . .36 
 
 v. , Estoppel 7 . . . . 244 
 
 V. , Mortgage 12 . . . .380 
 
 , in re; ex parte Walter, Bankruptcy 
 
 E 28 60 
 
 Heathcote'e Trusts, in re, Will, Construction 
 
 L5 .617 
 
 Heaven, ex parte ; re Lundy Granite Co., 
 
 Company I 66 180 
 
 Hebbert v. Purchas, Church 15, 30, 33 • . 118, 121 
 Hedges v. Tagg, Seduction .... 521 
 Hedges Trust Estate, in re. Annuity 5 . .23 
 Heilbutt V. Hickson, Sale 9 . . . . 514 
 Heinrich v. Sutton, Banker 2 . . .42 
 
 V. , Company D 12 . .135 
 
 , in re Fiddey, Attorney 44, 45 . .39 
 
 Heinrich, the. Shipping Law E 9 {Bestraint 
 
 of Eiders) 532 
 
 Shipping Law 1 {Solicitor's Lien) . 545 
 
 Helbert v. Banner, Company G 80 . . 1 66 
 
 Helen E. Cooper, the. Admiralty 32 . .14 
 Helliwell, in re ; ex parte M'Kenzie, Bank- 
 ruptcy 7 (Joint and Separate Estate) . 54 
 
 , Bankruptcy L 3 {lAquidation : first 
 
 meetiTig) ....... 70 
 
 Hemming v. Batehelor, Practice at Law 38 . 444 
 
 V. Blanton, County Court 25 . . 212 
 
 V. , Limitations, Statute of 1% . 336 
 
 V. Maddick, Evidence 9 . . .247 
 
 v. Williams, County Court 27 . . 212 
 
 Hemsley's Settled Estates, in re, Settled Es- 
 tates Acts 2, 20 . . . . 524, 525 
 Henderson t. The Comptoir d'Escompte de 
 Paris, Shipping Law B 9 . . . . 529 
 
 V.Stevenson, Carrier W . . .106 
 
 , in re ; ex parte Lewis, Bill of Sale 
 
 21 97 
 
 Hendricks v. The Australasian Insurance Co., 
 
 Marine Insurance 42 368 
 
 Heneage, in re ; ex parte Holland, Bank- 
 ruptcy 3 . . . . . .63 
 
 , , Baron and Feme 24 . . .86 
 
 Heney, ex parte ; in re Jeffery, Bankruptcy 
 
 E 18 68 
 
 Henkell v. Pape, Contract 18 . . . 188 
 Henken, ex parte ; in re Buchan, Bankruptcy 
 
 B 34 53 
 
 Henry's Application for Letters Patent, in 
 
 re, Patent 11, 12 421 
 
 Henslow v. Henslow, Divorce 28 . . . 230 
 Henwood v. Harrison, Libel 9 . . . .331 
 Hepworth v. Hepworth, Advancement 1 .17 
 
 Hercules Insurance Co., in re ; in re Inter- 
 national Life Assurance Society, Company 
 
 I 13 173 
 
 , in re; Brunton's Claim, Company H 
 
 12 • 169 
 
 , in re ; Pugh's case and Sharman's ease, 
 
 Company G 6 . . . . . . 158 
 
 , Company I il 17Q 
 
TABLE OF CASES. 
 
 65S 
 
 Hereford and South "Wales Engineering Com- 
 pany, in re, Company 1 1\ . . . 174 
 Herefordshire, Sheriff of, ex parte ; in re 
 
 Smith, Bankruptcy G 30 . . . .66 
 Herman t. Hodges, Specific Performance 7 . 550 
 Hermitage V, Kilpin, Z)c6iors .^c< 16 . .222 
 Herries' Peerage Claim, Peerage 2 . . 424 
 Hertfordshire Brewery Company, in re, the, 
 
 Company 17 173 
 
 Herse V. Dufaux, CoZoniaZiffiM' 10 . . 124 
 Hesketh v. Atherton Local Board, Public 
 
 Health Acts \5 489 
 
 Hester & Co. (Lim.), in re, Company I 50 . 178 
 Heugh V. Gjirrett, Production 19 . . . 482 
 Hewitt V. Jardine, Will, Construction M 5 . 621 
 'S.&yisoTis, ike:, Admiralty 6, 8 . . .12 
 Heyman t. Dubois, Principal and Surety 
 
 9 466 
 
 Heymann v. The Queen, Indictment 1 . . 280 
 Haywood T.Pickering, £iW q/^iccAaM^e 14 . 91 
 
 Hext V. Gill, Mines 5 375 
 
 Hibbert v. Hibbert, Will, ConstrtKtion G 1 
 
 {Ambiguity), li 25 C'Selatives") . 606,611 
 Hibernian, the; Redpath t. Allen, Ship- 
 ping Law E 2 546 
 
 , , Statute 3 655 
 
 Hickman v. Haynes, Sale 16 ... 515 
 
 V. XJpsall, Presumption 2 . . . 459 
 
 Hicks T. Koss, Annuity 2 . . . .23 
 
 , ex parte ; in re Ball, Bankruptcy N 
 
 34 . . . .... . .79 
 
 Hide, in re ; ex parte Llynvi Coal and Iron 
 Co., Bankruptcy E 8 . . . .56 
 
 Higginhotham T.Hawkins, Limitations, Statute 
 
 of 18 337 
 
 T , Waste 4 . . . . .597 
 
 Higgins T. Harding, Metropolis 10 . . 373 
 Higgs T. Dorkis, Partition 4 . . . 412 
 
 Highgate Archway Co. t. Jeakes, Company 
 
 D 72 
 
 T. , Pre-emption .... 
 
 Hill T. Campbell, Production 6 . . . 
 
 V. Hibbit, Costs in Equity 68 
 
 T. Crook, WUl, Construction H 1 1 . . . 
 
 T. Lane, Jurisdiction in Equity 4 . 
 
 T. Northern Railway of Buenos Ayres, 
 
 Pleading in Equity 15 . 
 T. South Staffordshire Railway Co., Con- 
 tract, 33 191 
 
 T. Wilson, Evidence 3 . . . 246 
 
 T , Gift 271 
 
 HiU's Trusts, re, WUl, Construction N 5 .622 
 HUliard t. Eiffe, House ofUrds 4 . .278 
 
 T. , Practice in Equity 87, 63 . 450, 451 
 
 T. Fnlford, WUl, Construction'^ 5 . 608 
 
 Hills T. Wates, Prfficiiee ai iaw 1 1 . .441 
 Hilton T. Hilton, WUl, Construction M 2 .621 
 Hinde T. Liddell, Damages 12 . . . 218 
 Hinde t. Sheppard, Costs at Law 5 . . 198 
 Hindustan, China and Japan Bank t. Alison, 
 
 Compwny'E, 10 148 
 
 , T. , Estoppel 12 . . . _ . 245 
 
 ', in re, Company G 50 . . . .161 
 
 ', in re ; Alison's case, Compwny E 6, 8 . 148 
 
 , in re ; Campbell's case. Company E 7, 8 148 
 
 PAOB 
 
 Hindustan, China and Japan Bank, in re, Fricker's 
 
 case, Company I 37 176 
 
 , in re, Harrison's case. Company G 50 . 161 
 
 , in re, Hippesley's case, Company E 7, 8 148 
 
 Hinton, ex parte ; in re Hinton, Bankruptcy 
 
 N 8 . .77 
 
 Hiort T. Bott, Trover 7 . . ■ -671 
 Hippesley's ease, Company E 7, 8 . . 148 
 
 Hirschmann t. Budd, Bill of Exchange .31 .94 
 Hirst T. Denham, Trade Mark 4 . . . 566 
 
 , T. The Halifax Local Board of Health, 
 
 P^hlio Health Acts 12 . . . .488 
 
 T. Molesbury, Gaming 6 . . . 270 
 
 • , ex parte ; in re Hirst, Bankruptcy D 3 55 
 
 Hitchcock, in re; ex parte Cheeseborough, 
 
 Bankruptcy C 7 49 
 
 Hitchins t. Eardley, Probate 52 . . . 476 
 Hoare t. Bremridge, Injunction, 47 . ■ 288 
 
 T. , Practice in Equity 32 . . 448 
 
 T. The Metropolitan Board of "Works, 
 
 Metropolis 18 374 
 
 , ex parte ; in re "Walton, Bankruptcy 
 
 Mil 74 
 
 , in re ; ex parte Ashworth, Bankruptcy 
 
 C 10, D 4 54, 55 
 
 Hobbs v. Dance, PMic Health Act 7 . . 487 
 T. The London and South-'Western Rail- 
 way Co., Damages 19 .... 219 
 Hobgen v. Neale, Will, Construction N 4 .622 
 Hobson V. Bass, Principal and Surety 7 . 466 
 Hockin's ease ; in re Smith, Knight & Co., 
 
 Company G 58 162 
 
 Hoilge's Distillery Co. ; Maude's case, Com- 
 pany, G 83 166 
 
 Legacy, in re. Legacy 22 . . . 325 
 
 Trust, in re, Legacy 22 . . . 325 
 
 Hodges, in re; ex parte Leathley, Bankruptcy 
 
 N 10 . . , 77 
 
 , Company G 6 152 
 
 Hodgkin, ex pa,rte. Bankruptcy B 3 . .48 
 
 , Shipping Law A 1 . . . 527 
 
 Hodgkinson t. Crowe, Lease 1,2. . .318 
 Hodsoll T. Taylor, Practice at Law 13 . .441 
 Hodson T. "Walker, Comity Court 8 . .209 
 
 , Landlord and Tenant 16 . . .306 
 
 Hogarth t. Wherley, Principal and Agent 15 462 
 
 ^ „_ T. Scott, Copyright 13 196 
 
 Hoghton T. Hoghton ; in re Fiddey, Adminis- 
 tration 38 10 
 
 , Practice in Equity 116 . . . 456 
 
 Holden, in re ; ex parte BoUand, Bavkrvptcy 
 
 N 28 ! 79 
 
 Holdioh's case ; in re the English Assurance 
 
 Co., Company H 14 170 
 
 , Insurance 1 . . ■ . . . 290 
 
 Holditch T. Carter, Probate 74 . . . . 479 
 Holker t. Porrit, Watercov/rse 1 . . . 697 
 Holland v. Hodgson, Fixtures 2 . . . 256 
 
 T. Holland, Partition 3 . . .412 
 
 T. "Wood, Will, Construction H 10 .609 
 
 , ex parte ; in re Heneage, Bankruptcy 
 
 C 3 63 
 
 , -, Baron aipd Fepie 24 . , . .86 
 
 , in re, Attorney 7 35 
 
 HoUier T..Bunie, re»a»i(/or ii/e 19 . . 562 
 
 146 
 458 
 480 
 206 
 609 
 298 
 
 431 Hogg 
 
656 
 
 TABLE OF CASES. 
 
 36 
 464 
 570 
 
 364 
 418 
 392 
 444 
 
 HoUington, ex parte ; in re tlie Oommonwealth 
 Land Building Estate and Auction Co. 
 (Lim.), Attorney 17 
 
 HoUins T. Eowler, Principal and Agent 24 . 
 
 V. , Trover 5 
 
 , ex parte ; in re Clinton's Trust, Mar- 
 riage Settlement 18 
 
 Holme v. Hammond, Partnership 19 . 
 
 Holmes v. Mather, Negligence 3 . 
 
 V. Mountstephen, Practice at Law 44 . 
 
 V. The North-Eastern Eailway Co., Neg- 
 
 ligetwe 24 396 
 
 V. Symonds, Bankruptcy E 9 . .56 
 
 Holmesdale, Lord, v. West, Trust A 8 . . 573 
 
 Holt v. The Gas Light and Coke Co., Lands 
 Clauses Act 20 310 
 
 Holthausen, ex parte ; in re Scheibler, Gon- 
 flictofLaws 5 183 
 
 Homan, ex parte ; in re Broadbent, Sill of 
 Sale 22 97 
 
 Home Assurance Association, in re, Company 
 I 20, 59 174, 
 
 , ex parte Eichards, Company G- 12 
 
 Honey, ex parte ; in re Jeffery, Bankruptcy 
 E18 
 
 Honywood v. Honywood, Waste 1 
 
 , in the goods of. Probate 33 . 
 
 Hood T. Franklin, Marriage Settlement 19 
 
 —— V. The North-Eastern Railway Co., Juris- 
 diction in Equity 2 . 
 
 Hooke V. Piper ; in re Trueman's Estate, Com- 
 pany D 30 
 
 Hooker, in re ; ex parte Brown, Bankruptcy 
 N20 
 
 Hookham v. Pottage, Trade Mark 11. 
 
 Hooper v. Smart. See Bailey t. Piper. 
 
 Hooson, ex parte ; in re Chapman, Debtors 
 Act i 
 
 Hope v. Hope and Erbody, Divorce 51 . 
 
 , in re, Attorney 15 
 
 , in re, Debtors Act 8 . . . . 
 
 Hopgood r. Parkin, Trust B 22 . 
 
 Hopkin's Trusts, in re. Tenant for Life 6 
 
 Hopkins v. Abbot, Legacy 8 . 
 
 , in the goods of. Probate 18 . 
 
 , ex parte ; in re Hart, Bankruptcy 
 
 L20 
 
 Hopkinson v. Foster, Bill of Exchange 2 
 
 Horn V. Hough, Practice at Law 18 
 
 V. The Midland Eailway Co., Carrier 
 
 29 
 
 V. , Damages 11 . 
 
 Horsford, in the goods of. Will, Formalities 
 
 11, 28 627, 629 
 
 Horsley, in re ; ex parte Orde, Bankruptcy 
 
 L6 
 
 Horsnail v. Bruce, County Court 6 
 
 T. , Debtors Act 18 
 
 V. , Judgment 11. 
 
 Horton v. Hall, Bentcharge 1 . . . 
 Hoskins v. Holland, Marine Insurance 50 
 Hostel, in re ; ex parte Botting, Bankruptcy 
 
 M 14 
 
 Hotham's- Trusts, in re Lord, Trust B 15 
 Houghton's Patent, in re. Patent 26 
 
 179 
 154 
 
 58 
 596 
 
 474 
 364 
 
 298 
 
 139 
 
 78 
 567 
 
 221 
 232 
 35 
 222 
 577 
 560 
 324 
 472 
 
 73 
 
 89 
 
 442 
 
 108 
 218 
 
 71 
 209 
 223 
 296 
 510 
 359 
 
 75 
 576 
 423 
 
 Howard v. The Bank of England, Baron and 
 
 Feme 28 86 
 
 v. Lovegrove, Damages 13 . . .218 
 
 V. Lupton, Market 2 . . . .361 
 
 V. The Earl of Shrewsbury, Infant 14 . 282 
 
 V. , Statute 1 . . . . 565 
 
 , in re ; in re Ashcroft, Acknowledg- 
 ment 3 . 2 
 
 Howarth, in re. Infant 1 . . . . 280 
 Howden, in the goods of, Probate 34 . . 474 
 Howe, in re ; ex parte Brett, Bankruptcy 
 
 E 27 .60 
 
 , Bill of Exchange 9 . . . .90 
 
 Howell V. Coupland, Sale 3 . . . .512 
 Howells y. The Landore Siemens Steel Co., 
 
 Coal Mines 122 
 
 T. , Master and Servant 14 . 369 
 
 Howson V. Trant, Judgment 9 . . 296 
 
 Hoylake Eailway Co., in re ; ex parte Little- 
 dale, Company G 56 {Transfer). . .162 
 
 , Company I 46 {Costs of lAguidation) . 177 
 
 Hoyle, in re ; ex parte Waters, Bankruptcy 
 
 E6 56 
 
 Huckle T. Piper, PaWJaOTemi 29 .. . . 407 
 Huddersfield Corporation and Jacomb, in re. 
 
 Arbitration 24, 26 • . . . . .30 
 Hudson V. Cook, Administration 29 . .9 
 
 V. Hill, Shipping Law E 6 . . .531 
 
 T. Stewart, Sale 1 . . . .812 
 
 T. Walker, County Court 8 . . .209 
 
 V. , Landlord and Tenant 16 . 306 
 
 Hudson's case ; in re the Contract Corpora- 
 tion, Company G 77 165 
 
 Huggins V. Ward, Contagious Diseases Act 5 . 185 
 
 , in re ; ex parte Browne, Bankruptcy 
 
 1 80 
 
 , in the goods of. Probate 43 . . 475 
 
 Hughes' Claim ; in re the International Con- 
 tract Co., Company H 24 . . . .171 
 Hugo V. Williams, Will, Construction I 21 . 616 
 Hull V. Christian, Trust B 25 . . .578 
 
 T. , Will, Cmistruction I 12 . . 613 
 
 Hulse V. Hulse, Divorce 29, 30 {Evidence) . 230 
 
 V. , Dioorce 64 {Decrees) . . 234 
 
 , ex parte; in re the Dagenham Dock 
 
 Co., Penalty 1 426 
 
 Humev. DruyfF, HeMoJ-s^cif 11 . .222 
 
 Hunt V. Goodlake, Libel 4 . . . .331 
 
 , ex parte ; in re Hunt, Bankruptcy 
 
 C 11 54 
 
 . ; in the goods of. Will,. Formalities 17 . 628 
 
 Hunter v. Bullock, Trust A 12 . . .574 
 
 v. , Will, Construction K . .616 
 
 V. Cheshire, Will, Construction N 1 . 621 
 
 T. Greensili, Attachment 1 . . .33 
 
 V. Walters, Mortgage 11, 19 . 380, 382 
 
 Hurdle v. Waring, Parliament 13 . . 405 
 
 Hurst V. Hurst, Pleading in Equity 14 . . 431 
 Husband, in re ; ex parte Dawe, Bankruptcy 
 
 G29 66 
 
 Hutchinson v. Tatham, Principal and Agent 
 
 13 460 
 
 Hutley V. Hutley, Champerty 1 . . .110 
 Button V. Bullock, Principal and Agent 11 . 462 
 Hyde v. Large, Practice in Equity 40 . . 448 
 
TABLE OF CASES. 
 
 657 
 
 PAGE 
 
 I. C. Potter, The, Shipping Law T 3 . . 54,7 
 Ida, The, Shipping Law CI . . . 630 
 
 Ihler, in the goods of, Probate 12 . . .471 
 Imperial Land Co. of Marseilles, in re ; ex 
 parte Colborne and Strawbridge, Comvaiw 
 H 13,26. . . .. .170,172 
 
 , ex parte Debenture Holders, Company 
 
 H 13. 26 170, 172 
 
 , Harris's case, Contract 10 . . . 187 
 
 , ex parte Jeaflreson, Company E 2 .146 
 
 , Levick's case. Company G 1 . .152 
 
 , Townsend's case. Company G 15 . .154 
 
 , Vining's case, Company E 2 . .146 
 
 . , Company E 21 . . . . 151 
 
 , Wall's case. Company G 16 . . .155 
 
 Imperial Mercantile Credit Association v. 
 Coleman, Company D 27 . . . .138 
 
 , in re, Company I 24 . . . . 175 
 
 , Lewis's case, Debtors Act 15 . .222 
 
 , Richardson's cas&. Company G 43 .159 
 
 Imperial Eubber Co., in re ; Bush's case, Com- 
 pany G.35 168 
 
 Imperial Wine Co., in re; Shirreff's case, 
 
 Company H 21 17I 
 
 India London Life Assurance Co., in re ; 
 
 Dyke's case, CoOTpany E 14 . . .150 
 Ind's case ; in re the International Contract 
 
 Co., Company G 57 162 
 
 Industry, The, Shipping Law E 20, 33 . 535, 637 
 Ingham v. Waskett, Practice in Equity 107 . 455 
 Ingle's Trusts, in re, Witt, Construction G i 606 
 Inglesant v. Inglesant, WUl, Formalities 14 . 627 
 Ingoldby v. The Plumstead Board of Works, 
 
 Metropolis 15 . . ' . . . . 374 
 Ingram v. Drinkwater, Bates 18 . . . 504 
 
 V. Soutten, Will, Construction li 6 . 617 
 
 , in re ; ex parte Clough, Inspectorship 
 
 Deed 1 289 
 
 Inland Eevenue v. Harrison, House of Lords 1 278 
 
 V. , Legacy and Succession Duty 11 328 
 
 Inman v. Inman, Infant 12 . . . . 281 
 
 V. The Overseers of Kirkdale, Bates 13 502 
 
 International Contract Co., in re, Company D 4 134 
 '— — , Hankey's case. Company I 62 . .178 
 
 , Ind's case, Company G 57 . . .162 
 
 International Financial Association, ex parte ; 
 in re the Anglo-Danubian Steam Navigation 
 
 Co., Company D 46 142 
 
 International Life Assurance Society, in re. 
 
 Company I 13 173 
 
 , Hughes's Claim, Company H 24 . .171 
 
 -^ — > Lethbridge v. Adams, Company G 66 . 164 
 
 T. , Immrance 4 . . . . 291 
 
 , Pickering's Claim, Company D 4 . .134 
 
 International, The, Foreign Enlistment Act 3 257 
 lonides v. The Pacific Fire and Marine Insur- 
 ance Co., Ma«»ei»»«wamce 13 . . . 350 
 
 V. Pender, Marine Insurance 9 . . 349 
 
 V. Livingstone, Pri/ndpal and Agent 14 462 
 
 Ireland, Bank of, v. Perry, Bill of Exchange 
 
 24 . . 93 
 
 Irrigation Co. of France ; Fox's case, Com- 
 pany E 3 . . . . . . . 147 
 
 Irving, in re ; ex parte Barron, Banhriiptcy, ■ 
 
 N 16 , 77 
 
 DiaBST, 1870-75. 
 
 Isaac, ex parte ; in re De Vecohj, Ba/nkrvptcy 
 
 Oil 81 
 
 Isaacson v. Thompson, Injimotion 46 . . 288 
 
 V. Von Goor, Will, Construction D 9 , 603 
 
 Izard, ex parte ; in re Cook, Bankruptcy 
 B 16 50 
 
 J. C. Potter, The, Shipping Law T 3 . .547 
 Jack V. Isdaile, Poor Law 8 ... 433 
 
 Jackson v. The Metropolitan Eailway Co., 
 
 Carrier 4 103 
 
 V. Pearse, Costs in Equity 17 . . 202 
 
 V. The Union Marine Insurance, Marine 
 
 Insurance 34 . . . .- . . 355 
 , in re ; ex parte the Union Bank of Man- 
 chester, BanJcruptcy G 15 . . . .64 
 Jacobs V. Brett, Prohibition 6 . . . 485 
 
 V. Seward, Tenants in Common 3 . 563 
 
 , ex parte; in re Carter, Bankruptcy 
 
 E 33 61 
 
 , ex parte ; in re Jacobs, Bankruptcy 
 
 Q 4 82 
 
 , , Principal and Surety 16 . .467 
 
 , in re ; ex parte Halford, Bankruptcy 
 
 07. 80 
 
 Jacubs V. Eylance, Trust C 7 . . . 880 
 Jagger, in re ; ex parte Love, Bankruptcy 
 
 '^22 78 
 
 James V. Eve, <7o?»pa«^ D 63 . . .143 
 
 V. Henderson, Parliament 6 . . . 404 
 
 V. James, Mortgage 37 ... 386 
 
 V. , Injunction 29 . . . . 287 
 
 V , Trade Mark 9 . . . 667 
 
 V. The London and South-Western Eail- 
 way Co., Admiralty 15 . . . .13 
 
 T. May, Company H 27 {Proofs by 
 
 Nominee of Company) . . . . 1 72 
 
 , Company I 49 (Beleas^ of Debts) . . 177 
 
 V. The Queen, Forest of Dean 2 . .258 
 
 , ex parte ; in re Condon, Bankruptcy 
 
 L 16 72 
 
 , ex parte ; in re O'Eeardou, Bankruptcy 
 
 C 6 63 
 
 , in re ; ex parte Harris, Bankruptcy 
 
 B37 53 
 
 James Armstrong, The, Admiralty 43 . .15 
 James C. Stephenson, The, Shipping ia«) F28 536 
 Jameson, Mary, ex parte. National Debt . 39 1 
 Janaway, in the goods of, WUl, Formalities 15 627 
 Jardine, in re ; ex parte Macmanus, Mort- 
 gage 3 379 
 
 Jarrow Local Board v. Kennedy, Public Health 
 
 Act IS 490 
 
 Jay, ex parte ; in re Blenkhom, Bill of Sale 
 
 20 97 
 
 , ex parte ; in re Powis, Bankruptcy P 2 81 
 
 J. C. Potter, The, Skipping Law T 3 . .547 
 Jeaf&eson's case ; in re the Imperial Land Co. 
 
 of Marseilles, Company E 2 . . . 146 
 Jeavons, in re ; ex parte Browne & Co., Bank- 
 ruptcy N 3 76 
 
 , Bill of Sale 2 95 
 
 , in re ; ex parte Mackay, Bankruptcy 
 
 B26 62 
 
 4P 
 
658 
 
 TABLE OF CASES. 
 
 376 
 
 219 
 
 64 
 
 73 
 
 58 
 319 
 435 
 620 
 319 
 377 
 269 
 119 
 
 36 
 
 69 
 331 
 Law F 5 634 
 
 38 
 548 
 
 85 
 339 
 429 
 252 
 678 
 
 534 
 362 
 243 
 363 
 663 
 602 
 13 
 535 
 192 
 130 
 
 545 
 298 
 
 22 
 345 
 
 44 
 
 PAGE 
 76 
 220 
 
 Jeavons, in re, BanJcruptoy N 3 . 
 
 ., Debtor and Creditor 2 
 
 Jebsen v. The East and West India Dock Co, 
 Damages 16 
 
 Jecks, in re; ex parte Bailey, Bankruptcy 
 G-.21 . , . . . , . 
 
 Jeffery, ex parte ; in re Hawes, BanJcruptoy 
 L21 .... 
 
 ., in a^e; ex parte Honey, BanTcrwptcy 
 
 E.18 
 
 Jefferys v. Neale, Lease 8 
 
 Jeffer/s Trusts, in re, Power 1 
 ., WM, Construction L 24 
 
 Jefirey v. Neale, Lease 8 
 
 Jegon V. Vivian, Mimes 8, 11, 12, 15 
 
 Jenkin v. King, Game 3 
 
 Jenkins t. Cook, Church 18 
 
 T. Feraday, Attorney 21 
 
 v. , Bankruptcy I 6 
 
 Jenner v. ABeckett, lAbel 2 
 
 Jennie H. S. Barker, The, Shippii 
 
 Jennings v. Johnson, Attorney 35 
 
 Jenny Lind, The, Shipping Law V 1 
 
 Jephs V. Knight, Baron and Feme 15 
 • Jervis T. Berridge, Lis Pendens 
 
 V. , Pleading in.Equity 3 
 
 V. Wolferetan, Executor 20 . 
 
 T , Trust B 26 . 
 
 Jesmond, The, and the Earl of Elgin, Ship- 
 ping Law F 3 
 
 Jeston V. Key, Marriage Settlement 4 . 
 
 Jewsbury v. Mummery, Estoppel 2 
 
 Jeyee v. Savage, Marriage Settlement 9 
 
 Job V. Potton, Tenants in Common 4 . 
 
 Jobson V. Boss, Will, Construction B 1 . 
 
 John Evans, The, Admiralty 20 . 
 
 John Fenwick, The, Shipping Law E 21 
 
 Johnson v. Appleby, Contract 35 . 
 
 v. Barnes, Common 5, 6 
 
 V. Black ; the " Two Ellens,' 
 
 Law P 3 
 
 , V. Burgess, Judgment 3 
 
 V. Colam, Animals 3 . . . 
 
 V. Emerson, Malicious Prosecution 2 
 
 V. Eobarts, Banker 13 . 
 
 and Atkinson's Patents, in re, Patent 31 423 
 
 , in re ; ex parte Rayner, Bankruptcy 
 
 LIO 
 
 , in re ; ex parte Eoyle, Bankruptcy Q 7 
 
 Johnson's Patent, in re, Patmt 24 
 
 , case; in re the United Service Co., 
 
 Banker 11 
 
 Johnstone v. The Attorney-General, Legiti- 
 macy Declaration Act 2 . ... 
 
 Joint Stock Discount Co., ex parte ; in re Bar- 
 ned's Bank, Company H 6 
 
 , in re Daunt, Composition Deed 5 . 
 
 Joint Stock Discount Company's Claim ; in re 
 the General Boiling Stock Company, Com- 
 pany H 23 
 
 JoUiffe v. The Wallasey Local Board, Action 
 
 10 6 
 
 y. , Negligence 2-2 . . . . 396 
 
 V. , Publie Health Act 20 . . 490 
 
 Jones V. Cook, Petroleum 3 .... . . 427 
 
 129, 
 
 ng 
 
 71 
 
 82 
 
 423 
 
 44 
 
 330 
 
 168 
 181 
 
 171 
 
 PAGE 
 
 Jones V. Bygott, Fraudulent Conveyance 2 . 266 
 
 v. Chappell, Waste 2 . . . . 697 
 
 V. Cuthbertson, Baron and Feme 7 . 83 
 
 V. Frost ; in re Fiddey, Attorney 48 . 39 
 
 -v. M.axheT, Bankruptcy ~B 20. . .51 
 
 y. HariiB,. Bill of Sale 9 . . . .96 
 
 V. Jones, Divorce 38 {Alimony) . . 231 
 
 V. , Divorce 76, 77 (Costs: Judicial 
 
 Separation) 235 
 
 V. , Divorce 84 ( Costs after decree 
 
 absolute) . 236 
 
 V. Uoyd, Lumatic 12 . . . . 343 
 
 . V. , Partnership 23 . . . 419 
 
 : V. The Neptune Marine Insurance Co., 
 
 Marine Insmance 28 .... 363 
 
 V. North, Contract 6 . . . .187 
 
 V. , Pleading in Equity 4 . . 430 
 
 1 Ogle, Apporticwment 3 ... 26 
 
 V. The Stanstead and Chambley Railway 
 
 Co., Tolll 566 
 
 V. St. John's College, Oxford, Contract 
 
 28 . . . 191 
 
 V. Williams, Costs at Law 24 . . 200 
 
 , e:iL ■parte,. County Court 6 . . . 208 
 
 , in re. Elementary Education Act 1 . 241 
 
 , in re, Costs in Equity 60 . . . 206 
 
 , in re ; Fielden v. The Northern Railway 
 
 Co. of Buenos Ayres (Lim.), Attorney 22 . 36 
 , in re ; ex parte Hayward, Bankruptcy 
 
 C 9 54 
 
 , Bill of Exchange 1 . . . .89 
 
 , in re ; ex parte Jones, Bankruptcy M 
 
 4, 8 74 
 
 ., in re ; ex parte Lovering, Bankruptcy 
 
 G 5 62 
 
 Jones's case ; in re the Bosworthen and Pen- 
 zance Mining Co., Company G 25 . .156 
 Josselyn v. Parson, Covenant 1 . . . 212 
 Joyce V. Cottrell, Parent and Child 4 . . 402 
 
 V. Kennard, Marine Insurance 18 .351 
 
 V. Rawlings, Vendor and Purchaser 22 591 
 
 V, The Realm Marine Insurance Co., 
 
 Marine Insurance 24 .... 353 
 
 , in re ; ex parte Barclay, Bill of Sale 6 96 
 
 ,. Fixtures 5 267 
 
 , in re ; ex parte Warren, Bankruptcy 
 
 Judge V. Selmes, Action 12 . . . ,6 
 
 ex parte EUis, Bankruptcy 
 the Pelotas Coffee Co., 
 
 Kain, in re ; 
 N 32 
 
 Karuth's case ; in re 
 Company D 39 
 
 Kathleen, The, Shipping Law I 19 
 
 Kay T. Oxley, Way 3 
 
 Keane v. Keane, Divorce 63, 78 . . 234, 
 
 , in re ; Lumley v. Desborough, Attor- 
 ney 46 
 
 Kearney v. The London, Brighton, and South 
 Coast Railway Co., .WegrZigrejice 11 
 
 Keely, in re ; ex parte Hawker, Bankruptcy 
 B 15 
 
 Keen v. Keen, Will, Formalities 43, 44 . 
 
 Keet.T. Smith, C^wch 8 . . . . 
 
 79 
 
 141 
 543 
 699 
 235 
 
 39 
 
 393 
 
 60 
 631 
 117 
 
TABLE OF CASES. 
 
 669 
 
 PAGE 
 
 Eeighley, ex parte ; in re Wike, Banhruptcy 
 
 N 4 76 
 
 Keith V. Eeed, Scotch Law 29 . . . 621 
 Kelk V. Pearson, I^ht and Air 8 . .333 
 Kellock V. Enthoven, Company Gr 45 . . 160 
 Kelly V. Patterson, Landlord and Tenant 1 . 304 
 Kelsey t. Kelsey, Annuity 12 . . .24 
 Kelson, Tritton & Co., in re; ex parte Wise- 
 man, Bankruptcy E 1, 6 . . . 55, 56 
 Kemp v. The South-Eastern Eailway Co. , Bail- 
 way 14 494 
 
 v. Tucker, Company I 45 . . .177 
 
 -^. —^, Inj^unotion \l . . . 284 
 
 , ex parte ; in re Fastenedge, Bankruptcy 
 
 G 14 63 
 
 , ex parte ; in- re Eussell, Bankruptcy 
 
 E31 . 60 
 
 Kempsonv. Ashhee, Undue Influence 4 . 584 
 Kendal v. The London and South-Western 
 
 Eailway Co., Carrier 35 . . . .109 
 Kennard v. Kennard, Power 9 . . . 436 
 Kensington Station Act, in re, Limitations, 
 
 Statute of iZ 338 
 
 , Eailway 8 493 
 
 Kent v. The Midland Eailway Co., Carrier 
 
 20 106 
 
 I V. Thomas, Bankruptcy E 4 . .56 
 
 V. Eiley, Voluntary Settlement 5 . . 695 
 
 Kerrison's Trusts, in re, Vendor and Pur- 
 chaser 10 595 
 
 Kettlewell v. Barstow, Production 30, 38 
 
 483, 484 
 Kevan, ex parte ; in re Crawford, Bankruptcy 
 
 B 9 49 
 
 Keyworth, ex parte; in re Banner, Bank- 
 ruptcy E 21 {Secured Creditor) . . .59 
 
 , Bankruptcy G- 42 ( Ihistee) . . .67 
 
 , in re Tate, Practice at Law 25 . . 443 
 
 Kibble, ex parte ; in re Onslow, Bankruptcy 
 
 B 33 63 
 
 , Infant 18 . . . . "^ .282 
 
 Kidd T. Boone ; Evans Claim, Administra- 
 tion 10 7 
 
 Kiddel, in re ; ex parte Eowan, Bankruptcy 
 N 15 ........ 77 
 
 Kidderminster, Mayor of, v. Hardwick, Con- 
 tract 2 186 
 
 Kidman v. Kidman, Legacy 14 . . .324 
 
 V. , Will, Construction Jj 2 . .616 
 
 Kilvert's Trusts, in re, CAar% 20 . .112 
 
 , Legacy 1 323 
 
 Kimber v. Barber, Principal and Agent 18 .462 
 Kimberley v. Dick, Arbitration 1 . .27 
 
 V. , Contract 39 . . . .192 
 
 Kincaid's case, in re the North Kent Eail- 
 way Extension Co., Company D 31 . . 139 
 King V. Chamberlain, jlefe'oji 11 ... 6 
 
 V. Pinsoneault, Colonial Law 6 . . 123 
 
 T. Tunstall, Colonial Law 9 . . . 124 
 
 T. Zimmerman, Bill of Exchange 34 , 94 
 
 , ex parte,- Practice at Law 24 . . 442 
 
 , ex parte ; in re Harper, Bankruptcy 
 
 M20 . .75 
 
 -, ex parte ; in re Palethorpe, BanJcruptcy 
 
 £26 60 
 
 FAQE 
 
 King's case, Company G 51 . . . .161 
 — ■ Cross Industrial Dwellings' Co., Com,- 
 
 pany 19 173 
 
 Langley, Overseers of, v. The Grand 
 
 Junction Canal Co., Bate 25 . . . 605 
 
 Leasehold Estates, in re, Lands Clauses 
 
 Act 6 308 
 
 Kingston v. The Oowbridge Eailway Co., Bail- 
 way 18 496 
 
 , ex parte ; in re Gross, Banker 4 . 43 
 
 Kirk V. The Queen ; The Attorney-General v. 
 
 Kirk, Injunction 44 .... 288 
 Kirkstall Brewery Co. v. The Furness Eail- 
 way Co., Ca/rrier 26 .... 107 
 Kish V. Cory, Shipping Law H 4 . . 538 
 Kitchen v. Ibbetson, Bankruptcy G 11 .63 
 Kitson V. Hardwick, Bankruptcy G 45 .68 
 Kittow V. The Liskeard Assessment Com- 
 mittee, Bates 2 600 
 
 Kiveton Coal Co., ex parte ; in re Phillips, 
 
 Bankruptcy N 7 77 
 
 Knapp V. Knapp, Power 27 . . . . 439 
 Knight V. Halliwell, Justice of the Peace 
 
 14 ' 303 
 
 V. , Vaccination 1 . . . . 586 
 
 T. Knight, Baron and Feme 15 . .85 
 
 V. = , Executor 22 . . . . 252 
 
 , ex parte ; Middleton v. PoUock, Set- 
 off 5 623 
 
 Knights V. Whififen, Sale 25 . . . 517 
 
 Knowlman v. Bluett, Frauds, Statute o/ 11 . 266 
 
 V. , Practice at Law 8 . . , 440 
 
 Knox V. Gye, Limitations, Statute of 14 . 337 
 Kreeft v. Thompson, Shipping Law B 1 3 . 529 
 Krehl v. Park, Costs in Equity 7 . . 201 
 
 La Cloche v. La Cloche, Colonial Law 27 . 126 
 La Mancha Irrigation and Land Co., in 
 re ; Lord C Hamilton's case. Company D 
 35 . . . . . . . .140 
 
 Labouchere v. Dawson, Injunction 30 . . 287 
 Lacy V. Hall, Leney v. Hill, Dower 2 . . 237 
 V. Hill ; Crowley's Claim, Stock Ex- 
 change 3 557 
 
 V. Hill ; Scrimgeour's Claim, Stock Ex- 
 change 2 557 
 
 V. Hill, Administration 6 ... 6 
 
 Ladyman v. Grave, Easement 5 . . . 239 
 Laffitte V. Laffitte, Company Jil9 . . 170 
 
 & Go., in- re, Practice in Equity 69 . 450 
 
 Lagesse v. AUard and Lagesse, Colonial Law 
 
 30 . . 127 
 
 Laing v. Zeden, Injunction 6 . . . 283 
 
 V. . , Interpleader 3 . . . . 293 
 
 Lake, ex parte; in re Dorman, Bankruptcy 
 
 G 3 62 
 
 Lakeman v. Mountstephen, Contract 24 . 190 
 
 v. , Principal and Surety 3 . . 465 
 
 Lamare v. Dixon, Frauds 5 ... 2B1 
 
 V. — — , Specific Performance 16 . .651 
 
 Lamb v. Cranfield, Mistake 1 . . . 378 
 Lambe Vj Eames, Will, Construction I 27 .615 
 Lambert v. Lambert, Administration 27 . 9 
 
 T. — ^, Terumtfor Life 2 . , . 660 
 
 4f2 
 
660 
 
 TABLE 'OF CASES. 
 
 PAGE 
 
 Lam}3fcon, . ex parte ; ii) re Lindsay, Bamh- 
 
 mptcy E 13 ■ . 57 
 
 Lancashire an(J Yorkshire Railway Co. v. 
 
 Gidlow, Costs at Law 14 . . . . 199 
 
 — — T. , IQamages \i .... 219 
 
 V. ■ , House of Lords 7 . . . 278 
 
 V. -: — , Railway 1,2. . . 491, 492 
 
 Lancashire, The, Shippmg Law E 8 . . 534 
 Lancefield v. Iggulden, Administration 18 . 8 
 
 . V. , Praotice in Equity 10 . .446 
 
 V. , Will, Construction E 7 . . 605 
 
 Land V. Land, Administration 41 . . .11 
 
 T. , Executor 14 ... . 261 
 
 Land Credit Co. of Ireland, in re, MeEwen's 
 
 case. Company Gr 62 163 
 
 , in re, Trower and Lawson's case, Coon- 
 
 panyl 39 176 
 
 , Weikersheim's case. Company D 65 . 144 
 
 Land and Sea Telegraph Co., in re, Company 
 
 I 63, 64 179 
 
 Landon's Trusts, in re, Trust I> 2 . .581 
 
 Lane v. Gray, Production 29 . . . 483 
 
 T. Sewell, Will, Construction!) 11 .603 
 
 Laney v. Hill ; Scrimgeonr's Claim, Stock 
 
 Exchange 2 657 
 
 Langley Steel and Iron Works Co., in re. Com- 
 pany 12 172 
 
 Langton v. Carleton, Master and Servant 2 . 367 
 Lankester, ex parte ; in re Price, Bankruptcy 
 
 F 8 62 
 
 Lankester's case ; in re the Accidental Death 
 
 Insurance Co., Company E 19 . . . 161 
 Larchin t. The North- Western Deposit Bank, 
 
 Bill of Sale IZ . . . ■ . .96 
 
 Larios v. Bonany y. Gurety, Colonial Law 25 126 
 
 T. , Damages 23 . . . . 220 
 
 V. , Injunction 40 . . . . 288 
 
 LariviferB v. Morgan, Jurisdiction in Equity 15 299 
 Latch V. Latch, Administration 36 . .10 
 Latham v. The Chartered Bank of India, 
 
 China, .and Australia, Bill of Exchange 26 93 
 Latter v., White, Composition Deed Z . .181 
 
 V. , Detinue 1 . . . . 225 
 
 V. , Estoppel 4 . . . .243 
 
 — — V. , Jurisdiction at Law 1 . . 296 
 
 Laugharne Eailway Co., in re, Bailway 32 . 497 
 Laughton v. The Bishop, of Sodor and Man, 
 
 Libel 1,1 332 
 
 Launceston Election Petition, Parliament 4 . 404 
 Lautour y. The Attorney-General, Practice in 
 
 Equity 6 446 
 
 Lawrence T, Jenkins, A'«^/89'e»oe 12 . . 394 
 Lawrie T. Wilson, Costs at Law 21 . . 200 
 Laws, in the goods of, Probate 62 . . 477 
 
 Lazarus v. Charles, Copyright 6 . . .195 
 Lazenby v. White, Practice in Equity 31 . 448 
 Le Jonet, The, Shipping Law T 6 . . 647 
 Le Marchant v. The Inland Revenue, Legacy 
 
 and Succession Duty 12 . . . . 329 
 
 V. Le Marchant, WUl, Construction I 31 616 
 
 Lea T. Whitaker, Damages 1 , . ,216 
 
 Leader v. Moody, Trespass 1 . . .669 
 
 Learmonth V. Miller, ScoicA iaw 4, 13 . 619, 520 
 .Leases and Sales of Settled Estates Act, in re, 
 
 Settled Estates Acts 8 , . . , 524 
 
 PAGB 
 
 Leather v. Simpson, Bill of Exchange 4 . 89 
 
 Cloth Co. T. Hieronimus, Framds, Statute 
 
 of 12 265 
 
 Leathley, ex parte ; in re Hodges, Bankruptcy 
 
 NIO 77 
 
 , Company F 6 152 
 
 Lebeau v. The General Steam Navigation Co., 
 London 3 . . . . . . . 841 
 
 V. , Shipping Law B 6 . . . 828 
 
 Leclere v. Beaudry, Colomal Law 7 . .123 
 Leddy v. iKennedy, Lease 22, 26 . . . . 321 
 Lee V. The Bude and Torrington Eailway 
 
 Co., Company G 84 167 
 
 . V. Johnstone, Sootch Law 31 . .621 
 
 V. The Lancashire and yorkshire Eail- 
 way Co., Evidence 12 .... 247 
 
 V. Lee, Divorce 62 .... 234 
 
 V. Eidsdale, Ghwrch 27 . . . 120 
 
 V. Sankey, Trust B 2 . . . .575 
 
 V. Walker, JVey?i5'e«ce 29 . . .397 
 
 , ex parte ; Berry v. Gibbous, Practice im 
 
 Equity 118 456 
 
 Leech v. Bolland, Practice in Equity 8 . . 446 
 
 V. Schweder, Light and Air S, 6 . 333, 334 
 
 Leech's Claim ; in re Barned's 'Banking Co., 
 
 Company H 4 168 
 
 Leei^e's case ; in the Empire Assurance Cor- 
 poration, Company D 41 . . . . 141 
 Lees V. Coulton ; Lees v. Glutton, Partition 11 413 
 
 V. Lees, Administration 43 . . . 11 
 
 , in re ; ex parte Collins," BiK of Sale 16 96 
 
 Leese v. Martin, Banker 10 . . . .43 
 
 V. Martin, Practice in Equity 127 . . 457 
 
 Leggett, in re ; ex paite Dewhurst, Bill of 
 
 Exchange 25 93 
 
 Lehain v. Philpott, Landlord and Tenant 9 . 306 
 Leicester Waterworks Co. v. The Overseers 
 
 of Cropstone, Bates 37 ... . 807 
 Leigh V. Edwards, Partition 6 . . . 413 
 Leigh's Estate,, in re. Lands Clauses Act 30, 33 
 {Application of Compensation) , . . 312 
 
 , Lands Clauses Act 59 {Costs) . 315 
 
 Leighton v. Leighton, Advancement 10 . . 18 
 
 V. , Legacy 27 . . . .326 
 
 Lejonet, The, Shipping Law T 8 . . . 647 
 Leman v. Fletcher,- Medical Act 1 . . 370 
 
 V. Houseley, Medical Act 2 . . . 370 
 
 Leney v. Hill ; Lacey v. Hill, Dower 2 . 237 
 
 Leonard, ex parte; in re Leonard, Debtors 
 
 Act 21 223 
 
 Leslie v. Macleod, Scotch Law 22 . . 620 
 
 Lethbridge v. Adams ; ex parte the Interna- 
 tional Life Assurance Society, Company 
 
 G 66 164 
 
 V. , Insuraiice 4 . . . .291 
 
 T. Crouk, Production 11 . . .481 
 
 Letts V. Hutchins, Mortgage 62 . . . 386 
 Leverington, The ;8Aip^m^ iaw F 12 . . 534 
 Levick's case ; in re the Imperial Land Co. 
 
 of Marseilles, Cbmpowy G 1 . . .152 
 Levy V. Eutley, Copyright 9 . . . 195 
 
 , ex parte ; in re Varbetian, Bankruptcy 
 
 M 6 . . . . . . .74 
 
 Lewes's Trusts, in re, Presumption 1 . . 468 
 Lewis V. Arnold, Towns Police Act 2 , , 665 
 
TABLE OP CASES. 
 
 661 
 
 PAHB 
 
 . 302 
 , 593 
 . 410 
 . 291 
 . 8 
 
 Lewis T. Davies, Justice of the Peace 10 
 
 v. , Vetme, 2 . . . , 
 
 V. Evans, Parliament 48 . . . 
 
 V. King, Insurance 5 . • . . 
 
 V. Lewis, Administration 16 
 
 V. The London, Chatliam and Dover 
 
 Railway Co., Carrier 6 . . . , 
 
 V. Eossiter, Arbitration 18 . 
 
 , ex parte ; in re the General Exchange 
 
 Bank. Company I fiS 
 
 , ex parte ; in re Henderson, BUI of Sale 21 
 
 Lewis's case ; in re the Imperial Mercantile 
 Credit Association (Lim.), Debtors Act 15 . 222 
 
 Liberia, JJepublic of, v. The Imperial Bank, 
 Production 31, 36 . . , . 483, 
 
 Liddy v. Kennedy, Lease 22, 25 . 
 
 Lidgett T. Secretan, Marine Insurance 30 
 
 Liebert, in re ; ex parte Halliday, Bankruptcy 
 B24 
 
 Limehouse "Works Co., in re. Practice in 
 Equity 29 
 
 , in re ; Coates' case. Company G 34 
 
 Limmer Asphalte Paving Co. v. The Commis- 
 sioners of Inland Revenue, Stamps 1 
 
 Lindsay v. Lindsay, Probate 59 . . . 
 
 ■ V. , WiU, Construction B 3 , 
 
 , ex parte; in re Lindsay, Bankruptcy 
 
 O 15 •>..... 
 
 Lindsay Petroleum Co. v. Hurd, Contract 40 . 
 
 , in re ; ex parte Lambton, Bankruptcy 
 
 E 13 . . . . . . . 
 
 Line v. Hall, Power 10 
 
 Linford v. Gudgeon, County Court 19 
 
 Linsley, ex parte ; in re Harper, Banl-rtipicy 
 15 . . . 
 
 Lippard v. Eicketts, Mortgage 51 
 
 Lishman v. The Northern Maritime Insurance 
 Co., Marine Inswrance 2, 12 . . 347, 
 
 Little V. The Overseers of Penrith, Parliament 
 28 . . . . . . 
 
 Littledale, ex parte ; in re the Hoylake Eail 
 way Co., Company G 66 (Tranter of 
 Shares)^ . 162 
 
 , Company I 46 (Costs of Liquidator) 
 
 Littler, in re ; ex parte the Manchester Bank- 
 ing Co., Bankruptcy M 9 . 
 
 Liver Alkali Co. v. Johnson, Carrier 21, 22 . 
 
 Liverpool Civil Service Association, in re ; ex 
 parte Greenwood, Company I 68 
 
 Loan Co., ex parte ; in re Bullen, Bank- 
 ruptcy G 22 65 
 
 ;- Marine Credit Co. v. Wilson, Shipping 
 
 Law I 17 
 
 Eeotor of, ex parte, Burial 2 
 
 United Gas Co. v. The Everton and 
 
 West Derby Overseers, Prohibition 7 
 
 V. , Eates 34 . . . 
 
 LlaneUy Eailway Co. v. The London and 
 North-Western Eailway Co., Sailway 13 
 
 Llansamlet Tin Plate Co. ; in re Voss, Bank- 
 ruptcy^ 2 
 
 -, , Damages 7 
 
 V. iFleming; Lloyd v. Spence, Marine 
 
 Insurance 48 ... . 
 
 LleyeUyn v. Euth,erford,^iea*e 20 
 
 103 
 29 
 
 178 
 97 
 
 484 
 321 
 354 
 
 51 
 
 449 
 168 
 
 564 
 477 
 602 
 
 66 
 193 
 
 67 
 436 
 211 
 
 386 
 
 350 
 
 407 
 
 177 
 
 74 
 106 
 
 180 
 
 643 
 100 
 
 485 
 607 
 
 494 
 
 55 
 217 
 
 369 
 320 
 
 Lpyd V. Pughe ; Evans, v. Pughe, Baron, and 
 
 Femel . ' 82 
 
 Llynvi Oo^J and Iron Co. v. Brogden, Mines 14 377 
 
 , in re Hide, Bankruptcy E 8 . .86 
 
 Lockhart v. Palk, Shipping Law HI. . 537 
 Locking v. Parker, Limitations, Statute of 
 
 6,7 
 
 379, 
 
 836 
 
 384 
 
 319 
 
 49 
 
 • V. , Mortgage 6, 33 
 
 Lockwood V. Wilson, Lease 9 . . . 
 Lomax v. Buxton, Bankruptcy B 10 . 
 London, Mayor, &c., of, as Governors of St. 
 
 Thomas' Hospital v. Stratton, Rates 12 
 , Commissioners of Sewers v. Glasse, 
 
 Common 2 ...... 
 
 -. and County Bank, ex parte ; in re Brown, 
 
 Bankruptcy A 6 {Jurisdiction) . 
 
 Bankruptcy H '21 (Pressure by Creditor) . 
 
 and Devon Biscuit Co., in re, Company 
 
 I 60 
 
 and Mediterranean Bank, in re ; ex parte 
 
 the Agra Bank, Company H 8 . 
 
 , in re ; Bologuesi's case, Company H 8 . 
 
 in re, ex parte Wright, Company G 22 . 
 
 and North- Western Eailway Co. v. Buck- 
 master, Eates 10 
 
 and North-Western Eailway Co., in re ; 
 
 Sewell's Estate, Tenant for Life 17 . 
 ■ and Paris Banking Corporation, in re, 
 
 Company 1 11 173 
 
 and Provincial Insurance Co. v. Sey- 
 mour, Injuiiction 8 . 
 
 and South- Western Eailway Co. v. 
 
 James, Shipping Law F 24 
 
 and Suburban Bank, in re, Company 
 
 I 5, 26 . . . . . . 172, 
 
 Bank of Scotland, ex parte ; in re the 
 
 Mercantile and Exchange Bank, Company 
 G 11 . . . . 
 
 , Bombay and Mediterranean Bank v. 
 
 Narraway, Bankruptcy P 4 
 
 , in re, ex parte Cama, Company H 5 
 
 , Brigliton and South Coast Eailway Act, 
 
 in re ; in re Edwards, Marriage Settlement 
 20 
 
 Chartered Bank of Australia v. Lem- 
 
 prere, Baron and Femje 16 
 
 , Chatham and Dover Eailway Co. v. 
 
 The Wandsworth Board of Works, Rail- 
 way 28 
 
 Pinancial Association v. Stevens ; Ste- 
 vens V. The Mid-Hants Eailway Co., Rail- 
 way 35 497 
 
 V. The Wrexham, Mold and Counah's 
 
 Quay Eailway Co., Eailway 37 . . 498 
 
 Gas Meter Co., in re ; ex parte Webber, 
 
 Company I 38 176 
 
 , Hamburg, &c.. Exchange Bank Claim, 
 
 Company G 67 
 
 Provincial Marine Insurance Co. v. Sey- 
 mour, Injunction 8 . 
 
 Suburban Bank, in re. Company I 6, 26 
 
 172, 
 . Longhurs't, in the goods of, Probate' ^\ . 
 
 Longley v. Longley, Trust A 14 . . 
 
 Longworth v. Bellamy, Forfeitu/re 7 
 
 602 
 
 129 
 
 47 
 51 
 
 179 
 
 169 
 169 
 156 
 
 501 
 
 662. 
 
 284 
 
 635 
 
 176 
 
 154 
 
 61 
 
 168 
 
 364 
 
 85 
 
 496 
 
 164 
 
 284 
 
 175 
 475 
 674 
 260 
 
662 
 
 TABLE OP CASES. 
 
 PAGE 
 
 Lopez, ex parte; in re Brelaz, Bankrwptcy 
 
 N 1 76 
 
 Lord Advocate y. Clyde, Shipping Law N . 545 
 
 V. Drysdale, Tithes 4 . . . . 565 
 
 V. Hagart, Scotch Law 33 , . . 621 
 
 Lord V. Price, Trover 1 .... 570 
 
 Loretta, The, Admvralty 54 . . . .16 
 Louis T. Louis, Divorce 41, 42 . . . 231 
 Love, ex parte ; in re Jagger, Bankruptcy 
 
 N22 78 
 
 Lovegrove t. White, Attorney 18 . . .36 
 Lovering t. Dawson, Mmiicipal Corporation 
 
 17, 19 . . - 390 
 
 , ex parte ; in re Jones, BimJcruptey G 5 62 
 
 , , Bankruptcy G 40 ■ . .67 
 
 , in re Peacock, Bankruptcy G 32 . .66 
 
 , in re Thorpe, Bankruptcy N 6 . .77 
 
 Lovibond v. Price, Parliament 8 . . . 404 
 Lowe v. Blackiliore, Attachment 8 . .33 
 
 Lowenthal, in re, Bankruptcy Nil . .77 
 
 , Bill of Exchange n . . . .91 
 
 Lowry, in the goods of, Executor 5 . 250 
 
 Lowry's Trusts, in re. Trust E 10 . 583 
 
 Lowther v. Bentinek, Power 29 . . . 439 
 Lucas T. Mason, Assault 1 . . . 32 
 
 v. Siggers, Practice in Equity 47 . . 449 
 
 Luckes, ex parte ; in re Wood, Bankruptcy 
 
 'B 12 (Act of Bankruptcy) . . . .50 
 
 '-, Bankruptcy Q, 6 ( Costs of Trustee) . 82 
 
 Lumley v. Desborough, Attorney 46 . .39 
 Lundy Granite Co. ; ex parte Heaven, Com^ 
 
 pany I 66 180 
 
 L'Union St. Jacques Do Montreal v. Belisle, 
 
 Colonial Law 2 123 
 
 Ljall V. Lyall, Legacy and Sudcession Duty 6 328 
 
 V. Weldhen, Practice in Equity 48 . 449 
 
 Lycett V. The Stafford and Uttoxeter Rail- 
 way Co., Railway 16 ' . . . . 495 
 Lyle V. Elwood, Legitimacy Declaration Act 1 329 
 
 V. , Practice in Equity 4 . . 446 
 
 Lynch V. The Provisional Government of 
 
 Paraguay, Conflict of Laws 1 . . .183 
 Lyon V. The Fishmongers Co. and the Thames 
 
 Conservators, Thames Conservancy Act . 663 
 , ex parte ; in re Lyon, Bankruptcy 
 
 A 10 47 
 
 M. V. B., Divorce 68 234 
 
 M. V. C, Divorce 6 1227 
 
 M'Arthur v. Dudgeon, Practice in Equity 
 
 468 145 
 
 McArthur, ex parte ; in re Eamsden, Mort- 
 gage 24 383 
 
 Macaulay v. The Furness Railway Co., Car- 
 rier 12 . . ... 106 
 Macbeth v. Achley, Scotch Law 6 . . 519 
 MeCabe, in the goods of. Will, Formalities 42 630 
 McCarthy v. The Metropolitan Board of 
 
 Works, icHsifo Clauses Act 12 . . . 309 
 McCawley v. The Furness Railway Co., Car- 
 rier 12 105 
 
 McCounell v. Murphy, Contract 18 . .188 
 
 V. , Estoppel 14 ... 245 
 
 M'Cord V. M'Oord, Divorce 8 . . .228 
 
 M'Crea v. Holdsworth, Copyright 4 
 
 Macdonald v. Macdonald, Evidence 13 . 
 
 V. , Scotch Law 17, 24, 26 . 
 
 V. The Law Union Fire and Life Insur- 
 ance Co., Insurance 3 . . . . 
 
 McDouall V. The Lord Advocate, Salmon 
 Fishery 3 
 
 MacDougall v. Gardiner, Company D 2 {^Ju- 
 risdiction in Equity) 
 
 -, Company F 3 {Suit by Share- 
 
 PA8B 
 
 195 
 247 
 520 
 
 291 
 
 518 
 
 133 
 
 152 
 McEven v. The West London Wharves Co., 
 
 Company G 4 . . . . . . 153 
 
 McEwen's case ; in re the Land Credit Co. of 
 
 Ixel&TiA, Company Gc 61 . . . .163 
 Macfarlan v. Eolt, Production 15 . .481 
 
 McGowan & Co. v. Dyer, Company D 5 . 134 
 
 V. , Principal and Agent 13 . . 462 
 
 Mcllwraith v. The Dublin Trunk Connecting 
 
 Railway Co., Company D 64 . . . 144 
 
 V. , Company G 5 . . . 153 
 
 Mack V. Petter, Trade Mark 7 . . .567 
 Mackay v. The Commercial Bank of New 
 
 Brunswick, Company D 7 . . . 1 34 
 
 V. , Fraud 2 .... 261 
 
 , V. Douglas, Bankruptcy G 38 . .67 
 
 V. , Voluntary Settlement 4 . . 594 
 
 ■ , ex parte ; in re Brown, BUI of Sale 2 . 95 
 
 , ex parte ; in re Jeavons, Bankruptcy 
 
 B 26 .... 
 
 , Bankruptcy N 3 . 
 
 , Debtor and Creditor 2 
 
 Bill of Sale 2 
 
 62 
 76 
 
 220 
 95 
 
 108 
 
 McKean v. Mclver, Carrier 3 1 
 
 McKechnie v. Vaughan, Will, Construction 
 
 G 3 606 
 
 Mackenzie v. Whitworth, Marine Insurance 8 349 
 
 , ex parte ; in re Bent, Bill of Sale 14, 19 
 
 96, 97 
 McKenzie, in re ; ex parte Helliwell, Bank- 
 ruptcy C 7 54 
 
 , Bankruptcy L 3 70 
 
 Mackctt V. Mackett, Will, Construction I 28 . 616 
 M'Kewan v. Sanderson, Bankruptcy B 6 .49 
 
 V. , Practice in Equity 22 . . 447 
 
 V. , Principal and Surety 2 . . 466 
 
 Mackie v. Darling, Practice in Equity 91 . 464 
 Mackintosh v. Mackintosh, Scotch Law 19 . 520 
 Mackintosh's Settlement, in re, T¥ust B 18 . 577 
 Mackreth v. The Glasgow and South-Westem 
 
 Railway Co., Practice at Law 1 . . 440 
 
 Maclaren v. Murphy, Sale 5 . . .513 
 
 ^— V. Staintnn, Tenant for lAfe 8 . .661 
 McLean and Hope v. Fleming, Shipping Law 
 
 G 2, 1 10 537, 541 
 
 M'Clean v. Kennard,' Partnership 20 . . 418 
 Maclean v. Macandrew, Colonial Law 32 .127 
 McLean v. McKay, Condition 2 . . . 182 
 Maclean's Trusts, in re. Legacy and Succession 
 
 Duty 7 328 
 
 ■-, Trust Dl 681 
 
 Maflleay, in re; Condition 1 . . . ,182 
 
 , Will, Construction 8 . . . 624 
 
 Macmanus, in re ; ex parte Jardiue, Mortgage 
 3 . • 379 
 
TABLE OF CASES. 
 
 PAQB 
 
 Macnieliol, in re ; Macnichol v. Maeniohol, 
 
 Administration 3 6 
 
 M'Pherson 7. i'ainsU, Probate 50 . . . 476 
 M'Queen v. The Great Western Eailway Co., 
 
 Carrier 27 107 
 
 Macredie, ex parte; in re Charles, Bank- 
 rupted E 14 57 
 
 Macrow v. The Great Western Eailway Co., 
 
 Carrier 19 106 
 
 Maddock, in the goods of. Will, Formalities 20 628 
 Madge Wildfire, in re; Simpson v. Blues, 
 
 County Court 14 210 
 
 Magee v. Lavell, Contract 20 . . . 188 
 
 V. , Vendor and Purohaser 10 . 589 
 
 Maggie Trimble, The, Shipping Law F 18 . 535 
 Magnet, The, Shipping Law F 18 . .535 
 Magnus, in re ; ex parte Eobinson, Bank- 
 ruptcy 17 69 
 
 Magrath v. Morehead, Will, Construction P 1 624 
 Mahoney v. The East Holyford Mining Co., 
 
 Banker 14 44 
 
 Mahony t. The Kational Widows' Life Assur- 
 ance Fund, Production 2 . . . . 480 
 Mair's Estate, in re, Seed 2 ... 224 
 
 Makin v. Watkinson, Lease 12 . . . 319 
 Malaga Lead Mining Co., in re, Firmstone's 
 
 case. Company G 31 .... 157 
 
 Malcolm v. Hodgkinson, Costs at Law 18 . 200 
 
 V. Ingram (Boston Election Petition), 
 
 Parliament 3, 11 . . . . 403, 404 
 
 Y. PsLTny, Parliament 11 . . . 404 
 
 Malcolmson v. General Steam Navigation 
 
 Co., Shipping Law F 10 . . . , 534 
 Maiden v. The Great Northern Eailway Co., 
 
 Production 3 480 
 
 Manceaux, ex parte, Patent 16 . . . 421 
 Manchester and Liverpool Banking Co., in re, 
 
 ex parte Littler, Bankruptcy M 9 . .74 
 Mann v. Nunn, Contract 36 . . . .192 
 
 , in re, Acknowledgment 2 ... 2 
 
 Manning v. Gill, Trust A 13 . . .574 
 
 V. Manning, Bivoroe] 1 . . .227 
 
 , in re, ex parte Mills, Bankruptcy 10 81 
 
 Mannox v. Greener, WUl, Construction D 4 
 
 I 14, 22 603, 613, 615 
 
 Mansell v. Clements, Principal and Agent 26 464 
 Manser v. Manser, Practice in Equity 38 . 448 
 Mansfield v. Cuno, Divorce 7 . . . 228 
 Manton v. Manton, Sequestration- . , . 622 
 Marchant v. Lee Conservancy Board, Corpo- 
 ration 1 197 
 
 Maroon's Estate, in re, Executor 23 • . 252 
 Marezzo Marble Co. (Lim.), in re, Company 
 
 127. . 175 
 
 Maria Anna and Steinback Coal and Coke Co., 
 in re. Company G 54 . . . . 161 
 
 , Joint Tenants 5 294 
 
 Marine Investment Co. v. Haveside, Evi- 
 dence 16 248 
 
 , in re, ex parte Poole's Executors, Com- 
 pany I 53 178 
 
 Market Harborough, &c.. Turnpike Trusts v. 
 
 Kettering Highway Board, Turnpike 5 . 584 
 — — V. Market Harborough Highway Board, 
 Twrnfpike 6 584 
 
 FAOE 
 
 Markland, The, Admiralty 83 . . .14 
 Marks, in re, ex parte Browning, Bankruptcy 
 
 51 . . 45 
 
 Marland, ex parte, in re Ash ton, Bankrv/ptcy 
 
 L19 .73 
 
 Marler v. Thomas, Power 22 , . . 438 
 
 ■= V. , Voluntary Settlement 9 . . 595 
 
 Marpesia, The, Shipping Law F 26 . . 536 
 Marseilles Extension Eailway and Land 
 Co., in re, ex parte Evans, Costs in 
 
 Equity 57 205 
 
 , ex parte CrMit Fonoier, &o., of Eng- 
 land, Company H 18 . . . .170 
 Marsh, ex parte, in re Greening & Co., Com- 
 pany I 57 179 
 
 Marshall v. Crutwell, Baron and Feme 3 . 83 
 
 V , THtst A 16 . . . .574 
 
 V. Fox, Habitual Criminals . . . 272 
 
 V. James, Parliament 10 . . . 404 
 
 V. Murgatroyd, Bastardy 1 . . .88 
 
 V. Shewsbury, Mortgage 50 . . . 386 
 
 V. Smith, Public Health Acts 9 . . 488 
 
 V. Ulleswater Steam Navigation Co., 
 
 Trespass 3 569 
 
 , ■ex parte, in re Waddington, Company 
 
 G 63 163 
 
 Marshall's Settled Estates, in re, Settled Es- 
 tates Act 3 524 
 
 Martelli v. HoUoway, WUl, Construction 
 
 Q3 625 
 
 Martin v. Hobson, WUl, Construction D 16 . 604 
 
 V. Mackonochie, C%«wcA 16 . . .118 
 
 V , Church 17 . . . .119 
 
 ■ V. Smith, Landlord and Tenant 3 . 304 
 
 Martin's Claim, in re Teignmouth and General 
 Mutual Shipping Association, Company 
 
 H15 170 
 
 , Marine Insurance 5 . . . . 348 
 
 Martineau V. Kitehing, >SaZe 20 . . .516 
 Marwick v. Codlin, Alehouse 8 . . .19 
 Marylebone (Stingo Lane) Improvement Act, 
 
 ex parte Edwards, Lands Clauses Act 10 . 309 
 Marzials v. Gibbons, Copyright 14 . .196 
 Mason v. Shrewsbury and Hereford Bail. Co., 
 
 Watercourse 2 598 
 
 , in re, Trust El 582 
 
 Mason's Trusts, in re, ex parte Smithett, Trust 
 
 D 9 582 
 
 Master's case, in re European Bank, Com- 
 pany G 58 1 62 
 
 Matanle, in re, ex parte Schuite, Bankruptcy 
 
 G28 65 
 
 Mather v. Allendale, Overseers of, Parliw 
 ment 50 ...... . 410 
 
 Mathews v. Baxter, Contract 16 . . . 188 
 
 ., ex parte, in re Angel, Bankruptcy 
 
 M 3 73 
 
 Matlock Old Bath Co., in re Maynard's case, 
 
 Compamy G 24 156 
 
 Hydropathic Co. (Lim.), in re Wheat- 
 croft's ease. Company G 7 . . . 153 
 Matthaei v. Galitzin, Ju/risdiction in Equity 
 
 14 299 
 
 Matthews, ex parte, in re Cherry, Bankruptcy 
 Ql 82 
 
664 
 
 TABLE OF CASES. 
 
 PAGE 
 
 Maude v. Lowley, Mnnioipal Corporation 18, 
 
 20 . . " 390 
 
 Maude's case, in re Hodge's Distillery Co., 
 
 Company G 83 166 
 
 Maule V. Davis, in re Motion, Bankruptcy A 5 47 
 
 , ex parte, in re Motion, Motion v. Davies, 
 
 'Bankruptcy A 5 47 
 
 , ex parte, in re Motion, Maule v. Davies, 
 
 Bankruptcy A 1 3 48 
 
 Maundv. Mason, Boor Law 6 . . . 433 
 Mavro v. Ocean Marine Insurance Co., Ma- 
 rine Inswance 40 367 
 
 Mawson v. Fletcher, Vendor and Burchaser 3 588 
 Maxfield v. Burton, Trust A 19 . . .575 
 Maxsted v. Paine, Stock Exchange 4 , . 558 
 May V. Great Western Eail. Co., Lands Clauses 
 
 ActM 313 
 
 T. O'Neill, Attorney 9 . . . .36 
 
 T. , Covenant i . . .213 
 
 Mayer, in re, Acknowledgment 6 . . .2 
 
 , in the goods of, Brobate 16 . . .472 
 
 Mayhew, in re, ex parte Till, Bankruptcy 
 
 PI 81 
 
 , Landlord and Tenant 12 . . . 306 
 
 May nard V. Eaton, Cowjpamj' G 49 . .161 
 Maynard's ease. Company G 24 . . .156 
 Mayor, in re, in re Sarah Jane Sandilands and 
 others. Acknowledgment 6 . . . .2 
 
 Meacham v. Cooper, Practice in Equity 12 .446 
 Mead, in re, ex parte Cochrane, Bankruptcy 
 P4 . . . .... 82 
 
 Medical, Invalid, and General Life Assurance, 
 Griifith's case, Cmnpany E 13 . . 149 
 
 , Spencer's ease. Company E 11 . .149 
 
 Megrath v. Gray, Bankruptcy 12 . 68 
 Meinertzhagen v. Walters, Advancement 7 .17 
 Melbourn, ex parte, in re Melbourn, Bank- 
 ruptcy C 8 54 
 
 — •—, Conflict of Laws & .... 184 
 Meldrum, in re, ex parte Butcher, Bank- 
 
 raptcy B 28 52 
 
 Melhado v. Porto Alegre Eail. Co., Company 
 
 A 2 132 
 
 Mellor V. Watkine, Lease 33 . . . .322 
 Melpomene, The, Admiralty 44 . . .15 
 Melsom v. Giles, Will, Construction D 6 . 603 
 Menier v. Hooper's Telegraph Works, Com- 
 pany T) 67 145 
 
 Menzies v. Lightfoot, Mortgage 21 . . 382 
 , in re, ex parte London Bank of Scot- 
 land, Company Gil . . . .164 
 Mercantile Trading Co., in re, Schroeder's 
 
 case, Company G 27 157 
 
 Mercer V. Graves, &f-()^ 3 .... 523 
 
 T. , Tru^t C 3 . . . .579 
 
 Mercer's Appeal, in re, Eeg. v. Jxistices of 
 
 Kent, Bates 33 507 
 
 Merchant Shipping Co. v. Armitage, Shipping 
 
 iaw I 7, 8 540 
 
 Taylors Co. v. Attorney-General, Cha- 
 rity iZ 113 
 
 Merchants' Banking Company v. Maud, Costs 
 in Equity ^Q ... .206 
 
 v. . , Interest 1 . . . . 292 
 
 v ,. Bractice in Equity 70 . . 451 
 
 PAGE 
 
 Merchants' Trading Co. v. Banner, Specific 
 
 Berformance 4 550 
 
 Merry T. Nickalls, CoOTpamy G 47 . . 160 
 
 V. , Costs in Equity 13 . . .202 
 
 Mersey Docks and Harbour Board v. Birken- 
 head, Overseers of. Bates 27 . . . 506 
 
 V. Overseers of Liverpool, Bates 29, 30. 506 
 
 Messina v. Petrococchino, Judgment 13 . 296 
 Metropolitan Board of Works v. Plight, Me- 
 tropolis 5 372 
 
 V. Macarthy, Lands Clauses Act 12 . 309 
 
 V. Overseers of West Ham, Bates 14 . 503 
 
 Police District, Eeceiver of v. Bell, 
 
 Benalty 3 425 
 
 Public Carriage and Eepository Co., in 
 
 re Brown's case. Company D 37 . 140 
 
 , in re, Cleland's case. Company G 28 . 157 
 
 Eail. Co. V. Wilson, Bleadmg at Law 9 . 429 
 
 Meux V. Jacob, Fixtwres 1 . ... 266 
 Meyer, ex parte, in re Stephany, Bankruptcy 
 
 B 29 62 
 
 Meyrick v. Laws, Meyrick v. Mathias, Will, 
 
 Construction L 29 621 
 
 Meyricke Fund, in re. The, Endowed Schools 1 242 
 Michael, ex parte, Admiralty 13 . . .13 
 
 , County Court 13 . . . .210 
 
 Michell V. Wilton, WtII, Construction D 10 .603 
 Middlemas v. Wilson, Bractice in Equity 33 . 448 
 Middlesex, Sheriff of, ex parte, in re England, 
 
 Banlcruptcy'HL 10 74 
 
 Middleton v. Chichester, Debtors Act 5 .221 
 
 V. Pollock, Sc!!-o/" 5 . . . .523 
 
 V. , ex parte Knight, Set-off i . 523 
 
 V. Windross, Condition 3 . . .182 
 
 T , Will, Construction M 4 . .621 
 
 , in re, ex parte Allen, Bill of Sale 25. 98 
 
 Midland Eail. Co. v. Great Western Eail. Co., 
 
 Bailway 12 494 
 
 Miedbrodtv. Fitzsimon, Shipping Law G 1 . 537 
 Migneault v. Male, Colonial Law 8 . .123 
 Milburn v. London and South- Western Eail., 
 
 Bractice at Law 40 . . . . . 444 
 Mildmay v. Overseers of Wimbledon, Bates, 3 500 
 
 V. Quicke, Bartition 18 . . .414 
 
 Miles' Claim, in re Adansonia Fibre Co., Bill 
 
 of Exchange 8 90 
 
 , Company H 10 169 
 
 — ^ — V. Furber, Landlord and Tenant 7 . 306 
 
 V Harrison, Charity 26 . . .114 
 
 V — , Will, Construction D 21 . .604 
 
 Mill Y. Uscwkei, Highway 17 . . .277 
 Miller v. Barlow, Bankruptcy B 4 . .49 
 
 V. Cook, Usury 2 .... 586 
 
 T. , Beversion . . . .511 
 
 V. David, Slander 1 . . . . 548 
 
 V. Hales, Costs in Equity 52 . . 206 
 
 Y. James, Conflict of Laws S . .184 
 
 V , Brobate 3 . . . . 470 
 
 V. Miller, Tenant for Life 15 . . 662 
 
 Millett V. Coleman, Master and Servant 17 . 369 
 Millner's Estate, in re, Bractice in Equity 
 
 95 454 
 
 Mills V. Capell, Limitations, Statute of 19 . 338 
 
 V. Guardians of East London Union, 
 
 Lease 11 319 
 
TABLE OF CASES. 
 
 C6S 
 
 PAGE 
 
 Mills V. Scott, Contagioiis IHseaes Act 4 .185 
 
 V. , County Court 4 . . . 208 
 
 , ex parte, in re Manning, Bankruptcy 
 
 10 81 
 
 , ex parte, in re Tew, Bankruptcy E 12 . 67 
 
 Milne v. Milne, Baron and Feme 19 . .85 
 
 V. , Ditioree 47, SO . .232,235 
 
 Milne v. Wood, Will, Construotion H 14 . 609 
 Milner's Estate, in re. Presumption 3 . . 459 
 Milnes v. Bale, Same v. Corbet, Same v. Col- 
 
 sey, SameT. Lea, Municipal Corporation 22 391 
 Minet v. Morgan, Discovery 3 . . . 226 
 
 V. , Production 17, 21, 24 . 481, 482 
 
 Mirabita, ex parte, in re Dale, Bankruptcy 
 
 M21 75 
 
 Miranda, The, Shipping Law B 4 (Bill of 
 
 Lading), T 18 {Salvage) . . . 528, 647 
 Miriam, The, Admiralty 26 . . . .14 
 Mitchell T. Holmes, Annuity 6 . • .23 
 
 v. Lancashire and Yorkshire Bail. Co., 
 
 Carrier 33 108 
 
 Mitchell's Claim, in re Biver Steamer Co., 
 
 Limitations, Statute o/2i . . . 338 
 
 Moeser v. Wisker, Vendor and Purchaser 29 592 
 Moger v. Escott, Parliament 38 . . . 408 
 Molesworth, ex parte, Municipal Corporation 
 
 9 388 
 
 MoUett T. Bobinson, Broker 2 . . .99 
 
 V. , Principal and Agent 1 . . 469 
 
 Mollwo, March & Co. v. Court of Wards, 
 
 Partnership 2 415 
 
 Monarch Insurance Co., in re Gorrissen'a case. 
 
 Company G 19 155 
 
 Monsell T. Armstrong, Executor 21 . . 252 
 
 V , Power 26 .... 439 
 
 Montacute and Monthermer Peerages, Peer- 
 age Z 424 
 
 Montague v. Flockton, Contract 31 . . 191 
 Moodie T. Steward, <7osis (lit iaa) 2 . .197 
 
 v. , County Court 9 . . .209 
 
 Y. , Jurisdiction at Law 4 . . 297 
 
 Moorat v. Moorat, Practice in Equity 1 . 445 
 Moore v. Craven, Production 20 . . . 482 
 T. Metropolitan Bail. Co., False Impri- 
 sonment 255 
 
 V. Moore, Donatio Mortis Causa 1 . 237 
 
 T. Morris, Parties 9 . . . . 412 
 
 and De la Torre's case, in re Boyal 
 
 Victoria Palace Syndicate, Company A3 .132 
 
 , in re, ex parte Philps, Bankruptcy 
 
 G44,48 68 
 
 Moran v. Pitt, Trover 3 . . . .670 
 Morant, in the goods of. Probate 48 . . 476 
 Mordaunt r. Moncrieffe, Divorce 13 . .228 
 
 V. Mordaunt, Divorce 61 . . . 233 
 
 Mordue v. Dean and Chapter of Durham, the. 
 
 Mines 6 ' • • 376 
 
 V. Palmer, Arbitration 21 . . .30 
 
 Y. , Costs in Equity 48 . . . 205 
 
 Morgan t. Alexander, Practice at Law 22 . 442 
 
 T. Bain, Sale 14 615 
 
 v. Britten, WUl, Construction 13 .612 
 
 V. Crawshay, Bates 8 . . . .501 
 
 V. Griffiths, Evidence 4 . . . . 246 
 
 V. Grpnow, Power 17, 21 . . 437, 438 
 
 DioEST, 1870-75. 
 
 PAOB 
 
 Morgan v. Hedger, Alehouse 20 . . .21 
 
 y. liarivikie, Banker, \2 . . .44 
 
 v. Rowlands, Imiitations, Statute of 28 339 
 
 T. Steble, Bankruptcy 41 . . .67 
 
 Morison v. Thompson, Principal and Agent 
 
 16 
 
 Morley v. White, in re White, Bankruptcy 
 
 All 
 
 V. — — , Jurisdiction in Equity 20 
 
 , ex parte, in re White, Partnership 5 
 
 , in re. Costs in Equity 67 . 
 
 Morrice t. Aylmer, Legacy 6 
 Morris v. Morris, Executor 10 
 
 , ex parte. Lands Clauses Act 65 . 
 
 Morris's case, in re Oriental Commercial 
 
 Bank, Company G 70 71 . 
 Estate, in re, Morris v. Morris, Executor 
 
 10 
 
 Settled Estates, in re. Lands 
 
 Act 4:5 
 
 Morrison v. The Fniversal Marine Insurance 
 
 Co., Jurisdiction at Law 2 . . . 
 
 Marine Insurance 14 
 
 Morrissy, in re, ex parte Taylor, Bankruptcy 
 
 L 15 . . . . 
 Morritt v. Douglas, Will, Formalities 13 
 Mors le Blanch v. Wilson, Shipping Law I 12 542 
 Mortimer, in re, ex parte Pearson, Bank- 
 ruptcy B 31 62 
 
 Morton v. Hutchinson, The " Erankland " and 
 
 The " Kestrel," Shipping Law F 6 . .534 
 , ex parte, in re Towns Drainage and 
 
 Sewage Co., Company G 76 
 , in re, ex parte Eobertson, Bankruptcy 
 
 N29 
 
 Moscow Gas Co. v. International Financial 
 
 Society. See City of Moscow. 
 V. Bendell, Executor 16 . 
 V. Simpson, Arbitration 22 
 
 462 
 
 48 
 300 
 415 
 206 
 324 
 250 
 . 315 
 
 164 
 
 250 
 
 313 
 
 350 
 
 72 
 
 627 
 
 165 
 
 79 
 
 . 251 
 . 30 
 
 Moseleys Trusts, in re, WUl, Construction B 1 625 
 Moses, ex parte. Attorney 3 . . . .34 
 Motion V. Moojen, Bankruptcy A 12 . .48 
 
 in re, Maule v. Davis, Bankruptcy A 5 . 47 
 
 in re, ex parte Maule ; Maule v. Davis, 
 
 Bankruptcy A 1 3 48 
 
 Mott V. Shoolbred, Injunction 23 . . . 286 
 Mouflet V. Cole, Covenant 2 . . . .212 
 Moule T. Garrett, Lease 32 . . . . 322 
 Mounsey v. Earl of Lonsdale ; Attorney-Gene- 
 ral V. Earl of Lonsdale, Costs in Equity 38 204 
 Mountstephen V. Lakeman, Contract 24: . 190 
 
 V. , Work and Labour 1 . . 632 
 
 Mowlem, in re. Will, Ckmstruction D 8 . . 603 
 Moxon V. Payne, Undue Influence 6 . . 585 
 Muir V. Crawford, /ScofcA iaK) 7 . . .519 
 
 V. Keay, Alehouse 16 . . . .21 
 
 y. Kmv, Colonial Law 11 . . . 124 
 
 Mulkem v. Ward, Libel 16 . . . . 332 
 MuUer v. Baldwin, Port .... 434 
 Mulligan v. Cole, lAbel 5 . . . .331 
 Mullins V. Collins, Alehouse 17 . . .21 
 Mumford v. Stohwasser, Mortgage 20 . .382 
 Munt V. Glynes, Baron and Feme 20 . .85 
 
 V. , Legacy 11 . . . , 324 
 
 Murphy v. Boese, Frauds, Statute of 15 . 266 
 4Q 
 
C66 
 
 TABLE OF CASES. 
 
 iMurphy v. Vincent, Specific Performance 30 . 554 
 Mun'ay vl Busli (Agriculturists' Cattle In- 
 surance Co.), Company G 59 . . . 162 
 
 V. Clayton, Patent 4, 12 . . 420, 423 
 
 V. Currie, 'Master and Servant 7 . .368 
 
 T. Mackenzie, Bill of Sale 10 . . 96 
 
 , ex parte, in re Forrest, Bankmptcy^ Q 8 82 
 
 Murton's Trusts, in re, Trust E 3 . . " .582 
 Musgrave V. -Forster, JwoZowre 2 . . . 279 
 
 y. The Incloeure Commissioners, Inelo- 
 
 sure 1 279 
 
 Mutlow V. Bigg, Limitations, Statute of 8 . 336 
 Mutton, ex parte, in re Cole, Bill of SaU 18 . 97 
 Mytton v. Mytton, Legacy 18 . . .325 
 
 Naden, ex parte; in re 'Wood, Banhrwptay E 7 56 
 Nalty T. Ajlett, Debtors Act S . . .221 
 Nanson, ex parte, in re Dixon, Bankruptcy 
 
 E 20 58 
 
 V. Gordon, Banlcruptcy E 11 . .67 
 
 Nantios Consols Co., Thomas's ease, Company 
 
 D 16 ■ . • 136 
 
 Natal Investment Company, in re, Nevill's 
 
 case, Company G 79 . . . . .165 
 National Assurance ahd Investriient Associa- 
 tion, in re, Practice in Equity 23 . . 447 
 Bank, ex parte, in re General Provident 
 
 Assurance Co., Banker 7 . . . ' . 43 
 
 ; Company "B. 1 . , . . .167 
 
 Equitable Provident Society, in re. 
 
 Wood's case. Company G 8 . . . 153 
 Provincial Life Assurance Society, in re, 
 
 Fleming's case, Company E 12 . . . 149 
 Society v. School Board for London, 
 
 Elementary Education Act 3 . . . 241 
 Neate v. Denman, Inns of Court . . . 289 
 Neath and Brecon Railway Co., in re, Lands 
 
 Clauses Act 64 315 
 
 Canal Co. v. Ynisarwed Eesolven Col- 
 liery Co., Trespass 7 .... 569 
 
 Neilson v. Betts, House of Lords 3 , .278 
 
 V ■-, Patent 1 ..... 419 
 
 Nelson v. Protection Association of Wrecked, 
 
 &e.. Property, Shipping Law I 15 . . 542 
 Neo v. Neo, Colonial Law 33 . . .127 
 
 V , Executor 19 . . . .251 
 
 V. — ■-, Privy Council 3 . . . 469 
 
 V. , Remoteness 3 . . . .510 
 
 Nesbitt V. Greenwich Board of Works, 
 
 Metropolis 13 373 
 
 Nesham v. Selby, Frauds, Statute of9. . 264 
 Nether Stowey Vicarage, in re, Land Tax . 303 
 Nethersole v. The Indigent Blind School, 
 
 Charity 7 Ill 
 
 Nettle's Charity, in re, Charity 28 . .114 
 NeviU- V. Bridger, BwnaZ 5 . . . .100 
 
 , in re,- ex parte White, Sale 24 , . 517 
 
 NevilFs case, in re Natal Investment Co., Com- 
 pany G79 ■ . . • . . .165 
 New, ex parte, in re Childs, Bankruptcy E 17 58 
 New River Co. v. Mather, Water Bate 1 .598 
 New Zealand Kapanga Gold Co., in re, ex 
 parte Thomas, Company D 59 {EectificOr 
 Hon of Begister) 144 
 
 New Zealand Kapanga Gold Co., Company G 
 38 {Fully-paid wp Shares') . . ■ • 
 
 Newall V. Tomlinson, Prinoipal and Agent 23 
 
 Newby v, Von Oppen and. The Colts Patent 
 Firearms Co., Practice at Law 2 
 
 Newcastle,. Duke of, v. Morris, Bankruptcy 
 K2 
 
 V. , Parliament 1 . 
 
 NaweU V. Van Praagh, Debtors Act 17 . 
 
 Newill V. Newill, Joint Tenants 1 . 
 
 _^_ V. , Will, Construction 12. 
 
 Newington v. Levy, Action 8 . . . 
 
 Newington, St. Mary, Vestry of, v. Jacobs, 
 Highway 10 
 
 Newman's Settled Estate, in re, Settled Estates 
 Acts 18 . - 525 
 
 Newry v. Kilmqrey, Practice in Equity 16 . 447 
 
 Newsome v. Newsome, Divorce 9 . . . 228 
 
 Newtpn V. Judges of North- Western Pro- 
 vinces, Barrister 
 
 V. Newton, Scotch'Law 15 . 
 
 V. Taylor, Costs in Equity 46 
 
 , In the goods of. Will, Construction B 1 
 
 Nicholls V. Bulwer, Parliament 51 
 
 y. Hall, Contagious Diseases Act 2 
 
 Nichols V. Marshland, Negligence 17 . 
 
 , In the goods of. Probate 11 
 
 Nicholson y. Nicholson, Divorce 12 
 
 y. Williams, Harbour 2 . . . 
 
 NickaUs v. Merry, Company G 47 
 
 , Stoclf Exchange. 6 . . . . 
 
 Nield V. Batty, Municipal Corporation 21 
 
 y. London and North- Western Railway 
 
 Co., Watercou/rse 3 . . 
 
 Nisbet V. Green-jrich Board of Works, Metro- 
 polis 13 373 
 
 159 
 464 
 
 440 
 
 70 
 403 
 223 
 294 
 312 
 4 
 
 276 
 
 87 
 520 
 205 
 602 
 410 
 185 
 395 
 471 
 228 
 273 
 160 
 558 
 391 
 
 '. 598 
 
 WUl, For- 
 
 547 
 
 Nile, The, Shipping Law Til 
 
 Noble V. Phelps and Willock, 
 
 malities 46 ..... . 
 
 V. WiUock, Will, Formalities 46 . 
 
 Nokes V. Gandy, County Court 10 
 
 Nolan V. Copeman, Costs at Law 9 
 
 Norris v. Barnes, Nuisance 5 . . 
 
 V. Frazer, Trust A 6 . 
 
 North British Insurance Co. v. Mofiatt, In- 
 surance 8 ...... . 291 
 
 North-Eastern Railway Co. v. Richardson, 
 Carrier 34 
 
 V. Wanless, Bailway 23 . . . 
 
 Kent Extension Co., in re, Kineaid's 
 
 case. Company D 31 
 
 London Railway Co. v. Attorney-Gene- 
 ral, Bailway 40 
 
 of England Oil Cake Co. v. Archangel, 
 
 Marine Insurance 47 .... 
 
 Staffordshire Railway Company, ex 
 
 parte, Company/ I 67 
 
 Western Bank, ex parte, in re Slee, 
 
 Bankruptcy A 4 
 
 , Factor 2 
 
 Northbrook, Lord, v, Plumstead Board of 
 Works, Metropolis 9 
 
 Northcote v. Pulsfor^, Municipal Corpora- 
 tion 15 . ■ .. 
 
 Norton, ex parte, jn re Golden, Bankruptcy B 2 
 
 631 
 631 
 209 
 198 
 400 
 573 
 
 108 
 496 
 
 139 
 
 498 
 
 359 
 
 180 
 
 46 
 254 
 
 372 
 
 48 
 
TABLE OF CASES. 
 
 667 
 
 PAGB 
 
 Norton -v. Russell, Partnership 24 . . ,419 
 Norwich Election Petition, Parliament 5' . 404 
 Nose-worthy v. Overseers of Buckland-in-the- 
 
 Moor, Parliament 47 .... 410 
 
 Notara V. Henderson, Shipping Law M 5 . 544 
 Nottingham Hide Co. v. JBottrill, Principal 
 
 and Surety 5 466 
 
 Nuneaton Local Board t. General Sewage Co., 
 
 Injunction 18 285 
 
 T , Nuisance 1 . . . . 399 
 
 Nunn V. Hancock, I')\fant 7 . . . .281 
 Nunn's Will, in re, Will, Construction G 5 .606 
 NuovaEaffaelina, The, ^wiiTO% 11 . .12 
 Nyholm, ex parte, in re Child, Shipping Law 
 
 I 14 542 
 
 O'Loghlen, ex parte, in re O'Loghlen, Bank- 
 ruptcy A3 46 
 
 O'Mahony v. Burdett, Will, Construction L 7 617 
 O'Eeardon, in re, ex parte James, BanJcruvtcv 
 C 6 . , . , . ... . . ^ ': 53 
 
 O'Eeilly, John, In the goods of. Will, Con- 
 struction G- 9 607 
 
 Occleston v. Fullalove, Will, Construction 
 
 Hl'7 _ . 610 
 
 Ochsenhein v. Papelier, Jurisdiction in Equity 
 
 5 298 
 
 Ogden V. Benas, Bill of Exchange 20 . .92 
 
 Ogg T. Shuter, Sale 22 517 
 
 Ogilvie, in re, Judgment 7 . . . . 295 
 
 Bailw'ay 19 495 
 
 Ogle, ex parte, ex parte Smith, in re Pilling, 
 Bankruptcy G 47 (Liability of Trustee) . 68 
 
 Bankruptcy 01 1 {Costs of A'ppeaV) . 82 
 
 Ohlsen v. Terrero, Practice in Equity 66 . 451 
 Old, ex parte, in re Bright, Bankruptcy L 13 71 
 Oldham v. Eamsden, Gaming 1 . . . 269 
 Olivant v. "Wright, Will, Construction L 8 .617 
 Oliver v. North-Eastern Eailway Co., Bail- 
 way 25 496 
 
 V. Oliver, Legacy 15 . . . . 324 
 
 OUerensha-w v. Harrop, Practice in Equity 28 
 
 {Behearing) ' 447 
 
 Practice in Equity 62 (Enrolment) . 460 
 
 Onslo-w, in re, ex parte Kibble, Bankruptcy 
 
 B 33 .63 
 
 , Infant 18 282 
 
 Onslo-w's Trusts, in re. Infant 19 . . . 282 
 Onward, The, Shipping Law C 3 . . . 830 
 Oppenheim v. White Lion Hotel Co., Inn- 
 keeper 2 289 
 
 Orde, ex parte, in re Horsley, Bankruptcy L 6 71 
 Orient, The, Yeo v. Tatem, Admiralty 2 
 
 (Jurisdiction) 11 
 
 Admiralty 48 (Appeal for Costs) . .16 
 
 Oriental Coiamercial Bank v. Savin, Executor 
 24 . . . . . . . .252 
 
 , in re, Morris's case. Company G 70, 71 164 
 
 European Bank, ex parte, Company H 9 169 
 
 Financial Corporation v. Overend, Gnr- 
 
 ney & Co., Principal and Surety 13 . . 467 
 
 Hotels Co., in re. Company I 66 . . 178 
 
 liiland Steam Co., in re, ex parte Scinde 
 
 BMlway Co., Company S, 16 . .. . 170 
 
 Orlebar's Settlement Trusts, in re, Marriage 
 
 Settlement 10 363 
 
 Orme's case, Webster v. Overseers of Ashton- 
 
 under-Lyne, Parliament 19 . . . 406 
 Orpheus, The, Shipping Law F 34 . . 537 
 Orrell v. OrreU, Election 6 . . . .240 
 Orton V. Smith, Probate 67' . . . . 478 
 Osborn, in re, ex parte Goldsmith, Friendly 
 
 Society 3 . ■ 267 
 
 Osborn's Mortgage Trusts, in re. Mortgage 53 387 
 Osborne v. GiUett, Master and Servant 6 . 368 
 Osgood V. Nelson, London 1 . . . . 340 
 Oswald, In the goods of. Probate 31 , . 474 
 Otter,- The, Admiralty 34 . • . .14 
 
 , Shipping Law F 7 . . . . 634 
 
 Oulton V. Eadoliffe, Practice at Law 62 . . 440 
 Ousey V. Ousey and Atkinson, Divorce 20 . 229 
 Overend, Gurney & Co. v. Gibb, Company 
 
 D 15 136 
 
 Owen V. Delamere, Administration 1 . .6 
 Owen Wallis, The, Shipping Law F 19 . 636 
 
 Owen's Trusts, in re. Will, Construction H 29 611 
 
 206 
 
 Paddon v. Winch, Costs in Equity 64 . 
 
 Page, ex parte ; ex parte Allen, in re Middle- 
 ton, Bill of Sale 25 
 
 V. Young, Will, Construction D 18 
 
 Paget V. Marquis of Anglesea, Watkin's 
 Claim, Apportionment 8 . . . . 
 
 V. Ede, Jurisdiction in Equity 17. 
 
 V. , Mortgage 44 . 
 
 Paine v. Jones, Limitations, Statute of 2 
 
 Palethorpe, in re, ex parte King, Bankruptcy 
 E 26 
 
 Palmer v. Flower, Practice in Equity 134 
 
 V. , Will, Construction 4. 
 
 V. Jones, Costs in Equity 43 . 
 
 V —, Executor 18 . 
 
 and The London, Brighton and South 
 
 Coast Bail way Co., in r&, Eailway S8 
 
 , in re,- Confirmation of Sales Act 3 
 
 Palmer's case, in re The Prosper United 
 Mining Co., Mines 18 . . . . 
 
 Settlement Trusts, in re, Deed 8 . 
 
 Panama and South Pacific Telegraph Co. v. 
 India Rubber, Gutta Percha and Telegraph 
 Works Co., Principal and Agent 20 . 
 
 Pankhurst v. Howell, Legacy 29 • . 
 
 Pape V. Lister, Production 5 . 
 
 Paper Staining Co. ex parte, in re Bishop, 
 Bankruptcy 0-8 
 
 Pappa- V. Rose, Broher 1 . . . . 
 
 Paraguassu Steam Tramroad Co., in re. Com- 
 pany I 64 178 
 
 , in re,.Adamson's case; CompanyJi 44 . 141 
 
 , in re. Black & Co.'s case, Company G 40 159 
 
 , in re, Ferrao's case. Company G 30 .157 
 
 Parfltt V. Chambre, ex parte The Assignee of 
 the Countess D'Alteyrac, Administration 7 7 
 
 V. Lawless, Evidence 19 . . .248 
 
 v. , Undue Influence 7 . 
 
 Parke, ex parte, in rs Potter, Partnership 7 
 
 Parker v. Le-wis, Company F 1 . 
 
 — — V. , Parties 7 . 
 
 4q2 
 
 98 
 604 
 
 25 
 299 
 386 
 335 
 
 60 
 457 
 623 
 204 
 251 
 
 498 
 183 
 
 377 
 224 
 
 462 
 326 
 480 
 
 80 
 99 
 
 685 
 416 
 161 
 411 
 
668 
 
 TABLE OF CASES. 
 
 PABE 
 
 Parker v. M'Kenna, Praetioe'jin Eqmty'20 . 447 
 
 V. , Prmci2)al and Agent 21 . . 463 
 
 Parker'^ Estate, in re, Lands Clauses Act 62 . 314 
 Parkins v. Seddons, Seoeiver 3 . . . 508 
 Parkinson v. Townsend, Power 5 . ■ ■ 435 
 
 V. The Great Western Eailway Co., 
 
 Eailway 39 498 
 
 Parlby's case, in re Albert Insurance Co., 
 
 Company G 39 169 
 
 Paruell v. Roughton, Church 25 . . . 120 
 
 , in re, ex parte Burrell, Vendor and 
 
 Purchaser 25 692 
 
 , 'Thomas, In the goods of. Parent and 
 
 Child 6 . . . . , . .402 
 Pamham's Trusts, in, Forfeiture 3 , . 259 
 Parr's Trusts, in re. Will, Construction, It i . 616 
 Partridge v. Elkington, County Court 2 . 208 
 
 Patch T. Ward, Practice in Equity 58 . . 450 
 Patent Bread Machine Co., in re, ex parte 
 
 Valpy and Chaplin, Company J) 11 . .136 
 Patent File Co., in re, ex parte Birmingham 
 
 Bank Co., Company D 45 . . . . 142 
 Patent Floor Cloth Co., in re. Dean and 
 
 Gilbert's Claim, Company H 20 . . 171 
 Patent Marine Inventions Co. v. Chadburn, 
 
 Patent 38 424 
 
 Patria, The, Shipping Law E 8 {Dangers of 
 
 Seas), K 1 {Foreign Ship) , . . 531, 643 
 Patterson v. Patterson, Divorce 69 {Suspend- 
 ing Decree absolute), 71 {Damages) . 234, 235 
 
 Divorce 87 {Attorney's Lien) . . . 236 
 
 Pattison v. Luckley, Contract 37 . . .192 
 Pattison v. Gilford, Injunction 27 . . . 286 
 Paul V. Children, Will, Construction H 15 . 609 
 Payne v. Dicker, Parties 11 . . . .412 
 
 V. Evens, Trust B 20 . . , .577 
 
 T. Webb, Will, Construction H 32 . .611 
 
 Peacock, in re, ex parte Duffield, Bankruptcy 
 
 M 13 75 
 
 — .— , in re, ex parte Lovering, Bankruptcy 
 
 G 32 . 66 
 
 Peacock's Estate, in re. Advancement 6 . .17 
 
 , Legacy 25 . : . . . .326 
 
 Peakman v. Harrison, Bankruptcy II. .68 
 Pearce v. Carrington, Will, Construction H 26 611 
 
 T. Watts, Costs in Equity 6 . . .201 
 
 V. , Specific Performance 1 . . 549 
 
 Pearcy, in re, ex parte Sturt & Co., Bank- 
 ruptcy C 2 53 
 
 Pears v. Laing, Limitations, Statute of 29 . 339 
 Pearson v. Commercial Union Assurance Co. 
 
 Insurance 9 292 
 
 V. HelliweU, Annuity 9 ... 24 
 
 V. Pearson, Will, Formalities 12 . . 627 
 
 , ex parte, in re Mortimer, Bankruptcy 
 
 B 31 52 
 
 Pearson's case, in re East of England Banking 
 
 Co., Company I 51 178 
 
 Pedder's Settlement, in re, Marriage Settle- 
 ment 16 . 364 
 
 Peebles, Magistrate of, v. Minister and Kirk 
 
 Session of Peebles, Scotch Law 11, . 520 
 Peek T. Gurney, Company D 25 . , .137 
 
 V. Laraen, Shipping Law 111 . . 541 
 
 Peek's Trusts, in. re, Will, Construction L 21 619 
 
 PAGE 
 
 The Lampeter Union, Ltmatio 15 . 344 
 Peirce V, Corfe, Auction 2 . . . .40 
 Pellas V. Breslauer, Costs at Law 4 . .198 
 Pelotas Coffee Co., in re, Karuth's case, CoTn- 
 
 pany D 39 141 
 
 Pemberton t. Barnes, Partition 12 • . 413 
 
 V. , Practice in Equity 117 . • 456 
 
 Pen'allt Silver Mining Co., in re, Fothergill's 
 
 case, Company G 33 158 
 
 , Eraser's case, Compamy G 23 . . 166 
 
 Pendlebury, v Greenhalgh, Highway 16 . . 277 
 
 V. , Negligence 9 . . . . 393 
 
 Penney, ex parte. In re Gresham Life Assur- 
 ance Society, Company D 58 . . . 144 
 Pennock v. Pennock, Will, Construction I 24 . 615 
 Peppercorn v. Gardner, Probate 56 . . 477 
 Percy v. Clements, Debtor and Creditor 1 . 220 
 
 , In the goods of. Probate 27 . . 473 
 
 Perkins v. Fladgate, Legacy 3 . . . 323 
 
 V , Will, Construction G 2 . .606 
 
 Pern's Trust Estate, in re, Practice in Equity 
 
 78 ■ . . .452 
 
 Perrett's case, in re United Ports Insurance 
 
 Co., Company G 10 154 
 
 Perring V. Traill, CAsniiy 9 . . .111 
 
 Perry v. Merritt, Will, Construction I 16 .614 
 
 v. Oriental Hotels Co., Company I 66. 178 
 
 Perth, the Earl of, v. Lord Elphinstone, Scotch 
 
 Law 21 520 
 
 Peru, the Republic of, v. Weguelin, Practice 
 
 in Equity 141 458 
 
 V , Production 13, 42 . .■ 481, 484 
 
 Petchell, In the goods of. Will, Formalities 38. 630 
 Peter v. Nicolls, Specific Performance 22 . 682 
 
 V. , Voluntary Settlement 7 . . 595 
 
 Petersfield Election Petition, Parliament 7, 
 
 14 404, 405 
 
 Petrococchino v. Bott, Shipping Law B 8 . 628 
 Petty V. Cooke, Principal and Surety 11 . 467 
 Peyton v. Hartig, Practice at Law, 20 . 442 
 
 Philip V. Phihp, Divorce 46 ... 232 
 
 Philips V. Bridge, Cosfo ai iaw 1 7 . . 199 
 
 V , Lease 23 .... 321 
 
 V. Eyre, Colonial Law 1 . . .122 
 
 V. Foxhall, Principal and Surety 21 . 468 
 
 V. Great Western Eailway Co., Eailway 
 
 11 ■ . . .493 
 
 V. Homfray ; Fothergill v. Phillips, 
 
 Mines 12 376 
 
 V. , Specific Performance 17 . . 652 
 
 T. Miller, Vetidor and Purchaser 24 . 592 
 
 y. MuUings, Voluntary Settlement 12 . 595 
 
 V. Routh, Practice at Law, 17 . . 441 
 
 V. Silvester, Vendor and Purchaser 13 . 690 
 
 , in re ; ex parte Kiveton Coal Co., Bank- 
 ruptcy 'S 7 . . . . . .77 
 
 , in re ; ex parte Phillips, Bankruptcy N 
 
 19 78 
 
 Phillipsou v. Gibbon, Specific Performance 
 
 26 . . 553 
 
 V. Hayter, Baron and Feme 1 . .83 
 
 Phillpotts V. Boyd, Church 1 . . .115 
 Philps V. Ilornstedt, Bankruptcy B 18 .50 
 
 , in re ; ex parte Moore, Bankruptcy G 
 
 44, 48 68 
 
TABLE OF CASES. 
 
 FAQE 
 
 627 
 
 Phipps V. Hale, WUl, Formalities 10 
 
 V. Lovegrove ; Prosser v. Phipps, Trmt 
 
 . B 29 
 
 Phcenix Bessimer Steel Co., in re, Company 
 D 47 
 
 Phosphate of Lime Company v. Green, Com 
 pant/ D 57 
 
 Phospho-Guano Co. (Lim.) v. Guild, Practice 
 in Equity 125 456 
 
 Pickard v. Anderson, Tnut B 4 . . .575 
 
 Pickering's Claim, in re International Con- 
 tract Co., Company D 4 . 
 
 Pickering v. James, Ballot Act 
 
 T. Marsh, Animals 4 . 
 
 T. Stevenson, Company D 13 
 
 Pickwell V. Spencer, WUl, Construction I 13. 613 
 
 Piercy v. Finney, Jurisdiction in Equity 6 . 298 
 
 , ex parte ; in re Piercy, Inspectorship 
 
 Deed 3 
 
 " PiJve Supfo-ioure," the, Admiralty 6 . 
 
 , Shipping Lam 2. 
 
 Pigott, In the goods of, Prolate 10 
 
 Pike v. Dickinson, Composition Deed 6 
 
 T. , Fraud 7 .... 
 
 Pilcher v. Eawlins, Vendor and Purchaser 22. 
 
 Pilling, in re ; ex parte Ogle ; ex parte Smith, 
 Bankraptoy G 47 {lAahUity of Trustee) 
 
 , Bankruptcy Q, 2 {Costs of Appeal) 
 
 Pimlico Tramway Co. v. Greenwich Assess- 
 ment Committtee, Bate 20 . . . 
 
 Pinchard t. Fellows, Costs in Equity 21 
 
 Pinkerton v. Easton ; in re Pinkerton, Attor- 
 ney 49 ...... . 
 
 Pisani v. Attorney-General for Gihraltar, 
 Attorney 31 ... . 
 
 Pitman's Patent, in re, Patent 25 
 
 Pitts T. Millar, Animals 2 . 
 
 Planet Benefit Building Society, in re 
 pany T 12 . . . . ' 
 
 Plant V. Kendrick, Production 40 
 
 V. Pearman, Attorney 23 
 
 Plews T. Baker, Arbitration 6 
 
 Plimpton V. Malcolmson, Injunction 45 
 
 V , Patent 39 
 
 Plumer t. Gregory, (No. 1), Attorney 32 
 
 T , (No. 2), Attorney 27 
 
 V. , Partnership 10, 11 
 
 Plumstead Board of Works v. British 
 Co., Metropolis 12 . 
 
 T. Ingoldby, Metropolis 15 . 
 
 Pocock's Policy, in re, Insurance 2 
 
 Pointon v. Pointon, Pleading in Equity 6 
 
 Pollard V. The Bank of England, Bill of Ex- 
 change 21 92 
 
 Pollock T. Pollock, Apportionment 7 . . ~ " 
 
 Poole V. Heron Annuity 10 
 
 Election Petition, Parliament 13 . 
 
 Firebrick and Blue Clay Co., in re ; 
 
 Hartley's case. Company D 63 . 
 
 , in re. Company 161. 
 
 Poole's Executors, ex parte. Company I 63 . 
 
 Pooley, in re ; ex parte Foster, Bankruptcy 
 12 
 
 ■— — , ex parte EusseU, Bankruptcy K 1 
 
 , Bankruptcy L 4 
 
 Com- 
 
 Land 
 
 578 
 142 
 
 143 
 
 134 
 41 
 23 
 
 135 
 
 290 
 12 
 545 
 471 
 181 
 262 
 691 
 
 68 
 82 
 
 506 
 202 
 
 37 
 
 423 
 
 22 
 
 173 
 
 484 
 
 36 
 
 27 
 
 288 
 
 im 
 
 37 
 
 37 
 
 416 
 
 373 
 374 
 290 
 430 
 
 25 
 
 24 
 
 405 
 
 144 
 179 
 178 
 
 54 
 70 
 70 
 
 PAGE 
 
 Pooley, in re. Parliament 2 . . . . 403 
 Pope V. Tearle, Adulteration of Food 3 .16 
 
 Port Canning Land Co. v. Smith, Contract 11. 187 
 Potter V. Duffleld, Frauds, Statute of 7 . 264 
 
 , in re; ex parte Parke, Partnership 7 .415 
 
 Potter, J. C, The. See J. 0. Potter. 
 Potteries, &c., Eailway Co. v. Minor, Bailway 
 
 34 497 
 
 Pott's Estate, in re. Settled Estates Acts 7 . 624 
 Pound V. Plumstead Board of "Works, Metro- 
 polis 9 372 
 
 Povah V. Walker, Practice in Equity 88 . 453 
 Powell V. Elliott, Specific Perforrrumce 24 . 563 
 
 V. Powell, Vendor and Purchaser 28 . 592 
 
 T , Divorce 36, 37 . . .231 
 
 V. , Partition 17 . . . . 413 
 
 V. Eawle, Legacy 23 . . . . 326 
 
 V. Eiley, Administration 23 . . 9 
 
 V. , Legacy 1% . . . .324 
 
 V. Smith, Lease 6 . . . .318 
 
 , Duffryn Steam Coal Co., v. TafFVale 
 
 Eailway Company, Injunction 4 . . 283 
 
 V. , Bailway 29 ... . 497 
 
 Power V. Wigmore, Metropolis 6 . . . 372 
 Powis, ex parte ; in re Bowen, Bankruptcy E 
 
 29 60 
 
 , in re Jay, Bankruptcy P 2 . . .81 
 
 Pratt V. Harvey, Charity 4 . . . .111 
 Frees v. Coke, Mortgage 48 ... 386 
 
 V. , Undue influence 1 . . . 584 
 
 Prentice v. London, Friendly Society 5 . . 268 
 Prescott V. Barker, Will, Construction D 2 . 602 
 Preston v. Dania, Practice at Law 26 . . 443 
 V. Great Yarmouth, the Corporation of. 
 
 Public Health Acts n . . . .488 
 Pretty v. Bickmore, Lease 13 . . .319 
 
 V. Nascawen, Practice at Law 29 . . 443 
 
 Price, ex parte ; in re Lankester, Bankrwpt(y 
 
 F8 62 
 
 V. Mayo, Executor 26 . . . .252 
 
 , in re ; ex parte BoUand, Bankruptcy B 
 
 14 50 
 
 Priehard v. Prichard, Will, Construction D 
 
 13 604 
 
 Pride v. Bubh, Baron and Feme 22 . .86 
 Prince v. CoUeetors of Customs of New South 
 
 Wales, Bevenue 1 510 
 
 V. The Queen, Bevenue 1 . . . 610 
 
 Pring's Trusts, in re. Costs in Equity 29 . 203 
 Printing and Numerical Eegistration Co, v. 
 
 Sampson, Contract 7 . . . .187 
 
 V. -, Patent 18 . . . .421 
 
 Prison Charities, in re. Charity 21 . .113 
 Pritchardv. Eoberts, ^Wor«ey 51 ■ . . 39 
 Pritchard's case, in re Travarone Mining Co., 
 
 Company Gr 29 157 
 
 Professional, Commercial and Industrial Be- 
 nefit Building Society, in re. Company I .172 
 
 Friendly Society 2 . . . . 267 
 
 Prosper United Mining Co., in re. Palmer's 
 
 case. Mines 18 377 
 
 Prosser v. The Bank of England, Bank of 
 
 Fhgland 41 
 
 V. Phipps, Phipps V. Lovegrove, 
 
 Trust B 29 578 
 
«70 
 
 TABLE OF CASES. 
 
 PAOE 
 
 Protheroe, in the goods of, Prohaie 40 . . 475 
 Provincial Insurance Co. of Canada v.^Ledue, 
 
 Marine Insurance 36 . . . .356 
 Prudential Insurance Co. v. Knott, Injunc- 
 tion 2 283 
 
 Pryer v. Gibble, Specific Performance 11 . 561 
 Pryor v. Pryor, Partition 19 , . .414 
 Pryse v. Pryse, Jurisdiction in Equity 3 . 298 
 Pudsey Coal dfas Co. v. Corporation of Brad- 
 ford, Company D 8 134 
 
 Pugh .and Sharman's case, in re Hercules In- 
 surance Co. Company G- 6 {Application for 
 
 153 
 176 
 
 64 
 250 
 199 
 209 
 
 Company I 41 {Evidence) 
 
 Pulling, in. re, ex parte Harris, Bankruptcy 
 
 G 1,9 
 
 Punchard, In the goods of, Executor i . 
 Purkis T. EloTver, Costs at Law 11 
 V. I , Comity Court 12 
 
 Uuartly v. Timmins, London 6 . ... 341 .' 
 Queen's Benefit Building Society, re. Friendly 
 
 Society 6 . . . . . . .268 
 
 Quinton v. Corporation of Bristol, Land^ 
 
 Clauses Act 1 . . . . . . , . . . 308 
 
 Eadcliffe Investment Co., ex parte, in re 
 
 Glover, Bankrmptay M 22 . . .76 
 
 Eadde V. Norman, 2Va& ilfffir^ 2. . . 666 
 Eadford t. Willis, Specific Performance 20 . 562 
 
 V. , Will, Construction H 30 . .611 
 
 Eadley v. London and North-Western Eail- 
 way Co., Jfegligence 26 ... . 396 
 
 & Bramhall, in re, in re Sankey Brook 
 
 Coal Co.,. Vendor and Purchaser 17 . . 690 
 Eaebiirn v. Andrews, Costs at Law 19 . .200 
 Eaggett V. Findlater, Trade Mark 3 . .666 
 Eaine v. Wilson, Practice in Equity 129 . 457 
 Eainy v. Bravo, Evidence 17 . , .248 
 
 V. , lAhel 14 . . . - . ,332 
 
 V. , Practice at Law 9 . . .441 
 
 Eajah, The, Shipping Law F 23 . . . 535 
 Ealph V. Hurrell, Malicious Injury 3 . . 346 
 Eamsay, in re, Colonial Law 5 . . .123 
 Eamsden v..Brearley, 5aro» (md i''eme 26 . 86 
 
 V. , lihel 13 332 
 
 V. Lupton, Bill of Sale 7 . . .95 
 
 . in re, ex parte M'Arthur, Mortgage 24. 383 
 
 Eanoe'.s case, in re County Marine liisurance 
 
 Co., Company :E 2S 176 
 
 Eanger, The, and The Cologne, Shipping 
 
 Law.¥ 10 634 
 
 Eankin v. Potter, Marine Insurance 35 . 356 
 Eansford v. Maule, Bankruptcy B 30 . .62 
 Easche, The, Admiralty 42 . . . .16 
 Eashleigh, ex parte, in re Dalzell, Bank- 
 ruptcy C 4 , 63 
 
 Eatcliffe v. Barnard, Mortgage 14 . .381 
 
 inre, exparte. Till, ]Ba»j/!:?"!jpi!(^ M 1 . 73 
 
 Eathven, Parish of, v. Parish of Elgin, House 
 
 of Lords 5 278 
 
 , Scotch Law 10 .... . 520 
 
 Eavensoroft v. Eavenscroft,, Divorce 66 . 234 
 
 PAGB 
 
 Eawlings v. C6al Consumers Assoc. (Lim.) 
 
 Contract 4 186 
 
 V. , Velony • . . . . . • 266 
 
 Eawlins, in re. Attorney 36 . . . .38 
 Eawnsley v. Hutchinson-, Justice of the 
 
 Peace 11 302 
 
 Eayner v. Koehler, Pleading in Equity 10 . 430 
 > ex parte, in re Johnson, Ba/nk- 
 
 ruptcy Jj'lO . . . '. .. .71 
 Eeader, ex parte, in re Wrigley, Bankruptcy 
 
 B 1, 19 {Fraudulent Preference) . 48, 51 
 
 N 21,.36 {Practice) . . .78, 79 
 
 Eeaston's Estate, in re. Lands Clauses Act 
 
 37 312 
 
 Eedpath v. Allan, The Hibernia, Shipping 
 
 Law E 2 646 
 
 V. , Statute 3 . . . . 555 
 
 Eedgrave v. Lee, Factory .... 254 
 Eedway v. M'Andrew; Pleading at Law 1, . 427 
 Eeed v. Blake, Will, Construction L 12 . 617 
 
 V. Braithwaite, Will, Construction L 16 619 
 
 V. Kilburn Co-operative Society, Debtor 
 
 and Creditor 6 . . . ... ■ 221 
 
 & Steele, ex parte, in re Tweddell, 
 
 Bankruptcy B 1 7 50 
 
 Eees V. Engelback, Pleading in Equity 9 . 430 
 
 Y. Eees, Will, Formalities 6 . . 626 
 
 V. Williams, Attorney 34 . . .38 
 
 Eegina v. Abney Park Cemetery Co., Rates 
 
 U . . . . 602 
 
 V. Allen, Bigamy 2 . . . .88 
 
 V. Church, 1 . . . .117 
 
 V. All Saints, Wigan, Church Eates 1 . 121 
 
 V. Ardley, False Pretence 2 . . . 265 
 
 V. Armitage, Bastardy 4 . . .88 
 
 V. Bagge, Highway 3 . . . . 275 
 
 V. Bailey, Thomas, Larceny 3 . 316 
 
 V. Balls, Emhezzlement 1 . . . 24 1 
 
 V. Barratt, -Eape 499 
 
 V. Bedford Union Assessment Com- 
 mittee, Bates 24 505 
 
 V. ISird, Larceny 6 . . . . 317 
 
 V. Birmingham, Borough of. Alehouse 1 18 
 
 — ^- V. Union, Mandamus 3 . . 346 - 
 
 V. Bradfield, inhabitants of. Highway 2 275 
 
 V. Brecknockshire, Justices of. Justice 
 
 of the Peace 12 302 
 
 Cambrian Eailway Co., Lands Clauses 
 
 ActU ■, 310 
 
 V. Carnatio Eailway Co., Baron and 
 
 Feme 29 86 
 
 V. Casswell, Market 3 . . .361 
 
 V. Castro, Jurisdiction at Law 3 . . 297 
 
 V. , Practice at Law 27 . . . 443 
 
 V. Chambers, Forgery 2 . . . 260 
 
 V. Champnays, Statute 4 . , . 556 
 
 V. Chautrell, Certiorari . . .109 
 
 V. Chelsea, St. Luke's Vestry, Lands 
 
 Clauses Act 11 309 
 
 v. Cheshire Lines Co., Special Con- 
 stable . , , . . . 549 
 
 V. Child, Arson 1 .... 32 
 
 V. Chipping- Wycombe, Mayor ot,-Muni- 
 
 cipal Corporation 8 . . . . . 388 
 V. Chorlton -Union, i?<rfei 32 . .607 
 
TABLE OP CASES. 
 
 671 
 
 Begina V.Christian, ifVawd 8 . . .262 
 
 " v. Cockerell, Sewers 3 , . . . 626 
 
 — V. Cooke, Larceny 4 , . . ,317 
 
 i V. Cooper, Fraud 9 . . . . 262 
 
 V. Coote, Arson 5 . . . .32 
 
 T. ,fioloaial Law i . . .123 
 
 V. , Evidence 26 . . . .249 
 
 v. Cousins, Quo warranto 1 . . ,491 
 
 T. Creese, Debtors Act 20 . . . 223 
 
 V. Cullum, Embezzlement 4 . . . 242 
 
 V. Cumberland, Jxistices of, Justice of the 
 
 Peace 16 . , 303 
 
 V. Curzon, Alehmse 3 . . . .19 
 
 V. Deton, Justices of; Gill v. Bright, 
 
 Alehouse 19 . 21 
 
 T. Dunning, Perjicry . , . .426 
 
 v. Elliott, Foreign Enlistment Act 1 . 257 
 
 T. Exeter, Justices of, Alehouse 12 . 20 
 
 T. , Review of Justices Decisions 
 
 Act 512 
 
 V. Farquhar, .^fcAojtse 13 . . .20 
 
 T. Farrell, Evidence 27 . . . .249 
 
 V. Fletcher, Bastardy 2 . . .88 
 
 v. Fordham, Poor Law 2 . . . 432 
 
 T. Foulkes, Embezzlement 2 . . . 241 
 
 T. Foundling Hospital, Bates 31 . . 506 
 
 T. Francis, FaXse Pretence 3 . . . 255 
 
 v. Grainsborough TJniou, Bates 28 . . 506 
 
 v. Glynne, Bastardy 3 . . . .88 
 
 T. Goddall, Justice of the Peace 7, 
 
 15 302, 303 
 
 V. Goldsmith, Eeceiviiig Stolen Goods . 508 
 
 V. Grasmere Local Board, Public Health 
 
 Actl 486 
 
 V. Gumble, Indictment 2 . . . 280 
 
 ■ V. Hackney Board of Works, Metropolis 
 
 16 
 
 12 
 
 . Y. Hannay, Justice of the Peace 2 . 
 
 ■ V. , Lands Clauses Act 26 
 
 ■ V. Hardy, Bailway 41 . 
 
 . T. Harrald, Municipal Corporation 10, 
 
 374 
 301 
 311 
 498 
 
 388 
 
 V. Harris and Cocks, Nuisance 9 . . 400 
 
 V. Harvey, Com 2 . . . .122 
 
 v. Haslingfield, Overseers of, Jury 1 . 300 
 
 V. , Poor Law 3 . . . . 432 
 
 V. Hazelton, False Pretence 1 . . 255 
 
 V. Hervey, Highway 6 . . . . 275 
 
 V. Heslop, Justice of the Peace 1 . .301 
 
 V. Holmes, Assault 2 . . . .32 
 
 y. , FAidence 26 . . . .249 
 
 V. Johnson, Coroner .... 196 
 
 V. Justices of Kent, Bates 33 . . 507 
 
 V. Kay, Bastardy 6 . . . .88 
 
 V. Kent, Justices of, Justice of the Peace 5 302 
 
 V. Bates 33 507 
 
 V. Kitchener, Locomotive . . .339 
 
 V. Lancashire, Justices of. Alehouse 2 . 18 
 
 T. , Bates 38 607 
 
 V. Lefroy, County Court 5 . . .208 
 
 V. Lewes Prison, Visiting Justices of. 
 
 Lunatic 16 344 
 
 T. Littlechild, Justice of the Peace 1 .301 
 
 , V. The Mayor, &c., of Liverpool, Muni- 
 cipal Corporation 5 388 
 
 FAQE 
 
 Eegina v. The Local Government Board, Poor 
 
 Law 5 433 
 
 V , Public Health Actl . . 486 
 
 V. Lack, Assault 3 . . . .32 
 
 V. London and North-Western Bailway 
 
 Co., Rates 24 605 
 
 v. London and >St. Katharine Docks, 
 
 Justice of the Peace 9 . . . . 302 
 
 ■ V. , Production 9 . . . . 481 
 
 r- V. Lords Commissioners of the Treasury, 
 
 Mandamus 2 346 
 
 V. Mann, Alehouse 9 . . . .20 
 
 .V. Manning and Bogers, Arson 2 . .32 
 
 V. Martin, Jury 2 300 
 
 V. Maule, Highway 7 . . . . 276 
 
 V. M'Cleverty, ^dmira% 12 . .12 
 
 V. Metropolitan. District Railway Co., 
 
 Bates 15 603 
 
 V. Middlesex, Justices of, Arbitration 31 31 
 
 V. , Justice of the Peace 8 . . 302 
 
 V ^, Bates 36 607 
 
 V. , Alehouse 15 . . . .20 
 
 V. Middleton, Larceny 1 . . .316 
 
 V. Midland Bailway, Lighting and 
 
 Watching Rate 2 334 
 
 V. Morgan, Public Health Act2 . . 486 
 
 V. Morton, Forgery 1 . . . . 260 
 
 T. Mount, Penal Servitude 2 . - . . 425 
 
 V. Neath Canal Navigation Co., lAghting 
 
 and Watching Rate 1 . . . . 334 
 V. Neath, Overseers of, Lighting and 
 
 Watching Rate 1 334 
 
 V. Negus, Embezzlement 3 . . .241 
 
 V. Newboult and Holdsworth, Arsmi 4 . 32 
 
 V. Norfolk, Justices of, Highway 3 . 275 
 
 V. Oastler, Costs at Law 12 . . . 199 
 
 V. , Indictment 3 . . . . 280 
 
 V. The Viee-Chancellor of Oxford Uni- 
 versity, University 586 
 
 V. Pawlett, Justice of the Peace 6 . . 302 
 
 V. Payne, Evidence 22 . . . . 248 
 
 . V. Pembliton, Malicious Injury 1 . . 345 
 
 V. Percy, Justice of the Peace 16 . . 303 
 
 V. Peterborough, Mayor of, Mandamus 1 346 
 
 V. Pilgrim, Alehouse 11 . . .20 
 
 v. Poor Law Board, Poor Law 4 . .433 
 
 V. Powell, Highway 5 . . . . 275 
 
 y. Price, Parliament 8 . . . . 404 
 
 y. Prince, Abduction .... 1 
 
 y. Eea, Bigamy 1 88 
 
 V. Eeeve, Evidence 21 . . . . 248 
 
 v. Registrar of Friendly Sooities, Trade 
 
 Unions 568 
 
 V. Roberts, Costs at Law 15 . . . 199 
 
 V. Eollett, Highway 4 . . . . 276 
 
 V. RoweU, Alehouse 4 . . . .19 
 
 y. St.. George's Union, i?afos 26 . , 505 
 
 V. St. lyes Union, Poor Law 10 . . 433 
 
 y. St. Luke's,. Chelsea, Vestry of. Lands 
 
 Clauses Act 11 ■ . 309 
 
 V. St.Olavp's Vtxwvi, Poor Law 12 . 434 
 
 y. Satchwejl, Arson 3 . . . .32 
 
 v. Sheffield, Corporation of, Municipal 
 
 Corporation 4 388 
 
 T. Shropshire Union Co., Company G 52 161 
 
672 
 
 TABLE OF CASES. 
 
 PAGE 
 
 aa V. Smith, Alehouse 6 . . .19 
 
 V. , Service of Summons . . . 522 
 
 v. Staffordshire, Justices of, Foor Law 9 433 
 
 V. Stanger, Libel 17 
 
 T. Stepney Union, Limatic 17 
 
 T. , Poor Law 14 . 
 
 V. Strachan, Municipai Corporation 1 1 , 
 
 T. , Stamps 6 . . . 
 
 T. the Overseers of Sutton Coldfield, 
 
 Jiistioe of the Peace 9 . . . 
 
 V. Taylor, Manslaughter 
 
 T. , Alehouse 6 . . . . 
 
 V. Thomas, Coin 1 . . . . 
 
 T. Thompson, Evidence 23 . . 
 
 T. Tomlinson, Justice of the Peace 1 3 
 
 V. Townley, Larceny 2 . 
 
 V. Venn, Copyholds 2 . . . 
 
 V. Vine, Alehouse 7 . . . . 
 
 T. Waddon, Overseers of, Rates 4 
 
 V. Walker, Misdemeanour 
 
 V. Warburton, 
 
 V. "Ward, 
 
 V. , Qiw warranto 2 
 
 V. Waterhouse, Nuisance 4 . 
 
 V. Weaver, Evidence 8 . 
 
 V. West Derby, Overseers of. Bates 22 . 
 
 V. White, Parent and Child 7 
 
 V. Widdop, Evidence 24 . . . 
 
 V. Wigan, Churchwardens of, Church 
 
 Bates 1 . . . ■ . 
 
 V. Willis, Penal Servitude 1 . 
 
 V. Worcester Union, Poor Law 1 1 
 
 Eehoboth Chapel, in re, Landi Clauses Act 35 312 
 
 Eeidpath's case, in re Constantinople and Alex- 
 andria Hotels Co., Company G 14 . 
 
 , Evidence 15 ..... 
 
 Eendlesham, Lord, v. Haward, Parliament 16 
 
 Eennie v. Morris, Company G 46 . 
 
 Eeiinison v. Walker, County Court 3 
 
 Eepublic of Liberia v. Imperial Bank, Pro- 
 duction 31, 35 483, 484 
 
 Eepublic of Peru v. Weguelin, Practice in 
 Equity 141 .548 
 
 Eestauracion, The, Admiralty 12 . . .12 
 
 Eeusa, Princess of, v. Boss, Company 4 .133 
 
 Eeuter's Telegram Co. v. Byron, Injunction 31 287 
 
 Eaynard v. Arnold, Landlord and lenant 19 307 
 
 Eevell V. Blake, Bankruptcy G 26, 27 . 
 
 Eeynolds v. Howell, Attorney 12 . 
 
 V. , Practice at Law 41 . 
 
 V. Lord of the Manor of Woodham 
 
 Walter, Copyholds 7 
 
 , In the goods of. Will, Formalities 48 . 
 
 Ehodes v. Airedale Commissioners, Arbitra- 
 tion 14 
 
 V. , Lands Clauses Act 28 
 
 V. Barrett, Practice in Equity 45 . 
 
 , ex parte, in re Shakleton, Bankruptcy 
 
 G43 . . . . . . . 
 
 Ehys V. Dare Valley Eailway Co., Lands 
 Clauses Act 24 . 
 
 Eiee v. Slee, Alehouse 18 
 
 Eichards v. Delbridge, XVusi A 1 
 
 V. Fincher, Chmch 12 . 
 
 V. Gellatly, Production 7 
 
 333 
 344 
 434 
 389 
 555 
 
 302 
 347 
 
 19 
 122 
 248 
 302 
 316 
 193 
 
 15 
 500 
 378 
 184 
 632 
 491 
 399 
 246 
 505 
 402 
 249 
 
 121 
 424 
 433 
 
 154 
 248 
 405 
 160 
 208 
 
 65 
 
 36 
 
 444 
 
 194 
 631 
 
 28 
 311 
 449 
 
 67 
 
 311 
 21 
 572 
 117 
 480 
 
 Eegina v. Goddard, Costs in Equity 77 . 
 
 ■ v. , Practice im Eqmty 144 . 
 
 , In the goods of, Probate 20 . 
 
 and the Home Assurance Association 
 
 (Lim.), in re. Company G 12 . 
 Eichardson v. Great Eastern Eailway Co., 
 
 Negligence 8 ..... . 
 
 — V. Morton, Administration 28 
 
 V, North-Eastern Eailway Co., Carrier 
 
 34 
 
 V. Sylvester, False Representation 
 
 V. Stanton, Shipping Law E 2 
 
 V. Williamson, Company D 20 
 
 I V. , Contract 29 . 
 
 v. Willis, Action 7 • • ■ ■ 
 
 V. , Costs at Law 26 . . . 
 
 V. , Evidence 7 . . . . 
 
 — V. , Practice at Law 32 . 
 
 V. Wright, County Court 22 . 
 
 V. Younge, Limitations, Statute of 26 . 
 
 -, in re, ex parte Smart, Bill of Exchange 
 
 28 
 
 207 
 458 
 472 
 
 15 
 
 9 
 
 108 
 255 
 631 
 136 
 191 
 4 
 200 
 246 
 443 
 211 
 
 94 
 
 472 
 
 , In the goods of. Probate 21 . 
 
 Eichardson's case, in re Imperial Mercantile 
 
 Credit Association, Company G 43 . . 159 
 
 Purchase, in re. Land Registry 1 . . 303 
 
 Eiche V. Ashbury Carriage Co., Company 
 
 D 56 143 
 
 Eicher v. Voyer, Colonial Law 14 . . '. 125 
 Eidge's Trusts, in re, Will, Construction 
 
 L 15 618 
 
 Eidgway v. Edwards, Practice in Equity 142 . 458 
 Eiga, The, Shipping Law P 2 . . . 545 
 Eimini v. Van Praagh, Bill of Exchange 5 . 89 
 Eing V. Jarman, Legacy and Succession Duty 
 
 8 328 
 
 Eio Lima, The, Admiralty 50 . . .15 
 Eipley v. Great Northern Eailway Co., Lands 
 
 Clauses Act 16 310 
 
 Eiver Steamer Co., in re, Mitchell's Claim, 
 
 Limitations, Statute of 2i . . . . 338 
 Elvers Settlement Trusts, in re, Marriage 
 
 Settlement 5 362 
 
 Eoach V. Blake, Will, Construction L 12 . 617 
 Eoads T. Trumpington, Rates . . . 601 
 Eobarts, In the goods of. Probate 38 • . 475 
 Eobert Morrison, The, The Schwar, Admi- 
 ralty 52 15 
 
 Eoberts v. Albert Bridge Co., Practice in 
 
 Equity 50 . . . .' . . .449 
 
 V. Crowe, Company G 78 . . . 165 
 
 -v. 'Egerton, Adulteration of Food 2 . 16 
 
 V. Humpjireys, Alehouse 21 . . .21 
 
 Eobertson v. Fraser, Will, Gonstruction 15 . 612 
 
 V. Walker, Power 26 . . . . 438 
 
 , ex parte, in re Magnus, Bankruptcy 17 69 
 
 , ex parte, in re Morton, Bankruptcy N 29 79 
 
 Eobey & Co.'s Perseverance Ironworks v. 
 
 OUier, Bill of Exchange 11 . . .90 
 Eobius V. Goldingham, Attorney 40 . .38 
 
 V. Eose, Forfeiture 6 . . . . 269 
 
 V. , WUl, Construction L 26 . . 620 
 
 Eobinson V. Briggs, SiW o/SflZe 17 . . 96 
 
 V. Davison, Contract 32 . . . 191 
 
 V. Emanuel, London 6 , . . .341 
 
TABLE OF CASES. 
 
 673 
 
 152 
 
 104 
 
 383 
 406 
 332 
 421 
 
 112 
 
 PAGE 
 
 Eobinsou v. Eyans, Mm-riage Settlement 12 . 364 
 
 V. , Practice in Equity 87 . . 453 
 
 T. Knights, Shipping Law 17 . . 540 
 
 V. Mollett, Broker 2 . . . .99 
 
 T. , Principal and Agent 1 . . 459 
 
 V. Eobinson, Divorce 34 . . . 231 
 
 , In the goods of, Will, Construction B 2 . 602 
 
 , ex parte, in re Magnus, Banhrwptoy 17 69 
 
 — "— and Preston's Brewery Co., in re, Sid- 
 ney's case, Company G 2 . 
 Eobson T. North-Eastern Eailway Co., Car- 
 
 rie>' 9 
 
 v. Shropshire Union Co., Company G 62 161 
 
 Eock T. Lazarus, Copyright 2 . . . 194 
 Eoeke, ex parte, in re Hall, Bankruptcy 
 
 13 81 
 
 Eodger y. The Comptoir d'Esoompte de Paris, 
 
 Privy Council 4 469 
 
 Eodochanachi v. Elliott, Marine Insurance 
 
 22, 26 352, 353 
 
 Eoffey T. Early, Administration 31 . .9 
 
 T. , Will, Construction F . . 605 
 
 Eogers, in re, ex parte Villars, Bankruptcy G 
 
 31 ; 66 
 
 EoUand t. Hart, Mortgage 25 . . . 
 
 BoUeston v. Cope, Parliament 17 . 
 
 Eollins V. Hincks, Libel 3 . . . . 
 
 T. , Patent 23 .... 
 
 Eomney, Earl, ex parte, in re Alehin's Trusts, 
 
 Charity 18 
 
 Eomney Marsh, Bailiflfs of, t. Corporation of 
 
 Trinity House, Negligence 7 . . . 393 
 Eonalds v. Eonaids, Divorce 39 . . .231 
 Eoper V. Johnson, Damages 6 . . .217 
 Eoper Curzon v. Eoper Curzon, Advancement 
 
 12 18 
 
 Eose, The, Shipping Law 3 . . . 545 
 Eosher t. Williams, Voluntary Settlement 2 . 594 
 Eoss V. Fedden, Negligence 20 . . . 395 
 
 T. Parkyns, Partnership] 1 . . . 414 
 
 Boss's Trusts, in" re. Distributions, Statute of 226 
 Eouquette v. OTermann, Bill of Exchange 12 90 
 Bouse and Meier, in re. Arbitration 4 . .27 
 Bow's Estate, in re. Practice in Equity 93 . 454 
 
 WUl, Construction N 6 . . . .622 
 
 Eowan, ex paai», in re Kiddel, Bankruptcy 
 
 N 15 .77 
 
 Eowley v. London and North-Western Eail- 
 
 way Co., CampbeWs Act 1 . . . 100 
 
 EowseH T. Morris, Costs in Equity 47 . . 205 
 
 T. , Executor 31 . . ., . 253 
 
 Eoyal Victoria Palace Syndicate, in re, Moore 
 
 and De la Torre's case. Company A3 .132 
 Eoyle, ex parte, in re Johnson, Bankruptcy 
 
 Q7 ■ . .82 
 
 Bubery v. Grant, Pleading in Equity 1 . 429 
 Euby- Mining Co., In re, Askew's case. Com- 
 pany D 61 144 
 
 Buddy, In the goods of. Prolate 44 . .475 
 Eudge V. Bichens, Mortgage 2 . . . 379 
 
 T. , Pleading at Law 8 . . . 429 
 
 Ending's Settlement, in re. Power 6 . . 435 
 Buffle, ex parte, in re Dummelow, Bankruptcy 
 
 LI 70 
 
 Buffles V. Alston, Baron and Feme 34 . -87 
 Digest, 1870-75. 
 
 PAGE 
 
 EumboU, ex parte, in ro Taylor, Ba/nkruptey 
 
 A 7 47 
 
 Eusby T. Newson, J?OTe«Me 2 . . .511 
 Eussell T. Tithe Commissioners, Tithes 2 . 564 
 V. Wakefield Waterworks Co., Company 
 
 D 24 137 
 
 , ex parte, in re Eussell, Bankruptcy 
 
 I 4 {Benevolent motives to debtor) . . 69 
 
 , Bankruptcy li 17 {Close of Liquidation) 72 
 
 , in re, ex parte Kemp, Bankruptcy 
 
 E31 60 
 
 , in re, ex parte Pooley, Bankruptcy K 1 
 
 {Privilege of Parliament) , . . .70 
 
 , Bankruptcy L 1 {Liquidation ; resolution) 7 
 
 , Parliament 2 403 
 
 Boad Purchase Moneys, in re, ilfori^'a^'e 15 381 
 
 Bussell's Policy Trusts, in re. Chose in Action 115 
 Eyder, ex parte, in re Douglas, Bankruptcy 
 
 F 6 . . . . . . . .61 
 
 Eye Union, Guardians of, v. Payne, Nuisance 
 
 7 400 
 
 Bijves'v.^Yves, Administration 19 . . 8 
 
 V. , Tenants in Common 1 . . 563 
 
 v. , Will, Construction! I . .612 
 
 Saokville v. Smyth, Administraiian, 17 . . 8 
 Sadler's WeUs Theatre, in re. Practice in 
 
 Equity 11 446 
 
 Saint V. PiUey, Lease 34 . . . .322 
 St. Bartholomew's Hospital, ex parte, Gover- 
 nors of, 
 St. Dunstan's Charity Schools, in re. Costs in 
 
 Equity S5 204 
 
 St. German's, Earl, v. Crystal Palace Bail. 
 
 Co., Bailway 17 495 
 
 St Margaret's, Bochester, Burial Board v. 
 
 Thompson, Burial 6 100 
 
 V. , Lands Clauses Aot 57 . . 316 
 
 St. Martin's, Birmingham, Bector of, ex 
 
 parte. Burial 3 100 
 
 St. Mary, Islington, Vestry of, v. Barrett, 
 Metropolis 11 . . . . . . 373 
 
 St. Mary, Newington, Vestry of, v. Jacobs, 
 
 Highway 10 . ' 276 
 
 St. Thomas Hospital, Governors of, v. Strat- 
 
 ton. Bates 12 602 
 
 Salaman v. Glover, Lease 28 . . . 321 
 Sale V. Lambert, Frauds, -Statute of & . . 264 
 Salisbury, Marquis of, v. Bontems, Parlia- 
 ment 15 405 
 
 V. Bulwer, Parliament 16 . . . 405 
 
 V. South Mimms, Overseers of, Parlia- 
 
 inent 15 405 
 
 in re. Places of Worship Sites Act . . 427 
 
 Saltmarsh v. Hardy, Practice in Equity 21 . 447 
 Salvin v. North Brancepeth Coal Co., Injunc- 
 tion 2i 286 
 
 Sampson, in re, Seeton and Beer Bail. Co. 
 (judgment debtors), London and South- 
 western Bail. Co. (garnishees), Attach- 
 ment 5 33 
 
 Samson, in the goods of. Probate 4 . .471 
 
 San Boman, The, Shipping Law K 3 . . 544 
 
 Sandell v, Franklin, Lease 24 . . . 321 
 
 4B 
 
674 
 
 TABLE OF OASES. 
 
 PAGE 
 
 Sander v. Heathfield, Executor 9 . . . 250 
 Sanderson v. Aston, Principal and Surety 20 468 
 
 V. Graves, Fraud, Statute of2. . 263 
 
 V. Sanderson, Divorce 26 . . , 230 
 
 Sanderson's Patent Association, in re, Oo7n/- 
 
 ,pany 16 173 
 
 Sandilands, in re, in re Mayer, Acknowledg- 
 ment 6 2 
 
 Sanger v. Sanger, Baron and Feme 23 . .86 
 Sankey Brook Coal Co. v. Marsh, Company 
 
 G42 159 
 
 V. , Set-off 1 522 
 
 , in re, ex parte liquidators. Deed 3 . 224 
 
 , ex parte, in ' re Eadley & Bramhall, 
 
 Vendor and Purchaser n .... 590 
 Sant V. Sant, Colonial Law 29 . . . 127 
 Sappho, Owners of The, v. Denton, Shipping 
 
 LawTi 547 
 
 Sargent, ex parte, in re Tahiti Cotton Co., 
 
 Company G 60 162 
 
 , Specific Performance 13 . . .551 
 
 Sargood's Claim, in re Beulah Park Estate, 
 
 Company H 25 171 
 
 SaxillY. 'Brown, Injunction 13 . . . 284 
 
 T. , Pleading in Equity 13 . . 431 
 
 r. , Production 34 . . . . 484 
 
 I v. Gauthier, Colonial Law 15 .125 
 ) T. Snell, Practice in Equity 133 . 457 
 
 V. Tyers, Will, Construction I 23 . . 615 
 
 Savin, in re. Inspectorship Deed 4 . . . 290 
 Sawbridge v. Hill, Probate 15 . . . 472 
 Sawyer v. Vestry of Paddington, Metropolis 
 
 17 374 
 
 Saxbyv. Olunes, PffliOTi 19 . . . .421 
 -: — V. Easterhrook, Patent 34 . . . 423 
 
 v. , Production 8 . . . . 481 
 
 V. Kennett, Patent 10 . . . .421 
 
 Saxb/s Patent, in re, Patent 10 . . , 421 
 
 , FaUnt 19 421 , 
 
 Sayer, ex parte. Attorney 4 . . . .35 
 Sayers v. Corrie, Corrie v. Sayers, Practice 
 
 in Equity 46 449 
 
 Scaffold T. Hampton, Practice in Equity 131 457 
 Soaife v. Tarrant, Carrier 23 . . . 106 
 Scarlett, in re. Lunatic 8 .' . . . 342 
 Scarth, in re, ex parte Scarth, Bankruptcy 
 
 E 3 56 
 
 , Detinue 3 225 
 
 Soheibler, in re, ex parte Holthausen, Conflict 
 
 of Laws 5 183 
 
 Sohibsby v. Westenholtz, Foreign Judgment 2 257 
 Schmidt v. Tiden, Shipping Law 14. . 640 
 Sehomberg, ex parte, in re Sehomberg, Bank- 
 ruptcy B 35 . , . . . .53 
 Schroder's case, in re Mercantile Trading Co., 
 
 Company G 27 157 
 
 Schulte, ex parte, in re Matanie, Bankruptcy 
 
 G 28 65 
 
 Schwain, The ; The Eobert Morrison, Admi- 
 ralty 52 16 
 
 Scott T. Bennett, Practice at Law 43 . . 444 
 
 T. Cumberland, Administration 21 . 8 
 
 V. Maxwell, Practice in Equity 113 . 465 
 
 and Young, ex parte, Paferei 15 . .421 
 
 Scout, The, Shipping Law T 7 . . . 547 
 
 PAOB 
 
 Sorimgeour's Claim, Laoey v. Hill, Stock Ex- 
 change 2 557 
 
 Serutton v. Pattillo, Baron and Feme 9 . .84 
 Sculthorpe v. Tipper, Trust B 6 . . .575 
 Searle v. Laverick, Negligence 31 . . . 398 
 Seaton v. Twyford, Mortgage 4 . . . 379 
 Sedley, in re, ex parte Cobb, Bankruptcy M 2 73 
 Selby V. Nettleford, Way 7 . . . .600 
 Sewart's Estate, in re. Lands Clauses Act 62 315 
 Sewell v. Cheetham, London 7 . . . 341 
 Sewell's Estate, in re, Tenant for Life 17 . .662 
 Seymour v. London and Provincial Marine In- 
 surance Co., Marine Insurance 23 . . 362 
 Shackleton, in re, ex parte Rhodes, ex parte 
 Whitaker, Bankruptcy G 43 . . .67 
 
 , Sale 19 616 
 
 , Vendor and Purchaser 31 . . . 593 
 
 Shafto V. Butler, Marriage Settlement 7 . 363 
 Shand v. Du Buisson, London 6 . . . 341 
 Sharland, in the goods of, Windeath v. Shar- 
 
 land. Probate 25 . . . • . 473 
 Sha.ima.nY.'BrandLt, Frauds, Statute of li . 265 
 Sharp V. Powell, Damoyes 21 . . .219 
 
 V. St. Sauveur, Alien . . . .22 
 
 , v. ., , Trust C 14 . . . 580 
 
 Sharpe v.. San Paulo Eail. Co., Parties 1 . 412 
 
 V. , Railway 9 . . . . 493 
 
 Shaw V. Alderson, Master and Servant 16 . 369 
 
 V. Poster, Contract 42 . . . .193 
 
 V. , Mortgage 39 . . . . 385 
 
 V. , Vendor and Purchaser 12 . 589 
 
 , ex parte, in re Denton Colliery Co., 
 
 Company G 38 159 
 
 Shaw's Claim, in re Brompton and Longbourne 
 Eail. Co., Company H 22 . . . . 171 
 
 Settled Estates, in re, Settled Estates 
 
 Acts 16 625 
 
 , Practice in Equity 64 . . . . 451 
 
 ^■^ Trusts, in re. Practice in Equity 135 . 467 
 Shearman v. British Empire Miitual Assur- 
 ance Association, Debtor and Creditor 3 . 220 
 Shedden v. Patrick, Scotch Law 3 . . 519 
 SheflS.eld v. Sheffield, Practice in Equity 24 
 {Appeal), 56 {Dismissal) . . . 447, 450 
 
 V , Probate 73 ... . 479 
 
 "Waterworks Co. v. Bennett,' Water 
 
 Ratel 598 
 
 Sheffield's Application for Letters Patent, in 
 
 re. Patent 13 421 
 
 Shelland, ex parte, in re Adams, Stamps 4 . 655 
 
 Shepheard v. Beetham, Probate 60 . . 477 
 
 V. "Walker, Specific Performance 10 . 550 
 
 V. "Whitaker, Libel 6 . . . .331 
 
 Shepherd v. Harrison, Sale, 21 . . . 516 
 Sheppard v. Bennett, Church 20, 22, 
 
 31 119, 120, 121 
 
 V. , Privy Council 5 . . . 469 
 
 Sherratt v. Mouutford, Will, Construction 
 
 H20 610 
 
 .Sherwin v. "Whyman, Parliament 21, 56. 406 411 
 Shirreff's case, in re Imperial "Wine Co,, 
 
 Company H 71 121 
 
 Short V. Short, i)i);orce 11 . . . .228 
 Shropshire Union Eail. Canal Co. v. The 
 
 Queen, Mortgage 38 . . , . , 386 
 
TABLE OF CASES. 
 
 678 
 
 Sidebotham, in re, ex parte G-illebrand, Bank- 
 ruptcy N 8 (Issue of facts) . ,. -76 
 
 , Bankruptcy, N 17 {Evidence: Judge's 
 
 Notes) .77 
 
 Sidebottom v. Sidebottom, Will, Construction 
 
 !< 28 , . , . 620 
 
 , in the goods of, Will, Construction L 28 620 
 
 Sidney t. Sidney, Lagacy 31 . . . .326 
 Sidney's case, in re Robinson and Preston's 
 
 Brewery Co., Company G- 2 . . .152 
 Simey v. Dixon, Parliament 49 . . . 410 
 
 V. Marshall, Parliament 23 . . . 406 
 
 Simmons T. Pitt, Tnist C 12 . . . 880 
 Simpkin v. Justices of Birmingham, Alehouse 
 
 10 20 
 
 Simpson V. Blues, in re The Madge Wildfire, 
 
 County Court 14 210 
 
 Simpson t. Crippin, Sale 12 . . . . 514 
 
 y. Henning, Bankruptcy M 2S . .76 
 
 , in re, ex parte Eurniss, Partnership 22 418 
 
 V. London General Omnibus Co., Car- 
 rier 3 103 
 
 T. , Negligence 4 . . . . 392 
 
 V.Peach, Will, Construction 1, Z . .616 
 
 T. Ritchie, Partition 26 . . . 414 
 
 T. Smith, Metropolis 1 . . . .371 
 
 — '— T. Wells, Highway 11 . . . . 276 
 Singer t. Audsley, Practice in Equity 9 
 {Cross-examination on Affidavit), 79 {Mo- 
 tion) . 446, 452 
 
 Singleton t. Barrett, Practice in Equity 48 . 449 
 Sinnettv. Herbert, Charity li, 19. . Ill, 112 
 Sisters, The, Shipping Law F 4 . . . 534 
 Skinner v. Great Northern Rail. Co., Produc- 
 tion 3 ...'.. . 480 
 
 T. Orde, Colonial Law 22 . . . 126 
 
 ■ V. Usher, Hackney Carriage, 2 . .272 
 
 V. Victoria, in re, Privy Council 1 . 469 
 
 V. Visger, Turnpike 2 . . . . 583 
 
 Skottowe V. Young, Legacy Duty 2 >, . 327 
 Slark T. Dakyns, Power 12 . . , . 436 
 Slater v. Jones, Capes t. Ball, Bankruptcy 
 M 24 (Pleading Composition at Law) . .76 
 
 T. Pinder, Bankruptcy G 33 (Execution 
 
 under 601.) 66 
 
 Slee, in re, ex parte North- Western Bank, 
 
 Bankruptcy A 4 46 
 
 , Factor 2 254 
 
 Sleeman v. Wilson, Infant 15, 16 . . . 282 
 
 V , Parent and Child 8 . . . 402 
 
 T , Trust C 11 . , . .580 
 
 Sloper V. OliTer, Baron and Feme 5 . .83 
 Smale v. Burr, BUI of Sale 6 . . .95 
 Smallbones v. Edney, Church Bates 2 . . 121 
 
 T , nthesZ 564 
 
 Smart, ex parte, in re Richardson, Bill of Ex- 
 change 28 94 
 
 Smeaton v. St. Andrews, Magistrates o:^ 
 
 Scotch Law 9 519 
 
 Smidt V. Tiden, Shipping Law 14 . . 540 
 Smirthwaite's Trusts, in re, Trxist E 9 . . 883 
 Smith V. Adkins, Power 7 . . . . 436 
 
 V. Baker, Trover 4 . . . . 870 
 
 V. The Bank of New South Wales ; The 
 
 Staffordshire, Shipping Law C 2 . . 530 
 
 Co., 
 
 Smith V. The Bank of Victoria, Company D 66 145 
 
 V. Barnett, Turnpike 3 
 
 V. Brown, Ad/miralty 17 
 
 T. Buller, Costs in Equity 78 
 
 V. Daniell, Production 18. 
 
 V. Darby, Mines 4 
 
 V. Eggington, Lease 26 
 
 T. Fletcher, Mines IS . 
 
 V. , Negligence 18 . 
 
 V. Haley, Costs at Law 28 
 
 V. Hughes, Sale 8 
 
 . T. Iliffe, Marriage Settlement 29 . 
 
 V. The London and South- Western Rail- 
 way Co., Negligence 16 . 
 
 T. Myers, Sale 4 
 
 T. Peters, Specific Performaiice 27 
 
 V. The St. Lawrence Tow Boat 
 
 Shipping Law F 27 . 
 
 V. Seghill, Bates 1 . . . . 
 
 V. Shirley, Compromise 3 . . . 
 
 V. Smith, Injunction 48 . . . 
 
 V. , Judgment 1 . . . . 
 
 V. Steele, Master and Servant 13 . 
 
 V. — — , Shining Law R 4 . 
 
 r v. The Union Bank of London, Bill of 
 
 Exchange 19 91 
 
 , ex parte ; ex parte Ogle, Bankruptcy G 
 
 47 . . . . . , . 
 
 , ex parte ; in re Angerstein, Bankruptcy 
 
 H 
 
 , ex parte.; in re Pilling, Bankruptcy 
 
 a2 
 
 , in re ; ex parte Spooner, Bankruptcy G 
 
 30 
 
 , Mary, in re. Lunatic 9 . . . 
 
 . , Knight & Co., in re; Hockin's case. 
 
 Company G 58 
 
 Smithett, ex parte ; in re Mason's Trusts, 
 IVusf D 9 , 
 
 Smyth V. North, Lease 29 . 
 
 Sneesby V. TheLancashire and Yorkshire Rail- 
 way Co., Negligence 13 . 
 
 SnelUng v. Thomas, Specific Performance 9 . 
 
 Snowball v. Snowball, Divorce 58 
 
 , ex parte ; in re Douglas, Bankruptcy 
 
 B 28, 36 51, 
 
 Snowdon v. Snowdon, Divorce 54 . 
 
 Sobey v. Sobey, Practice in Equity 80 . 
 
 Society of Attorneys, &c., ex parte. The, 
 Charter 114 
 
 Softley, in re ; ex parte Winter, Bankruptcy 
 B3 48 
 
 , Shipping Law A 1 . . . . 527 
 
 Solicitor-General v. The Law Reversionary 
 Interest Society,. Legacy and Succession 
 Duty 9 328 
 
 SoUory v. Leaver, Annuity 11 . . .24 
 
 Somerville's ease ; in re the Empire Assur- 
 ance Corporation, Company E 16 . . 160 
 
 Sottomajor, in re. Lunatic 1 ... 342 
 
 Souch V. The East London Railway Co., Lands 
 Clauses Act 21 310 
 
 South, in re. Judgment 4 . . . . 295 
 
 South Eastern Railway Co.'s Claim ; in re the 
 City Terminus Hotel, Company H 7 .168 
 
 4 n 2 
 
 583 
 13 
 207 
 481 
 375 
 321 
 377 
 395 
 210 
 513 
 
 395 
 513 
 653 
 
 836 
 499 
 182 
 288 
 294 
 369 
 846 
 
 68 
 
 68 
 
 32 
 
 66 
 343 
 
 162 
 
 682 
 322 
 
 394 
 550 
 233 
 
 83 
 233 
 452 
 
678 
 
 TABLE OF CASES. 
 
 PAOE 
 
 South Essex Estuary Co., in re ; ex parte 
 
 Chorley, Company H 11 . , . .169 
 Southall T. The British. Mutual Life Assur- 
 ance Society, Company D 52 {Acts ultra 
 vires) ....... 143 
 
 V. , Company E 4 {Eeconstriietion) 147 
 
 Southam, ex parte ; in re Southam, Bill of 
 
 Sale 16 96 
 
 Southampton Dock Co. v. The Southampton 
 Harhour Board, Account 1 ... 1 
 
 V. , Statute 2 . . . . 555 
 
 Steam Coiiiery Co. v. Clarke, Shipping 
 
 Law E 14 532 
 
 Sowerhy v. Smith, Inclosiire 3 . . . 279 
 SoTvry, in re, Lands Clauses Act 41 . .313 
 Spargo's case : in re the Harmony and Mon- 
 tague Mining Co., Company G 32 . .157 
 Sparke, in re ; ex parte Cohen, Banhnptay 
 B 1 1 {Fraudulent Preference) . ... 50 
 
 , Bankruptcy Gr 9 {Reputed Ownership) . 63 
 
 , Bankruptcy 5 {Injunction) . . 80 
 
 Speak V. Powell, Excise .... 249 
 Speaker of the House of Assembly of Victoria, 
 
 The, T. Glass, Colonial Law 39 . . . 128 
 Spencer v. Spencer, Probate 54 . . . 476 
 
 v. "Williams. Estoppel 3 . . .243 
 
 V. Wilson, Will, Construction E 1, L 419 
 
 605, 619 
 Spencer's case ; in re the Medical and Invalid 
 and General Life Assurance Society, Com- 
 pany Ell 149 
 
 Spensley's Estate, in re ; Harrison v. Spensley, 
 
 Costs in Equity 22 202 
 
 Spendrift, The, Shipping Law P 5 . .634 
 Spittle V. Walton, Evidence 10 . . .247 
 
 V. , Practice in Equity 2 . . 446 
 
 Springett v. Jenings, Will, Construction E 3 . 605 
 Spooner, ex parte ; in re Smith, Bankruptcy 
 
 G30 66 
 
 Spoor V. Green, CowMflMi 5 . . . .21? 
 Spurstowe's Charity, in re. Practice in Equity 
 
 99 454 
 
 Staff, ex parte ; in re Staff, Bankruptcy L 5 . 71 
 Stafford v. Gardner, Landlord and Tenant 16 306 
 and XJttoxeter Eailway Co., in re. Rail- 
 way 36 497 
 
 Staffordshire, The, Shipping Law C 2 . . 530 
 Stainton, in the goods of. Probate 19 . . 472 
 Stanford v. Hurlstone, Waste 3 . . . 597 
 
 V. Roberts, Tenant for Life 1 . . 560 
 
 Stanley T. Dowdeswell, Contract 13 . .187 
 Stanley of Alderley, Lady, v. The Earl of 
 
 Shrewsbury, Damages 24 . . . , 220 
 Stanley, Lord, of Alderley's Estate, in re. 
 
 Costs in Equity 34 203 
 
 Stannard v. Lee, Copyright 1 . . .194 
 Stanton v. Austin, Shippittg Law El. . 530 
 
 V. Richardson, Shipping Law E 2 .631 
 
 Star and Garter Co. (Lim.), in re. Company 
 
 122 . 174 
 
 Starr v. Stringer, Weights and Measures 1 . 600 
 Stead v. Hardaker, Administration 20 . .8 
 Steam Stoker Co., in re, Compamy I 18 .174 
 
 Stebbing y. The Metropolitan Board of 
 Works, Lands Clauses Act 22 . . .311 
 
 PAGE 
 
 Stebbing, in re; ex parte Stebbing, Bank- 
 ruptcy C 13 64 
 
 Steed V. Preece, Infant 8 . . . • 281 
 
 T. , Partition 21 . . . • 414 
 
 Steele v. Brannan, Obscene Book . . • 401 
 Steele, in re; ex parte Conning, Bill of 
 
 Salel 95 
 
 SteeTens' Trusts, in re. Will, Construction H 
 
 22 610 
 
 Stephany, in re ; ex parte Meyer, Bankruptcy 
 
 B29 62 
 
 Stephens v. The Australian Insurance Co., 
 Marine Insv/rance 28, 44 . . . 354, 358 
 
 , in re. Practice at Law 39 . . . 444 
 
 , in re. Practice in Equity 89 . . 463 
 
 Stephenson v. The Mayor and Corporation of 
 
 Liverpool, Will, Construction! 11 . .613 
 Sterrv v. Combs, Fraud 1 ... - 260 
 
 "v , Mortgage 10 . . . . 380 
 
 Steuait T. Eohertson, Scotch Law 2 . . 519 
 Stevens v. Chapman, Arbitration 29 . .31 
 
 V. , Costs at Law t . . . 198 
 
 V. The Mid Hants Eailway Co. ; The 
 
 London Financial Association v. The Mid 
 Hants Eailway Co., Railway 35 . . 497 
 
 V. Phelips, Attachment 6 . . .33 
 
 V. , Executor 26 . . . . 253 - 
 
 V. Tillett, Parliament 6 . . . 404 
 
 , ex parte ; in re Stevens, Bill of Sale 8 95 
 
 , in re ; Lee v. The Bude and Torrington 
 
 Eailway Co., Company G 84 . . . 167 
 
 , In the goods of. Probate 9 . . .471 
 
 Stevens' Will, in re. Will, Construction E 2 . 605 
 Stevenson v. Masson, Advancement 8 . .17 
 
 V. , Bomicil 4 . . . . 237 
 
 V. , Will, Construction E 9 . . 605 
 
 Steward v. Nurse, Costs in Equity 65 . . 206 
 Stewart v. Eddowes, Sale 1 . . . .512 
 
 V. Eogerson, Shipping Law E 3 , .631 
 
 V. The West India and Pacific Steam- 
 ship Co., Marine Insurance 43 . . . 358 
 
 , ex parte. Attorney 14 . . . .35 
 
 , In the goods of. Executor 6 . . . 250 
 
 Stimson V. Farnham, iSAm^ 2 . . . 526 
 Stock v. Holland, Bankruptcy G 24 . .65 
 
 V. McAvoy, Advancement 2 . . .17 
 
 Stocks V. Ellis, Practice at Law 15 . . 441 
 Stokes's Trusts, in re. Trust E 8 . . .582 
 Stone, ex parte ; in re Welch, Bankruptcy E 
 15 ........ 58 
 
 Stoneham v. The London, Brighton and South 
 
 Coast Eailway Co., Lands Clauses Act 23 . 311 
 Stourbridge, Guardians of, v. The Guardians 
 
 of Droitwich, Poor iaw 13 . . .434 
 Stowe V. Joliffe, Parliament 7, 14 . 404, 405 
 
 Strachey v. Osborne, Costs at Law 16 . . 199 
 Straker v. Wilson, Apportionment 11. .26 
 
 V. , Tenant for Life II . . . 661 
 
 Stranton Iron and Steel Co., in re. Company 
 
 D 60 144 
 
 , Barnett's case. Company G 41 . . 159 
 
 Strathmore Estates, in re. Lands Clauses Act 
 
 63 315 
 
 Stratton v. The Metropolitan Board of Works, 
 Rates 17 504 
 
TABLE OF CASES. 
 
 677 
 
 Stretton v. The Great Western and Brentford 
 Eailway Co., Lands Clauses Act 4 
 
 Strickland, in re. Lunatic 6 . 
 
 Strong Y. Bird, Belease .... 
 
 Strutts' Trusts, in re, Settled Estates Acts 7 . 
 
 Studer, in re ; ex parte Chatteris, Bankruptcy 
 N27 
 
 , Company I 30 
 
 Sturt & Co., ex parte ; in re Pearoy, Bank- 
 ruptcy C 2 
 
 Summers v. The City Bank, Barm and Feme 
 25 
 
 Sunderland Local Marine Board v. Franldand, 
 Attachment 4 
 
 Surtees t. Surtees, WUl, Construction H 28 . 
 
 Sutcliffe V. Eichardson, Annuity 3 
 
 Sutton V. Wilders, Trust B 23 . 
 
 S"wan, The, Admiralty 9 . . . . 
 
 Sweeting v. Turner, Auction 1 . . . 
 
 V. , Landlord and Tenant 8 . 
 
 Swift T. Jewesbury, Banker 1 . . . 
 
 V. , Costs at Law 8 . . . 
 
 T. Winterhotham, Baniker 1 . 
 
 Sydney, ex parte ; in re Sydney, Bankruptcy 
 M 12 
 
 Sykes v. The North-Eastern Eailway Co., 
 CampbeWs Act 2 
 
 T. Sykes, Remoteness 1 ... 
 
 Sykes' case : in re the European Central Eail- 
 way Co., Company D 43 . 
 
 in the goods of, WUl, Formalities 47 
 
 Symington v. Symington, Divorce 44 
 
 Symonds v. Symonds and Harrison, Divorce 
 62 
 
 Synge v. Synge, Election 3 . . . 
 
 PAQE 
 
 308 
 342 
 509 
 624 
 
 79 
 175 
 
 63 
 
 33 
 611 
 
 23 
 677 
 
 12 
 
 40 
 305 
 
 42 
 198 
 
 42 
 
 74 
 
 101 
 509 
 
 141 
 631 
 
 232 
 
 232 
 240 
 
 Tadd/s Settled Estates, in re, Settled Estates 
 
 Act 15 526 
 
 Taff Vale Eailway Co. v. Macnabb, Covenant 9 214 
 Tahiti Cotton Co., in re ; ex parte Sargent, 
 
 Company Gr 60 1 68 
 
 , Specific Performance 13 . . . 551 
 
 Tait, ex parte ; in re Tait & Co., Inspector- 
 ship Deed 2 289 
 
 Talbot T. The Earl of Shrewsbury, Adminis- 
 tration {Mesne Profits) 2 . 
 
 V. , I 6 {Specialty Debt) 12 . 
 
 V. Jevers, Will, Construction I 34 
 
 V. Talbot, Practice in Equity 82 . 
 
 Talley v. The Great Western Eailway Co., 
 
 Carrier 67 
 
 Tamacacori Mining and Land Co., in re, 
 Tanham v. Nicholson, Landlord and Tenant 
 
 5 
 
 Tanner r. Phillips, Shipping Law 118. 
 Tanqueray v. Bowles, Costs in Equity 42 
 Tapp V. Jones, Attachment 2 . . . 
 
 V. , Practice at Law 30 
 
 Tapscott V. Balfour, Shipping Law H 6 
 Tate, ex parte; in re Keyworth, Bankruptcy 
 E 21 {Secured Creditor) .... 
 
 , Bamkruptcy G 42 {Property devolving 
 
 on Trustee) 67 
 
 , Practice at Law 26 ... . 443 
 
 6 
 
 7 
 616 
 453 
 
 105 
 
 305 
 543 
 204 
 33 
 443 
 638 
 
 59 
 
 PAGE 
 
 Tavarone Mining Co., in re ; Pritchard's 
 
 case, Company G 29 . . . .157 
 
 Tayleur, re, Lunatic 5 . . . . . 342 
 Taylor v. Cartwright, Ad/vancement 5 . .17 
 
 T , Trust B 24 . . , .677 
 
 V. Gillott, Lease 30 . . . .322 
 
 V. Greenhilgh, Highway 16 . . 277 
 
 V. , Negligence 9 . . . .393 
 
 V. Liverpool and Great Western Steam 
 
 Co., Shipping Law B 1 . . . . 627 
 v. St. Mary Abbots, Kensington, Parlia- 
 ment 43 409 
 
 V. Taylor, Advancement 3 . . .17 
 
 T. , Annuity 8 . . . .24 
 
 Y. , ex parte Taylor, Settled Estates 
 
 Acts 1 623 
 
 , ex parte. Attorney 13 ... 35 
 
 , ex parte ; in re Morissy, Bankruptcy 
 
 L 15 72 
 
 , in re ; ex parte Waterer, Bankruptcy 
 
 M 19 {Default in payment of composition) lb 
 
 , Bankruptcy 6 {Proceedings against 
 
 Debtor) 80 
 
 , in re ; ex parte Eumholl, Bankruptcy 
 
 A 7 47 
 
 , in re ; ex parte Crossley, Bankruptcy 
 
 N 18 78 
 
 Taylor's Estate, in re. Lands Clauses Act 34. 312 
 
 Settled Estates, in re, Settled Estates Act 
 
 5, 6 824 
 
 Teague v. Wharton, Probate 17 . . . 472 
 Teall T. Watts, Pa/rtition 20 . . . 414 
 
 Teape's Trusts, in re, Power 2 . . . 435 
 
 , Will, Construction CI . . .602 
 
 Teasdale's case ; in re County Palatine Loan 
 
 and Biscount Co., Company D 70 . .146 
 Tebbutt T. Bristol and Exeter Eailway Co., 
 
 Master and Servant 12 . . . . 369 
 Teignmouth and General Mutual Shipping 
 Association, Martin's Claim, Company H 
 
 15 170 
 
 , Marine Insurance 5 . . . 348 
 
 " lelegi&io," ths, Admiralty 12 . . .12 
 Telegraph Despatch and Intelligence Co. v. 
 
 McLean, Vendor and Purchaser \1 . . 589 
 Telford v. Metropolitan Board of Works, In- 
 junction 33 287 
 
 V. , Public Body .... 485 
 
 Teme Valley Co., in re ; Eorbes' case, Com^ 
 
 pany D 38 140 
 
 Tempest, ex parte ; in re Craven, Bank- 
 ruptcy B 21 61 
 
 Temple t. Elower, Eailway 3 . . . 492 
 Templeton v. Tyree, Marriage 2 . . . 361 
 Tennant V. Trenchard, Practice in Equity 119. 456 
 Terry v._Brighton Aquarium Co., Lord's Day. 342 
 Teutouia, The, Shipping Law E 12 {Deviation), 
 
 I 6 {Sight to Freight) . . . 532, 640 
 Tew, in re; ex parte Mills, Bankruptcy E 12. 57 
 Tewart v. Lawson, Tenant for Life 21 . . 662 
 Thakeham Sequestration Moneys, in re, Church 
 
 32 121 
 
 Thames Plate Glass Co. v. Land and Sea 
 
 Telegraph Co., Company I 63, 64 . . 179 
 Thames, The, Shipping Law F 4 . . . 534 
 
678 
 
 TABLE OF CASES. 
 
 PAGE 
 
 Tharsis Sulphur and Copper Co. v. Loftus, 
 
 Arbitration 15 29 
 
 Thomas t. Howell, Charity 12, 13 . .112 
 V , Will, Constmction H 2 {CMrita- 
 
 ble Bequest), 1 {Conditional Gift) . 608, 623 
 
 T. The Queen, Petition of Eight 1, 2 .426 
 
 V. Rhymney Railway Co., Carrier 16 . 105 
 
 V. Sylvester, Bent-charge 2 . . . 510 
 
 , ex parte ; in re New Zealand Kapanga 
 
 Gold Co., Company D 59 {Bectification of 
 
 Begister) 144 
 
 , In the goods of. Probate 53 . . . 476 
 
 Thomas's case ; in re Nanteos Consols Co., 
 
 Company D 16 
 
 Thompson v. Burra, Baron and Feme, 30, 
 
 T. , Election 5 . . . 
 
 Y. Cohen, Bill of Sale 2i 
 
 T. Hudson, Mortgage 29, 34 
 
 T. The Planet Benefit Building Society, 
 
 Friendly Society 4 
 
 v. Ward, Parliament 35 . . . 
 
 Thompson's Estate, in re, debtors Act 3 
 
 Trusts, Lunatic 2 . . . . 
 
 Thomson v. FUnn, County Court 18 . 
 
 Thomson's Trusts, Legacy 12 
 
 Thorn v. The Mayor, &c., of City of London, 
 
 Contract 26 ..... • 
 Thorne, ex parte ; in re Butlin, Bankruptcy 
 
 L 7 (Liquidation : resolution) . 
 
 , Bankruptcy Q, 3 ( Costs of Appeal) 
 
 Thornewell and Wife r. Wigner, County Court 
 
 23 . . . . 
 
 Thornloe v. Skoines, Injunction 43 
 Thornton v. Maynard, Set-off 2 . . . 
 
 . v. ,■ Bill of Exchange 5i 
 
 V. Thornton, Power 4 . 
 
 Thorold's Settled Estates, in re. Settled Es- 
 tates Acts 14 ... . 
 Thorpe v. Adams, Bates 19 . 
 
 V. Brumfitt, Way 1 
 
 , in re ; ex parte Saxiel, Ban/crvptcy A 8. 
 
 , in re ; ex parte LoTering, Ban/cruptcy 
 
 N 6 
 
 Thraeiau, The, Admiralty 41 . . . 
 Threfall v. Berwick, Innkeeper 1 
 Thurburn v. Stewart, Colonial Law 19 
 Thuringia, The, Admiralty 28 . . . 
 
 , Shipping Law F 31 . 
 
 Thursby v. Thursby, Tenant for Life 16 
 Tiohborne v. Mostyn, Practice at Law 42 
 Tickner v. Old, Tenant for Life 12 
 
 T , Trust B 7 . • 
 
 Till, ex parte ; in re Ratcliffe, Bankruptcy 
 
 Ml 
 
 , ex parte ; in re Mayhew, Bankruptcy 
 
 PI 
 
 T , Landlord and Tenant 12 . 
 
 Tillett T. Pearson, Beceimr 1 . . . 
 Tinker, ex parte ; in re France, Bankruptcy 
 
 IS ....... . 
 
 Tinkler's Estate, in re, Tenant for Life 3 
 Todd v. Metropolitan District Railway Co., 
 
 Tenant for Life i 
 
 V. Moorhouse, Tenant for Life 4 
 
 v. Todd, Divorce 43 ... . 
 
 136 
 
 . 240 
 
 384 
 
 267 
 408 
 221 
 342 
 210 
 324 
 
 190 
 
 71 
 82 
 
 211 
 288 
 522 
 94 
 435 
 
 528 
 
 504 
 
 699 
 
 47 
 
 77 
 15 
 289 
 126 
 14 
 536 
 562 
 444 
 661 
 576 
 
 73 
 
 81 
 305 
 508 
 
 70 
 560 
 
 560 
 660 
 232 
 
 PAGE 
 
 Toleman t. Portbury, Ejectment . . • 239 
 
 T , Lease 19 320 
 
 ToUett T. Thomas, Gaming 6 . . .270 
 Tomlin v. Budd, Bailway 7 ... 492 
 
 Tonnies, in re ; ex parte Bishop, Bankruptcy 
 
 G35 66 
 
 Toole T. Young, Copyright 7 ■ . ■ 195 
 Topham, ex parte ; in re Walker, Ban/cruptcy ' 
 
 B23 51 
 
 Torrance v. Bank of British North America, 
 
 v. Bolton, Vendor and Purchaser, 1 .587 
 
 V. , Bill of Exchange 18 . . .91 
 
 Torkington, in re ; ex parte Torkington, 
 
 Bankruptcy N 12 77 
 
 Tottenham, Vicar of, v. Vine, Church 10 - 117 
 Touche V. Metropolitan Railway Warehousing 
 
 Co., Company A 1 131 
 
 V. , Practice in Equity 138 . . 457 
 
 Tower Subway Co., ex parte. Costs in Equity 
 
 56 205 
 
 Towgood, In the goods of. Probate 68 . . 477 
 Towne v. Cocks, Practice at Law 10 . . 441 
 Towns Drainage and Sewage Co., in re ; ex 
 
 parte Morton, Company G 76 . . . 165 
 Townsend'v. Townsend, Divorce 21 . . 229 
 Townsend's case ; in re the Imperial Land 
 
 Co. of Marseilles, Company G 15 . .154 
 Townshend v. The Overseers of St. Maryle- 
 
 bone. Parliament 36 408 
 
 Townshend's Settled Estates, in re. Settled 
 
 Estates Act 6 524 
 
 Tracy v. The Open Stock Exchange Co., Prac- 
 tice in Equity 42 448 
 
 Trade Auxiliary Co. v. Vickers, Company D 3 133 
 Traders North Staffordshire Carrying Co. 
 
 (Lim.), in re. Company I 67 . . . 180 
 Trappes v. Meredith, Forfeiture 2 . . 259 
 
 Travers v. Travers, Will, Construction H 34 . 612 
 Tredegar,. Lord, v. Wiudus, Injwnction 9 . 284 
 Treeby, In the goods of, WUly Formalities 
 
 '29 629 
 
 Trehaine v. Layton, Will, Construction L 11 . 617 
 Treftz T. Canelli, Negligence 32 . . . 398 
 Treloar v. Bigge, Lease 17 . . . .320 
 Trenchard, ex parte. Attorney 10 . . .36 
 Trower and Lawson's case ; in re the Land 
 
 Credit Co. of Ireland, Company I 39 .176 
 Trueman,. ex parte ; in re Trueman, Composi- 
 tion Deed 2 181 
 
 Trueman's Estate, in re ; Hooke v. Piper, 
 
 Company D 30 139 
 
 Trumper v. Trumper, Tenant for Life 20 . 662 
 
 V , Trust B 11 . . . .576 
 
 V. , Will, Construction 118 . .614 
 
 Tufnell V, Borrell, Fines and Becoveries 2 . 266 
 .Tuite V. Bermingham, WUl, Construction H 
 
 27 611 
 
 Tully V. Terry, Shipping Law B 7 (Bill of 
 
 Lading), I 13 (Lien for Freight) . 528, 542 
 Tumaeacori Mining Co., in re, Company I 16 174 
 Tupper, in re. Bankruptcy CI. . .53 
 Turner v. Buck, Administration 34 . .10 
 
 T , Legacy 34 . . . .327 
 
 V. Collins, Costs in Equity 49 . . 205 
 
 V. , Undue Influence 3 . . . 584 
 
TABLE OF CASES. 
 
 .679 
 
 PAOB 
 
 Turner v.-Goulden, Arbitration 16 . .29 
 
 V. , Negligence 28 . . . . 397 
 
 v. The London and South-Western 
 
 Eailway Co., and the Eingwood, &o., Rail- 
 way Co., Practice in Equity 105 . . 455 
 
 V. , Bailway 6 . . . . 492 
 
 ^^ V. Morgan, Game 4 . . . .269 
 
 ^^v. Rennoldson, County Court 11 . .209 
 
 T. Thomas, Principal and Agent 9 . 461 
 
 , ex parte ; in re Turner, Bankruptcy N 1 3 77 
 
 , Habeas Corpus 272 
 
 , in re. Attorney 29 . . . .37 
 
 , In the goods of, Will, Formalities 34 . 629 
 
 Turtou V. Barber, Discovery 3 . . . 226 
 TutiU T. The West Ham Board of Health, 
 Public Health Act 5 . .... .487 
 
 Tweddell, in re ; ex part^ Eeed and Steele, 
 
 Bankruptcy B 17 60 
 
 Tweedale, In the goods of, Probate 29 . . 473 
 Twistleton v. Twistleton and Kelly, Divorce 
 
 53 233 
 
 Two Ellens, The, Shipping Law P 1, 3 . 545 
 
 Twynam v. Porter, Attorney 43 . . .38 
 Tyers t. The Eosedale and Eerryhill Iron Co., 
 
 Sale 15 515 
 
 Tyler v. Yates, Usury 1 . . . .586 
 T^ne Chemical Co., in re, Company I 40 .176 
 T^fson V. The Mayor of London, Lands Clauses 
 
 Act 25 311 
 
 Tyson's Appeal, Alehouse 2 . . . .18 
 
 TJmfreviUe v. Johnson, Injunction 26 . . 286 
 
 T , Tithes 1 411 
 
 Union Bank of Manchester, ex parte ; in re 
 Jackson, Bankruptcy G 15 . . .64 
 
 Steamship Company t. The Aracan, 
 
 Shipping Law E 9 534 
 
 United Land Co. v. The Great Eastern Eail- 
 way Co., Eailway 21 . . . . 495 
 
 T. , Way 6, 6 ■ . . .599 
 
 Merthyr Collieries Co., in re, Mines 17 376 
 
 Ports Co., in re ; Adams' case, Company 
 
 E 17 150 
 
 Ports and General Insurance Co. ; Beck's 
 
 ease, Company L 48 176 
 
 , in re, Brown's case and Tucker's case. 
 
 Company G 13 154 
 
 , in re, Browne's case, Company I 42 .176 
 
 , in re ; ex parte Evens, Company E 15 . 150 
 
 , in re ; Johnston's Claim, Banker 11 . 44 
 
 , in re; Perrett's case. Company G 10 .154 
 
 . , in re ; Wynne's case. Company El .146 
 
 Service Co. (Lim.), in re; Johnson's 
 
 case, Banker 11 44 
 
 Universal Disinfector Co., in re. Company I 
 
 65 179 
 
 Non-Tariff Insurance Co., in re ; Forbes' 
 
 claim. Insurance 7 291 
 
 Upmann v. Elkan, Costs in Equity 25, 26 . 203 
 
 V. , Trade Mark 13 . . . 668 
 
 Upperton v. Nicholson, Specific Performance 
 
 25 563 
 
 Uttley V. The Todmorden Local Board, Arbi- 
 tration 19 29 
 
 PAGE 
 
 Vale V. Oppert, Production 39 . . . 484 
 Valparaiso Water Works Co., in re ; Davies' 
 
 case. Company G 18 ISS 
 
 Valpy and Chaplin, ex parte; in re the 
 Patent Bread Machinery Co., Company D 
 
 11 135 
 
 Van Diemen's Land, Bank of, v. The Bank of 
 
 Victoria, Bill of Exchange 15 . . .91 
 Vane v. Vane, Limitations, Statute of, 11 . 336 
 Vanlohe, in re; ex parte Dewhurst, Bank- 
 ruptcy B 8 49 
 
 Varbetian, in re ; ex parte Levy, Bankruptcy 
 
 M 6 74 
 
 Varley v. Coppard, Lease 15 . . . 319 
 
 Vaughan v. HaUiday, Bill of Exchange 29 . 94 
 
 V. The Marquis of Headfort, Practice in 
 
 Equity 101 454 
 
 V. Wheldon, Practice at Law 4 . . 440 
 
 Vaughton.v. The London and North- Western 
 
 Eailway Co., Carrier 28 . . . .107 
 Vaux, ex parte; in re Couston, Bankruptcy 
 
 G 8 . 63 
 
 Venables v. Schweitzer, Administration 42 . 11 
 Vercheres, Cur6 et MarguiUiers de, v. La Cor- 
 poration de Vercheres, Colonial Law 18 .125 
 Vernon v. Vernon, Practice in Equity 5,1 . 449 
 Viant's Settlement Trusts, in re, Marriage 
 
 Settlement 21 364 
 
 Vickers v. Hertz, Factor 3 . . . . 254 
 Victoria Palace Theatre Syndicate, in re. Com- 
 pany A3 132 
 
 , Speaker of the Legislative Assembly of, 
 
 V. Glass, Colonial Law 39, 40 . . . 128 
 Vigar V. Dudman, Tithes 1 . . . . 564 
 
 Villars, ex parte ; in re Eogers, Bankruptcy 
 G31 . . . . . . .66 
 
 Vining's case ; in re the Imperial Land Co. of 
 Marseilles, Company E 2 . . . .146 
 
 , Company E 21 161 
 
 Vivid, The, Shipping Law F 14 . . . 534 
 Voss, in re. Bankruptcy E 2 . . .55 
 
 , Damages 7 217 
 
 Voysey T. Noble, CAwcA 19, 23 . .119,120 
 Vyse V. Foster, Partnership 17 . . .417 
 
 V. , Practice in Equity 27 . . 447 
 
 V. Production in Equity 28 . . 483 
 
 V , Trust C 5 . . . .579 
 
 Waddell v. Wolf, Vendor and Purchaser 5 . 588 
 Waddington, in re ; ex parte Marshall, Com- 
 pany G 63 163 
 
 Wadham v. The Postmaster-General, Lease 
 
 18 320 
 
 Wadmore v. Dear ; Wadmore v. Aries, Par- 
 
 liammt 22 406 
 
 V. The Overseers of Putney, Parliament 
 
 22 406 
 
 Wadsworth v. Smith, Arbitration 11 . .28 
 Waine v. Wilkins, Attachment 10 . .34 
 
 V. , Debtors Act 12 . . . 222 
 
 Wainford v. Heyl, Baron and Feme 18 . .85 
 
 V. — ■-, Infant 6 . '. . . .281 
 
 V. -T — , Thist 9 . . . .586 
 
 Waite T. Littlewood, I¥mt B 8 . . .576 
 
68Q 
 
 TABLE OF CASES. 
 
 PAOE 
 
 Waite V. Littlewood, Will, Construction N 7. 622 
 Wait V. Wait, Divorce 83 . . . .236 
 Wakefield v. Brown, Costs at Law 22 . . 200 
 
 V. Cruikshanb, Practice in Equity 54 . 450 
 
 Wakeham, In the goods of, Probate 5 . .471 
 WaXdj Y. Gxay, Mortgage IS . . .381 
 Wallialla Gold Mining Co. t. Mulcahy, Colo- 
 nial Law 38 128 
 
 Walker v. Seligman, Practice in Equity 85 . 453 
 
 , in re, Limitations, Statute of, 13 . . 336 
 
 , in re ; ex parte Topham, Bankruptcy B 
 
 23 51 
 
 Wall Y. The City of London Eeal Property 
 
 Co., Damages 4 216 
 
 Wall's case ; in re the Imperial Land Co. of 
 
 Marseilles, Company G 16 . . .165 
 Wallace v. Allen, Prohibitimi 8 . . . 485 
 Wallen v. Porest, Practice at Law 19 . . 442 
 Wallis V. Thorp, Hosiery . . . .278 
 Walrond v. Hawkins, Lease 16 . . .319 
 Walmsley v. Foxhall, Joint Tenants 4 . . 294 
 Walsh V. The Bishop of Lincoln, Church 3, 5 116 
 
 T. , Quare impedit . . .490 
 
 . . v. Walley, Master and Servant 3 . . 367 
 
 V. Wason, Baron and Feme 13 . .84 
 
 Walter v. James, Debtor and Creditor 4 . 221 
 
 ■ , ex parte ; in re Heath, Bankruptcy E 
 
 28 60 
 
 Walters v. Coghlan, County Court 24 . .211 
 Walton Commissioners v. Walford, Public 
 
 Health Act 19 490 
 
 V. , Sanitary Acts . , .518 
 
 , ex parte ; in re Dando, Bankruptcy N ^ 
 
 31 79 
 
 , in re ; ex parte Hoare, Bankruptcy M 
 
 11 74 
 
 Wandsworth Church Estate Charity, in re, 
 
 Church 13 117 
 
 Wanless v. The North-Bastern Eailway Co., 
 
 Sailway 23 496 
 
 Want V. Stallibras, Vendor and Purchaser 
 
 6, 27 688, 592 
 
 Warburton v. The Overseers of Denton, Par- 
 liament 2b ..... . 407 
 
 Ward V. Beeton, Copyright 11 . . .196 
 
 T. Booth, Mortgage 16 ... 382 
 
 T. The General Omnibus Co., Master and 
 
 Servant 8 368 
 
 V. Lawson, Attorney 38 . . . 38 - 
 
 T. Eaw, Practice in Equity 34 . . 448 
 
 V. The Sittingbourne and Sheerness Eail- 
 way Co., Company F 2 . . . . 151 
 
 V. , Costs in Equity 4 . . .201 
 
 T. Ward, Joint Tenants 3 . . . 294 
 
 T. The Wolverhampton Waterworks Co.. 
 
 Deed 9 225 
 
 , ex parte ; in re Couston, Bankruptcy 
 
 G 10 . . ... . . .63 
 
 Ward's Trusts, in re, Advancement, 11 . . 18 
 
 , Power 30 439 
 
 Warde v. Plumb, Will, Construction 3 .623 
 Wardle v. Bethune, Contract 41 . . . 193 
 Ware's Trusts, in re, Practice in Equity 102. 454 
 
 , Will, Construction L 25 . . . 620 
 
 AVarne v. Eoutledge, Contract 27 . . .190 
 
 PAQE 
 
 Warne v. Eoutledge, Copyright 3 . . .196 
 Warner v. The Brighton Aquarium Co., Lord's 
 
 Day 342 
 
 Warren, ex parte ; in re Joyce, Bankruptcy 
 
 P3 81 
 
 Warrick v. The Provost ajd Scholars of 
 
 Queen's College, Oxford, Parties 4 . .411 
 Warriner v. Eogei's, Trust A 5 . . . 573 
 
 V. , VolvMtary Settlement 8 . .595 
 
 Warrior, The, Shipping Law P 2 . . . 534 
 Waterer v. Waterer, Partnership 8 . . 416 
 V. , ex parte ; in re 'Taylor, Bank- 
 ruptcy M 19 {Default in payment of com- 
 position) ....... 75 
 
 , Bankruptcy 6 {Proceedings against 
 
 Debtor) 80 
 
 Waterhouse v. Clout, Administration 14 . 7 
 Waters, ex parte ; in re Hoyle, Bankrvptcy 
 
 E 6 56 
 
 , ex parte ; in re Waters, Bankruptcy N 
 
 9 . 77 
 
 Watkins v. Major, Justice of the Peace 3 . 301 
 
 V. Nash, Deed 1 224 
 
 , ex parte ; in re Couston, Bankruptcy G 7. 62 
 
 Watkins' Claim ; Paget v. Marquis of Angle- 
 sea, Apportionment 8 . . . .25 
 Watling V. Oastler, Master and Servant 5 .367 
 Watson V. Cox, Jurisdiction in Equity 13 . 299 
 
 V. Eow, Attorney 33 . .. . .37 
 
 V. , Costs in Equity 44 . . . 204 
 
 V. , Specific Performance 29 . . 663 
 
 V. 'VfooA.raa.n, Limitations, Statute of, 10. 336 
 
 . V. , Partnership 13 . . .417 
 
 Watson & Co. v. Shankland, Shipping Law 
 
 I 20 643 
 
 Watt V. Ligertwood, Contempt of Cov/rt 2 .185 
 
 V. , Scotch Law 35 . . . 521 
 
 Watts V. Kelson, Easement 3 . . . 238 
 
 V. Lucas, Salmon Fishery 2 . . . 618 
 
 V. Watts, Injimction 1 ... 283 
 
 V. , Will, Construction T> 1 . . 603 
 
 V. , Frauds, Statute qf,W . . 266 
 
 V. , Jurisdiction in Equity, 18 . 299 
 
 V. , Legacy 32 . . . .327 
 
 Waugh V. Morris, Shipping Law E 17 . . 533 
 Waverley, the, Shipping Law T 2 . . 646 
 
 Wayford v. Heyl, Baron and Feme 18 . . 83 
 
 V , Infant 6 .... 281 
 
 V. , Trust C 9 . . . .580 
 
 Wear Engine Works Co., in re. Company 117. 174 
 Weare, ex parte ; in re Clinton's Trust, Mar- 
 riage Settlement 18 364 
 
 Webb V. Earle, Company G 69 . . .164 
 
 V. Sadler, Power 14, 20 . . 437, 438 
 
 V. Whiffin, Company G 76 . . .165 
 
 , in re ; ex parte Gibbs, Bankruptcy D 
 
 5 65 
 
 Webber v. Corbett, Will, Construction, G 10. 607 
 
 , ex parte ; in re London Gas Meter Co., 
 
 Company 138 176 
 
 Webley v. Wooley, Gunpowder 1 . . . 271 
 Webster v. Overseers of Ashton - under- 
 Lyne; Hadfleld's case. Parliament 20, 
 
 66 406, 411 
 
 —. — V. ; Q-TTae's Q&se, Parliament 19 . 406 
 
TABLE OF CASES. 
 
 681 
 
 PAQE 
 
 Wedgwood v. Denton, Will, Construction, 6. 623 
 Weeks v. Propert, Company I) 50 . . 142 
 
 Weguelin v. Republic of Peru, Practice in 
 
 Equity Ul . . . . . 4S8 
 
 V. OelHer, Shipping Law 13 . .539 
 
 "Weiiersheim's case. Company D 65 . .144 
 "Weir T. Tucker, Pleading in Equity 11 . 430 
 
 Weise T. Wardle, Parties 2 . . . .411 
 Welch, in re ; ex parte Stone, Bankruptcy E 
 
 15 58 
 
 Weller v. London, Brighton, and South Coast 
 
 Eailway Co., Carrier 7 . . . .103 
 Wellesley t. Mornington, Costs in Equity 30. 203 
 WeUs V. Abrahams, Evidence 20 . . . 248 
 
 V. , Trover 9 .... 571 
 
 V. Kilpin, Judgment 8 ... 295 
 
 v.Mayorof Kingston- upon-HuU, Frauds, 
 
 Statute qf,S 263 
 
 V. WeUs, Will, Construction H 21 .610 
 
 Welsh Flannel and Tweed Co., in re. Com- 
 pany I 43 177 
 
 V. Mercer, Practice at Law 35 . . 443 
 
 Wemyss v. Hopkins, Autrefois Conmet . 40 
 West V. West, Divorce 81, 82 . . . 236 
 Ham Union, Guardians of, v. Ovens, 
 
 Poor Law 7 433 
 
 Hartlepool Iron Co., in re, Company 
 
 I 4, 25 172, 176 
 
 India and Pacific Steamboat Co., in re. 
 
 Company D 68 145 
 
 London Extension Railway Co. v. Ful- 
 
 ham Assessment Committee, Arbitration 
 
 31 • . 31 
 
 V. , Justice of the Peace 8 . . 302 
 
 Westbrook's Trusts, Practice 17 . . .447 
 Westcott,- ex parte ; re White, Bankruptcy E 
 
 19 68 
 
 Westenberg v. Mortimore, Costs at Law 20 . 200 
 Western of Canada Oil, Land, and Water- 
 works Company v. Walker, Company E 4 . 152 
 
 , in re. Company 13 . . .172 
 
 , Carling's case, Company D 40 . 141 
 
 Countiea Manure Co. v. Lawes' Chemical 
 
 Manure Co., Libel 1 . . . . 331 
 
 Western Life Assurance Society, ex parte ; in 
 
 re Albert Life Assurance, Company E 5 .147 
 Weston Y. Arnold, Bristol Improvement Act. 99 
 Westwick v. Theodor, Apprentice 1 . . 26 " 
 
 V , Contract 25 . . . .190 
 
 Weyford v. Heyl, Trust C 8 . . .580 
 
 Whaite v. Lancashire and Yorkshire Railway 
 
 Co., Carrier 26 107 
 
 Whalley, in re ; ex parte Boss, Banhrwptcy 
 
 05 . . . . . . . .53 
 
 Wheal Vyran Mining Co., in re ; Wescomb's 
 
 case. Company I 47 177 
 
 Wheatcroft's ease, in re Matlock Old Bath 
 
 Hydropathic Co., Company G- 7 . .163 
 Wheeler v. Gill, Administration 8 . . 7 
 Whincup V. Hughes, Apprentice 2 . .26 
 Whinney t. Schmidt, Prohibition 5 . . 485 
 Whitaker v. Eorbes, Venue 1 . . . 593 
 , ex parte ; in re Shackleton, Bamhrwpicy 
 
 G.43 67 
 
 , ySoZe 19 616 
 
 Digest, 1870-75. 
 
 FAQB 
 
 Whitaker, ex parte, Vmxdm- and Purchaser 'i\ 593 
 White V. Bowron, Church 9 . . .117 
 
 V. Cordwell, Administration 35 . .10 
 
 V. , Ba/ron and Feme, 14 . 88 
 
 T. , Limitations, Statute of, 31 339 
 
 — — V. Feast, Malicious Injury 2 . . 345 
 
 V. Hindley Local Board, Negligence 14 . 394 
 
 V. Hunt, Composition Deed 1 . .181 
 
 T ', Seed 6 224 
 
 V. Jameson, Injunction 41 . . . 288 
 
 — V. Simmons, Bankruptcy A 9 . .47 
 
 V. , Jurisdiction in Equity 9 . . 299 
 
 V. White, Deed 10 . . . 225 
 
 , ex parte. Acknowledgment 6 . . 2 
 
 , in re ; Morley v. White, Bankruptcy 
 
 All 48 
 
 , in re ; ex parte Morley, Partnership 6. 415 
 
 , in re ; ex parte Nevill, Sale 24 . .517 
 
 , in re ; ex parte Westcott, Bankruptcy 
 
 E 19 58 
 
 Whitechurch v. East London Eailway Co., 
 
 Eaies 16 503 
 
 Whitehead v. Whitehead, Apportion/ment 6 . 25 
 Whiting V. Bassett, Practice in Equity 3 . 446 
 
 V. Burke, Principal and Surety 10 . 466 
 
 Whitmore v. Humphries, Landlord and 
 
 Tenant 17 306 
 
 V. , Limitations, Statute of, 21 . 338 
 
 Whittaker v. Forbes, Venue 1 . . . 593 
 
 , ex parte; in re Shackleton, Sale 19 . 616 
 
 V. , Vendor and Purchaser 31 . 593 
 
 Whyte V. Whyte, Legacy 21 . . . 326 
 
 Widdows' Trusts, in re, Presumption 4 . . 469 
 Widnes Eailway Co., in re. Railway 31 . 497 
 
 Wield's Patent, in re. Patent 29 . . . 423 
 Wier, ex parte ; in re Wier, Bankruptcy B 32 52 
 
 , Bankruptcy N 14 . . .77 
 
 Wigan Junction Eailway Co., in re, Practice 
 
 in Equity 77 452 
 
 Wight's Mortgage Trust, in re, Mortgage 26. 383 
 Wigg V. NichoU, CAarii^ 26 . . .114 
 
 Wike, in re ; ex parte Keighley, Bankruptcy 
 
 K 4 76 
 
 Wilby V. Elgee, CoKiraci! 3 . . . .186 
 Wilcock V. Carter, Injunction 12 . . . 284 
 Wilcocks, ex parte ; in re Wilcoeks, Bank- 
 ruptcy M 16 . . . . . • . 75 
 Wildbore v. Gregory, Power 3 . . . 435 
 Wilde, in re ; ex parte Daglish, Bill of Sale 
 
 4 95 
 
 , Fixtures 3 256 
 
 Wildes V. Dudlow Frauds, Statute of 1 . 263 
 
 Wilkinson V. Barber, Charity 10 . . .111 
 
 V. , Costs in Equity 23 . . 202 
 
 V. Clements, Lease 6 . . . .318 
 
 V. Dent, Election 4 . . . .240 
 
 V. Joberns, Partition 13 . . .413 
 
 v. Joughin, Infant 10 ... 281 
 
 V. Verity, Limitations, Statute of , 22 .338 
 
 V. Wilkinson, Will, Construction 6 . 623 
 
 , in re, LvMatic 10 .... 343 
 
 Wilkinson's Mortgaged Estates, in re, Con- 
 firmationof8alesAct2 . . . .183 
 
 , Mortgage 9 380 
 
 Willem nL, The, Shipping Law T 13 .547 
 
 4S 
 
682 
 
 TABLE OF CASES. 
 
 PAGE 
 
 ■Willesford v. Watson, Arbitration 7 . .27 
 ■William Lindsay, The, Shipping Law F 15 . 536 
 ■Williams v. Arkle, Will, Construction H 33 . 611 
 ■Williams v. Aylesbury and Buckingham Eail- 
 •vi&y Co., Lands Clauses Act Z6 . . .312 
 
 V. Evans, Frauds, Statute of 16 . . 266 
 
 v. , Landlord and Tenant 2 . . 304 
 
 V. , Practice in Equity 35 . . 448 
 
 — V. Financial Corporation, Company E 9 148 
 —^ V. Games, Partition 15 . . . 413 
 
 — V. Guest, Practice in Equity 25 . . 447 
 — - V. The Great ■Western Railway Co., 
 
 Eailway 22 495 
 
 V. Haythome, Will, Construction H 8 . 608 
 
 V. Heales, Executor 27 . . .* . 252 
 
 T. Lear, Turnpike 1 . . . . 683 
 
 T. Pott, Limitations, Statute of, 4 . 335 
 
 T. "Williams, Damages 14 . . . 218 
 
 V. • , in re ■Williams, Administra- 
 tion 9 7 
 
 T. , Will, Construction H 8 . . 608 
 
 , ex parte, in re Davies, BanJcruptcy 
 
 G20 64 
 
 , in re, ex parte "Williams, Bankruptcy 
 
 D 2 {Notices to Creditors) . . . ,65 
 , Bankruptcy E 32 {Procedwre and Evi- 
 dence) 60 
 
 , Bankruptcy N 26 {Service of Summons) 78 
 
 ■WUliams's Estate, in re (Payment out), (Tax- 
 ation), Costs in Equity 35 . . . . 204 
 ■Williamson v. Frere, Libel 7 ... 331 
 
 V. ■Williamson, Lease 4 . . . . 318 
 
 "Willis v. Harris, London 9 . . . .341 
 
 T. Thorpe, Hosiery .... 278 
 
 "Willock V. Noble, £aro» ffi»<Zi''e»ie 10 . . 84 
 "Wills V. Boxrrne, Administration 26 . .9 
 
 V. ■Wills, Will, Construction LI . .616 
 
 "Wilkins, inre, DeWors^ci! 12 . . .222 
 Wilson V. Bolton, Mayor, &c., of. Public 
 
 Health Act 11 490 
 
 T. Ferrand, Practice in Equity 139 . 458 
 
 T. Hodgson, Executor 28 . . . 252 
 
 ^. Johnstone, Partnership IQ . .417 
 
 V. Lloyd, Pleading in Equity 7 . . 430 
 
 I T. , Principal and Surety 17 . .468 
 
 V. New'berry, Negligence 6 . . . 393 
 
 V. The Northampton and Banbury June- 
 
 tion Railway Co., Prodmciion 16 . . 481 
 
 V. , Bailway 10 ... . 493 
 
 T. , Specific Performance 2 . . 549 
 
 v. O'Leary, Evidence, 1, 2 . . 245, 246 
 
 V , Legacy 20, 35 . . . 325, 327 
 
 V. Thomson, Costs in Equity 28 . . 203 
 
 V. Thornbury, Election 7 . . . 240 
 
 T. , Practice in Equity 66 . .461 
 
 V. , Production 25 . . . . 482 
 
 V. Wilson, Shipping Law I 16 . . 642 
 
 V. , JDomicil 1 . . , . 236 
 
 V. , Divorce 2, 3 (Power to make 
 
 rules) 227 
 
 V. , Divorce 24 (Plea io jurisdiction) 230 
 
 T. , Divorce 60 (Dismissal of respon- 
 dent from suit) 233 
 
 T. , Divorce 72 (Appeal) . . 235 
 
 T. , Divorce 74 (Costs) , . .236 
 
 27 
 167 
 267 
 
 58 
 67 
 
 102 
 285 
 
 180 
 423 
 
 394 
 473 
 347 
 
 482 
 
 527 
 
 303 
 
 91 
 
 PAGE 
 
 Wilson, ex parte, in re Durham Permanent 
 Benefit Building Society, Arbitration 3 
 
 , Company G 2 . 
 
 , Friendly Society 1 . . . 
 
 , ex parte, in re Douglas, Bankruptcy 
 
 E 16 
 
 , in re, Bankruptcy G 39 
 
 Wilts and Berks Canal Co. t. Swindon Water- 
 works Co., Canal 2 
 
 T. , Injunction 16 . 
 
 Wiltshire Iron Co. v. Great Western Kail- 
 way Co., Company I 70 . 
 Winan's Patent, in re. Patent 27 . , 
 Winch V. The Conservators of the River 
 
 Thames, Negligence 15 . 
 Windeatt v. S'harland, Probate 25, 26 . 
 Windham v. Giubilei, Manor 1 . . . 
 
 V. , Production 23 . 
 
 Winter v. Attorney-General of "Victoria, Crown 
 
 Lands 2 216 
 
 , ex parte, in re Softley, Bankruptcy B 3 48 
 
 , Shipping Law A 1 
 
 , in re, Land Begistry 2 . 
 
 Wirth V. Austin, Bitl of Exchange 16 . 
 Wiseman, ex parte, in re Kelson, Tritton & 
 
 Co., Bankruptcy E 1, 6 . . . 55, 66 
 Witt V. Corcoran, Arbitration 7 . . .27 
 WolflF V. Goldring, Practice at Law 33 . . 443 
 Wolverhampton and Walsall Railway Co. v. 
 London and North-Western Railway Co., 
 
 Injunction 5 283 
 
 Wood V Boucher, Costs in Equity 31 . . 203 
 
 V. Saunders, Easement 1 . . . 238 
 
 V. Smith, City of Cambridge, The, 
 
 Shipping Law El 646 
 
 V. Weightman, Executor 33 . , . 253 
 
 V. Woad, Action i .... 3 
 
 , in re, ex parte Naden, Bankruptcy 
 
 E 7 66 
 
 , in re, ex parte Luckes, Bankrv/ptcy B 12 
 
 (Fraudulent Preference) . , . .60 
 
 , Bankruptcy Q, 6 (Costs of Trustee) . 82 
 
 Wood's case, in re National Equitable Provi- 
 dent Society, Company G 8 . . . 153 
 
 Estate-, in re. Lands Clauses Act 42 .313 
 
 . , Tenant for Life IS . . . .662 
 
 Settled Estates, in re. Settled Estates 
 
 Acts 19 525 
 
 , Practice in Equity 94 . . . . 454 
 
 Trusts, in re, Costs in Equity 33 . . 203 
 
 , Trust D 10 582 
 
 Woodbridge v. Hoare, Practice in Equity 52 . 449 
 Woodcock's Settled Estates, in re, Practice in 
 
 Equity 74 . . , . . . . 452 
 WoodfaU V. Arbuthnot, Probate 8 . . .471 
 
 , In the goods of, Probate 8 . . . 471 
 
 Woodford v. Brooking, Mortgage 46 . . 386 
 Woodhouse v. Etheridge, Fishery . . . 256 
 Woodward v. Pratt, Practice in Equity 96 . 464 
 
 V. Sarsons, Municipal Corporation 13 . 389 
 
 , In the goods of, Will, Formalities 31 . 629 
 
 Woosung Cargo, Ex, Shipping Law T 1, 14 646, 647 
 Workington Local Board v.Coekermouth Local 
 
 Board, Injunction 34 . . , , 287 
 V. , Public Health Act 4 . . , 487 
 
TABLE OF CASES. 
 
 683 
 
 PAQB 
 
 "Worthington v. JefiHes, ProMhition 2 . . 485 
 Wotherspoon v. Currie, Trade Mark I . . 566 
 Wotton, In the goods of, Will, Formalities 8 . 627 
 Wright V. London and North- Western Rail- 
 way Co., Negligence 23 ... . 396 
 
 V. The Midland Eailway Co., Carrier 15 105 
 
 T. Pitt, Account 2 .... 1 
 
 v. , Mines 19 .... 377 
 
 ■ V. Eogers and Goodiaon, Probate 46 . 476 
 Wright's case, in re London and Mediterranean 
 
 Bank, Company G 22 ' . . . .156 
 Wrigley, in re, ex parte Eeader, Banh'Ujptcy 
 
 B 1, 19 48, 51 
 
 , JSanhruptci/ "Sii 21, Si . . ■ 78, 79 
 
 Wulff V. Jay, Principal and Surety 14 . . 467 
 Wyman T. Carter, firccM^oj- 1 1 . . . 261 
 Wynn's Estates, in re. Confirmation of Sales 
 
 Act i 183 
 
 Wynne in re, in re United Ports Insurance 
 
 Co., Company ^1 146 
 
 , Lunatic 3 342 
 
 Wytcherly V. Andrews, Compromise 1 . .182 
 
 Yardley v. Holland, WHl, Construction 
 
 I 10 612 
 
 Yates V. Leaeh, Municipal Corporation 16 . 390 
 
 PAGE 
 
 Yates V. University College, London, House of 
 
 Lords 6 278 
 
 V , Legacy 24 . . . .326 
 
 V. , Will, Construction 2 . .623 
 
 Yeo V. Tatem, The Orient, Admiralty 2 (Juris- 
 diotion) , . . . . . .11 
 
 T. , Admiralty 48 (Appeal for Costs) 16 
 
 Yglesias, in re, ex parte General South Ame- 
 rican Steam Navigation Co., Bill of Ex- 
 change 30 94 
 
 , in re, ex parte Gomez, Bankruptcy G 23 92 
 
 Youde V.Cloud, TVjMiB 19 . . . .677 
 Youl, in re. Practice in Equity 109 . ■ 486 
 Young V. Young, Partition 23 . . . 414 
 Ystalyfera Iron Co. v. Neath and Brecon 
 Bail. Co., Lands Clauses Act 2, 3 . . 208 
 
 Zambaoo v. Cassavetti, Practice in Equity 49 449 
 
 V , Trust C 10 . . . .680 
 
 Zeta, The, Slapping Law T 16 . . . 548 
 Zetland v. Glover Incorporation, Scotch Law 
 
 32 621 
 
 Zouche, Lord, v. Dalbiac, Copyhold 1 . .193 
 
 V. , Limitations, Statute ofS. , 336 
 
 Zucco, in re, ex parte Cooper, Banhrwptey 
 
 G 46 68 
 
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